People v. Davis CA1/1

Filed 4/30/14 P. v. Davis CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A134279
v.
DERRELL RONALD DAVIS, (Alameda County
Super. Ct. No. 162119A)
Defendant and Appellant.

A jury convicted defendant Derrell Ronald Davis of the first degree murder of
Ronnie Grier, as well as illegal possession of a firearm by a felon, and enhancements for
using a firearm and causing great bodily injury or death. The trial court found prior
conviction allegations true, and sentenced Davis to 80 years to life in prison.
On appeal, Davis contends (1) the trial court erred by not instructing the jury to
determine whether a witness was an accomplice whose testimony required corroboration,
(2) the court erred by admitting opinion testimony by an investigating officer, (3) the
prosecutor committed misconduct by urging the jury to consider testimony by the officer
for its truth rather than for the limited purpose for which it was admitted, and (4) his trial
counsel was prejudicially ineffective for failing to introduce the videotape of a police
interview of a witness. We affirm.

1
 I. BACKGROUND1
Two drivers discovered Grier’s body on a street in the early morning hours of
November 14, 2008. Grier suffered three gunshot wounds to his head.
Terrell Fisher, who is Davis’s half brother, testified Davis shot and killed Grier.
Fisher met Grier in 2008 through Fisher’s and Davis’s cousin Jamerl Taylor (who later
pled guilty to voluntary manslaughter for his role in the killing, and testified for the
prosecution). Fisher moved in with Grier at the home of Grier’s girlfriend Trina.
A few days before Grier was killed, Fisher heard Davis and Grier arguing at
Trina’s house. He heard them yelling and cursing, but did not know what the argument
was about. Davis was doing all the arguing. Grier seemed like he did not have a problem
and left.
Also a few days before Grier was killed, Taylor told Fisher to watch out for Grier,
and said Grier might be trying to set Fisher up. Fisher did not know what Taylor was
talking about. On the day before Grier was killed, Taylor again pulled Fisher aside and
told him to watch out for Grier.
Taylor testified Davis was not as close to Grier as others in their circle were.
Taylor was aware Grier and Davis had a physical altercation a few days before Grier was
killed. The day before Grier was killed, Davis said: “I’m going to kill this nigga,” and
“Fuck this bitch ass nigga.” Taylor did not know whom Davis was referring to, and when
Taylor asked, Davis did not give a name. Davis said, “Somebody within our circle,”
which made Taylor think Davis was talking about Grier. Davis also referred to “that
bitch ass N word, Rell.” Davis and Grier were the only two people with the nickname
“Rell” in their circle of friends.
The evening before Grier was killed, Fisher, Davis, Taylor, and Taylor’s brother
Jamar drove from Trina’s house in Taylor’s car to Jamar’s house, where they dropped
Jamar off. They then drove to Davis’s house. Davis said he had to run inside to get

1
We provide additional background facts in the sections of this opinion addressing
Davis’s arguments on appeal.

2
something and went into his house alone for a few minutes. Fisher did not see Davis with
a gun before this stop.
Later that night, Fisher went to the bus stop because he wanted to go buy alcohol.
He saw Taylor pull up to a nearby gas station, so he called Taylor, who picked him up.
Taylor was driving; Grier was in the front passenger seat; Davis was sitting in the back
behind Grier; and Fisher got in the back behind Taylor. Taylor drove them to a
convenience store, where only Fisher got out and bought alcohol.
When Fisher got back in the car, it appeared Taylor did not want him in the car;
Taylor suggested taking Fisher back to Trina’s house. Davis said he, Grier, and Taylor
were going to pick up some girls. Fisher wanted to stay and asked what they were going
to do. Davis said Fisher could come with them. Rap music was playing loudly on a
boom box in the front of the car. Davis and Grier were dancing to the beat of the music.
Fisher was looking out the window. Davis tapped his shoulder and showed Fisher
he was holding a gun. Davis said, “It’s loaded too.” Fisher returned to looking out the
window. Fisher and Taylor heard a shot, and Fisher saw a flash. Fisher and Taylor both
looked and saw Davis had the gun to Grier’s head. Davis then fired a second shot.
Fisher testified that, after the second shot, the gun appeared to jam. Davis moved his
hand back and forth on the gun to fix the slide, and then shot a third time. Grier’s head
slumped forward.
Fisher and Taylor testified the gun Davis used appeared to be a .22 caliber
semiautomatic. Both Fisher and Taylor had seen Davis with the gun before and had
noticed that it jammed.
Taylor stopped the car on a dead-end street, kept his foot on the brake, lifted the
center console, reached over Grier, and opened the passenger door. Taylor tried to push
Grier’s body out of the car. Taylor asked Davis for help, and Davis reached from the
back seat to help push Grier’s body out. Fisher also testified Taylor used a foot to push
Grier out of the car. Fisher did not touch Grier. The top part of Grier’s body was out of
the car, and his feet were still inside. Taylor began to drive, and Grier’s feet fell out, so

3
that his body was entirely in the street. Taylor testified that, as he made a turn, the
passenger door closed on its own.
Fisher testified that Taylor said to Davis, “Good shit.” Davis and Taylor clasped
hands and “gave each other some skin.” Davis told Fisher, “I know that was your friend,
but he had to go.” Taylor looked at Fisher in the rear view mirror and told Fisher, “[Y]ou
better not say shit.” Taylor testified he told Fisher not to say anything because he was
afraid Davis would do something to Fisher too. Taylor thought Fisher looked shaken and
afraid. Davis said, “He ain’t going to say nothing.”
Taylor drove back to Trina’s house and dropped off Fisher.
Taylor later used bleach and other products to attempt to clean blood out of the
car. Neither Fisher nor Davis helped clean the car.
When police later searched the car, they found blood in various locations in the
front and back right side of the car. An area of discoloration on the right rear floorboard
was consistent with a bleaching reaction. The blood in the car indicated someone suffered a
significant wound in the car, and a gunshot wound would be a reasonable explanation for the
evidence. Based on DNA testing, Grier could not be eliminated as the donor of the blood
found in Taylor’s car. The medical examiner, an expert in forensic pathology, testified Grier
could have been shot from behind.
An expert in tool markings and firearm identification testified she was able to
determine two of the bullets removed from Grier’s head were .22 caliber; as to the third
bullet, the expert could not determine the caliber, but it was similar in weight and shape to
the others.
II. DISCUSSION
A. Jury Instructions as to Accomplice Testimony
1. Background
During closing argument, defense counsel stated: “But when you break it down, it
is as reasonable to assume that Jamerl Taylor and Terrell Fisher were the accomplices to
this homicide as it is to say that Derrell Davis is. They both lied and they both lied at the

4
same time and the same way. They admit to consulting with one another in the same way
at the same time.”
In his rebuttal closing argument, the prosecutor stated: “[Defense counsel] stated
that Terrell Fisher was an accomplice. Wrong. You will receive instructions on
accomplice testimony. The accomplice instruction only applies to Jamerl Taylor. Before
relying on anything Jamerl Taylor says, you must find slight corroborating evidence.
[¶] If the [c]ourt . . . believed Terrell Fisher was an accomplice, you would have received
an instruction saying that Terrell Fisher is an accomplice.” Defense counsel objected:
“Objection. Misstatement of law.” The court responded: “What [the prosecutor] is
saying is correct.” The prosecutor continued: “You will not receive any statements or
instructions that Terrell Fisher is an accomplice. Just because [defense counsel] says he’s
an accomplice does not make it so.”
The court instructed the jury that, if anyone committed the murder, then Taylor
was an accomplice to that crime, and his testimony required corroboration. (See
CALCRIM No. 335.) The court did not give an accomplice instruction as to Fisher.
2. The Court Was Not Obligated to Give Accomplice Instructions as to
Fisher
Penal Code section 1111 provides a defendant cannot be convicted of a crime on
the basis of an accomplice’s testimony unless that testimony is corroborated by other
evidence connecting the defendant with the commission of the charged offense. An
accomplice is a person “who is liable to prosecution for the identical offense charged
against the defendant on trial . . . .” (Pen. Code, § 1111.) This definition encompasses all
persons who are “principals” to the charged crime, including perpetrators and aiders and
abettors, but does not include persons who are merely accessories. (People v. Fauber
(1992) 2 Cal.4th 792, 833–834.) The defendant has the burden to prove by a
preponderance of the evidence that a witness is an accomplice. (Id. at p. 834.) “If
sufficient evidence is presented at trial to justify the conclusion that a witness is an
accomplice, the trial court must so instruct the jury, even in the absence of a request.”
(People v. Brown (2003) 31 Cal.4th 518, 555.)

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 Davis contends the court should have instructed the jury to determine whether
Fisher was an accomplice whose testimony required corroboration. (See CALCRIM
No. 334.) We disagree. There was not sufficient evidence to permit the jury to conclude
by a preponderance of the evidence that Fisher was an accomplice to the murder. (See
People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 302.)
As the parties note, Fisher’s presence at the scene of the shooting is not sufficient
to establish his status as an accomplice on an aiding and abetting theory. (People v.
Verlinde (2002) 100 Cal.App.4th 1146, 1161.) A person’s presence at the scene of the
crime and his “intimate knowledge” of the crime, without more, only establish he was an
eyewitness and not necessarily an accomplice. (People v. Lewis (2001) 26 Cal.4th 334,
369.) Davis points to no testimony or physical evidence showing that Fisher committed
the shooting, or that he intended to and did assist in the crime with knowledge of the
perpetrator’s criminal intent. (See People v. Prettyman (1996) 14 Cal.4th 248, 259
[elements of aiding and abetting liability]; CALCRIM No. 334.)
Davis argues that Fisher’s inconsistent pretrial statements, and inconsistencies
between his testimony and Taylor’s testimony, undercut his credibility. Davis notes that,
when police initially interviewed Fisher in November 2008, he said he did not know what
happened to Grier; at trial, Fisher testified he lied in this interview to protect Davis, and
because he was worried about going to jail. During a second interview in December
2008, Fisher told police Davis had shot Grier, but Fisher’s statements in the second
interview differed in some respects from his trial testimony. In the December 2008
interview, Fisher stated he had never seen Davis with a gun before the day of the
shooting. At trial, Fisher testified he had seen Davis with the same gun a few times
before the shooting. During the December 2008 interview, Fisher said that, when Taylor
called Fisher after the police impounded Taylor’s car, Taylor told Fisher, “Don’t say
shit.” At trial, Fisher stated he did not recall what Taylor said when he called Fisher after
his car was impounded. Finally, Davis notes Taylor and Fisher testified differently as to
certain aspects of the shooting, such as whether there was a pause after the first or second

6
of the three shots, whether Grier wore a hat, and whether Taylor used his feet to try to
push Grier’s body out of the car.
Davis argues that, based on the above inconsistencies, the jury could infer Fisher
was fabricating his account of the incident and, therefore, might be covering up his own
involvement in the shooting. But the inconsistencies between Fisher’s pretrial statements
and his trial testimony, and between Fisher’s and Taylor’s testimony, while relevant to
the jury’s assessment of Fisher’s credibility, do not mean Fisher was an accomplice. Any
witness who was present at the scene of a crime may be subject to impeachment based on
having incomplete or inconsistent recollections of the event, or having made inconsistent
statements about it. Davis cites no authority establishing this is sufficient to require the
giving of accomplice instructions for such an eyewitness.
Davis also points to the testimony of the defense expert on blood spatter analysis
and crime scene investigation, who opined the blood spatter in Taylor’s car was not
consistent with Grier being shot in the front seat. Again, although the jury could consider
this testimony in assessing Fisher’s credibility, it does not show Fisher was an
accomplice, and it did not require the court to give accomplice instructions as to Fisher.
Davis also argues there was “strong evidence” Fisher had a motive to kill Grier,
and Taylor implicated Fisher in the killing. But Davis overstates the evidence on these
points. As to Fisher’s alleged motive, Davis cites Fisher’s testimony that Taylor told
Fisher a few nights before the shooting to watch out for Grier, because Grier might be
trying to set up Fisher. Fisher testified he had no idea what Taylor was talking about, and
he told Taylor he had no problem with Grier. As to Taylor’s alleged implication of
Fisher, Taylor wrote a note to his police interviewers saying: “Terrell Fisher knows
everything. More than me. I really don’t know much. I’m serious.” Taylor brought up
Fisher’s name as someone the police should interview. Davis cites no evidence that
Taylor accused Fisher of committing, or aiding and abetting, the shooting. The cited
evidence is not sufficient to support a conclusion Fisher was an accomplice, i.e., that he
could have been charged as a principal in the shooting of Grier. (See Pen. Code, § 1111.)

7
 In People v. Lewis, which the parties discuss, the Supreme Court rejected the
defendant’s argument that the trial court should have given accomplice instructions as to
an eyewitness to the crime. (People v. Lewis, supra, 26 Cal.4th at pp. 369–370.) There
was evidence the alleged accomplice was at the crime scene, “had intimate knowledge of
the crimes beyond that of a mere bystander,” had a habit of carrying sticks or boards
(similar to the murder weapon), and had a reputation for dishonesty. (Id. at p. 369.) The
alleged accomplice offered inconsistent testimony. (Ibid.) There was testimony that
bloody shoes found at the scene fit the alleged accomplice better than the defendant.
(Ibid.) The defendant theorized the victim was attacked by a left-handed person, and the
alleged accomplice was left-handed while the defendant was right-handed. (Ibid.) The
Supreme Court found no error, characterizing the defendant’s evidence as “not
substantial but speculative.” (Ibid.) Although Davis seeks to distinguish People v. Lewis
and argues there was strong evidence here of Fisher’s accomplice status, we reject that
argument for the reasons discussed above. We conclude there was “no evidence other
than speculation that [Fisher] planned, encouraged or instigated [the murder of Grier] to
give rise to accomplice liability.” (See id. at p. 370.) Accordingly, the court was not
obligated to give accomplice instructions in connection with Fisher’s testimony.
3. The Prosecutor’s Argument
Davis contends the trial court erred in its response to the prosecutor’s statements
during closing argument about Fisher’s accomplice status. We disagree.
As noted, when there is sufficient evidence to support a finding a witness is an
accomplice, the court must, sua sponte, instruct jurors to determine whether the witness is
an accomplice. (See People v. Brown, supra, 31 Cal.4th at p. 555; CALCRIM No. 334.)
Accordingly, the absence of any accomplice instruction as to a witness reflects the court
has not determined there is sufficient evidence to support such an instruction (a point
Davis appears to concede in his reply brief). The prosecutor thus was correct in stating
during closing argument that, if the court had determined there was sufficient evidence
Fisher was an accomplice, it would have so instructed the jury. When defense counsel

8
objected that the prosecutor had misstated the law, the court did not err by stating the
prosecutor’s statement was correct.
Davis appears to suggest that, whether or not the trial court concluded there was
sufficient evidence to support an accomplice instruction, he was entitled to seek a jury
finding that Fisher was an accomplice. Not so. When the evidence is insufficient as a
matter of law to support a finding that a witness is an accomplice, the court need not
submit that issue to the jury. (See People v. Gonzales and Soliz, supra, 52 Cal.4th at
p. 302.)
B. Sergeant Basa’s Testimony
1. Background
The prosecutor asked investigating Sergeant Caesar Basa if, during his
investigation, he was “able to exclude Terrell Fisher as the person responsible for killing
Ronnie Grier.” Defense counsel objected that the question “[c]alls for opinion and
conclusion.” The court responded: “This is the investigation, so overruled, yes.” Basa
answered: “Yes, sir.”
The prosecutor asked Basa, “Did any human, witness, person, thing in the world
[tell you] that Terrell Fisher was the person who shot Ronnie Grier?” Defense counsel
objected to the use of the phrase “in the world.” The court overruled the objection,
stating: “It’s a manner of speaking.” Basa answered: “No, sir. Not in the world.”
The prosecutor elicited from Basa, without objection, that he had not obtained any
information in his investigation that led him to believe Taylor shot and killed Grier. The
prosecutor followed up by asking whether Basa had obtained any “credible information”
implicating Taylor as the shooter. Defense counsel objected to the use of the term
“credible,” and the court overruled the objection. Basa answered, “No.”
The prosecutor asked Basa why he arrested Davis. Defense counsel did not
object. Basa answered: “Because the information we received was enough probable
cause for us to arrest Mr. Davis.” The prosecutor followed up by asking Basa, “[C]ould
you just summarize for us?” Basa responded: “Based on the testimony of Mr. Jamerl
Taylor and Mr. Terrell Fisher, who is the defendant’s brother, we had enough probable

9
cause to make an arrest.” Defense counsel objected to the use of the term “testimony.”
The court and the prosecutor clarified Taylor and Fisher were not under oath when they
spoke to the police.
On redirect examination, the prosecutor asked Basa, “As far as Terrell Fisher’s
demeanor or feelings for Jamerl Taylor, did Terrell Fisher in his second interview seem
to be someone who was in cahoots with Jamerl Taylor?” Defense counsel objected to the
question as calling for speculation. The court overruled the objection, stating Basa could
give his lay opinion based on his interviews of Fisher and Taylor. Basa answered, “No,
sir.” Basa explained Fisher had stated he believed Taylor was in on the killing.
Referring to the transcript of Basa’s December 18, 2008 interview of Taylor, the
prosecutor asked Basa whether it refreshed his recollection as to whether he had any
information “about any person in the world wanting Ronnie Grier dead.” Defense
counsel objected to the use of “any person in the world.” The court overruled the
objection, and Basa answered that the transcript of the interview refreshed his
recollection that he had obtained information from Taylor that Davis wanted Grier dead.
In closing argument, the prosecutor, after arguing the physical evidence and
testimony of other witnesses corroborated Fisher’s and Taylor’s accounts of the shooting,
stated Basa had conducted a thorough investigation, including interviewing numerous
witnesses. The prosecutor argued that Basa had told the jury “that the arrows kept
pointing to Derrell Davis, Jamerl Taylor, and Terrell Fisher as being the last persons with
Ronnie Grier[.]” Defense counsel objected to the argument as “[m]isconduct,” and the
court overruled the objection. In his rebuttal closing argument, the prosecutor asked a
series of rhetorical questions, including, “Why did you say Ronnie had to go? Why
would your cousin say you killed Ronnie? Why was Sergeant Basa able to exclude
everyone but you?” Defense counsel objected this was “[i]mproper argument”; the court
overruled the objection.

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 2. Analysis
Davis argues the trial court prejudicially erred in admitting the above portions of
Basa’s testimony because it was improper opinion testimony assessing the weight and
credibility of the evidence.
a. Forfeiture
In general, “trial counsel’s failure to object to claimed evidentiary error on the
same ground asserted on appeal results in a forfeiture of the issue on appeal.” (People v.
Dykes (2009) 46 Cal.4th 731, 756.) As the Attorney General notes and as Davis
concedes, Davis’s trial counsel only objected to one of the allegedly improper questions
(i.e., the prosecutor’s question as to whether Basa was able to exclude Fisher as the
person responsible for killing Grier) on the ground it called for improper opinion
testimony. Accordingly, Davis has forfeited the argument that any of the other
challenged testimony was improper opinion testimony.
We reject Davis’s argument that objecting on opinion grounds would have been
futile. Davis’s trial counsel objected to some of the challenged questions on other
grounds, and she could have added the opinion objection if she believed it appropriate.
Moreover, the record does not support Davis’s suggestion the court would have overruled
any objection to Basa’s testimony about his investigation. To the contrary, the court
sustained a number of defense counsel’s objections to questions about the investigation,
on such grounds as relevance and that the questions called for speculation. This case thus
is not similar to People v. Hill (1998) 17 Cal.4th 800, 820–822 (cited by Davis), in which
the Supreme Court found it would have been futile for defense counsel to continue
objecting to the prosecutor’s egregious misconduct because the trial court not only failed
to rein in the prosecutor, but repeatedly responded to defense counsel’s objections by
chastising him for being an obstructionist.
b. Opinion Testimony
Even if Davis had not forfeited his challenge to most of the above testimony, his
argument fails on the merits. “A lay witness may testify to an opinion if it is rationally
based on the witness’s perception and if it is helpful to a clear understanding of his

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testimony. (Evid. Code, § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) In
People v. Virgil (2011) 51 Cal.4th 1210, 1253–1254, the Supreme Court held a detective
could explain why a murder investigation began to focus on a defendant by testifying that
a composite of the suspect viewed by the detective resembled the defendant. The
testimony was based on the detective’s perceptions and was helpful for the jury to
understand how the detective came to suspect the defendant and how the investigation
came to focus on the defendant months after the murder. (People v. Virgil, supra, at
p. 1254.)
Similarly, here, to the extent the challenged portions of Basa’s testimony included
the opinions or conclusions he reached at different stages of his investigation (such as
whether he could exclude Fisher as the shooter or whether there was probable cause to
arrest Davis), those opinions were based on his perceptions and were helpful for the jury
to understand how the investigation came to focus on Davis and resulted in his arrest
more than one month after Grier’s death.2 Grier’s body was discovered on November 14,
2008. After Basa’s initial interviews of Taylor on November 19 and Fisher on November
21 (which Basa conducted after receiving information that Taylor and Fisher might have
information about Grier’s death), Basa was not yet able to exclude Fisher as a person of
interest in Grier’s death. Police impounded Taylor’s car after a traffic stop on December
10. When Basa interviewed Taylor again on December 11, Taylor stated Davis killed
Grier. However, without corroboration, Basa believed this statement was not sufficient
probable cause to arrest Davis. When Basa interviewed Fisher again on December 15,
Fisher stated Davis shot Grier and Taylor was a willing participant in the crime. Only
then did Basa believe he had probable cause to arrest Davis. Davis was arrested on
December 18.
Davis suggests Basa gave opinions about the state of the evidence at trial (on such
questions as whether Fisher or Taylor shot Grier, or whether there was sufficient

2
In his reply brief, Davis argues some of Basa’s testimony about the investigation
was inadmissible because it was irrelevant. Davis forfeited this argument by failing to
raise it in his opening brief. (See People v. Alexander (2010) 49 Cal.4th 846, 922.)

12
evidence of Davis’s guilt), and thus “improperly intruded on the jury’s fact-finding
function.” We reject this characterization of Basa’s testimony. Basa did not opine about
the strength of the trial evidence. Instead, he testified about the opinions he held at
various points during his investigation based on the information he had obtained.
c. Harmless Error
Even if Davis had preserved a meritorious objection to the challenged portions of
Basa’s testimony, any error in admitting the testimony was harmless.
The erroneous admission of evidence generally does not require reversal unless it
is “ ‘reasonably probable that a result more favorable to the [defendant] would have been
reached in the absence of the error.’ ” (People v. Earp (1999) 20 Cal.4th 826, 878; see
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Davis contends this standard is
inapplicable here, because the admission of Basa’s testimony violated his federal due
process rights. Assuming Davis preserved this argument (see People v. Partida (2005)
37 Cal.4th 428, 433, 435, 438–439 [state law objections permit defendant to argue
admission of evidence had the consequence of violating his due process rights]), we
reject it. This is not one of those “rare and unusual” cases where the admission of
evidence “ ‘rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated
federal due process,” ’ ” thus triggering the standard of review specified in Chapman v.
California (1967) 386 U.S. 18 for federal constitutional error. (See People v. Albarran
(2007) 149 Cal.App.4th 214, 229–230, 232.)
In contending admission of Basa’s testimony violated due process, Davis suggests
Basa, by opining about the strength of the trial evidence and the credibility of witnesses,
intruded into the jury’s role as the trier of fact. But, as noted above, Basa did not opine
about the evidence at trial. He described his investigation, including the opinions and
conclusions he formed at different stages. Further, the prosecution’s case against Davis
was based primarily on evidence other than Basa’s limited opinions on these points. The
eyewitness testimony of Fisher and Taylor that Davis shot Grier was a much more central
part of the People’s case than was the challenged testimony by Basa. (See People v.
Covarrubias (2011) 202 Cal.App.4th 1, 20–21 [where erroneously admitted expert

13
testimony about drug trafficking issues constituted a “significant portion” of
prosecution’s case, but the case was based “primarily” on other evidence, such as
defendant’s inconsistent statements during interrogation, admission of agent’s testimony
did not violate due process].) Although the prosecutor did refer to Basa’s testimony in
closing argument, he did so in the context of referring to other evidence (such as physical
evidence and testimony of other witnesses) that corroborated Fisher’s and Taylor’s
testimony.
Because the allegedly erroneous admission of Basa’s testimony did not violate due
process, we apply the Watson standard of review. (See People v. Covarrubias, supra,
202 Cal.App.4th at p. 21.) We conclude it is not reasonably probable a verdict more
favorable to Davis would have been reached in the absence of the claimed error. (See
Watson, supra, 46 Cal.2d at p. 836.) For the reasons discussed above, it is unlikely the
jury construed Basa’s statements as anything more than an account of the opinions he
held during the investigation. In any event, the evidence of Davis’s guilt was
overwhelming. (See People v. Cummings (1993) 4 Cal.4th 1233, 1295 [erroneous
admission of evidence harmless in light of overwhelming evidence of guilt]; People v.
Covarrubias, supra, 202 Cal.App.4th at pp. 22–23 [even where erroneously admitted
expert testimony was relatively lengthy and thus a significant part of the prosecution’s
case, admission of the evidence was harmless under Watson because there was strong
evidence against defendant and case was not close].) Fisher and Taylor both testified
they were present when Davis shot Grier. Physical evidence corroborated their
testimony, e.g., their statements that Davis shot Grier three times in the head (information
the police had not released to the public when Fisher and Taylor made their statements to
Basa), and their testimony Grier was shot with a .22 caliber gun.
d. Ineffective Assistance of Counsel
Davis argues that, if his trial counsel forfeited his challenge to Basa’s testimony by
failing to object on the ground it was improper opinion testimony, then counsel was
prejudicially ineffective. To establish a claim of ineffective assistance of counsel, a
defendant must show (1) trial counsel’s performance fell below an objective standard of

14
reasonableness under prevailing professional norms, and (2) the defendant suffered
prejudice, i.e., there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 694 (Strickland); People v. Carter (2003) 30
Cal.4th 1166, 1211 (Carter).) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland, supra, at p. 694; Carter, supra, at
p. 1211.) Finally, the defendant must show that “ ‘the [act or] omission was not
attributable to a tactical decision which a reasonably competent, experienced criminal
defense attorney would make.’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557,
610–611.)
Davis’s claim of ineffective assistance fails. He has not shown counsel’s
performance was deficient. Counsel reasonably could have concluded the challenged
testimony about the investigation was not objectionable as improper opinion testimony.
(See People v. Virgil, supra, 51 Cal.4th at pp. 1253–1254.) Davis also has not shown
prejudice. We have concluded above it is not reasonably probable the verdict would have
been different if the court had excluded the challenged portions of Basa’s testimony.
C. The Prosecutor’s Closing Argument
Davis argues the prosecutor committed misconduct in closing argument by
referring to Basa’s testimony that, during his investigation, he did not locate any person
who said Davis was with him or her when Grier was killed. Davis also contends the
testimony was inadmissible hearsay. Davis has not shown prejudicial error.
1. Background
At the conclusion of his redirect examination of Basa, the prosecutor reminded
Basa that Jamerl Taylor and Jessica Morlan (Taylor’s then girlfriend) had initially told
Basa they were with Davis when Grier was killed. The prosecutor then asked: “After
that was told to you, did any other person in the world tell you that they were with Derrell
Davis when Ronnie Grier was killed?” Defense counsel objected to the phrase “ ‘[a]ny
other person in the world,’ ” and objected the question called for speculation. The court
overruled the objection, and Basa answered, “No, sir.”

15
 In closing argument, the prosecutor stated Basa had testified “the arrows kept
pointing to Derrell Davis, Jamerl Taylor, and Terrell Fisher as being the last persons with
Ronnie Grier[.]” Defense counsel objected to the argument as “[m]isconduct,” and the
court overruled the objection. The prosecutor then argued (1) Basa had testified he had
not found any person who was willing to say Davis was with him or her when Grier was
killed, and (2) the defense had not presented any witness who testified Davis was with
him or her when Grier was killed.
Defense counsel objected that the prosecutor was improperly shifting the burden
of proof to the defense to present evidence. The court overruled the objection, relying on
People v. Morris (1988) 46 Cal.3d 1, 35–36 (overruled on other grounds in In re
Sassounian (1995) 9 Cal.4th 535, 543–544, fn. 5), in which the Supreme Court held a
prosecutor’s remarks about the absence of alibi evidence were proper comments on the
state of the evidence.
2. Analysis
a. Prosecutorial Misconduct
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’
[Citation.] ‘[W]hen the claim focuses upon comments made by the prosecutor before the
jury, the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]”
(People v. Smithey (1999) 20 Cal.4th 936, 960.) A defendant’s conviction will not be
reversed for prosecutorial misconduct unless it is reasonably probable that a result more
favorable to the defendant would have been reached if the misconduct had not occurred.
(People v. Crew (2003) 31 Cal.4th 822, 839.) “ ‘[A] claim of prosecutorial misconduct is

16
not preserved for appeal if defendant fails to object and seek an admonition if an
objection and jury admonition would have cured the injury. [Citation.]’ [Citation.]”
(People v. Tully (2012) 54 Cal.4th 952, 1010.)
Davis argues the prosecutor committed misconduct by referring to Basa’s
testimony that, in the course of his investigation, he did not locate anyone who provided
an alibi for Davis.3 Assuming defense counsel’s objections preserved this contention for
appeal, the prosecutor did not commit misconduct.
As noted, the trial court overruled defense counsel’s objections to the underlying
testimony and admitted it into evidence. A prosecutor’s reference to admitted evidence
(even if a defendant argues the evidence should not have been admitted) is not improper.
“[B]ecause the trial court admitted the evidence in question, the prosecutor’s reliance on
it in his closing argument could not have been misconduct.” (People v. Gurule, supra, 28
Cal.4th at p. 627.)
Davis contends, however, that Basa’s testimony on this point was admitted for the
limited purpose of explaining the course of his investigation, and the prosecutor
committed misconduct by urging jurors to consider the testimony for the truth of that
information, rather than for the limited purpose for which it had been admitted.
“[U]rging use of evidence for a purpose other than the limited purpose for which it was
admitted is improper argument.” (People v. Lang (1989) 49 Cal.3d 991, 1022.) But the
record does not support Davis’s assertion that the court admitted the challenged evidence
for a limited purpose. The exchange on which Davis focuses (i.e., Basa’s testimony that
he found no alibi witness) reflects no such ruling by the court.
Davis refers to a few other portions of Basa’s testimony, but they do not show the
testimony was admitted for a limited purpose. In one exchange, the prosecutor asked
Basa: “Did you learn whether [potential witnesses Arthur Jackson and Antonio White]

3
As noted above, the prosecutor also argued the defense had presented no alibi
witnesses. On appeal, Davis appears to concede this portion of the argument was
permissible. In his reply brief, Davis characterizes the Attorney General’s discussion of
this point as a “straw man argument.”

17
were with [Grier’s friend] Brandon Amos and Ronnie Grier on November 13th?”
Defense counsel objected the question lacked foundation and called for hearsay. The
prosecutor responded: “Only to the effect on his investigation.” The court stated: “It’s
not hearsay, so overruled. Go ahead.” The prosecutor’s statement does not show he
assured the court all testimony about Basa’s witness interviews would be used for a
limited purpose. Even as to the specific exchange at issue, the record does not show the
court ruled the evidence would be admitted for a limited purpose. Instead, the court
stated it was overruling the objection because the question did not call for hearsay. The
question (i.e., if Basa learned whether the witnesses were with Grier) permitted a “yes” or
“no” answer, and did not call for Basa to recount the witnesses’ statements. Basa
answered, “Yes, sir.” (The prosecutor then asked, “What did you learn?” Defense
counsel did not object, and Basa stated he learned Jackson and White were with Amos
and Grier earlier in the day on November 13.)
Similarly, the prosecutor later asked Basa if, at the time he first interviewed
Taylor, Basa knew whether Grier had last been seen in Taylor’s car (again permitting a
“yes” or “no” answer). Defense counsel objected and asked if the response would be
offered for its truth “as opposed to investigative conduct?” The court stated: “No. He
was asked if he had this information. That’s all. Overruled.” Basa answered, “Yes, sir.”
(When the prosecutor then asked what the information was, defense counsel did not
object, and Basa stated he had received information from different sources that Grier had
been seen in Taylor’s car.)
The above testimony does not support Davis’s suggestion the court made a general
ruling (or the prosecutor made a general assurance) that testimony about witness
interviews would be admitted for a limited purpose. Instead, the court made specific
rulings based on the wording of individual questions and the precise objections made by
counsel.
Because the court admitted Basa’s testimony that he did not locate an alibi
witness, and the record does not show the court admitted the testimony for a limited

18
purpose, the prosecutor did not commit misconduct by referring to it in closing argument.
(People v. Gurule, supra, 28 Cal.4th at p. 627.)
b. Admissibility of Evidence
In addition to alleging prosecutorial misconduct, Davis presents a short argument
in his opening appellate brief that the court erred in admitting Basa’s underlying
testimony. Davis asserts testimony about witness interviews was hearsay (if offered for
the truth of witnesses’ statements) or irrelevant (if offered for a more limited purpose).
But, as to the testimony Davis contends the prosecutor should not have relied on (i.e.,
Basa’s testimony he did not find an alibi witness), defense counsel did not object on
grounds of hearsay or relevance. Davis has forfeited this argument. (People v. Dykes,
supra, 46 Cal.4th at p. 756.)
Davis argues that, because the court overruled hearsay objections to previous
questions about witness interviews, a hearsay objection to Basa’s testimony about the
lack of alibi witnesses would have been futile. But the record does not support Davis’s
suggestion the court would have overruled any objection. The court sustained a number
of objections to questions about the investigation, on hearsay and other grounds.
c. Ineffective Assistance of Counsel
Davis argues that, if defense counsel’s failure to make an appropriate objection to
the prosecutor’s argument forfeited the claim of misconduct, then counsel provided
ineffective assistance. We have determined the prosecutor did not commit misconduct,
so any failure to object to the prosecutor’s argument did not constitute deficient
performance.
D. Ineffective Assistance: The Video Recording of Fisher’s Police Interview
Davis contends his trial counsel was prejudicially ineffective because she failed to
make an on-the-record request to admit the video recording or transcript of the entirety of
Fisher’s December 15, 2008 police interview.4 We disagree.

4
We granted Davis’s motion to augment the appellate record to include a copy of
the interview transcript.

19
 1. Background
The record does not reflect Davis’s trial counsel sought to introduce the video
recording or transcript of the interview. But, in her statement of appellate issues, trial
counsel stated the court’s denial of Davis’s “motion to permit the jury to view multiple
videotaped statements of Terrell Fisher and Jamerl Taylor was a significant restriction of
cross-examination.” The trial record includes discussions between the court and counsel
about a previous ruling, apparently made off the record, that Davis’s counsel could not
play for the jury videotapes of Taylor’s pretrial interviews. The on-the-record discussion
suggests counsel sought to introduce the videotapes to impeach Taylor’s credibility. In
these on-the-record discussions, the court and counsel do not refer to Fisher’s interviews.
2. Analysis
Davis argues that, because the prosecutor questioned Basa about portions of
Fisher’s interview, the tape of the entire interview was admissible under Evidence Code
section 356. That statute provides: “Where part of an act, declaration, conversation, or
writing is given in evidence by one party, the whole on the same subject may be inquired
into by an adverse party; when a letter is read, the answer may be given; and when a
detached act, declaration, conversation, or writing is given in evidence, any other act,
declaration, conversation, or writing which is necessary to make it understood may also
be given in evidence.” (Evid. Code, § 356.) “The purpose of Evidence Code section 356
is to avoid creating a misleading impression.” (People v. Samuels (2005) 36 Cal.4th 96,
130.)
Here, the jury saw no part of the interview tape, and received no part of the
transcript. The prosecutor and defense counsel did elicit from Basa some testimony
about the interview. On direct examination, Basa testified that, during the interview,
Fisher stated Davis shot Grier three times in the back of the head, and said Taylor was a
willing participant in the crime.
On cross-examination, defense counsel elicited that, during the first part of the
interview, Fisher continued to claim he did not know what had happened to Grier. A few
hours into the interview, Basa confronted Fisher, stating that, in light of other information

20
Basa had gathered, he knew Fisher’s account was not true. Fisher then told Basa he was
in the car when Grier was shot.
On redirect, Basa testified witnesses in homicide investigations are often reluctant
to speak to police, and frequently do not provide information until after being interviewed
multiple times. The prosecutor referred to a few portions of the interview transcript
(apparently to refresh Basa’s recollection), and elicited that Fisher was an unusual
witness in that he voluntarily (at Basa’s request) came to the police station to be
interviewed and arrived an hour early. But the prosecutor also elicited that Fisher did not
acknowledge until well into the interview that he was present when Grier was killed.
Fisher appeared nervous and scared during the interview, and he paused and stuttered as
he told Basa about Grier’s death. Fisher also told Basa he could not sleep because of
what he knew about the crime.
In closing argument, the prosecutor noted Fisher arrived early for the interview.
The prosecutor stated Fisher initially lied to protect Davis because “[b]lood is thicker
than water,” but Fisher was “haunted” by what he had seen, and he finally told the truth.
The prosecutor acknowledged that, even during the first portion of the interview, Fisher
continued to deny knowing what happened to Grier.
Davis argues Basa’s testimony on redirect examination improperly enhanced
Fisher’s credibility by giving the misleading impression that Fisher “agreed to
questioning by the police voluntarily . . . even though it meant identifying his brother as
the shooter.” Davis contends admission of the entire tape was necessary (and the failure
to introduce it was prejudicial) because the tape shows Basa and his partner used
suggestive interrogation techniques, and Fisher was willing to provide answers he
believed the investigators wanted to hear.
Even assuming trial counsel was deficient for failing to seek admission of the tape,
Davis has not shown prejudice. It is not reasonably probable that, absent counsel’s
alleged error, Davis would have obtained a more favorable verdict. (See Strickland,
supra, 466 U.S. at pp. 687–688, 694; Carter, supra, 30 Cal.4th at p. 1211.)

21
 The trial testimony made clear that Fisher did not admit, until well into the
interview, that he was present when Grier was killed. Basa so testified, and the
prosecutor noted this fact in closing argument. The jury also knew that, during the
interview, Basa pushed Fisher to change his story, admit he was present when Grier was
killed, and tell the officers what he knew. Basa testified that a few hours into the
interview, he confronted Fisher, and stated that in light of other information the police
had obtained, he knew Fisher’s account was not true. Only then did Fisher tell Basa he
was in the car when Grier was shot. Defense counsel also questioned Basa about whether
he used suggestive or deceptive investigative techniques, such as telling witnesses he had
phone records he had not yet obtained. In closing argument, the prosecutor noted Fisher
and Taylor “got squeezed by Sergeant Basa,” and “[t]he Oakland police kept pressing,”
because Fisher’s and Taylor’s initial accounts were inconsistent with the information the
police had obtained. The jury was not left with any misimpression that Fisher, without
any encouragement or pressure from the police, changed his mind and decided to admit
being present when Grier was shot.
Moreover, the transcript of the interview does not support Davis’s suggestion that
Fisher was willing to change his account to conform to whatever the police wanted to
hear. The transcript reveals Fisher continued to deny knowledge of certain matters, even
when pressed by the officers to provide more information. After Fisher told the officers
that Davis shot Grier, Basa suggested Fisher must have known of Davis’s and Taylor’s
intentions before the shooting, or must have heard them say something about planning to
shoot Grier. Basa stated it was difficult to believe Fisher had no advance knowledge,
because it was unlikely someone planning a shooting would let someone with no
knowledge or involvement witness it. Fisher, nevertheless, continued to deny knowing
anything about a plan to shoot Grier. Fisher also repeatedly denied discussing the
shooting with Davis afterwards, and stated he did not know why Davis shot Grier, despite
Basa’s suggestion Fisher must have later asked Davis why he shot Grier.
Fisher also provided information the officers did not appear to be seeking. As
noted, Fisher implicated Taylor as a willing participant in the shooting. Fisher stated he

22
believed Taylor knew in advance Davis was going to shoot Grier. Taylor pushed Grier’s
body out of the car. Taylor told Fisher weeks later that Grier “ ‘had to go.’ ” Davis does
not argue on appeal (and the interview transcript does not show) that before Fisher
implicated Taylor, the police encouraged him to do so. Contrary to Davis’s suggestion
on appeal, if jurors had watched the videotape of the entire interview, it is not likely they
would have concluded the account Fisher gave was just an effort to tell the police what
they wanted to hear.
For the foregoing reasons, we conclude it is not reasonably probable that, if
counsel had successfully sought admission of the entire interview tape, Davis would have
obtained a more favorable verdict. (See Strickland, supra, 466 U.S. at pp. 687–688, 694;
Carter, supra, 30 Cal.4th at p. 1211.)
E. Cumulative Impact of Alleged Errors
Davis contends the cumulative impact of the errors alleged above requires
reversal. (See People v. Hill, supra, 17 Cal.4th at p. 844.) We have concluded (in parts
II.A and II.C) that the court did not commit instructional error and the prosecutor did not
commit misconduct. Moreover, as we have discussed (in parts II.B and II.D), it is
unlikely any error in admitting the challenged portions of Basa’s testimony, or in failing
to introduce the interview tape, had a significant prejudicial impact. We conclude these
alleged errors, when considered cumulatively, do not rise to the level of reversible and
prejudicial error. (See ibid.)

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 III. DISPOSITION
The judgment is affirmed.

______________________
Becton, J.*

We concur:

______________________
Dondero, Acting P.J.

______________________
Banke, J.

* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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