Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Los Angeles County, No. BA309005, Luis A. Lavin, Judge.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant Rudolph Ellis.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Tony Devone Call.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Joseph P. Lee and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Jackson, J.
INTRODUCTION
Defendants Rudolph Ellis (Ellis) and Tony Devone Call (Call) appeal from a judgment of conviction entered after a jury trial. Ellis was convicted of the first degree murders of Joseph Cannon and Larry Harris (Pen. Code, § 187, subd. (a)), and the jury found true the allegations he personally used a firearm in the commission of the murders (id., § 12022.53, subd. (d)). The jury also convicted Ellis of assault with a firearm on Edward Goldsmith and S.H. (id., § 245, subd. (a)(2)) and found true the allegations he personally used a firearm in the commission of the assaults (id., § 12022.5, subd. (a)). The jury found true the allegations that all the crimes were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(4)). The trial court sentenced Ellis to a determinate state prison term of 20 years and 8 months, plus a consecutive indeterminate term of 120 years to life, for a total term of 140 years and 8 months to life.
The jury convicted Call of the first degree murder of Larry Harris (Pen. Code, § 187, subd. (a)), in which he personally used a firearm (id., § 12022.53, subd. (d)), and of assault with a firearm on Edward Goldsmith and S.H. (id., § 245, subd. (a)(2)), in which he personally used a firearm (id., § 12022.5, subd. (a)). The jury found true the allegations he committed these crimes for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The jury also convicted Call of possession of a firearm by a felon (id., § 12021, subd. (a)(1)). The trial court found true the allegation Call had a prior serious felony conviction (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12). It sentenced Call to a determinate prison term of 25 years and 8 months and an indeterminate term of 85 years to life, for a total term of 110 years and 8 months to life.
On appeal, Ellis challenges the trial court’s denial of his Marsden motions, and he claims evidentiary, instructional and sentencing errors. Call challenges the denial of his severance motion and also claims evidentiary, instructional and sentencing errors.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
A. Prosecution
1. Attempted Murder of Milo New
Ellis was charged with the attempted murder of Milo New but was acquitted on that count.
On the evening of December 11, 2005, Milo New (New) was walking near 51st Street and Central Avenue. A man wearing a hooded garment fired three shots at him. New believed that Ellis was the man who shot at him.
2. Murder of Larry Harris and Assault on S.H. and Edward Goldsmith
In January 2006, there was a war going on between the 48th Street Gangster Crips (48th Street) and the Five Trey Avalon Crips (Five Trey). The two gangs claimed adjoining territories.
Ellis was a member of 48th Street. Call’s son, Anthony Jr., had been a 48th Street member but was murdered in gang-related violence. Anthony Jr.’s funeral was held on January 27.
On the morning of January 27, Larry Harris (Harris) was driving his daughter, S.H., to school. Riding with them was Edward Goldsmith (Goldsmith). Harris was a high-ranking Five Trey member and had tattoos identifying him as a member of the gang. Goldsmith also was a Five Trey member, known as “Treyball,” with tattoos identifying him as a member of the gang.
The car was stopped at a red light at the intersection of 47th Street and Broadway. Gunshots rang out, and the driver’s window shattered. Harris grabbed his side and attempted to drive away. He eventually lost control of the car, which crashed into another vehicle. He told S.H. that if he died, he knew the man who shot him; it was Tony C. He also told her to tell the family that he loved them.
S.H. and Goldsmith were able to get out of the car. Goldsmith took S.H. into a nearby house, where he called the police.
Harris died of multiple gunshot wounds.
3. Murder of Joseph Cannon
On the afternoon of September 2, 2006, Joshua Montoya (Montoya) was walking on 50th Street between Wadsworth and Central Avenues, when he met his friend, Joseph Cannon (Cannon), whom he knew as “Bug.” Cannon was carrying a pair of shoes. He looked scared and was breathing hard. Cannon said he had been “banged on by a couple of guys.” He had been going to see New when the two men asked if he was from Five Trey or Avalon. He thought that one of the men was Rudy, a member of 48th Street.
As Cannon walked away, Montoya heard someone running toward Cannon. Montoya turned and saw a man, whom he identified as Ellis, confront Cannon. Cannon told Ellis, “I don’t bang.” Ellis drew a large handgun and shot Cannon twice in the face. Cannon turned and tried to run. Ellis shot him several more times, and Cannon fell to the ground.
Ellis turned and looked at Montoya. Montoya stared back, and Ellis pointed his gun at him. Ellis turned to look at Cannon again and then walked away. After the police arrived, Montoya told them he would talk to them later, in private. He did not want to talk to them in public with a lot of people around.
Larry Clark (Clark) was asleep in his room on 50th Street when he was awakened by the sound of gunfire coming from the street below. He looked out the window and saw a man shooting at Cannon as Cannon tried to run away. After Cannon fell to the ground, the man stood over him and continued shooting. The man then walked away.
Clark was reluctant to speak to the police at the scene. His former roommate was a 48th Street member, and he was afraid he would be killed if his former roommate learned he had talked to the police. Later that day, however, the police showed Clark a six-pack of photographs, and he identified one as the shooter. About a month later, the police showed Clark a second six-pack. He identified a different person and said that his previous identification was a mistake. At trial, Clark identified Ellis as the shooter. Clark said he had known Ellis for about a year and knew Ellis to be a 48th Street member.
Pedro Guerrero (Guerrero) was in his apartment on 50th Street when he heard gunshots. He looked out his window and saw two men running. The man in back shot the man in front. The man in front fell to the ground. As he yelled “no” and attempted to crawl away, the other man shot him again. The shooter then left. Guerrero saw only his profile and described him to police as being about six feet tall and skinny. Guerrero identified Ellis’ hairstyle as similar to that of the shooter.
Cannon was on his way to New’s home to return a pair of shoes. New heard about six gunshots coming from the street and looked out his window. He saw a man running down the street while tucking a gun into his waistband. New thought he recognized the man as “Rudy,” whom he knew from a prior confrontation.
New did not testify at trial, but his preliminary hearing testimony was read to the jury.
New went outside, where he found Cannon lying in the street. New called 911. He told the operator he was on the 1000 block of East 50th Street. A 48th Street gang member had fired six to eight shots. The victim was “shot up bad” and bleeding. The shooter had run down an alley toward 48th Street and Central Avenue. New described the shooter as “about 5’9, about 140 or 150, [with] short-cut hair and brown skin.” He said he recognized the shooter as “Rudy,” who had recently shot at him.
New later identified Ellis as the shooter from a photographic lineup. New acknowledged he previously was a Five Trey member.
At the preliminary hearing, however, New testified that his identification of Ellis as the shooter was a mistake; the events happened quickly and he did not get a good look at the shooter. Additionally, the man whom he identified as “Rudy” might not have been tucking a gun into his pants; he might just have been pulling up his pants. New also testified that he was unsure if Ellis was the man who had previously shot at him.
Cannon died from multiple gunshot wounds.
4. Police Investigation
Los Angeles Police Detectives Sunny Romero and Salam Abdul were called to the scene of the Harris murder on January 27, 2006. They observed a Chevrolet Tahoe on the wrong side of the street, with bullet holes in the door and blood on the driver’s seat. They recovered a projectile from the door. They recovered another projectile from the vehicle several days later.
Los Angeles Police Detectives Julio Benavidas and David Torres attended Anthony Jr.’s funeral later that day. Anthony Jr. was known as “Little Chone,” and Call was known as “Big Chone.” Call often hosted parties for Anthony Jr. and other 48th Street members. Detectives Benavidas and Torres were at the funeral because there was a strong possibility that 48th Street members would retaliate for Anthony Jr.’s murder. Additionally, gang members often terrorized mourners at the funerals of rival gang members. While at the funeral, the detectives learned of Harris’ murder. Several Five Trey members were arrested in the vicinity of the funeral for possession of handguns. Goldsmith also was arrested for violating his probation by associating with gang members.
Detective Abdul interviewed Goldsmith on January 31. Goldsmith said he was acquainted with “Chone”—Anthony Jr.—the son of one of the men who killed his friend, “Big Pook”—Harris. Goldsmith also knew “Little Rudy,” who was the son of the other man who killed Harris, “Big Rudy”—Ellis.
Goldsmith did not testify at trial. Tapes of his interviews were played for the jury, and his preliminary hearing testimony was read for the jury.
“Little Rudy” was a 48th Street member who was murdered.
Goldsmith told Detective Abdul that when he was riding with Harris and S.H., a white car was following them. When they stopped at a traffic light, “Big Rudy” jumped out and started shooting at them. A second man got out of the car, but Goldsmith was too busy running to see if the second man also shot at them.
Goldsmith told Detective Abdul that after the shooting, someone told him that “Rudy” was looking for him. A number of people told him to be careful. Goldsmith also ran into Ellis’s wife, whom he had never met before, who told him that her husband “didn’t do nothing.” Goldsmith feared for his family’s safety and wanted to protect them from being harassed.
On September 2, 2006, Los Angeles Police Officer Jimeigh Chapman responded to the scene of the Cannon shooting. Cannon was still alive, though bleeding profusely, and Officer Chapman called for an ambulance. At least six bullet casings were recovered at the scene.
On September 6, 2006, Officer Todd Bracht and his partner interviewed New regarding the Cannon murder. Officer Bracht had spoken to New in December 2005, when New was the victim of a shooting. On that previous occasion, New told officers that a member of 48th Street had been giving him “hard looks” for awhile, and had then fired three shots at him. On September 6, Officer Bracht showed New a six-pack and New identified Ellis as both the man who had shot at him in December and the man who had shot Cannon. New was certain of his identification.
Detectives Benavidas and Torres were assigned to investigate the Cannon murder. They interviewed Montoya on September 8. Montoya described the shooter and selected a photograph from a six-pack as being that of the shooter.
At some point, Detectives Benavidas and Torres’s investigation expanded to include the Harris murder. Detective Benavidas and Detective Villa interviewed Goldsmith on October 25. Goldsmith said that Harris was “like a father” to him. While he and Harris were taking S.H. to school, he noticed a car following them. Harris asked Goldsmith about the car, and Goldsmith affirmed that it was following them. Harris sped up to try to evade the car, but it caught up to them at a traffic light.
Two of the three men in the car jumped out. At least one of them started shooting at Harris. Harris was hit by gunfire. He told Goldsmith, “I know who it was. It was Tony.” He also asked Goldsmith to grab S.H. Harris lost control of the car and Goldsmith grabbed the steering wheel from the back seat. The car hit another car and then crashed into a wall. Goldsmith got out of the car and heard more gunshots. He pulled S.H. out of the car and escaped into a neighbor’s house.
Goldsmith knew “Tony” as “Big Chone.” He said “Big Chone” was older, in his 30s, and had “banged” on him before. “Big Chone” had a son, “Little Chone,” who had been murdered.
Detectives Benavidas and Villa showed Goldsmith a six-pack photographic lineup. Goldsmith identified a photograph of “Little Rudy,” the man in the back seat of the car, who shot at Harris and Goldsmith. The detectives showed Goldsmith a second six-pack, from which Goldsmith hesitantly identified a photograph of “Big Chone,” who sat in the front seat of the car. Goldsmith said that both ‘Little Rudy” and “ Big Chone” shot at him.
At the preliminary hearing, Goldsmith denied telling Detectives Benavidas and Villa anything. He told them to go away, and they threatened to frame him unless he gave them information. They showed him pictures of Ellis and Call, and then they showed him a six-pack. Detective Villa circled one of the photographs, and Goldsmith initialed. They showed him a second six-pack, and Goldsmith circled and initialed one of the photographs. The two circled photographs were of Ellis and Call. Goldsmith acknowledged that he had friends in Five Trey, including Harris, but denied having any personal gang affiliation.
On November 1, Detectives Benavidas and Villa interviewed Call, who waived his Miranda rights and agreed to talk to them. Call stated that on the morning of January 27, he was home with his wife. She woke him up between 6:45 and 6:55 a.m. He then went with his friend Dick Strong (Strong) in Strong’s van to buy heroin. After buying three bags of heroin, he and Strong went to his mother’s house to use the drugs. They returned to Call’s house by 8:15 a.m.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Call acknowledged that his son, “Chone,” had been a member of 48th Street. Call said he was still hurting from his son’s murder. Call also said that he had known “Big Pook”—Harris—for about 10 years.
Detectives Benavidas and Villa also interviewed Call’s brother, Kevin Call (Kevin). Kevin stated that he saw Call at 7:00 a.m. on January 27. They were together until 9:00 or 9:15 a.m., when the limousine arrived to pick up the family. Kevin knew Strong, who was a well-known drug dealer. He did not know Strong’s address or telephone number, and had not seen Strong for about six months. At trial, however, Kevin denied telling the detectives any of this.
5. Gang Evidence
Officer Alfred Garcia was familiar with both 48th Street and Five Trey. The former was a subset of the Four Trey gang, whose members he had arrested for murder, attempted murder, assault with a deadly weapon, carjacking, robbery, sale of narcotics, and other offenses. Members of 48th Street had been convicted of robbery, possession of cocaine base for sale and other felonies. The two gangs have been engaged in a violent rivalry since 2005.
Officer Garcia was familiar with Anthony Jr., who had been an admitted member of 48th Street and convicted of robbery. He also was familiar with Call and Ellis, who had admitted to him that they were cousins. In addition, he knew Harris and Goldsmith, both of whom were Five Trey members.
According to Officer Garcia, Call lived in 48th Street territory. He had thrown parties for Anthony Jr. and his fellow gang members and had allowed gang members to congregate at his house. Call also had gang tattoos. It was Officer Garcia’s opinion that Call was closely associated with 48th Street.
Officer Garcia had arrested Ellis in the past. He had seen Ellis congregating with 48th Street members, and Ellis claimed allegiance to that gang. It was Officer Garcia’s opinion that Ellis was an active member of 48th Street. The officer noted that the only other “Rudy” in the gang was Ellis’ father, who had been in custody since 2000.
Officer Garcia testified that in gang culture, it is bad to be a “snitch,” i.e., to report crimes to the police. A person could be killed for being a “snitch.”
According to Officer Garcia, Harris was an O.G.—Original Gangster—in Five Trey, meaning that he was a leader. Killing a leader of a rival gang hurts that gang and therefore benefits its rival.
Given a hypothetical in which a close associate of 48th Street was involved in killing Harris, Officer Garcia opined that the killing benefited the gang. In addition to the benefit derived from hurting its enemy, a killing in a residential neighborhood in broad daylight helps to create fear and intimidation, so that civilian witnesses will be reluctant to speak to the police about crimes in which the gang may be involved.
The same rationale applied to the assault on New and the killing of Cannon. These acts would elevate the status of 48th Street and create fear and intimidation.
B. Defense
1. Ellis
Ellis lived with his mother, Annette Davis (Davis), in Buena Park. At about 8:10 on the morning of January 27, 2006, Davis and Ellis left for Los Angeles to attend the funeral of Anthony Jr., who was Davis’ nephew. They drove to the home of Ellis’ grandmother, Christine Smith. They arrived at Smith’s house at about 9:00 a.m. Davis and Ellis gathered with his grandmother, her daughter, Darlene Smith (Smith), Darlene’s children and other family members. After everyone was assembled, they went around the corner to get into the limousines that would take them to the funeral.
Ellis’ sister, Renata Ellis (Renata), and his girlfriend, Fatima Hall (Hall), met Ellis at Smith’s house shortly after 9:00 a.m. They rode to the funeral together in one of the limousines. Ellis’ great aunt, Maxine Lipsey, also saw Ellis at Smith’s house. She saw him again at the church where the funeral was held at about 9:55 a.m.
Ellis, who was one of the pallbearers, remained at the church during the entire funeral service. After the service ended, he rode with Renata in a limousine to the cemetery.
On September 2, 2006, Hall threw a birthday for Ellis’s and her daughter, Taniya. Hall went out about 10:30 a.m. on the morning of September 2 to run some errands. She returned about 11:00 a.m., and Ellis took Taniya to buy an outfit for her birthday. They returned about 12:00 p.m. Ellis then helped Hall set up for the party.
Davis, Smith and Renata attended the birthday party. Davis and Smith saw Ellis in the backyard, setting up for the party. Davis left at about 7:00 that evening; Ellis remained at Hall’s house the entire time that Davis was there.
Jason Douglas (Douglas), Ellis’ brother-in-law, arrived at the party about 1:30 p.m. He saw Ellis at the party. He took Ellis to Staples Center sometime between 5:00 and 6:30 p.m.
The party was held in the 800 block of East 49th Street. This was a short distance from the 1000 block of East 50th Street, where Cannon was killed.
2. Call
On January 27, 2006, Call’s daughter, Ashley Peterson (Peterson), who lived with her parents, woke up at 6:15 a.m. She tried to wake Call up at 7:00 a.m. to get ready for Anthony Jr.’s funeral, but she was unable to do so. When she went to take a shower at 8:00 a.m., she saw that he was still asleep. When she got out of the shower 15 or 20 minutes later, she saw that Call was gone. She saw him again at about 9:00 or 9:15 a.m.
Dr. Kathy Pezdek, a psychologist, is an eyewitness identification expert. She reviewed the transcript of the preliminary hearing in this case, transcripts of the police interviews with Goldsmith, and various police reports.
Dr. Pezdek testified that human memory does not function like a video camera. The accuracy of an eyewitness identification depends on a number of factors, including the amount of time the witness was able to look at the perpetrator’s face, the presence or absence of any distractions, the amount of time that elapsed since the event took place, the suggestiveness of any interviews concerning the event, and any cues concerning identification given during the interview. Dr. Pezdek also noted that there is very little correlation between a witness’ certainty as to identification and the accuracy of that identification.
While people can be quite accurate in their memory of events, under the circumstances of this case, Dr. Pezdek believed that memories of the events in question were not likely to be accurate. She added that when a witness makes an incorrect identification, it is often a mistake or due to a memory failure rather than due to dishonesty.
DISCUSSION
A. Denial of Call’s Severance Motion
Prior to trial, Call moved to sever his trial from that of Ellis. He claimed that because Ellis was charged with Harris’ murder, and there was strong identification evidence in that case, a jury might find him guilty due to his association with Ellis. Additionally, he should not be forced to give up his right to a speedy trial due to Ellis’ need for more time to prepare for trial.
At the hearing on the motion, Ellis joined in the motion. Call additionally argued that the case against him was not “a typical gang case,” and the only way it became a gang case was through Ellis’ gang membership. He noted that “the gang officer who did testify at [the] preliminary hearing did state that there was a possibility that this was more of a family type of revenge situation than a gang retaliation.” Call asserted that he therefore would be prejudiced by the gang evidence. The trial court denied the motion.
Penal Code section 1098 provides in pertinent part that “[w]hen two or more defendants are jointly charged with any public offense,... they must be tried jointly, unless the court order separate trials.” This provision reflects a legislative preference for joinder in the interests of justice and judicial economy. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40; People v. Hardy (1992) 2 Cal.4th 86, 167.) Thus, joinder is the rule and severance the exception. (People v. Cleveland (2004) 32 Cal.4th 704, 726.) A defendant seeking severance must clearly demonstrate a substantial danger of prejudice should the defendants be tried together. (Cf. People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Memro (1995) 11 Cal.4th 786, 849.)
A substantial danger of prejudice may result from an incriminating confession by one defendant implicating another, the likelihood of confusion from evidence on multiple counts, conflicting defenses, or the association of one defendant with another. (People v. Box (2000) 23 Cal.4th 1153, 1195.) It also may result where “‘(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; [or] (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges....’” (People v. Memro, supra, 11 Cal.4th at pp. 849-850, citations omitted; accord, People v. Bradford, supra, 15 Cal.4th at p. 1315.)
The trial court’s ruling on a severance motion is a discretionary one which we review for abuse. “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Memro, supra, 11 Cal.4th at p. 850; accord, People v. Bradford, supra, 15 Cal.4th at p. 1315.) We will reverse a judgment based on the denial of a severance motion if, because of consolidation, “‘“gross unfairness”’ has deprived the defendant of a fair trial” (People v. Ervin (2000) 22 Cal.4th 48, 69), and it is reasonably probable he would have received a more favorable result in a separate trial (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41).
It is true that evidence concerning the New shooting and Cannon murder, with which Ellis alone was charged, would not have been cross-admissible in separate trials. An absence of cross-admissibility does not in itself demonstrate prejudice, however. (People v. Memro, supra, 11 Cal.4th at p. 850.)
Call argues that evidence concerning the New shooting and Cannon murder was “simply a means of establishing Call’s propensity for engaging in the kind of behavior which resulted in Harris’ death because he was accused of committing that crime with a known violent gangster (Ellis) whose guilt in an unrelated murder (Cannon’s killing) was overwhelming. [¶] The prosecution’s purpose in joining all counts was clearly to paint the gang culture as ruthless and blood thirsty and whose anti-social behavior had no limits.”
The evidence concerning the Harris murder was sufficient to portray the gang culture and Call in a negative light. The murder took place on the same day as the funeral of Call’s son, who was himself a victim of gang violence. Harris was killed in a drive-by shooting while driving his daughter to school, putting his daughter and innocent bystanders on the road at risk. Call, if not an active gang member, was an associate of 48th Street, allowing gang members to congregate at his house and throwing parties for them. The evidence concerning crimes committed only by Ellis added nothing to any prejudice which might result from Call’s gang association and actions on behalf of the gang.
While there was a possibility that the Harris murder was “a family type of revenge situation [rather] than a gang retaliation,” there was enough evidence that it was a gang retaliation that the gang evidence would have been admitted even if trial of the two defendants had been severed. Thus, severance would not have protected Call from negative gang evidence.
Call suggests that the evidence concerning Ellis’s “solo ventures” was highly inflammatory and thus prejudicial. He argues “the prejudicial spill over effect of joining Ellis’s separately charged offenses—guilt by association with a person who commits random acts of cold blooded violence as evidenced by his actions in continuing to fire upon a downed Joseph Cannon as Cannon writhed and begged for his life—cannot be denied.”
The Harris murder was no less violent and cold-blooded than the Cannon murder. Harris was shot multiple times while stopped at a red light, with his daughter and Goldsmith in the car. He was unable to escape his assailants or defend himself. The Cannon murder was not so much more inflammatory that Call would be prejudiced in his defense against the charge of murdering Harris.
Call also contends that the case against Ellis for the Cannon murder was so much stronger than the case for the Harris murder, that he was prejudiced by the joinder. Specifically, there were several eyewitnesses to the Cannon murder who identified Ellis as the killer. By contrast, the only eyewitness to the Harris murder was Goldsmith, a gang member who did not testify at trial. The only other evidence implicating Call was the testimony of S.H. as to her father’s identification of the shooter as Tony C.
However, the same eyewitness—Goldsmith—provided the identification of both Call and Ellis. There was no stronger evidence implicating Ellis in the Harris murder than there was implicating Call. Moreover, it is clear the jury was able to examine separately the identification evidence as to each charged crime. It convicted Ellis of the Harris and Cannon murders but acquitted him of the assault on New.
In summary, there was no substantial danger of prejudice from joinder. (People v. Box, supra, 23 Cal.4th at p. 1195; People v. Memro, supra, 11 Cal.4th at pp. 849-850.) The trial court therefore did not abuse its discretion in denying Call’s severance motion. (People v. Bradford, supra, 15 Cal.4th at p. 1315; Memro, supra, at p. 850.)
Additionally, as the People point out, the prosecutor emphasized in closing argument that Ellis and Call were charged together in certain crimes and separately in others. When discussing the Cannon murder, he reminded the jury that it was “a crime that has nothing to do with Tony Call.”
The jury instructions, as well, reminded the jury to consider the evidence admitted as to each defendant and each count separately, and to decide each count separately. (CALCRIM Nos. 203, 304, 305, 520, 600.) The jury is presumed to have followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
The instructions and argument served to dispel any possible prejudice resulting from the joinder of the counts against Ellis only with those against Call and Ellis. There thus was no gross unfairness resulting from the joinder which requires reversal of Call’s convictions. (People v. Ervin, supra, 22 Cal.4th at p. 69.)
B. Evidentiary Error
1. Admission of Goldsmith’s and New’s Preliminary Hearing Testimony
Both Goldsmith and New testified at defendants’ preliminary hearing in March 2007. On October 23, 2007, six days after the trial began, the trial court held a due diligence hearing regarding the prosecution’s efforts to secure Goldsmith’s and New’s attendance at trial.
Detective Torres testified that on October 22, officers went to Goldsmith’s address to serve him with a subpoena. A woman who identified herself as Goldsmith’s aunt told them that Goldsmith used that address but did not live there, and she did not know where he was living. Detective Torres contacted Goldsmith’s probation officer, who had not had contact with Goldsmith and had no telephone number for him. He checked police and arrest records, hospitals and the coroner’s office but was unable to locate Goldsmith. The detective did not check with the registrar of voters, utility companies or telephone companies.
Detective Benavidas testified that he checked his computer database the first week of September to verify that Goldsmith was on probation. He spoke to Goldsmith’s probation officer, who advised him that Goldsmith was still at the same address. He went to that address twice, but no one answered the door. He then informed the uniformed gang officers in the area that he was looking for Goldsmith.
Detective Benavidas ultimately spoke to a woman at Goldsmith’s address who said that he was her godson. She said he was not staying there, and she did not know where he was staying. She knew the street on which Goldsmith’s father lived, but she did not know his address.
Detective Torres contacted the District Attorney’s investigator’s office on August 29, and they contacted New on August 31 at the address he had provided and advised him that trial was scheduled for October 12. When Detective Torres attempted to contact New after trial began, New’s grandmother advised him that New no longer lived there, and she did not know where he was living. She gave the detective a cell phone number for New, but it was no longer in operation. Detective Torres tried an address at which he had previously contacted New, but he had moved from that location. The detective checked arrest records and the coroner’s office with no results. He also checked the registrar of voters and utility and telephone companies.
Detective Torres had spoken to New about testifying at trial. New said he did not want to testify. New also gave various excuses as to why he could not show up on certain dates.
Detective Benavidas testified that he spoke to New’s grandmother the first week of September and left his business card with her. She told him that New was not staying with her and she did not have his current address. Detective Benavidas then went to New’s girlfriend’s address, but there was no answer at the door. He also notified gang officers that he was trying to locate New.
The trial court stated tentatively that it was “not impressed with the due diligence efforts being made by the People as to both these witnesses.” It wanted to do some research on the matter before making its final ruling, however.
The following day, the due diligence hearing was reopened. Glen Bancroft of the District Attorney’s office testified that on October 9, he and his partner attempted unsuccessfully to serve a subpoena on New at his grandmother’s house. They also checked with the Employment Development Department to see if New had an employment history, but he had none.
Detective Benavidas was recalled and testified that there was an outstanding arrest warrant for Goldsmith. At the time of the Harris murder, Goldsmith was transient, sleeping in people’s cars. The night before the murder, he had slept in Harris’s car.
Additionally, following the previous day’s hearing, Detective Benavidas went to Goldsmith’s godmother’s house, but Goldsmith was not there. Detective Benavidas and Detective Torres spoke to Goldsmith’s aunt, who stated that Goldsmith had been living on the street, and Goldsmith was not in contact with his father. The aunt also stated that Goldsmith’s godmother would not allow him to stay with her. She added that she had not seen Goldsmith in a few months. Detective Benavidas also went to a Five Trey hangout and drove around the neighborhood looking for Goldsmith, but with no success.
The trial court tentatively found, with respect to Goldsmith, that the People met their due diligence standard, particularly since Goldsmith was a transient. It noted that, due to his transiency, some of the normal avenues of inquiry would not have been fruitful, such as checking utility and telephone records. As to New, however, the trial court found that the People had not shown due diligence in attempting to locate him.
The trial court later reopened the due diligence hearing as to New. Marcos Garcia (Garcia), a friend of New’s, had spoken to him five to seven months ago. New told him that he was afraid that if he testified, he would be killed. Garcia did not know where New was living, and he had spoken recently to one of New’s relatives, who also did not know where New was.
John Cheslock (Cheslock), an investigator with the District Attorney’s office, spoke to New’s grandmother earlier that day. She first told him she thought New was out of the state, then she said he was definitely out of Los Angeles County, then she said he was possibly in Lancaster. She said he might be staying with a girlfriend known as T.C., but she did not know the girlfriend’s address. She had no other information as to New’s whereabouts.
Detective Torres testified that he spoke to New’s grandmother again. She had not seen him since the trial started and had no way to contact him. She said that on previous occasions he had disappeared for several months at a time.
Detective Torres also spoke to a social worker with the Department of Social Services, who had only contacted New at his grandmother’s address. She had no telephone number or other contact information for him and had not seen him for quite awhile. Detective Torres also tried New’s cell phone, which was not in service, and checked jail and arrest records, which were negative.
The trial court found in light of the additional testimony that the People exercised due diligence in attempting to locate New.
Because a defendant has the right to confront witnesses against him (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 15), the prior testimony of a witness may be admitted only under certain conditions. (People v. Wilson (2005) 36 Cal.4th 309, 340.) The witness must be unavailable and must have given the prior testimony at previous judicial proceedings against the same defendant where the witness was subject to cross-examination by the defendant. (Ibid.; see Evid. Code, § 1291.)
A witness is unavailable if the witness is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).) Due diligence requires “‘“persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]”’” (People v. Wilson, supra, 36 Cal.4th at p. 341.) The factors to be considered in determining whether the proponent has exercised due diligence “include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness’s possible location were competently explored.” (Ibid.) They also include “‘whether the witness would have been produced if reasonable diligence had been exercised [citation].’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 523.)
However, due diligence “‘requires only reasonable efforts, not prescient perfection.’” (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) The People are not required “‘to keep “periodic tabs” on every material witness in a criminal case.’” (People v. Wilson, supra, 36 Cal.4th at p. 342.) They cannot take witnesses into custody long before trial begins in order to ensure their presence at trial, nor can they effectively prevent witnesses from leaving the state or disappearing long before trial if the witnesses plan to do so. (People v. Hovey (1988) 44 Cal.3d 543, 564; Diaz, supra, at p. 706.) Neither does due diligence require the People to engage in futile acts. (People v. Smith (2003) 30 Cal.4th 581, 611.)
Moreover, “‘[t]hat additional efforts might have been made or other lines of inquiry pursued’” does not preclude a finding of due diligence. (People v. Wilson, supra, 36 Cal.4th at p. 342.) It is sufficient if the People have made reasonable efforts to locate a witness. (Ibid.)
Where the facts are undisputed, we independently review the trial court’s determination as to whether the prosecution has exercised due diligence in attempting to procure a witness’s appearance. (People v. Smith, supra, 30 Cal.4th at p. 610; People v. Avila (2005) 131 Cal.App.4th 163, 169.)
We agree with the trial court that the People made a poor showing with respect to the diligence exercised in attempting to locate Goldsmith and New. They made no attempt to locate Goldsmith until the time of trial. As noted in People v. Avila, supra, 131 Cal.App.4th at page 169, “[w]aiting until the morning a trial begins to try to locate a witness after being out of touch for several months is generally not prudent or reasonable, and certainly is not an untiring effort to secure a witness’s presence at trial. [Citation.] Witnesses have jobs, they plan vacations [citation], they have child-care responsibilities, they leave town for a few days. A party who wanted to ensure a witness was available to testify would usually plan ahead, and not wait a day or two before the testimony was needed.”
The problem with locating Goldsmith, however, was not that he had other plans or responsibilities, had moved or changed his contact information. He was a transient, with no address or telephone number. Neither his aunt nor his godmother, whose addresses the prosecution had, knew where he was staying. He was not in jail or hospitalized. In September, Detective Benavidas had verified that Goldsmith was still on probation, but Goldsmith’s probation officer had had no contact with him.
There was already a warrant out for Goldsmith’s arrest. Detective Benavidas informed the uniformed gang officers in the area that he was looking for Goldsmith. They did not see him, however.
The prosecution exhausted the avenues of inquiry which might reasonably have led them to Goldsmith. All that was left was the chance that a uniformed gang officer would spot him or that he would be stopped by officers for some reason and arrested on the outstanding warrant. Under the circumstances, we agree with the trial court that the People exercised due diligence in attempting to procure Goldsmith’s attendance at trial. (People v. Wilson, supra, 36 Cal.4th at p. 342.)
As to New, the District Attorney’s office contacted New on August 31 at the address he had provided and advised him that trial was scheduled for October 12. Detective Benavidas began his attempt to locate New about a month before trial. He spoke with New’s grandmother, who did not know where he was staying, attempted to contact New’s girlfriend and notified gang officers he was trying to locate New.
At the beginning of October, the District Attorney’s office attempted unsuccessfully to subpoena New at his grandmother’s house. Detective Torres attempted to contact New at his grandmother’s house after trial began, but New no longer lived there, and his grandmother did not know where he was living. New’s cell phone number was no longer in operation, and he was not at an address he previously used. Detective Torres checked arrest records, the coroner’s office, the registrar of voters and utility and telephone companies. The District Attorney’s office checked with the Employment Development Department.
Both Detective Torres and the District Attorney’s office checked again with New’s grandmother, who did not know where he was or how to contact him. She gave the district attorney’s investigator some vague suggestions as to where New might be but no specific leads.
New had told Detective Torres that he did not want to testify. He also told his friend Garcia that he was afraid that if he testified, he would be killed.
The prosecution notified New well in advance of trial of the trial date. It is abundantly clear that New did not want to testify and disappeared so that he would not have to do so. Again, we agree with the trial court that the People demonstrated reasonable diligence in attempting to procure New’s attendance at trial. (People v. Hovey, supra, 44 Cal.3d at p. 564; People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
We note that defendants have no suggestions as to additional steps the People could have taken to secure Goldsmith’s and New’s attendance at trial other than taking them into custody. Had they been in custody on other charges, due diligence might have required that the prosecution keep them in custody until they testified. (See, e.g., People v. Louis (1986) 42 Cal.3d 969, 991-993.) However, principles of due process do not permit the People to take them into custody and hold them for the six months between the preliminary hearing and trial based solely on their reluctance to testify. (People v. Hovey, supra, 44 Cal.3d at p. 564.)
Defendants assert that, even if Goldsmith and New were unavailable as witnesses, the trial court nonetheless should have excluded their testimony. The gravamen of their arguments is that due to the limited nature of the preliminary hearing, they were not afforded their full constitutional rights to confront and cross-examine Goldsmith and New.
The same argument was made in People v. Smith, supra, 30 Cal.4th at page 611. The Supreme Court explained that “[t]o admit prior testimony of an unavailable witness, the party against whom it is offered... must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had ‘an interest and motive similar to that which he has at the [subsequent] hearing.’ [Citations.] Defendant argues that a defendant has less incentive to cross-examine at the preliminary hearing than at trial. However, we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness. [Citation.]” (Ibid., italics omitted.)
The constitutional rights to confrontation and cross-examination are procedural rather than substantive. (People v. Wilson, supra, 36 Cal.4th at p. 343.) As long as defendant was afforded the opportunity to confront and cross-examine the unavailable witness at the preliminary hearing, these rights were not violated. (People v. Smith, supra, 30 Cal.4th at pp. 611-612; People v. Price (2004) 120 Cal.App.4th 224, 239.) Since defendants were afforded the opportunity to confront and cross-examine Goldsmith and New at the preliminary hearing, there was no error in admitting the preliminary hearing testimony when the witnesses became unavailable. (Smith, supra, at pp. 611-612.)
2. Admission of Harris’s Dying Declaration
Call contends that admission of Harris’s dying declaration violated his constitutional rights of confrontation and cross-examination. He acknowledges that the Supreme Court has rejected this claim (People v. Monterroso (2004) 34 Cal.4th 743, 764-765), and we have as well, relying on the Supreme Court’s decision (People v. Mayo (2006) 140 Cal.App.4th 535, 554-555). For the reasons expressed in these decisions, we reject Call’s contention.
C. Instructional Error
1. CALCRIM No. 306
Ellis’ counsel was late in providing the prosecutor his witness list. The prosecutor requested an instruction on late discovery, adding his “idea if the court allows it is to craft it in such a way that it does not appear that the defendant or defense counsel was in any way responsible for it.”
The trial court agreed and instructed the jury pursuant to CALCRIM No. 306: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter the opposing evidence, or to receive a fair trial. [¶] The People received a list of witnesses on behalf of Defendant Ellis on October 25, 2007. The late receipt of the list was through no fault of Mr. Ellis or his attorney. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. This fact is not evidence that the defendant committed a crime.” Ellis did not object to this instruction.
As a general rule, failure to object to an instruction given waives any objection thereto. (People v. Rivera (1984) 162 Cal.App.3d 141, 146.) An exception to the rule of waiver arises, however, if the instruction affected the substantial rights of defendant. (Pen. Code, § 1259; Rivera, supra, at p. 146.) Defendant’s substantial rights are affected if the instruction results in a miscarriage of justice, making it reasonably probable that absent the erroneous instruction defendant would have obtained a more favorable result. (Ibid.; see Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Ellis argues that CALCRIM No. 306, like its predecessor, CALJIC No. 2.28, is fatally defective. He claims it “invites the jury to speculate about evidence which was never presented in court and which, most likely, does not even exist.” It therefore served to undercut his alibi defense in an unfair and improper manner. In addition, Ellis argues that his attorney’s failure to object to the instruction deprived him of the effective assistance of counsel.
CALJIC No. 2.28 read in pertinent part: “‘“In this case, the Defendant failed to timely disclose the following evidence:... [¶] Although the Defendant’s failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [¶] The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.”’” (People v. Riggs (2008) 44 Cal.4th 248, 307, fn. 26.)
This instruction was criticized in the appellate decisions on which Ellis relies: People v. Bell (2004) 118 Cal.App.4th 249, People v. Saucedo (2004) 121 Cal.App.4th 937 and People v. Cabral (2004) 121 Cal.App.4th 748. The Supreme Court then addressed the matter in People v. Riggs, supra, 44 Cal.4th 248. It observed that “CALJIC No. 2.28 was subsequently revised to address these concerns to some degree, and the newly adopted Judicial Council of California Criminal Jury Instructions (2007-2008) include an extensively revised instruction on this subject, CALCRIM No. 306.” (Riggs, supra, at p. 307, fn. omitted.)
The Supreme Court noted that “[t]wo of the concerns regarding the original version of CALJIC No. 2.28 expressed in Bell are that the instruction allowed the jury to draw an adverse inference against the defendant based on a violation of the discovery statute committed solely by his attorneys, and, moreover, that it permitted the jury to draw from the discovery violation (as to which the defendant might be blameless) an adverse inference regarding defendant’s consciousness of guilt, without also informing the jury that the violation itself was not sufficient to prove guilt.” (People v. Riggs, supra, 44 Cal.4th at p. 307.)
In the case before it, however, the defendant had represented himself and thus was responsible for the discovery violation. (People v. Riggs, supra, 44 Cal.4th at p. 307.) Additionally, the particular instruction given by the court in the case before it “limited the inferences the jury could draw by expressly directing the jury that it could consider a discovery violation in assessing the weight of the alibi testimony. In this latter regard, the trial court’s instruction in the present case is congruent with the new CALCRIM No. 306, which provides in part, ‘In evaluating the weight and significance of [the untimely disclosed] evidence, you may consider the effect, if any, of that late disclosure.’ Therefore, we do not believe, as defendant argues, that the trial court erred by not directing the jury that evidence of the discovery violation was insufficient to prove his guilt, because the instruction given in this case, unlike that in Bell, did not permit any direct inference leading from the discovery violation to defendant’s guilt. [Citation.]” (Riggs, supra, at pp. 307-308.)
Although the Supreme Court specifically declined to address the propriety of CALCRIM No. 306 (People v. Riggs, supra, 44 Cal.4th at p. 307), it made it clear that the instruction does not suffer from two of the infirmities of CALJIC No. 2.28. That is, it does not place the blame for the discovery violation on the defendant and it does not allow the jury to infer guilt from the discovery violation.
The Supreme Court also noted that “[a]nother important concern voiced in Bell is that the instruction given in that case did not provide explicit guidance to the jury regarding why and how the discovery violation would be relevant to its deliberations. In the Court of Appeal’s view, the instruction was faulty because, while it informed the jury ‘that tardy disclosure might deprive an opponent of the chance to subpoena witnesses or marshal evidence in rebuttal, there was no evidence that such an eventuality [actually] transpired....’” (People v. Riggs, supra, 44 Cal.4th at p. 308.)
However, the Supreme Court did not “read Bell as holding that the sole basis for giving an instruction regarding a discovery violation is an actual effect on the other party’s ability to respond to the evidence....” (People v. Riggs, supra, 44 Cal.4th at p. 308.) The discovery violation also could give rise to an inference that the defense “did not have much confidence in the ability of its own evidence to withstand full adversarial testing.... In other words, while not constituting evidence of the defendant’s consciousness of his or her own guilt, the fact of a discovery violation might properly be viewed by the jury as evidence of the defendant’s consciousness of the lack of credibility of the evidence that has been presented on his or her behalf.” (Ibid., fn. omitted.)
In our view, Riggs effectively disposes of Ellis’s claims of error. Unlike CALJIC No. 2.28, CALCRIM No. 306 specifies that Ellis was not at fault for the discovery violation. It specifies that the late disclosure of the witness list could not be used as evidence of guilt. If the instruction undercut Ellis’s alibi defense, it was not “in an unfair and improper manner.” Rather, it was the result of a permissible inference as to the credibility of that defense. (People v. Riggs, supra, 44 Cal.4th at p. 308.)
The trial court therefore did not err in instructing the jury pursuant to CALCRIM No. 306. Since the instruction was proper, Ellis was not deprived of the effective assistance of counsel by his attorney’s failure to object to the instruction.
2. CALCRIM No. 316
The trial court instructed the jury, without objection, pursuant to CALCRIM No. 316: “If you find that a witness has committed a crime or other misconduct, you may consider that fact in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
Ellis contends that CALCRIM No. 316 “critically misled” the jury by instructing it that it “may consider,” rather than “must consider,” a witness’s prior misconduct. He acknowledges that his contention has been rejected in a number of appellate court decisions but maintains that those decisions were erroneous. We disagree.
In People v. Anderson (2007) 152 Cal.App.4th 919 at pages 940-941, the Third District explained that “[t]he function of CALCRIM No. 316 is not to inform the jury what evidence may or may not be considered. CALCRIM No. 220 informs the jury it must consider ‘all the evidence that was received throughout the entire trial.’ The function of CALCRIM No. 316 is to inform the jury how prior crimes evidence may be used. Such evidence may be considered only in evaluating the witness’s credibility. Thus, CALCRIM No. 220 tells the jury it must consider all evidence and CALCRIM No. 316 limits consideration of prior crimes evidence to the issue of credibility.” We agree with this assessment of the instructions. (Cf. People v. Golde (2008) 163 Cal.App.4th 101, 119-120 [CALCRIM No. 318]; People v. Felix (2008) 160 Cal.App.4th 849, 859 [same].)
CALCRIM No. 220 also was given here.
Since we conclude the instruction was proper, Ellis’ claim of error has been waived by his failure to object. (People v. Rivera, supra, 162 Cal.App.3d at p. 146.)
3. CALCRIM Nos. 522 and 570
Defendants contend CALCRIM Nos. 522 and 570 misinformed the jury as to the standard of reasonableness to be applied in determining whether there was provocation sufficient to reduce a conviction of murder from first to second degree.
CALCRIM No. 522 instructed the jury: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.”
CALCRIM No. 570 instructed the jury that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment. [¶]...[¶]
“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts....”
As set forth in CALCRIM No. 570, the provocation necessary to reduce murder to manslaughter is measured by an objective standard, that is, “if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment”’” (People v. Breverman (1998) 19 Cal.4th 142, 163).
Defendants argue that, by contrast, the provocation necessary to reduce murder from first degree to second degree is judged by a subjective standard. Since there was no instruction on this subjective standard, they claim, the jury would have looked to CALCRIM No. 570 and applied the wrong standard in determining whether there was provocation sufficient to reduce first degree murder to second degree murder.
The difference between the two standards was explained in People v. Cole (2004) 33 Cal.4th 1158. In that case, the jury was instructed pursuant to CALJIC No. 8.73 “that it could consider ‘evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree.’” (Cole, supra, at p. 1211.) The defendant claimed that “the trial court should have instructed on provocation for purposes of voluntary manslaughter. But provocation for such purposes has nothing to do with intent and everything to do with circumstances, specifically, whether the circumstances would have caused a reasonable person to act as defendant did. [Citation.] Thus, to instruct on provocation for purposes of voluntary manslaughter would have not assisted the jury in determining whether provocation prevented defendant from forming the intent necessary to commit murder by torture. The two concepts are distinct.” (Ibid., italics omitted.)
The court went on to explain that the trial court “did instruct the jury on provocation as relevant to [murder]. Specifically, the court instructed that, if ‘the killing was preceded and accompanied by a clear, deliberate intent..., which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation,’ it was first degree murder. [Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1211.)
Instructions similar to those given in Cole were given here. The trial court instructed the jury pursuant to CALCRIM No. 521: “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that (he) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he) intended to kill. The defendant acted deliberately if (he) carefully weighed the considerations for and against (his) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he) decided to kill before committing the act that caused death.
“The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.” (Italics added.)
After instructing the jury pursuant to CALCRIM No. 521, the trial court gave CALCRIM No. 522. Under Cole, these two instructions were sufficient to apprise the jury of the effect of provocation on the determination whether murder is of the first or second degree. (People v. Cole, supra, 33 Cal.4th at p. 1211.) As in Cole, “[d]efendant[s] did not ask the trial court to clarify or amplify the instruction[s]. Thus, [they] may not complain on appeal that the instruction[s were] incomplete. [Citation.]” (Ibid.)
As to the effect of CALCRIM No. 570, the instruction specifies that it applies to the reduction of a crime from murder to manslaughter when committed because of a sudden quarrel or heat of passion. The jury is presumed to have followed the instructions given it. (People v. Holt, supra, 15 Cal.4th at p. 662; People v. Delgado, supra, 5 Cal.4th at p. 331.) Defendants point to nothing in the record suggesting otherwise. In light of our conclusion that the jury was properly instructed, defendants’ claim of ineffective assistance of counsel in failing to request a clarifying instruction is without merit.
D. Sentencing Error
1. Imposition of Consecutive 10-year Terms under Penal Code Section 186.22
Defendants contend, and the People agree, that the trial court erred in imposing consecutive 10-year enhancements on counts 1 and 3, first degree murder, under Penal Code section 186.22, subdivision (b). Subdivision (b)(5) of Penal Code section 186.22 provides an exception to subdivision (b)(1)(C), that “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” In People v. Lopez (2005) 34 Cal.4th 1002, the Supreme Court held that subdivision (b)(5) applies to a conviction of first degree murder, which is punishable by a state prison term of 25 years to life. The trial court therefore cannot impose a 10-year gang enhancement on a 25-year-to-life sentence for first degree murder but instead can only impose a minimum 15 year parole eligibility requirement. (Id. pp. 1010-1011.) Accordingly, the judgments must be modified to delete the 10-year consecutive terms imposed on counts 1 and 3 under Penal Code section 186.22, subdivision (b)(1)(C), and to provide a 15-year minimum parole eligibility date pursuant to subdivision (b)(5) of that section. (Lopez, supra, at pp. 1010-1011.)
2. Penal Code Section 12022.53, Subdivision (d), Enhancements
Defendants contend that imposition of 25-years-to-life weapons enhancements pursuant to Penal Code section 12022.53, subdivision (d), violates both the proscription against multiple punishment (Pen. Code, § 654) and the constitutional protections against double jeopardy (U.S. Const., 5th & 14th Amends.). These contentions have been rejected by the California Supreme Court. (People v. Sloan (2007) 42 Cal.4th 110, 113, 120-121; People v. Izaguirre (2007) 42 Cal.4th 126, 128-129, 134.) Inasmuch as we are bound by the pronouncements of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject defendants’ contentions as well.
Ellis further contends that imposition of two 25-years-to-life weapons enhancements violates the constitutional proscription against cruel and unusual punishment. The constitutionality of Penal Code section 12022.53 previously has been challenged and upheld. In People v. Martinez (1999) 76 Cal.App.4th 489, review denied February 23, 2000, the court noted that the United States Supreme Court has suggested that “a legislatively mandated sentence” may be held unconstitutional under the Eighth Amendment, “but only in cases of ‘extreme sentences that are “grossly disproportionate” to the crime.”’” (At p. 494, quoting from Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.).) The California Supreme Court has held that “[u]nder the California Constitution, a sentence may be cruel or unusual if it is ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (Martinez, supra, at p. 494, quoting from In re Lynch (1972) 8 Cal.3d 410, 424.)
In determining whether a sentence constitutes cruel or unusual punishment, we consider the natures of the offense and the offender. (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) “The nature of the offense is viewed both in the abstract and in the totality of the circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant’s individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind.” (Ibid.) However, this “inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases should a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (Ibid.)
Turning to Penal Code section 12022.53, the Martinez court noted that the statute, “as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies. The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately cause great bodily injury.” (People v. Martinez, supra, 76 Cal.App.4th at p. 495, fn. omitted.) Thus, the statute “recognize[s] different gradations of culpability” and punishes accordingly. (Ibid.) It therefore is not cruel or unusual in the abstract based on a lack of correlation between the severity of the offense and the length of the punishment. (Ibid.; accord, People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215, review den. Jul. 11, 2001.)
E. Failure to Provide Ellis With Marsden Hearings
Prior to trial, on July 16 and August 14, 2007, Ellis made two Marsden motions to replace his court-appointed attorney, Leo Newton. He complained that his attorney was not sufficiently preparing for trial, was not conducting an adequate investigation, had missed court appearances, had not spent enough time communicating with him to learn his side of the events, and had not returned telephone calls from him and his family members. On August 14, Mr. Newton responded that he had hired an investigator to conduct an investigation of the case. He explained that he had his investigator speak to family members unless they were going to be witnesses at trial. He reviewed the steps he had taken in preparation for trial and also showed the trial court his case file, to demonstrate the extent of his preparation. The trial court denied the motions, but it invited Ellis to renew his motion on August 27 if he remained unsatisfied with Mr. Newton’s representation.
On August 27 at a status conference before Judge Haynes, Mr. Newton requested a continuance to October 17 to attend to a critically ill family member on the East Coast and to give his investigator time to interview additional witnesses. Call objected to a continuance. Judge Haynes denied the request for a continuance and trailed the matter for a week until Judge Lavin, the trial judge, returned.
At that point, Ellis caught the judge’s attention. He began, “I wanted to try and have another motion. Hearing or....” Judge Haynes interrupted and stated: “All right. This man is doing your alibi witnesses, and you want to have—we’re getting ready to go to trial. And you want to kick him out. Is that you—you just had a Marsden hearing. [¶] Tell Judge Lavin about it next week.”
Ellis did not renew his motion before Judge Lavin prior to trial. After trial, at the sentencing hearing on March 5, 2008, Mr. Newton made a motion for a new trial based on the due diligence findings as to the unavailable witnesses. The trial court denied the motion.
After a discussion on sentencing considerations, Ellis told the court: “I want to object to what [Mr. Newton] was telling you because I feel it’s a conflict what he’s saying. I totally disagree on what he’s filing a motion for retrial. And I need another attorney. I might need till the 18th to put in my motion. I’m putting in a motion for ineffective assistance of counsel....” If the trial court was not going to allow that, he would go pro. per. and make the motion himself. He did not agree with anything Mr. Newton put in his new trial motion.
The trial court explained that Ellis could raise the issue of ineffective assistance of counsel on appeal and asked if he had anything to say regarding sentencing. Ellis responded that he wanted to make a motion for retrial, not sentencing. He stated: “... I feel you’re going back on my constitutional rights. I’m not even being heard on the simple fact that I didn’t get to put in a motion that I want to put in. He put in a motion he wants to put in by himself.... [¶] He’s basically just coming in here saying that he wants it because of certain witnesses.... That’s not why I want a retrial. I want a retrial because of Mr. Newton.... He’s totally not helping me at all. He’s trying to send me to the penitentiary, and I got something—I got something else in store to prove my point to the fact being that he was ineffective since he’s been my attorney.”
The trial court asked Ellis to clarify whether, for purposes of sentencing, he wanted to represent himself or he wanted Mr. Newton replaced. Ellis reiterated that he wanted to continue sentencing so that he could find another attorney to move for a new trial based on ineffective assistance of counsel. The trial court explained that he could raise the issue of ineffective assistance of counsel on appeal, for which another attorney would be appointed. Ellis then stated that “[f]rom here on out, I want to go pro per.”
The prosecutor requested that the court inquire as to whether Ellis was ready to proceed with sentencing at that time. The court told Ellis that it could not grant a new trial based on ineffective assistance of counsel. It told him it was going to proceed with sentencing and tried to find out if he was ready to represent himself. Ellis interrupted and asked if that meant he would have to explain all the reasons why he wanted a new trial and whether the court was going to allow him to exercise his rights, go pro. per. and have time to prepare to make a showing why he wanted a new trial.
The trial court repeated that it was not going to hear a motion for new trial based on ineffective assistance of counsel. It told Ellis that following sentencing it would advise him of his appellate rights. It then asked him whether he wanted to represent himself and address the court regarding sentencing. He repeated: “I’m saying I don’t have the right type of paperwork and things I need to go over my case right now in order for me to come in here and tell you I want a retrial.
The trial court told him he could get transcripts for purposes of appeal, and it was going forward with sentencing. Ellis complained it violated his constitutional rights. The trial court then proceeded with sentencing.
A defendant’s Sixth Amendment right to the assistance of counsel entitles him to substitute appointed counsel “if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Welch (1999) 20 Cal.4th 701, 728, internal quotation marks omitted; People v. Memro, supra, 11 Cal.4th at p. 857.) People v. Marsden, supra, 2 Cal.3d 118 gives a defendant who seeks to substitute counsel the right to a hearing to explain the reasons for the request. (Id. at p. 124.) Denial of the right to a Marsden hearing is reversible error unless harmless beyond a reasonable doubt. (Id. at p. 126.)
Ellis first contends Judge Haynes’s failure to hold a Marsden hearing on August 27 violated his rights to counsel and due process of law, requiring reversal of his conviction. We disagree.
As the People point out, the right to a Marsden hearing does not require a hearing at the particular time defendant requests it or at a single hearing. It may be continued to a more opportune time or denied with the opportunity to raise additional bases for the motion. (See People v. Vera (2004) 122 Cal.App.4th 970, 981.) If defendant fails to take advantage of the offer of a continued or further hearing, this failure may be deemed an abandonment of unstated complaints and there is no Marsden error. (Id. at p. 982.)
Here, Judge Haynes had essentially concluded the status conference when Ellis attempted to renew his Marsden motion. She declined to hear it at that time and told him he could raise it again before the trial judge the following week. Ellis failed to do so at that time or at any time before the October 17 start of trial. This failure may be deemed an abandonment of his complaints about Mr. Newton, and there was no Marsden violation. (People v. Vera, supra, 122 Cal.App.4th at p. 982.)
Ellis next contends the trial court’s failure to conduct a full, in camera hearing on his March 5 Marsden motion constituted reversible error. We agree.
In People v. Smith (1993) 6 Cal.4th 684, the Supreme Court affirmed that a defendant is entitled to raise the claim of ineffective assistance of counsel in a motion for new trial and thus is entitled to substitution of counsel posttrial upon a proper showing. (Id. at pp. 692-693, 695.) It explained that “‘[i]n appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.’” (Id. at p. 693.) In other circumstances, however, appellate review or habeas corpus proceedings may be a more practical remedy. (Ibid.)
The same rules regarding a Marsden hearing and substitution of counsel apply whenever the motion to substitute counsel is made. (People v. Smith, supra, 6 Cal.4th at p. 696.) That is, the defendant must be given the opportunity to explain his reasons for desiring a new attorney. (Id. at p. 690.)
Inasmuch as the issue of ineffectiveness of counsel can be raised in a posttrial motion, the trial court should have given defendant the opportunity to explain his reasons for wanting a new attorney. “When, as here, a request for new counsel comes after trial, and the court fails to conduct a proper Marsden hearing, ‘[t]he appropriate course of action is to remand to the trial court to allow it to fully inquire into [defendant’s] allegations concerning counsel’s performance. Following the inquiry, if the trial court determines that defendant has presented a colorable claim of ineffective assistance, then the court must appoint new counsel to fully investigate and present the motion for new trial. If, on the other hand, the inquiry does not disclose a colorable claim, the motion for new trial may be denied and the judgment reinstated. [Citation.]’ [Citation.]” (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667.)
We note, however, that we have already rejected claims of ineffective assistance of counsel with respect to the claimed instructional error. Thus, they may not serve as the basis for a new trial motion.
F. Cumulative Error
Ellis also claims cumulative error requires reversal of his conviction. (People v. Hill (1998) 17 Cal.4th 800, 847; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Inasmuch as we have found no merit to his claims of evidentiary and instructional error, and have otherwise dealt with his claims of sentencing and Marsden error, there is no cumulative error requiring an unconditional reversal of his conviction.
DISPOSITION
As to Ellis, the judgment is reversed and the matter is remanded for the limited purpose of holding a hearing on his posttrial Marsden motion. If he makes a prima facie showing of ineffective assistance of counsel, the trial court is directed to appoint new counsel for the purpose of bringing a new trial motion. If he fails to make a prima facie showing, the trial court is directed to reinstate the judgment with the following modification: It is to delete the 10-year consecutive term enhancements imposed on counts 1 and 3 pursuant to Penal Code section 186.22, subdivision (b)(1)(C), and to provide 15-year minimum parole eligibility dates on those counts pursuant to subdivision (b)(5) of Penal Code section 186.22.
As to Call, the judgment is modified to delete the 10-year consecutive term enhancement imposed pursuant to Penal Code section 186.22, subdivision (b)(1)(C), on count 3 and to provide a 15-year minimum parole eligibility date pursuant to subdivision (b)(5) of that section on that count. As so modified, the judgment is affirmed. The clerk of the trial court is directed to prepare a modified abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J. WOODS, J.