Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH35626
Haerle, J.
I. INTRODUCTION
A jury found Henry Inocencio guilty of first degree murder (Pen. Code, § 187, subd. (a) ) and of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury also found true allegations that Inocencio personally discharged a firearm causing great bodily injury and that he intentionally fired a handgun from a motor vehicle at another person outside the vehicle. Inocencio was sentenced to life imprisonment without parole.
Undesignated statutory references are to the Penal Code.
On appeal, Inocencio contends that the trial court committed reversible error by (1) denying his Wheeler motion, (2) excluding evidence that someone else was the shooter; and (3) admitting evidence of a confidential communication between a witness and her attorney. We reject each of these contentions and affirm the judgment.
See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
II. STATEMENT OF FACTS
A. The Shooting
On September 24, 2002, at approximately 5:00 a.m., Lakeisha Bryant was driving up 164th Avenue, which is a divided four-lane street, when two cars driving next to each
other approached her in the opposite direction lanes. The car in the lane closest to hers was a grey or silver-blue Buick LeSabre occupied by two men. The car on the other side of the Buick was smaller and had only one occupant. Bryant saw and heard four gunshot that were fired out of the passenger window of the Buick. Bryant did not stop her car but she did call 911 after she got onto the freeway.
After Bryant witnessed the shooting and called 911, she called her uncle who chastised her for getting involved and advised her to lie to police about what she saw so she would not have to be a witness. Her uncle expressed fear that the same thing that had happened to his wife would happen to Bryant. Bryant’s aunt had been kidnapped and murdered after she testified about a crime she witnessed in Los Angeles.
When police arrived at the scene they found a car, with its engine running, that had jumped a curb and hit a tree. The driver, Robert Ratto, was slumped behind the wheel and appeared lifeless. Ratto sustained three gunshots wounds which resulted in his death. Two of the wounds could have caused death, a shot through his left shoulder which passed through and damaged his aorta, and a shot near his left ear which penetrated his brain.
B. The People’s Case
1. Ralph Cortez
Ralph Cortez testified at trial that he had known Henry Inocencio for about nine years and that, during September 2002, the two of them spent time together approximately twice a week. Inocencio and Cortez were together on the early morning of September 24, 2002, driving around the San Leandro area. Both men had smoked crystal methamphetamine that morning and Inocencio was driving them around in a blue Buick LeSabre.
At around 5:00 that morning, Inocencio pulled out of a gas station onto 164th Street. Cortez, who was sitting in the front passenger seat, was rolling a “blunt.” He was looking down, but felt wind when Inocencio rolled down the passenger window. Cortez looked up as Inocencio pointed a gun past the front of his face, out the passenger window and fired shots. The driver in the car in the next lane slumped over and appeared to have been shot in the head.
Cortez testified that, after he realized what had happened, he asked to be let out of the car but Inocencio kept driving. He went to the house of an acquaintance named “Opie,” where they left the Buick and got a ride home.
On the night of September 24, Cortez watched a television news report about the shooting with Crystal Wilson, his girlfriend at the time. Wilson grew up in the same house as Inocencio and thinks of him as a brother. Wilson testified, albeit reluctantly, that when the report about the shooting came on, Cortez turned the sound up because he said he was having trouble hearing out of his left ear and he began to cry. He told Wilson that Inocencio had rolled down the car window and just started shooting and that the other driver was shot in the head.
2 . The Rental Car
Diane Blea is the girlfriend of Eric Wilson, who is Inocencio’s uncle. On September 20, 2002, Blea rented a silver-blue Buick LeSabre for Inocencio from the Enterprise Rental Car agency in Hayward. Blea testified that she rented the car for Inocencio as a favor because she considered him to be family.
Michael Weber, whose nickname is “Opie,” testified that Inocencio and Cortez arrived at his house on September 24, 2002, at approximately 5:30 in the morning. At the time, Weber and some friends were in the garage smoking methamphetamine. Inocencio asked to borrow a car from one of Opie’s friends. Instead, the friend gave Inocencio and Cortez a ride. Before they left, Inocencio gave Weber a key to the rental car which he left parked outside Weber’s home. Several hours later, Inocencio called and asked Weber to take his clothes out of the car and set off some flea bombs in it and said that a friend would be by later to pick it up. A man did come by, took the key and cleaned out the car and wiped down the windshield and steering wheel with a towel.
Inocencio’s uncle, Eric Wilson, testified that Inocencio called him on September 24, and told him to pick up the rental car from Opie’s house. When Wilson arrived there, someone was cleaning out and wiping down the inside of the car. In December 2002, Wilson was arrested for burglary. While in jail, Wilson contacted a detective and shared the information that his girlfriend had rented the car that was used in the September 2002 shooting. The car that Blea had rented for Inocencio was seized and searched by authorities who recovered two shell casings from under the front seats of the car.
3 . The Gun and Ammunition
Julie Tymn is a friend of Inocencio’s. She testified that, at some time prior to September 2002, Inocencio told her that he wanted to buy a gun. In late August or early September of 2002, Tymn heard about a gun that was for sale and arranged for Inocencio to purchase it. She described the gun as a dual-action, semi-automatic Beretta.
Opie Weber testified that, approximately two weeks prior to the September 24 shooting, Inocencio asked him to hold onto a gun. Weber described the gun as a “dirtyish” chrome semiautomatic and testified that he put it in a safe in his garage. A few days later, Weber was at his girlfriend’s house when he received a message that Inocencio wanted his gun. When Weber returned home, he discovered that the safe had been drilled open and the gun was gone.
Weber also testified that, about a week after the shooting, Inocencio went over to Weber’s house. When the two men went into Weber’s backyard, Inocencio noticed several holes that Weber had dug for a fence he planned to put up in the yard. Inocencio threw a small package in one of the holes, kicked dirt over the object and asked Weber to cement it down. Weber told Inocencio that it would be cemented over within a week.
On January 10, 2003, Weber was arrested for possession of methamphetamine, taken to Santa Rita jail and placed in a cell next to a cell where Inocencio was being held in connection with an unrelated offense. Inocencio asked whether Weber had cemented the hole. Weber said he had and Inocencio responded that Weber was a “life saver.” Some time later, an officer told Weber that his conversation with Inocencio had been recorded and that Weber was an accessory to murder.
In December 2002, Inocencio was arrested for a parole violation.
In March 2003, Weber accompanied officers to his backyard and showed them the hole from which they recovered a foil packet containing a shell casing and a live round that had been ejected from a gun.
Evidence was presented at trial that the shell casings found in the rental car and the casing and live cartridge recovered from Opie Weber’s backyard were all fired from the same gun.
4. Reyna Cortez
Reyna Cortez became romantically involved with Inocencio in early 2002 and moved in with him in around August of that year. The two now have a child together. Prior to September 24, 2002, Reyna noticed that Inocencio carried a gun with him about “half the time” when they went out together.
Reyna testified at trial that, on the evening of September 23, 2002, she, Inocencio, Cortez and a girlfriend of the latter’s all did drugs together. At around 3:00 a.m. on the 24th, Inocencio said he was going out to “make some money.” Before Inocencio left with Cortez, Reyna asked him to be back in time to get her to an 8:00 a.m. custody hearing pertaining to her daughter from a prior relationship. When Inocencio returned home the next morning, it was too late to go to the hearing. Reyna asked where he had been. Reyna has made different and contradictory statements about the response she received to her inquiry.
Reyna testified that she lost custody of her daughter.
In response to questioning by the prosecutor at trial, Reyna initially testified that Inocencio said he didn’t really want to involve her but eventually told Reyna that he had shot a man. Reyna then testified that Inocencio did not share any details about what had happened. However, she was impeached with testimony she gave at the preliminary hearing in this case. At that hearing, Reyna testified that Inocencio told her that he shot the man because they had been fighting about switching lanes, that Inocencio had disposed of the gun and that he left the car at Opie’s to be cleaned out.
Reyna was also impeached with statements she made during a March 18, 2003, interview she gave to investigators. During that interview, Reyna said that Inocencio told her that he shot a man because of “road rage.” He told her that he was driving, Cortez was in the passenger seat, and there was a fight over who was going to be in what lane, and Inocencio shot the other driver.
During questioning by defense counsel at trial, Reyna testified that, when she asked Inocencio where he had been on the morning of September 24, Inocencio responded that he was very tired, that he did not want to be bothered and that he did not want to involve her in anything. Reyna testified that Inocencio never told her that he had shot a man or that he was involved in a shooting.
Reyna explained that she had previously told police that Inocencio said he shot the victim because “[t]hey kind of coached me along with it.” Reyna was pregnant when she gave the interview and the officers were “real sympathetic about the whole thing” and “comforted” her about the “shooting and everything.” Reyna explained herself to the jury in this way: “I felt really pressured into saying that and my emotions at the time were a little out of whack. I was pregnant and I felt really -- I wanted to help the Ratto family and I felt really bad. [¶] Those detectives, they comforted me in a way to kind of, I don’t know how to explain it. Just, you know, they comforted me into saying that. I felt comfortable with how they talked to me and I really kind of felt forced into what I said.”
Reyna’s testimony was interrupted and when she returned to the witness stand the next day, Reyna added that the police had remarked to her that she would have her baby in jail if she did not cooperate.
During defense questioning, Reyna also acknowledged that she previously testified at the preliminary hearing that Inocencio did tell her that he shot the victim. But she maintained that prior testimony was false. Reyna now claimed that, before she took the stand at the preliminary hearing, she spoke to an attorney named Todd Bequette who told her “[t]hat I could go to jail for changing -- for saying something different from my statement. That’s why I stuck with that story.” Reyna told the jury that she was now changing her story again “because I don’t feel it’s right. I have -- another man’s life has been lost and I’m so sorry for that. But it’s not right to lie and have another man’s life in my hands and say he had done something and he didn’t tell me he did.”
5. Inocencio’s Arrest
On March 24, 2003, Scott Dudek, a sergeant with the Alameda County Sheriff’s Department, arrested Inocencio for Ratto’s murder. During the drive to the station, Dudek sat in the back seat with Inocencio. Inocencio asked several questions about the investigation and the people who had talked to investigators. At one point, Inocencio stated that he did not want to see Cortez get into trouble over this incident. He also asked Dudek how much time he would spend in jail and the officer responded he could not answer that question. Inocencio then said: “You’ve already talked to everybody, . . . [y]ou know what happened, I will never get out of jail.”
C. Defense Case
Joey Fanjul has been friends with Inocencio for many years. During the summer of 2002, Inocencio frequently visited Fanjul. Occasionally the two smoked marijuana together. Frequently, Inocencio smoked methamphetamine with Fanjul’s mother. Fanjul testified that, around August or September of 2002, Inocencio became very paranoid. He thought his phones were tapped, that his girlfriend was unfaithful and he believed he could read minds.
Reyna also testified that, during the weeks before the shooting, Inocencio had consumed a lot of methamphetamine and marijuana. He was on edge, irritable, paranoid and suspicious. He believed people were after him and that his phone was tapped.
Fanjul testified that he ran into Ralph Cortez after Inocencio was implicated as the shooter in the 2002 incident. Cortez reportedly said that Inocencio had always taken care of him and looked out for him and that Cortez was not going to let him “go down” for what Cortez had done. Fanjul urged Cortez to turn himself in and Cortez said he would.
Angelina Amaya, Fanjul’s girlfriend, testified that she, too, noticed that Inocencio had been paranoid and engaged in usual behavior during the months prior to the shooting. Amaya also testified that she was with Fanjul when Cortez told them he was not going to let Inocencio “go down for something he didn’t do.”
Jessica Eisenhart testified that she had known Inocencio for several months and was also acquainted with Cortez when she ran into the two of them in a motel parking lot in the middle of September 2002. At the time, Inocencio was driving a light blue or silver sedan. Eisenhart invited the two men to her room where she was staying with her boyfriend. When Cortez came into the hotel room, he pulled a shiny handgun from his waistband and set in on the table. Eisenhart’s boyfriend asked to buy the gun but Cortez refused to sell it.
Eisenhart testified that Ralph Cortez has a reputation as a liar. Cortez’s former girlfriend, Crystal Wilson, also testified at trial that Cortez is not an honest person and that he often lied to her.
Dr. Stephen Pittel is a psychologist specializing in substance abuse issues. Pittel described the effects of methamphetamine use which include paranoia and racing thoughts. He testified that users are often impulsive and violent and tend to interpret everything in the most negative way possible. Pittel explained to the jury that a person who is high on methamphetamine can have an “an aggressive or violent response to something that is innocent, benign, non-threatening because their paranoia causes them to misinterpret it. That’s why it appears motiveless, purposeless, bizarre, irrational.”
III. DISCUSSION
A. Wheeler/Batso n
Inocencio’s first claim of error is that he was denied due process, a fair trial and a representative jury because the prosecutor used his peremptory challenges to strike Hispanic female prospective jurors from the jury.
1. Guiding Principles and Standard of Review
“[T]he use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article 1, section 16 of the California Constitution.” (People v. Alvarez (1996) 14 Cal.4th 155, 192 (Alvarez); see also Wheeler, supra, 22 Cal.3d at p. 272.) Discrimination in the exercise of peremptory challenges also violates the defendant’s federal constitutional right to equal protection. (Batson, supra, 476 U.S. at pp. 84-89.)
A three-step procedure applies “when a defendant objects at trial that the prosecution exercised its peremptory challenges discriminatorily. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ” (People v. Johnson (2006) 38 Cal.4th 1096, 1099, quoting Johnson v. California (2006) 545 U.S. 162, 168, fn. omitted.)
There is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278; Alvarez, supra, 14 Cal.4th at p. 193.) Therefore, a defendant who believes the prosecutor is using peremptory challenges to strike prospective jurors on the ground of group bias alone carries the burden of establishing a prima facie case of purposeful discrimination. (People v. Arias (1996) 13 Cal.4th 92, 134-135; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; Alvarez, supra, 14 Cal.4th at p. 193.) “When a trial court denies a Wheeler motion with a finding that the defendant failed to establish a prima facie case of purposeful discrimination, we review the record on appeal to determine whether there is substantial evidence to support the ruling.” (People v. Griffin (2004) 33 Cal.4th 536, 555.)
If the defendant establishes a prima facie case, the burden shifts to the prosecution to provide non-discriminatory reasons for the peremptory challenges in question. (People v. Gutierrez, supra, 28 Cal.4th at p. 1122.) “[W]e review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘with great restraint. The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice. [Citations.] “If the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. . . .” [Citation.]’ [Citations.] The determination whether substantial evidence exists to support the prosecutor’s assertion of a nondiscriminatory purpose is a ‘purely factual question.’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 74-75.)
“The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903, 924.) “[T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.)
2. Background
The prospective jurors who Inocencio claims were excused because they are Hispanic females are prospective juror 26, referred to herein as Ms. Z., prospective juror 40, referred to herein as Ms. D., and prospective juror 90, referred to herein as Ms. McN.
Ms. Z. was the first prospective juror to take the 12th seat in the jury box. After her voir dire was completed, the court began the process of accepting peremptory challenges. The prosecutor used his second challenge to excuse Ms. Z. When Ms. D. took her seat in the jury box, the prosecutor and defense counsel had each exercised two peremptory challenges. The prosecutor used his third challenge to excuse Ms. D.When Ms. McN. took her seat in the jury box, the prosecutor had used six of his challenges and passed twice, and defense counsel had excused nine potential jurors. The prosecutor used his seventh challenge to excuse Ms. McN.
After Ms. McN. was excused and her replacement was examined, defense counsel indicated he wanted to make a motion. Stating that ”I think I anticipated what you want to do,” the court took a recess and excluded all the potential jurors from the courtroom.
Outside the presence of the potential jury, the court inquired whether defense counsel was making a Wheeler motion and counsel responded that he was. The trial court stated that it had anticipated the motion after noticing that the prosecutor challenged Ms. D. and Ms. McN., both of whom had identified themselves as Hispanic on their juror questionnaires. Defense counsel added that the prosecutor had also challenged Ms. Z. who had identified herself as Mexican. After acknowledging that it had “missed that,” the court found that a prima facie case had been made and asked the prosecutor for a response.
The prosecutor stated that he excused Ms. D. because she had indicated that she gets migraine headaches, that she was on medication for those headaches and that the headaches were brought on by stress. When asked if she thought she would be affected by the stress associated with being a juror in a murder case, she responded that she got a migraine from filling out the juror questionnaire. The prosecutor was concerned that, if Ms. D. served, her health issue would delay the trial. The prosecutor also noted that Ms. D. stated in her questionnaire that she had sympathy for the defendant. The trial court accepted this explanation as “sufficiently race-neutral.”
Turning to Ms. McN., the prosecutor stated he was concerned by the fact that she was receiving treatment from a psychiatrist for depression and anxiety. Ms. McN. also indicated that she had been a secretary for a high-profile defense attorney and she had discussions with him about his cases. She also expressed reservations about the three strikes law. The prosecutor then stated: “I felt like a totality of those circumstances, receiving psychiatric treatment and on psychotropic medication for depression and anxiety, and given the fact that a murder trial is a very stressful experience for a juror, that combined with previously being a secretary for a defense lawyer and discussing cases with the defense lawyer I had concerns. And her having concerns with the three strikes law, I had concerns whether she could truly be a fair and impartial juror in this case.”
The trial court found that the prosecutor had provided race-neutral bases for challenging Ms. McN., and then asked for an explanation as to Ms. Z.
The prosecutor stated that Ms. Z. had stated in her questionnaire that she was receiving psychotherapy for a mental issue and the prosecutor felt “based on the fact that she is currently in psychotherapy, I was not confident that given the stress of a murder trial that whatever was causing her to be in psychotherapy would not come into play in this case.” The prosecutor also noted for the record that Ms. Z.’s questionnaire stated she was European, she physically looked white, and he thought she was white. The prosecutor stated that Ms. Z.’s race had “no bearing whatsoever” on his decision to challenge her.
Defense counsel then obtained permission to respond. He stated that Ms. D. stated her migraines would not be a problem and, in any event, there would be alternate jurors if a problem did arise. With regard to Ms. McN.’s depression, counsel argued that “the fact is that I think we have several other jurors that are seeing psychologists or psychiatrists that talk about depression and so on and haven’t been excused.” He also argued that Ms. McN.’s prior employment by a defense attorney was not a “big factor,” and that her opposition to the Three Strikes Law was based on a misunderstanding of that law.
As to Ms. Z., defense counsel made the following argument: “I don’t remember -- the fact is it’s right in the questionnaire. It says she was born in Mexico. That should be a clue that she might be Mexican. Then the fact is that I don’t remember whether she was seeking psychotherapy or not and I don’t know whether -- that certainly didn’t come into play as to her ability to be a fair and impartial juror. [The prosecutor] said he thought she was white. If you look at her, she was kind of dark complected. She certainly didn’t look like a European-Caucasian. That’s my response to these.”
The trial court thanked defense counsel for his remarks, reiterated its prior findings that the prosecutor had provided race and ethnic-neutral reasons for challenging. Ms. D. and Ms. McN., and then stated: “Once again, I did make a mistake. I did miss Ms. [Z.] as being partial Hispanic because her questionnaire does show that she was born in Mexico. Obviously, other people other than of Mexican ancestry can be born in that country, Mr. [defense counsel]. But she did put mixed European and Hispanic as her racial and/or ethnic group. [¶] However, I am going to deny the Wheeler challenge. I find that [the prosecutor] exercised his peremptory challenge in good faith. . . .”
3. Issues on Appeal
The People ask us to review and reverse the trial court’s finding that defense counsel established a prima facie case under Wheeler. We have not found any authority to support the People’s contention that a finding that a prima facie case has been established is reviewable on appeal from a judgment in which the trial court ultimately found that the prosecutor did not exercise his or her peremptory challenges discriminatorily. In Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, the only case the People cite for this proposition, the trial court had found that the defendant failed to state a prima facie case of discrimination.
Our own Supreme Court authority suggests that the proper course is to assume that substantial evidence supports the prima facie finding. (See, e.g., People v. Silva (2001) 25 Cal.4th 345, 384 [“Here, in step one, the trial court ruled for the defense when it found a prima facie case of improper discrimination, and we assume that substantial evidence supports that determination.”]; see also Alvarez, supra, 14 Cal.4th at p. 197 [same assumption].) This approach makes sense. Allowing the People to limit the scope of our review by questioning the preliminary finding that a prima facie case was made is impractical and could, indeed, undermine the very purpose of the Wheeler/Batson doctrine.
Turning to Inocencio’s contentions on appeal, he asserts that the trial court correctly applied the first two steps of the Wheeler/Batson inquiry, but contends that the court erred with respect to the third step of the inquiry by failing to consider whether the proffered explanations for striking the three Hispanic female prospective jurors were credible based on the totality of the record or whether they were pretextual. Therefore, our analysis will focus on the third prong of the Wheeler/Batson inquiry.
The People contend that Inocencio may not utilize a comparative juror analysis argument to support his claim that the trial court erred by failing to make an ultimate finding of purposeful discrimination in this case. They reason that comparative juror analysis is a uniquely federal law argument and that Inocencio waived that argument because, during jury selection, defense counsel raised a “Wheeler issue, not a Batson issue.”
A comparative juror analysis was utilized by the United States Supreme Court in Miller El v. Dretke (2005) 545 U.S. 231, 241. There, the Court stated that “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.”
We reject the People’s waiver argument for several reasons. First, our Supreme Court has held that a Wheeler objection is sufficient to preserve a Batson claim on appeal. (See People v. Williams (2006) 40 Cal.4th 287, 310, fn 6.) Second, Inocencio’s defense counsel did make a comparative juror analysis argument in the trial court at least with respect to Ms. McN. Finally, even if the issue had not been raised in the trial court, we would address it here. Our Supreme Court has repeatedly stated that it would assume without deciding that comparative juror analysis for the first time on appeal is constitutionally required in cases in which the trial court found a prima facie case of discrimination. (See People v. Huggins (2006) 38 Cal.4th 175, 232; People v. Avila (2006) 38 Cal.4th 491, 546; People v. Jurado (2006) 38 Cal.4th 72, 105; People v. Schmeck (2005) 37 Cal.4th 240, 270.)
Therefore, in addressing Inocencio’s claim that the trial court failed to adequately evaluate the prosecutor’s reasons for excusing Ms. Z., Ms. D. and Ms. McN., we will consider his comparative juror analysis along with his other contentions. In considering each of these three challenges, however, we are mindful that “ ‘ “[t]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.” [Citation.] Inquiry by the trial court is not even required. [Citation.] “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” [Citation.] A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection. [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 936.)
4. Ms. Z.
a. Background
According to her juror questionnaire, Ms. Z. is a 63-year-old computer programmer. She was born in Mexico, and describes her race or ethnicity as “mixed (Hispanic and European).” The juror questionnaire asked each prospective juror the following question: “Have you, any family member or friend, ever been involved with the mental health field or professions in any way or manner, including employment, volunteer work, personal treatment, etc.?” Ms. Z. responded “yes” to this question and then explained: “I’ve been in therapy as have most of my friends.” She also stated that she believed that psychiatric evidence “can add to ones understanding of why a person behaved a particular way.”
During voir dire, nobody asked Ms. Z. about her statement that she has been in therapy. The prosecutor briefly questioned Ms. Z. He inquired about a statement in her questionnaire that she was involved in a prisoner’s rights group. Ms. Z. denied making such a statement (which, indeed, she had not). The prosecutor also asked Ms. Z. for her reaction to the charges and she responded that she was surprised by them and by the prospect of sitting as a juror in a murder case.
b. Analysis
As noted above, the prosecutor stated that he excused Ms. Z. because she was currently in psychotherapy for a mental problem which might come into play during the trial. Inocencio contends the trial court failed its duty to conduct a meaningful inquiry as to whether the prosecutor’s proffered reason for excusing Ms. Z. was pretextual. To begin with, Inocencio points out that the prosecutor’s statement was factually inaccurate. Ms. Z. did not state that she was currently undergoing psychotherapy. Rather, she stated on her questionnaire that she, like most of her friends, had been in therapy.
A prosecutor’s “genuine mistake” can be a race-neutral reason for exercising a peremptory challenge. (People v. Phillips (2007) 147 Cal.App.4th 810, 819.) Further, “[w]e rely on the trial court’s judgment to distinguish bona fide reasons from sham excuses. [Citation.]” (Id. at p. 819.) On the other hand, when the prosecutor’s proffered reason is either “unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reason[] appear[s] sufficient.” (People v. Silva, supra, 25 Cal.4th at p. 386.)
In the present case, the prosecutor’s proffered reason for excusing Ms. Z. was neither inherently implausible nor unsupported by the voir dire record. Importantly, nothing in the record contradicts the prosecutor’s statement about Ms. Z. (See People v. Reynoso, supra, 31 Cal.4th at pp. 923-924 [finding that a reason not actually contradicted by the record was neither implausible nor unsupported by the record].) Indeed, the statement in her jury questionnaire was sufficiently ambiguous to support an inference that Ms. Z. was currently in psychotherapy. Further that inference or assumption, even if wrong, establishes a race-neutral reason for excusing Ms. Z. which was also case-specific. The prosecutor was concerned that Ms. Z. had a mental health issue that might come into play during the trial. That concern was not implausible in light of the fact that the defense was relying on the testimony of a mental health expert; a juror undergoing psychotherapy might be particularly susceptible to influence by such an expert.
We also find that the trial court, which had the benefit of participating in voir dire, and observing both the prosecutor and Ms. Z., was in a better position than we to determine whether the prosecutor truly did make the assumption that Ms. Z. was currently in psychotherapy. “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [E]valuation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ [Citations.]” (Hernandez v. New York (1991) 500 U.S. 352, 365.)
Inocencio next contends that the prosecutor’s failure to ask Ms. Z. any questions about psychotherapy should have caused the trial court to question whether the prosecutor’s stated reason for excusing her was pretextual. To support this argument, Inocencio relies on Miller-El v. Dretke, supra, 545 U.S. 231. In that case, the prosecutor stated that he struck a Black juror because of the man’s expressed opposition to capital punishment. After defense counsel pointed out that the prospective juror had not expressed that view, the prosecutor changed his position and stated that the man was excused because his brother had a criminal history. Finding that the State’s new reason “reek[ed] of afterthought,” the court rejected it as “implausible,” and observed that the prosecutor had not asked the potential juror any questions about how his brother’s history affected him “as it probably would have done if the family history had actually mattered.” (Id. at 246.)
Miller-El v. Dretke does not support Inocencio’s argument with respect to Ms. Z. In the present case, the prosecutor did not change his reason for excusing Ms. Z. Further, the proffered reason was not implausible, as it was in Miller-El. As we have already explained, the prospective jurors’ experience with and feelings about the mental health profession were indisputably relevant to the jury selection process. Indeed, the question was specifically addressed in the juror questionnaire. Thus, assuming (as we do) that the prosecutor genuinely believed that Ms. Z. was currently in psychotherapy, he had no reason to probe the issue any further.
Inocencio next contends that the trial court erred by accepting the prosecutor’s proffered reason once defense counsel pointed out that the prosecutor had not consistently applied his “psychotherapy disqualification” to prospective jurors. Specifically, Inocencio contends that Ms. Z. and Juror No. 3, who was not excused, were similarly situated. He maintains that his defense attorney pointed out to the court the “anomaly” that Juror No. 3 acknowledged two years of psychotherapy and was not struck while Ms. Z. made only a vague reference to having had therapy and was excused. Therefore, Inocencio argues, the trial court had an obligation to probe the issue and its failure to do so constitutes reversible error.
For clarity, we parse this argument in two phases. Initially, we find that the record undermines Inocencio’s remarkably forceful contention that he raised this issue in the trial court. We have summarized defense counsel’s remarks above. He did not argue that the prosecutor’s claimed reason for excusing Ms. Z. was inconsistently applied. Nor did he, at any time during his Wheeler motion, identify Juror No. 3 as a person who was similarly situated to anyone else. Inocencio cannot now fault the trial court for failing to respond to an argument that Inocencio’s defense counsel simply did not make. Nevertheless, as noted above, we will address the merits of Inocencio’s comparative juror analysis argument for the first time on appeal.
Defense counsel’s primary contention with respect to Ms. Z. was that he did not believe the prosecutor thought she was Caucasian. The trial court did specifically address that concern in its ruling. The court observed that a person born in Mexico is not necessarily of that ancestry, it acknowledged its own mistake with respect to Ms. Z.’s ethnicity, and then it expressly found that the prosecutor had exercised his challenge in good faith.
According to her juror questionnaire, Juror No. 3 is a 60-year-old teacher who works at the Santa Rita jail. She describes her race/ethnicity as “WASP - Middle aged, white, moderate protestant.” Juror No. 3 works with the Alameda County Sheriff’s Department as a teacher for the jail’s drug and alcohol rehabilitation program. Juror No. 3’s older brother is a criminal defense attorney who used to be an assistant district attorney. Juror No. 3’s daughter was sexually assaulted when she was eleven years old and Juror No. 3 testified at the assailant’s trial.
As noted earlier, one of the questions on the juror questionnaire asked about the person’s involvement with the mental health field and whether the person has been involved “in any way or manner, including employment, volunteer work, personal treatment, etc.” Juror No. 3 gave the following response: “All of the above. I have been a social worker, hotline counselor, therapist, counselor, teacher, and had about 2 years of therapy.”
Inocencio argues that Ms. Z. and Juror No. 3 have “remarkably similar” personal profiles except for the fact that Juror No. 3 identified herself as a “Wasp-middle aged, white, moderate Protestant” on her questionnaire. We disagree. Several circumstances unique to Juror No. 3 could have led the prosecutor to believe she would be a favorable juror including her connections to and work with law enforcement, her extensive knowledge about drug and alcohol abuse and her prior experience with the criminal justice system as the mother of an assault victim.
Inocencio contends that the prosecutor’s failure to apply his psychotherapy disqualification to Juror No. 3 notwithstanding her disclosure that she has had two years of therapy is evidence of purposeful discrimination. Again, we disagree. Although Juror No. 3 stated she had obtained two years of therapy, her experience with the mental health field was primarily as an educator and was so extensive that the prosecutor could well have concluded that she would not have been unduly impressed or influenced by the defendant’s mental health expert.
Inocencio’s final contention with respect to Ms. Z. is that the trial court erred by articulating enhanced and expanded explanations to justify excusing Ms. Z. We do not reach the merits of this argument, however, because Inocencio relies on comments the trial court allegedly made while ruling on Inocencio’s new trial motion. Statements that the trial court may or may not have made when ruling on a motion for a new trial have no bearing whatsoever on the question before us which is whether the court properly denied a Wheeler motion that was made during jury selection.
After the trial was completed, Inocencio alleged a Wheeler/Batson violation in his motion for new trial. The trial court again found that no such violation occurred.
5. Ms. D.
a. Background
According to her juror questionnaire, Ms. D. is 54 years old and works for Cisco Systems. She was born in Ecuador and describes her race or ethnicity as Hispanic. Ms. D. responded “yes,” to an inquiry in the questionnaire as to whether she has any physical or medical issues that would prevent her from sitting on a jury and explained that she suffers from migraine headaches. Ms. D. wrote that her initial reaction when she heard the charges against the defendant was: “SADNESS -- such a young man charged w/crime.”
During voir dire by the court, Ms. D. stated that she takes medication for her migraine headaches but that they could “possibly” interfere with her ability to serve on a jury. She noted that she got a migraine while filling out the juror questionnaire. With reference to the statement in Ms. D.’s questionnaire that hearing the charges caused her sadness, the trial court inquired whether she might be sympathetic to the defense. Ms. D. responded: “No. I just think sadness because I think a lot of youth, there’s more problems with the youth nowadays than there were before.”
The prosecutor also referenced Ms. D.’s statement that the charges against the defendant caused her sadness and asked whether the defendant’s youth would cause Ms. D. to look for a reason to find him innocent. Ms. D. responded that it would not. Ms. D. also told the prosecutor that her migraines are sometimes caused by stress and that, when she gets one, she temporarily loses her vision and has trouble concentrating but is generally all right the next day.
b. Analysis
As noted earlier, the prosecutor stated that he excused Ms. D. primarily because of her migraine headaches and also because she had expressed sympathy for Inocencio. Inocencio contends that the trial court erred by accepting these reasons at face value.
First, Inocencio disputes that Ms. D. expressed sympathy for him and argues that, had the trial court adequately evaluated the matter, it would have found that the prosecutor mischaracterized the record. Inocencio contends the statement in Ms. D.’s questionnaire disclosed only that she experienced sadness, and that there is “a major difference between sadness and sympathy.” Indeed, Inocencio accuses the prosecutor of “manipulation” by conflating these two distinct emotions.
We reject the notion that there is only one acceptable interpretation of Ms. D.’s statement. Sadness and sympathy are not inconsistent, and the prosecutor who had the opportunity to listen to and interact with Ms. D., could well have been concerned, from both the initial statement and the discussion about that statement during voir dire, that Ms. D. was sympathetic to the defendant.
Inocencio also contends that the prosecutor’s reliance on Ms. D.’s medical condition was “contrived.” He argues that the trial court essentially resolved any problem relating to Ms. D.’s migraine headaches by indicating that it would qualify “ample” alternate jurors. We disagree. Ms. D. expressly stated in her questionnaire that her migraines might prevent her from sitting on the jury. During voir dire, she also admitted that she could not concentrate when she experienced a migraine, that stress could cause such a headache and that even filling out the questionnaire caused her to have a migraine. In light of those statements, the prosecutor could well have been concerned that Ms. D.’s medical condition would have prevented her from giving the trial her full attention. That problem could not be remedied by the presence of alternate jurors.
6. Ms. McN.
a. Background
According to her juror questionnaire, Ms. McN. is a 51-year-old labor and delivery nurse. She was born and raised in Colombia and identifies her race or ethnicity as Hispanic. In the 1980’s, Ms. McN. worked for several years as a legal secretary for criminal defense attorney Dennis Roberts. Ms. McN. is treated by a psychiatrist for depression and an anxiety disorder, has participated in psychotherapy and takes antidepressant medication.
On her questionnaire, Ms. McN. answered “yes” to a question about whether her views or beliefs about the criminal justice system could make it difficult for her to sit on a jury. She explained that the “3 strikes law can be used for 3 small crimes while a more major crime is just one.” Ms. McN. also answered “yes” when asked whether her opinion or experience with respect to discrimination would affect her ability to be a fair and impartial juror.
During voir dire by the trial court, Ms. McN. stated that she had worked for attorney Roberts twenty years ago for a few years. The court described Roberts as a quite famous lawyer with celebrity clients and asked whether Ms. McN.’s association with him would make her biased in favor of the defendant. Ms. McN. said that she did not think it would. Ms. McN. also acknowledged that she suffers from depression, but stated that it was not a problem, that she can function well. Ms. McN. takes antidepressant medication which she feels does not affect her judgment.
During the prosecutor’s voir dire, Ms. McN. described her relationship with attorney Roberts as close. When she worked for him, Roberts had a small office and was handling high-profile criminal defense cases. Her job required her to learn about the facts of those cases. Ms. McN. also told the prosecutor that her problem with the Three Strikes Law would not affect her ability to be fair in this case.
During defense counsel’s voir dire, Ms. McN. stated that she has also worked as a legal secretary for an asbestos law firm and an insurance defense firm.
b. Analysis
As noted above, the prosecutor explained that he excused Ms. McN. because the “totality” of several circumstances left him concerned as to whether she could “truly be a fair and impartial juror in this case.” Inocencio contends the trial court erred by finding this was an adequate race-neutral explanation for challenging Ms. McN.
Inocencio directly challenges a few of the circumstances that the prosecutor mentioned. For example, the prosecutor expressed concern that Ms. McN. was currently under the care of a psychiatrist for depression and anxiety. Without disputing the fact of Ms. McN.’s condition, Inocencio points out that she stated during voir dire that her depression and the psychotropic medication she was taking would not cause a “problem.” Clearly, though, that statement did not preclude the prosecutor from concluding otherwise.
The prosecutor was also concerned by the fact that Ms McN. had worked for a high profile criminal defense attorney and noted that “she had discussions with him about his cases.” Characterizing the prosecutor’s comment as a fabrication, Inocencio argues that “[t]here is nothing in the record that suggests that Juror McN., the lowly legal typist, had any kind of heart-to-heart talks with Mr. Roberts, the celebrity attorney, about the caseload during her employment there.” In fact, we find nothing in the record to support Inocencio’s characterization of Ms. McN. as a “lowly typist.” The record shows that Ms. McN. worked closely with Roberts in a small office during a time when he handled high profile cases and that her duties required her to learn about the facts of those cases. From this testimony, the prosecutor logically concluded that Ms. McN. discussed those cases with Roberts. Even if she didn’t, her prior relationship with Roberts was unquestionably a race-neutral explanation for the prosecutor’s decision to challenge her.
Inocencio contends that a comparison of Ms. McN. to Juror No. 3, who we have already discussed in connection with Ms Z., compels the conclusion that the stated concern about Ms. McN.’s relationship with attorney Roberts was pretextual. Inocencio points out that Juror No. 3’s brother was currently working as a criminal defense attorney and she was not excused for that reason.
The prosecutor was concerned by the fact that Ms. McN. had worked for a prominent criminal defense lawyer. Juror No. 3’s questionnaire reflects that she has never been employed by an attorney. Further, although Juror No. 3’s brother was a defense attorney, he had also worked as a prosecutor. In addition, as noted above, numerous circumstances unique to Juror No. 3 could have led the prosecutor to conclude that she would be a good juror from his perspective. By contrast, Ms. McN.’s prior relationship with a prominent criminal defense attorney was only one of a “totality of the circumstances,” which led the prosecutor to question whether she could be fair and impartial. In this regard, we underscore that Ms. McN. expressly stated in her juror questionnaire that her views or beliefs about the criminal justice system could make it difficult for her to sit on a jury and that her opinion or experience with respect to discrimination would affect her ability to be a fair and impartial juror.
Inocencio also argues that the fact that the prosecutor did not ask Juror No. 3 any questions about her defense attorney brother is evidence that Juror McN.’s prior employment by Roberts was used as pretext for discrimination. We disagree. Juror No. 3’s questionnaire disclosed that her brother had worked as both a prosecutor and a defense attorney and showed that her own employment history did not include working for her brother or any other attorney. Further, by the time the prosecutor conducted his voir dire of Juror No. 3, the trial court had already expressly inquired about her brother and Juror No. 3 had stated that her relationship with him would not make her biased toward either the defense or the prosecution in this case. Under these circumstances, the fact that the prosecutor did not ask Juror No. 3 about her brother does not strike us as suspicious.
7. Conclusion
The fuel for Inocencio’s argument on appeal is that, if the prosecutor’s stated reasons are either unsupported by the record or inherently implausible, the trial court has an obligation to probe the matter further. We accept this proposition. (See People v. Silva, supra, 25 Cal.4th at 382.) However, in the present case, the prosecutor’s race-neutral, case-specific reasons for excusing the three prospective jurors at issue were supported by the record and were not inherently implausible. In light of this fact, we reject Inocencio’s contention that the trial court failed to conduct a sufficiently probing inquiry to satisfy the third prong of Wheeler/Batson. Nor has he otherwise shown that the trial court erred by denying the Wheeler motion in this case.
B. Excluded Evidence
Inocencio contends that his constitutional rights to due process and to confront witnesses against him were denied because the trial court erroneously precluded him from introducing evidence that tended to support his defense theory that Ralph Cortez was the shooter. Specifically, Inocencio objects to the exclusion of evidence (1) that Cortez was involved in a violent altercation while in jail in 2005, (2) regarding Cortez’s knowledge of the penalty for murder, and (3) that Cortez’s former girlfriend thought Cortez was a liar.
1. The 2005 incident
During cross-examination, defense counsel asked Cortez whether he ever threatened to kill anybody and Cortez responded that he had not. Counsel then proceeded to ask Cortez about an incident that occurred in December 2005 while Cortez was in Santa Rita jail. Cortez confirmed that he knew a prisoner named Meskinyar and recalled a card game. However, when defense counsel began to ask questions about whether an argument or disagreement occurred, the trial court sustained a relevancy objection and stated that “I think this is too far beyond the time period that we’re talking about.” Counsel responded that “[i]t goes to his character,” but the court did not change its ruling.
Shortly after this exchange occurred, the trial court explained its ruling outside the presence of the jury: “My ruling was based on the fact this was the first I heard about it, number one. I did make several rulings in limine. I did allow impeachment with Mr. Cortez with his felonies, also drug usage both in the past and in the current, and his probationary parole and incarceration status. I feel I have made rulings consistent with that. [¶] However, this 2005 discussion, I feel, was not relevant. This murder occurred in 2002 and I had been very liberal in allowing impeachment evidence as to Mr. Cortez. Since I didn’t have prior notice of the 2005 incident, I felt it was not timely in reference to this particular murder. Also, if anything, the incident sounds as though it was dealing with a propensity towards violence and I think undue prejudice would attach. That’s why I made the ruling.”
Before moving on, the court permitted defense counsel to make an offer of proof for the record. Counsel stated he had information that, on December 13, 2005, Cortez was playing cards with Meskinyar, that, at one point, Meskinyar said that Cortez had cut the cards the wrong way and that a few minute later, Cortez, without reason or warning, hit Meskinyar in the face, breaking his nose and injuring his left eye. The two men fought on the floor and Cortez put his arm around Meskinyar’s neck and choked him and made the statement, “you don’t know who I am; I will kill you.” After hearing this offer of proof, the court stated that its prior ruling would stand.
On appeal, Inocencio contends the trial court erred by excluding testimony about the 2005 incident which he characterizes as evidence of Cortez’s “homicidal hair trigger,” relevant to show that it was more likely Cortez, rather than Inocencio, “who had the outburst of road rage that resulted in the fatal shooting.”
Evidence that a third party committed the charged offense, so-called “third party culpability” evidence, is admissible if it is “capable of raising a reasonable doubt of [the] defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) However, the law does not require that “any evidence, however remote, must be admitted to show a third party’s possible culpability.” (Id. at p. 833; see also People v. Robinson (2005) 37 Cal.4th 592, 625 (Robinson) [applying Hall test]; People v. Lewis (2001) 26 Cal.4th 334, 371-372 (Lewis) [same].)) Our Supreme Court has ruled that third party culpability evidence is to be treated “like any other evidence: if relevant it is admissible ([Evid. Code] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion ([Evid. Code] § 352).” (Hall, supra, 41 Cal.3d. at p. 834; Lewis, supra, 26 Cal.4th at p. 372 Robinson, supra, 37 Cal.4th at p. 625.) “A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]” (Lewis, supra, 26 Cal.4th at pp. 372-373.)
Applying these rules here, we find the trial court did not abuse its discretion. Because the 2005 incident was remote in time, and did not involve a victim or method of attack that was similar to the present crime, the court could reasonably have concluded the evidence was “too speculative to be relevant.” (See Lewis, supra, 26 Cal.4th at p. 373.) Further, in light of the fact that the court had already admitted significant impeachment evidence, it reasonably determined that the prejudicial effect of the 2005 incident outweighed its probative value.
Inocencio contends the trial court erred by excluding this evidence as a penalty for failing to give the court and prosecution prior notice of it. Inocencio cites People v. Tillis (1998) 18 Cal.4th 284, for the proposition that impeachment evidence does not have to be disclosed prior to trial or even prior to its use. Regardless, we do not accept the argument that the trial court excluded the evidence as some sort of penalty. Rather, the court made clear that it did not consider the evidence sufficiently relevant to outweigh its prejudicial effect.
Inocencio contends that he was entitled to use the 2005 incident to “show that Cortez had a character trait for hair trigger violence” which made it more likely he was the shooter in the 2002 incident. By essentially conceding that the proffered evidence was bad character evidence, Inocencio “undercuts his position that the evidence should have been admitted.” (Lewis, supra, 26 Cal.App.4th at p. 373, citing Evid. Code, § 1101, subd. (a) [character evidence is inadmissible to prove a person’s conduct on a specified occasion].) “ ‘The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevancy can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible.’ [Citation.]” (Lewis at p. 373)
2. Cortez’s Knowledge Regarding the Penalty for Murder
During cross-examination, defense counsel asked Cortez the following three questions regarding the penalty for murder: 1) “[D]o you know what happens generally to people that are convicted of murder?” 2) “At the time of this thing when you were with Crystal, do you know what the punishment is for murder?” 3): “You told us you were scared. You weren’t scared of going to jail but you were scared of going to jail because you know what happens to people that get convicted of murder, don’t you?” The trial court sustained relevancy objections to each of these questions.
On appeal, Inocencio contends the trial court committed reversible error by excluding evidence of Cortez’s knowledge of the penalty for murder because that evidence was “directly relevant to the magnitude of his motive to falsely pin the murder on appellant.” Inocencio contends that excluding this evidence of Cortez’s motive to shift the blame for the shooting to him violated Inocencio’s Sixth Amendment right of confrontation and cross-examination.
“[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Although a “criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citation] ‘[t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than “slight-relevancy” to the issues presented.’ [Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 372.)
In the present case, the trial court did not violate Inocencio’s Sixth Amendment right or otherwise err by sustaining objections to the three questions at issue. On their face, the questions about Cortez’s knowledge regarding the penalty for murder were argumentative and not obviously relevant to any material issue in this case. Further, the questions were potentially prejudicial as they may have misled the jury about the law. Finally, the theory of relevance Inocencio advances for the first time on appeal is flawed. He asserts that Cortez’s perception about the penalty for murder was relevant to establish a motive for falsely accusing Inocencio of the crime, i.e., to avoid that penalty himself. We disagree. It strikes us as undisputable that if, indeed, Cortez was the shooter, he had a motive for “shifting” the blame to Inocencio regardless whether he could articulate the penalty for murder. It is also equally clear, that Cortez’s legal knowledge regarding the penalty for murder makes it no more or less likely that he was the shooter.
3. Crystal Wilson’s testimony
While questioning Cortez’s former girlfriend, Crystal Wilson, the prosecutor asked Wilson what Cortez had told her about the shooting. At one point, Wilson stated: “He said he just started shooting and I just -- I didn’t’ pay no attention, no thought to it really because Ralph lied a lot.” At that point, the prosecutor asked the court to strike the last portion of Wilson’s statement as “not responsive.” The court struck “the portion about Ralph lying a lot” and admonished the jury to disregard it.
On appeal, Inocencio contends the trial court erred by striking the statement that Ralph lied because evidence of Cortez’s character for truthfulness was admissible to impeach his credibility. The most obvious problem with this argument is that the statement that Ralph lies was stricken because it was not responsive to the question that Wilson was asked, not on relevancy grounds.
In any event, while under cross-examination by defense counsel, Wilson testified that Ralph was not an honest person, that he lied a lot and that, often, things he told her turned out to be “a complete lie.” Also, as noted in our factual summary, Jessica Eisenhart testified that Cortez had a reputation as a liar. Therefore, the record belies Inocencio’s contention that he was precluded from introducing evidence at trial regarding Cortez’s reputation as a liar.
C. Admission of Evidence Regarding Attorney Communication
Inocencio’s final contention is that the trial court deprived him of his due process right to a fair trial by permitting Reyna Cortez’s former attorney to testify about a confidential communication.
1. Background
As noted in our factual summary, Reyna told investigators and also testified at the preliminary hearing that Inocencio told her that he shot Ratto. But then, while under cross-examination by defense counsel at trial, Reyna denied that Inocencio ever made that revelation to her and attempted to explain her preliminary hearing testimony by describing a conversation she had with her attorney prior to the hearing. Reyna testified that her attorney, Todd Bequette, told her that she could be prosecuted for perjury if she changed the story she had previously given to the investigators. Therefore, Reyna explained, she felt she had to testify that Inocencio told her he shot Ratto even though he did not admit that to her.
After Reyna completed her testimony, the prosecutor called Bequette to the stand. Bequette confirmed that he was appointed to represent Reyna prior to the preliminary hearing in this case. Then, after obtaining confirmation from the court that Reyna had waived her attorney-client privilege, Bequette answered questions about the conversation he had with Reyna prior to the preliminary hearing. Bequette testified that Reyna told him that she felt pressured to make the statements that were recorded by investigators during her interview. She also said she was concerned about being prosecuted for perjury depending on how she testified at the preliminary hearing.
Before Reyna testified about her conversation with Bequette, she (1) discussed the attorney-client privilege with an attorney, and (2) was expressly advised by the court that testifying about the conversation could result in a waiver of the privilege.
Bequette testified that he told Reyna she should tell the truth no matter what pressure she was getting. He also advised that perjury was lying under oath and she would not have to worry about that so long as she told the truth. Reyna then told him that she had told police the truth. Bequette also testified that Reyna previously told him that Inocencio told her he shot a man because of road rage.
2. Analysis
Inocencio’s first contention is that the trial court erred by permitting such broad questioning of Bequette in light of the fact that Reyna never expressly waived the attorney-client privilege. However, as Inocencio himself ultimately concedes, he does not have standing to assert this claim of error.
Inocencio next contends that Bequette’s testimony that Reyna told him that she had been truthful with police was inadmissible hearsay. Inocencio did not, however, raise a hearsay objection in the trial court and therefore failed to preserve the issue for appeal. (Evid. Code § 353.) Furthermore, contrary to Inocencio’s argument on appeal, this specific testimony to which Inocencio now objects is evidence of a prior inconsistent statement by a witness since Reyna expressly testified that she had lied to the police. (See Evid. Code § 1235 [“Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”].)
Finally, Inocencio contends that his due process rights were violated because the trial court permitted an attorney to “vouch” for Reyna’s prior preliminary hearing testimony. This argument, which Inocencio did not make in the trial court, is factually and legally flawed. As a factual matter, Bequette was a percipient witness whose testimony was made relevant by the defense decision to solicit information from Reyna about her conversation with Bequette. Bequette did not vouch for Reyna’s credibility but only recounted the conversation that had taken place.
Further, Inocencio can cite no authority to support his contention that eliciting testimony from a percipient witness can violate a defendant’s due process rights simply because the witness is an attorney. “A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971.) But, Bequette is not a prosecutor and his role in these proceedings was solely that of a percipient witness. His testimony about his conversation with Reyna was admitted only after she waived her attorney-client privilege. Therefore, we find no basis for Inocencio’s belated contention that admitting this evidence at trial deprived him of due process.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
When detectives interviewed Bryant on the day of the shooting, she intentionally gave them a false description of the car and its occupants and also changed her story around with the hope that she would not have to be a witness.