Filed 12/24/15 P. v. McDade CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B256545
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA084422)
v.
WILLIE MCDADE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Kathryn A.
Solorzano, Judge. Affirmed.
Willie McDade, in pro. per.; and Kevin Michele Finkelstein, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant Willie McDade was convicted of one count of
first degree burglary. (Pen. Code § 459.)1 Defendant timely appealed. After review of
the record, defendant’s court-appointed counsel filed an opening brief and asked this
court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d
436, 441. Defendant filed two supplemental briefs and a letter in which he contends (1)
the court erred in denying the motion he made pursuant to People v. Marsden (1970) 2
Cal.3d 118 during his preliminary hearing; (2) the court erred in denying his section 995
motion to set aside the information; (3) the prosecutor violated a pretrial evidentiary
ruling; (4) the prosecutor deprived him of exculpatory evidence by failing to preserve the
sweatshirt he was wearing on the night he was arrested and by failing to take fingerprints
from a liquor bottle allegedly stolen from the burglarized residence; (5) the court
erroneously instructed the jury by including instructions regarding defendant’s out-of-
court statements and an aiding and abetting theory, and by failing to instruct on third
party culpability; (6) the court erred by failing to ensure defendant and his counsel “read
PSR before sentencing”; (7) the court erred by failing to rule on his motion for new trial;
and (8) the cumulative effect of these errors compels reversal.
Our independent review of the record reveals no prejudicial error. We accordingly
affirm the judgment of the trial court.
PROCEDURAL HISTORY
Defendant was arrested for first degree burglary (§ 459). Defendant appeared at
his preliminary hearing with a public defender and immediately requested a Marsden
hearing (People v. Marsden, supra, 2 Cal.3d 118). The court held a Marsden hearing but
denied defendant’s request to substitute counsel. The preliminary hearing proceeded, and
at its conclusion the court found probable cause to hold defendant to answer for the
burglary. The District Attorney of the County of Los Angeles (“the People”)
subsequently filed an information alleging that defendant committed one count of first
degree residential burglary (§ 459). The People further alleged that defendant suffered
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two serious
felony convictions (§ 667, subd.(a)(1)), and two prior prison terms (§ 667.5, subd. (b)).
Defendant moved to vacate the information pursuant to section 995, subdivision
(a)(2)(A). Before that motion was resolved, defendant retained private counsel. Private
counsel argued the motion to vacate, which the court denied.
Defendant proceeded to trial in Los Angeles Superior Court. A jury convicted him
of one count of burglary and found true the allegation that the burglary was of the first
degree. (§ 459). Defendant subsequently filed a motion for new trial and a motion to
strike one or both of his prior strike convictions pursuant to People v. Romero (1996) 13
Cal.4th 497. After defendant admitted both of his priors, the court granted his Romero
motion in part and struck one of his prior convictions for strike purposes only, in the
interest of justice. The court did not rule on defendant’s motion for new trial before
sentencing him to a total of 22 years in prison: an upper term of six years on the burglary
count, doubled to 12 years pursuant to section 667, subdivisions (b)-(i), and section
1170.12, subdivisions (a)-(e), plus two additional five-year terms pursuant to section 667,
subdivision (a)(1). The court imposed and stayed two additional one-year terms pursuant
to section 667.5, subdivision (b) and section 654. The court assessed parole revocation
and restitution fees of $280, a conviction assessment fee of $30, and a court security fee
of $40. The court awarded defendant 744 days of custody credit, 372 for actual time and
372 for conduct.
Defendant timely appealed. His court-appointed counsel filed a Wende brief.
(People v. Wende, supra, 25 Cal.3d 436.) On January 7, 2015, we directed appointed
counsel to send the record and a copy of counsel’s brief to defendant and notified
defendant of his right to respond within 30 days. Defendant subsequently sought and
received two extensions of time and ultimately filed a supplemental brief on April 10,
2015. Defendant filed a letter clarifying his supplemental brief on April 13, 2015 and
obtained permission to file a second supplemental brief, which he filed on April 24, 2015.
Upon completing our initial review of the record, we requested that the parties
submit supplemental briefing on two of the issues defendant raised in his filings: (1)
3
whether the prosecutor erred by eliciting testimony regarding defendant’s address despite
the parties’ stipulation that the officer was “not to make any reference to any statements
by the defendant,” and (2) whether the aiding and abetting instructions given to the jury
were supported by substantial evidence. Both the People and defendant’s counsel timely
filed letter briefs. Defendant also filed his own response.
FACTUAL BACKGROUND
The People called three witnesses at defendant’s trial: Gabriela Echeverria,2 the
resident of a home in Hawthorne that was burglarized; Hawthorne Police Department
officer Kevin Pedersen, who apprehended and booked defendant; and Hawthorne Police
Department officer Sean Galindo, who responded to Echeverria’s home. Defendant did
not call any witnesses or present any evidence.
Echeverria’s Testimony
Echeverria testified that on April 13, 2013, she lived in the back unit of a duplex
located on Manor Drive in Hawthorne. On one side of the duplex, there was a walkway
from the front unit to the back unit. On the other side, there was a driveway that led to a
garage. Across the driveway, but still on the same property, there was a separate house
that was occupied by Echeverria’s mother, father, grandparents, and brothers. Echeverria
shared the back unit of the duplex with her aunt and cousin; other family members
occupied the front unit of the duplex. All of the occupants of the duplex except
Echeverria were out of town on April 13, 2013. To Echeverria’s knowledge, no one
aside from Echeverria, her mother, and her grandparents knew that everyone was out of
town.
Echeverria checked to make sure the back door and screen door of her unit were
locked when she left for her job as a Transportation Safety Administration airport
screener around 11:25 a.m. on April 13, 2013. She turned off all of the lights in the back
unit and left through the front door.
2
The spelling of Gabriela’s last name in the preliminary hearing transcript
(Echeberria) differs from the spelling of her last name in the trial transcript (Echeverria)
We use the spelling from the trial transcript.
4
Echeverria arrived home from work a little after 9:00 p.m. As she approached the
back door of her unit of the duplex, she noticed the screen door was open about 12
inches. She then looked sideways and saw someone walking down the walkway
alongside the duplex, about 15 feet away. She watched the person walk down the
walkway, climb onto a chair or table, and hop over a 6-foot-tall cinder block wall on the
edge of the property.
Echeverria noticed that the person was male. He was wearing “dark clothing,”
including a “dark gray hoodie or black hoodie [and] black pants.” Echeverria testified
that he had a medium build. She was not able to estimate his weight, but stated “[h]e was
not a small person.” She described his height as “[m]edium to tall,” maybe five-five to
six feet tall. Echeverria saw the person’s left hand and noticed that he had dark skin. She
could not see his right hand and could not see if he was carrying anything. The person
never looked back at her, and she did not say anything to draw his attention. Based on
his body structure and her work experience, she estimated that he was in his late twenties
or early thirties.
Echeverria called 911 after the person left her property. A recording of her call
was admitted into evidence. According to the transcript of the call, Echeverria described
the person as a black male with a medium build, in his late twenties, wearing black pants
and a black hoodie with the hood up. She also told the operator she thought the person
went into a cream-colored house down the street.
Echeverria testified that during the call, she saw the person “power walking” or
“speed walking” down the street. She saw him cross the street to the opposite side, but
lost sight of him when she looked down at her cell phone. When she looked up, she
could not see him anymore. She did not recall seeing any other pedestrians or cars going
up or down the street.
Several police officers soon arrived at Echeverria’s home. Echeverria stayed
outside with some of the officers while others went into her house. Eventually, 15 to 20
minutes or less after the officers arrived, one of the officers walked into the house with
Echeverria. She noticed her 42-inch flat screen television sitting on the floor by her back
5
door. When she left that morning, the television had been in her bedroom on top of her
dresser.
The rest of Echeverria’s bedroom “was turned upside down,” “[m]eaning,
everything was everywhere.” Her dresser drawers were opened and some of her
belongings were on her bed. She immediately noticed that her laptop was missing. She
also noticed that a metal box was pulled out from under her bed, and the hookah bong it
typically contained was missing. Her Michael Kors watch was missing as well, as was an
unopened bottle of “1800 coconut Jose Cuervo tequila” her cousin had given her as a gift.
The walkway outside the house where Echeverria had seen the suspect was strewn
with food that ordinarily was stored on top of the refrigerator or microwave. None of the
doors to the house was damaged, but the screen to the kitchen window was lying outside.
Echeverria could not remember whether the kitchen window was open or locked when
she left that morning, but was sure the screen had been in.
About 30 minutes after she initially called 911, Echeverria was asked to
accompany a police officer whose name she did not remember across the street to
identify a suspect. The officer told her that the person might not be the person who
burglarized her house. The officer did not tell her that the person had been found with a
bottle of tequila. Echeverria agreed to look at the person but did not want to get too close
to him. From a vantage point of about three houses away, Echeverria saw a police officer
standing with a handcuffed person who was facing her. She told the police officer
standing with her that she was unable to identify the suspect at that point because she had
not seen his face. She described to the officer how she had seen the person, and the
officer used his radio to call the officer standing with the suspect. That officer put the
hoodie on the suspect and turned him around. At that point, Echeverria told the officer
that she believed, from the body structure, height, and fit of the clothing, that the suspect
was the same person she had seen outside her house.
After Echeverria identified the suspect, she walked back to her house. One of the
police officers who had been at the end of the block drove up to her house and got out of
his car. He was holding a full, sealed bottle of tequila. Echeverria told the officer the
6
bottle was hers. The officers returned the bottle to her later that night. None of the other
items missing from Echeverria’s house was ever located or returned.
Echeverria testified that she did not give anyone permission to enter her house
while she was gone. She further testified that she had never before seen the suspect in
her neighborhood. Echeverria was unable to identify defendant in court.
During cross-examination, Echeverria testified that she did not see anyone inside
her residence or exiting her residence when she arrived home on April 13. She also
testified that she saw the person in her walkway for “[m]aybe like 45 seconds, 50
seconds. It wasn’t very long,” and he was “almost running.” She initially conceded
having testified at the preliminary hearing that she could not tell whether the person was
male or female. On redirect, the People read into the record a portion of Echeverria’s
preliminary hearing testimony stating that she could tell the person was a man because of
his build. Echeverria reaffirmed that testimony.
Echeverria reiterated that she saw the person’s left hand and clarified that it was
not covered by a glove or anything else. She did not observe the person to be carrying
anything. Echeverria denied ever saying that the sweatshirt the suspect was wearing
when she identified him was “lighter” in color than the one she saw on the perpetrator.
Echeverria confirmed that she told the 911 operator that she saw the person go to a “beige
color or tan house,” and stated that she did not see the person come out of that house
prior to the police arriving.
Officer Pedersen’s Testimony
Kevin Pedersen, a police officer for the Hawthorne Police Department, was on
patrol duty on April 13, 2013. He received a call about a burglary on Manor Drive and
arrived in the area about a minute and half later. He was driving a black and white patrol
car but did not recall having the sirens or flashing lights on. Officer Pedersen’s goal was
to locate and apprehend any fleeing suspects. Based on the information he had from
dispatch, Officer Pedersen believed the suspect was an adult African-American man, in
his late twenties, medium build, wearing a black hoodie and black pants.
7
As Officer Pedersen drove northbound on Manor Drive, he saw a figure walking
briskly southbound about 100 feet ahead of him. The person caught Officer Pedersen’s
attention because he was quickly walking away from the area where the burglary had
been reported and was wearing clothing similar to that described by the 911 caller.
Officer Pedersen concluded the person was male based on his structure and build.
Almost immediately after he saw the man, Officer Pedersen saw him reach into his
waistband and discard an item onto a grassy area. Officer Pedersen did not know what
the object was, but it was large enough for him to see in the dark from about 100 feet
away.
After the man discarded the item, he turned and started walking briskly eastbound
toward an apartment complex. Officer Pedersen parked his patrol car and pursued the
man on foot. When Officer Pedersen caught up to the man, whom he identified in court
as defendant, Officer Pedersen observed that he looked very sweaty and nervous. Officer
Pedersen “could see actual small balls of sweat on his forehead and his neck” even
though it was not an unusually hot April night. Defendant was wearing a charcoal gray
hoodie over a black shirt, black pants, and black shoes. Officer Pedersen did not recall
the sweatshirt “being light in color,” though he conceded he previously had testified that
Echeverria told him the suspect’s sweatshirt “looked lighter than the one she actually saw
in the walkway.” Officer Pedersen conceded it would not be unusual to see an African-
American man walking on the street in this neighborhood, or for someone to be wearing a
sweatshirt and gloves on an April evening.
At least one other officer, Officer Bohning, arrived to assist Officer Pedersen in
detaining defendant. Officer Pedersen also saw that other officers had arrived at
Echeverria’s house, which he estimated was only a few hundred feet away.
Officer Pedersen searched defendant and found a black cloth glove tucked into the
front of his waistband. He found a second, matching glove in the front left pocket of
defendant’s hoodie. He did not find in defendant’s possession any items Echeverria
reported missing. Officer Pedersen left defendant with Officer Bohning and returned to
the area where he saw defendant drop the object about 30 seconds to one minute earlier.
8
No one else had entered that area in the meantime. Officer Pedersen found an unopened
750-milliliter bottle of coconut-flavored Jose Cuervo tequila. There were no other items
nearby. Despite having a general practice of photographing evidence before moving it,
Officer Pedersen did not photograph the bottle or the grassy area before retrieving the
bottle. Officer Pedersen did not recommend that the bottle be fingerprinted because he
had seen defendant drop it and because he did not know it was directly related to the
crime, so he did not believe fingerprints were necessary. Officer Pedersen also did not
photograph defendant’s sweatshirt or book it as evidence. The sweatshirt was booked
into defendant’s personal property at the police station.
Officer Pedersen went to Echeverria’s home after he detained defendant. He
entered the home, investigated the crime scene, and dusted for fingerprints. Officer
Pedersen did not find any fingerprints or DNA inside Echeverria’s home linking
defendant to the scene.
Officer Pedersen booked defendant at the police station. His booking report
indicated that defendant was wearing a gray jacket; it did not mention a hoodie. Officer
Pedersen also testified that defendant was 5’9” and lived in Inglewood.
Officer Galindo’s Testimony
Sean Galindo is a Hawthorne police officer. On April 13, 2013, he was dispatched
to a burglary on Manor Drive at about 9:00 p.m. According to Officer Galindo, dispatch
reported that the suspect was an African-American man in his twenties, wearing a black
hooded sweatshirt and black pants, last seen heading south away from the scene.
Officer Galindo drove his patrol car to Echeverria’s home and spoke to Echeverria
outside. Officer Galindo walked around the outside of Echeverria’s duplex and noticed
that the back door was open about 4-5 inches and the screen for the kitchen window was
lying on the ground alongside a ceramic bowl. Based on the location of the screen and
bowl, as well as the presence of food on the ground, Officer Galindo concluded that the
window was the point of entry. When Officer Galindo entered the home, he noticed a
flat-screen television lying on the floor just inside the door. The location of the television
near the open back door led Officer Galindo to conclude that the suspect left through the
9
back door. Officer Galindo did not find any suspects inside the house. He did observe a
bedroom that “appeared to have been ransacked,” as well as an empty Michael Kors box.
DISCUSSION
I. Marsden Hearing
Defendant asserts in his letter – but not in either of his supplemental briefs – that
he was denied the right to counsel of choice at his preliminary hearing. He further
represents that his court-appointed appellate counsel did not send him a transcript of the
Marsden hearing despite his requests that counsel do so. The record before this court
does not contain a transcript of the Marsden hearing.
“The governing legal principles [derived from Marsden, supra] are well settled.
‘Under the Sixth Amendment right to assistance of counsel, “‘“[a] defendant is entitled to
[substitute another appointed attorney] if the record clearly shows that the first appointed
attorney is not providing adequate representation [citation] or that defendant and counsel
have become embroiled in such an irreconcilable conflict that ineffective representation
is likely to result.”’” [Citation.] Furthermore, “‘“[w]hen a defendant seeks to discharge
appointed counsel and substitute another attorney, and asserts inadequate representation,
the trial court must permit the defendant to explain the basis of his contention and to
relate specific instances of the attorney’s inadequate performance.”’”’ [Citations.]”
(People v. Valdez (2004) 32 Cal.4th 73, 95; see also People v. Smith (2003) 30 Cal.4th
581, 604; People v. Hart (1999) 20 Cal.4th 546, 603.) These principles apply “equally
preconviction and postconviction.” (People v. Smith (1993) 6 Cal.4th 684, 694.)
We review the denial of a Marsden motion under the abuse of discretion standard.
(People v. Barnett (1998) 17 Cal.4th 1044, 1085.) “Denial ‘is not an abuse of discretion
unless the defendant has shown that a failure to replace the appointed attorney would
“substantially impair” the defendant’s right to assistance of counsel. [Citations.]’
[Citation.]” (Ibid.)
On the record before us, we are unable to conclude that the trial court abused its
discretion in resolving defendant’s Marsden motion. The transcript of defendant’s
preliminary hearing reflects that defendant asked for a Marsden hearing at the very outset
10
of the hearing. In response to defendant’s request, the court properly excused everyone
from the courtroom aside from defendant, his counsel, and necessary court personnel.
The court then held “further proceedings,” which were “reported but not transcribed
herein.” No transcript of the proceedings the court held is in the record. In the absence
of such a transcript, we cannot determine whether the court abused its wide discretion in
ruling on defendant’s request, and we must presume that the court’s order is correct. (See
Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A judgment or order of the lower
court is presumed correct’” (italics added)].)
II. Section 995 Motion to Dismiss the Information
Defendant next contends that the trial court erred in denying his motion under
section 995 to set aside the information. He argues that the People failed to adduce at the
preliminary hearing sufficient evidence to link him to the crime. We disagree.
A. Pertinent Preliminary Hearing Evidence
The evidence concerning the identification of defendant presented at the
preliminary hearing was substantially similar to that presented at trial. As is pertinent
here, Echeverria testified that she saw a person wearing “dark clothing, jeans, pretty big
jeans, and a big dark hood[ie], either dark gray or black,” leaving her property on the
evening of April 13, 2013. Echeverria could not “specifically see the color” of the
hoodie because it was dark outside. However, she could see that the person had a dark-
skinned hand. Echeverria initially stated that she could not tell whether the person,
whom she saw from a distance of approximately 30 feet, was a man or a woman, because
the person was wearing a hoodie. She later stated that she could tell the person was a
man “by the build of the person.” Echeverria testified that although she immediately
noticed items including a laptop, a watch, and a bottle of Jose Cuervo 1800 coconut
tequila were missing from her house, she did not see the man outside her house carrying
anything. She also did not see him drop or throw any items.
Officer Pedersen testified that he saw a man who “very closely matched the
suspect description that was provided by the victim to dispatch” walking briskly down
the same street on which the burglary occurred. Officer Pedersen saw the man drop an
11
object, which he later retrieved and determined to be a bottle of Jose Cuervo coconut
tequila. Officer Pedersen noted that the man was sweaty and found a pair of black gloves
on his person. Officer Pedersen testified that, in his booking report, he described the man
as age 30, five feet, nine inches tall, 210 pounds, and wearing a gray jacket. He also
testified that he did not test the Jose Cuervo bottle for fingerprints and did not find any
fingerprints in Echeverria’s house.
B. Defendant’s Motions
At the conclusion of the preliminary hearing, defendant orally moved to dismiss
the charge against him. He argued that there was insufficient evidence linking him to the
Echeverria burglary. He contended that the victim did not see his face, that he was
wearing a gray jacket rather than the black hoodie the victim described, and that it was
unreasonable to conclude that he stole items from Echeverria’s house when none of the
missing items was found in his possession when he was apprehended. The People argued
that defendant was found, sweating profusely, less than a block away from Echeverria’s
residence minutes after she reported seeing a man flee her property; that the gray jacket
described on the booking sheet could well have been a dark gray that was “very close to
black”; and that Officer Pedersen saw him drop the distinctive bottle of Jose Cuervo 1800
tequila. The court agreed with the People that there was sufficient evidence to support a
finding of probable cause. It explained, “Even for purposes of beyond a reasonable
doubt, you don’t necessarily need an identification to prove a burglary. A fingerprint, for
example, in the house will do. The alcohol was in the house initially. The alcohol, it’s a
rather specific bottle of alcohol, was basically seen being dropped by [defendant] within
two minutes of the incident within a block of the location.”
Defendant subsequently filed a written motion to dismiss the information under
section 995, subdivision (a)(2)(A), on the grounds that the People did not prove he was
the person who committed the charged burglary. Again, defendant contended that he was
never positively linked to the crime. He pointed to discrepancies between Echeverria’s
description of the suspect and his own body type and clothing, as well as the absence of
forensic evidence in Echeverria’s house, property in his possession, or a confession
12
linking him to the crime. The court denied defendant’s motion after hearing argument on
October 8, 2013. The record does not contain a transcript of that hearing.
C. Analysis
“Section 995 provides that an information ‘shall be set aside’ if the defendant has
been ‘committed without reasonable or probable cause.’ ‘“‘Probable cause is shown if a
man of ordinary caution or prudence would be led to believe and conscientiously
entertain a strong suspicion of the guilt of the accused.’” [Citations.]’ [Citation.]”
(People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835.)
“In determining if charges in an information can withstand a motion under section
995, neither the superior court nor the appellate court may reweigh the evidence or
determine the credibility of the witnesses. [Citations.] Ordinarily, if there is some
evidence in support of the information, the reviewing court will not inquire into its
sufficiency. [Citations.] Thus, an indictment or information should be set aside only
when there is a total absence of evidence to support a necessary element of the offense
charged. [Citations.]
“‘[A]lthough there must be some showing as to the existence of each element of
the charged crime [citation] such a showing may be made by means of circumstantial
evidence supportive of reasonable inferences on the part of the magistrate.’ [Citation.]
‘Every legitimate inference that may be drawn from the evidence must be drawn in favor
of the information.’ [Citations.] Thus, the ultimate test is that ‘“‘[a]n information will
not be set aside or prosecution thereon prohibited if there is some rational ground for
assuming the possibility that an offense has been committed and the accused is guilty of
it.’”’ [Citation.]” (People v. Superior Court (Jurado ) (1992) 4 Cal.App.4th 1217, 1226,
italics omitted (Jurado).) We review the denial of a section 995 motion de novo.
(People v. San Nicolas (2004) 34 Cal.4th 614, 654.)
Here, the evidence adduced at the preliminary hearing provided a rational basis to
conclude that a residential burglary had been committed and that defendant was the
perpetrator of that offense. Echeverria called 911 to report that her back door was open
and that she saw a dark-skinned man wearing “dark clothing, jeans, pretty big jeans, and
13
a big dark hood[ie], either dark gray or black” leaving her property. She later described
in detail the property missing from her home, including a distinctive unopened bottle of
Jose Cuervo coconut tequila. A police officer responding to the 911 call testified that he
saw an African-American man wearing a “gray jacket” walking briskly down the same
street on which the burglary was reported. He testified that the man was sweaty, had
gloves, and was seen discarding an item promptly determined to be an unopened bottle of
Jose Cuervo coconut tequila.
Although much of this evidence is circumstantial, a showing of probable cause
may be made by means of circumstantial evidence supportive of reasonable inferences on
the part of the magistrate. (Jurado, supra, 4 Cal.App.4th at p. 1226.) Defendant
contends that Echeverria’s testimony was unreliable because she “had no degree of
attention towards the suspect before he jumped the fence,” “[h]er prior description was
inconsistent with appellant,” and “[t]he level of certainty was not automatic at
confrontation.” These contentions call into question the weight to be given of
Echeverria’s testimony but do not undermine its substance. Her testimony, whatever its
possible faults, constituted some evidence supporting an inference that defendant was the
perpetrator. The same is true of Officer Pedersen’s testimony, which placed defendant
near the scene of the crime and linked him to a distinctive item missing from
Echeverria’s house.
Defendant relies on Birt v. Superior Court (1973) 34 Cal.App.3d 934 (Birt), but
that case is distinguishable. In Birt, a man came home to find a rental van parked outside
his home and some of his belongings missing. (Birt, supra, 34 Cal.App.3d at p. 936.) He
saw two adult males in the van, who threw some of his belongings at him and fled the
scene on foot. (Ibid.) The man was unable to identify either of the perpetrators.
(Id. at pp. 936-937.) Later, a sheriff’s deputy examined the van and found a cigarette
lighter on the front passenger seat. (Id. at p. 937.) Female defendant Birt’s fingerprint
was found on the lighter; other unidentified fingerprints were found on other items inside
the van, including the rearview mirror, a drinking glass, and two packages of cigarettes.
(Ibid.) The appellate court concluded the solitary fingerprint on the movable cigarette
14
lighter found inside a rental van that also contained unidentified fingerprints
demonstrated at most that “at some unknown time and place, she had been inside the van;
but there was no direct or circumstantial evidence to indicate when and where that had
been.”
(Id. at p. 938.) The court noted that the lighter was not shown to have been taken from
the victim’s house, and that “[t]here was no evidence that [defendant’s] fingerprints were
found either on the burglarized premises or on any of the stolen property.” (Ibid.)
In contrast, the People’s preliminary hearing evidence in this case connected
defendant to Echeverria’s home around the time of the burglary. He was found soon
thereafter, walking briskly down her block; met at least some elements of her description
of the person who jumped her fence, including key identifying elements like race, height,
and clothing; and was seen discarding an item that Echeverria identified as missing from
her home. While defendant’s fingerprints were not found on the liquor bottle or within
Echeverria’s home, eyewitness testimony linked him both to the bottle and to
Echeverria’s address.
The evidence at the preliminary hearing supported a finding of probable cause,
and the trial court did not err in denying defendant’s oral and written motions to dismiss
the information.
III. Defendant’s Statement to Officer Pedersen
Defendant contends that he was harmed by the admission of a statement he may
have made outside of court. First, he argues that the prosecutor violated a pretrial
evidentiary ruling prohibiting reference to defendant’s out-of-court statements by
eliciting evidence that defendant lived in Inglewood. Second, he contends that the
prosecutor referred to the impermissibly elicited evidence in closing argument.
Defendant also contends that the trial court compounded the prosecutor’s errors by
admonishing the jury about the evidence during closing argument and instructing the jury
about his statement. Defendant has not preserved these contentions for appellate review.
Even if he had, we are not persuaded that the prosecutor or court erred or that defendant
has demonstrated prejudicial error.
15
A. Background
Prior to defendant’s trial, the People and defendant apparently stipulated that
Officer Pedersen was “not to make any reference to statements by the defendant.” (The
stipulation itself is not in the record.) During direct examination, the prosecutor asked
Officer Pedersen whether it was standard to obtain “some general information” about a
defendant during the booking process. When Officer Pedersen responded in the
affirmative, the prosecutor asked him where defendant lived. Officer Pedersen testified
that defendant lived “[i]n the city of Inglewood.” Defendant did not object. During
cross-examination, Officer Pedersen testified that his testimony about defendant’s
address was based on defendant’s driver’s license. Later, on redirect, Officer Pedersen
testified that he did not remember whether he learned about defendant’s address by
asking defendant or by checking his driver’s license. Defendant did not object.
Prior to closing arguments, the court instructed the jury with CALCRIM No. 358
(“Evidence of Defendant’s Statements”) and CALCRIM No. 359 (“Corpus Delicti:
Independent Evidence of a Charged Crime”). CALCRIM No. 358 provides: “You have
heard evidence that the defendant made an oral statement before the trial. You must
decide whether the defendant made any such statement, in whole or in part. If you decide
that the defendant made such a statement, consider the statement, along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to give
to the statement. [¶] Consider with caution any statement made by the defendant tending
to show his guilt unless the statement was written or otherwise recorded.” CALCRIM
No. 359 provides: “The defendant may not be convicted of any crime based on his out-of-
court statement alone. You may only rely on the defendant’s out-of-court statements to
convict him if you conclude that other evidence shows that the charged crime was
committed. [¶] The other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed. [¶] The identity of the person who
committed the crime may be proved by the defendant’s statement alone. [¶] You may
not convict the defendant unless the People have proved his guilt beyond a reasonable
16
doubt.” The jury instructions conference appears to have occurred off the record; the
record before this court does not reflect any objections by defendant.
The prosecutor did not mention defendant’s address during the People’s closing
argument. Defendant discussed the issue at length in his own closing argument,
however: “And all this stuff about, you know, well, he’s from Inglewood. Inglewood,
Hawthorne, what, is there a street dividing them? Is there testimony that he’s from
Inglewood? You [sic] trying to get that in there just to taint the case. You [sic] trying to
say, oh, he’s from Inglewood, convict him because he’s from Inglewood. If you really
want a conviction, show us that glove, show us that jacket, give us some prints. But
you’re asking, well, he’s from Inglewood, convict him. He’s from Culver City, convict
him. He’s from Manhattan Beach, he ain’t got no reason to be over here. At least say
Compton. That’s a whole lot farther from Hawthorne. But that in itself, are you serious?
Is that all you got? What, a street separating Inglewood. You can walk from Inglewood
to - - but how would he know they were gone?”
The prosecutor responded to this argument during the People’s rebuttal: “The
defendant was out on those streets - - and why did I bring up Inglewood? Again, it has
nothing to do with the race issue. And I know defense counsel suggested why didn’t I
just say Compton. I’m not sure what that really meant, but the reason you heard
Inglewood is to show that he doesn’t live in Hawthorne on Manor Street. He’s not a
pedestrian who’s just out for a walk down the neighborhood.” Defendant objected that
the prosecutor misstated the evidence. The court did not specifically rule on the
objection but admonished the jury that it was up to them “to decide if there is sufficient
foundational evidence from which you wish to infer or conclude that at the time that
these events occurred, [defendant] did not reside in Hawthorne, did not reside on Manor,
or that he lived in Inglewood.” Defendant declined the court’s invitation to be heard
further following the admonishment.
17
B. Analysis
1. Prosecutorial Error
Defendant contends that the People erred at two junctures: first in eliciting
testimony about his out-of-court statements despite the parties’ stipulation and then in
arguing about that evidence in closing. Defendant’s failure to properly object to the
prosecutor’s conduct results in the forfeiture of these contentions on appeal. In addition,
defendant has not demonstrated that he was prejudiced by the conduct.
“‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent
that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno
(2014) 60 Cal.4th 659, 666-667.) “‘Under the federal Constitution, a prosecutor commits
reversible misconduct [or error] only if the conduct infects the trial with such
“‘unfairness as to make the resulting conviction a denial of due process.’” [Citation.] By
contrast, our state law requires reversal when a prosecutor uses “deceptive or
reprehensible methods to persuade either the court or the jury” [citation] and “‘it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct’” [citation]. To preserve a misconduct claim for review
on appeal, a defendant must make a timely objection and ask the trial court to admonish
the jury to disregard the prosecutor’s improper remarks or conduct, unless an admonition
would not have cured the harm.’ [Citation.] A claim will not be deemed forfeited due to
the failure to object and request an admonition only when ‘an objection would have been
futile or an admonition ineffective.’ [Citation.]” (People v. Thomas (2012) 54 Cal.4th
908, 937.)
Here, defendant did not object to the prosecutor’s questioning of Officer Pedersen.
Failure to object to an alleged violation of an evidentiary stipulation results in forfeiture
on appeal of a claim that the violation amounted to prosecutorial error. (People v.
Leonard (2007) 40 Cal.4th 1370, 1405.) Defendant asserts that he preserved the claim by
filing a motion in limine to exclude evidence of his statement, but no such motion or
hearing thereon appears in the record. Additionally, the court’s comments during the
18
parties’ discussion of the stipulation, “whatever it was that you all decided is not going to
come in,” indicate that the court was unaware of the parameters of the stipulation and was
not apprised of it by way of a motion in limine or other filing.
Even if defendant had objected, it is not clear that the prosecutor’s question was an
improper one. If the prosecutor had asked a question that was likely to elicit a reference
to defendant’s out-of-court statement, the question would have been error even if the
prosecutor did not intend to elicit an impermissible reference. (People v. Leonard, supra,
40 Cal.4th at p. 1405.) Here, the prosecutor’s question did not necessarily implicate
defendant’s statements, and there was no evidence the prosecutor asked the question with
the intent to do so. The prosecutor did not ask Officer Pedersen how he learned
defendant’s address or whether defendant made any statements. On cross-examination,
Officer Pedersen testified that he learned defendant’s address from defendant’s driver’s
license. Only on redirect did Officer Pedersen testify that he may have learned
defendant’s address from a statement defendant made, and defendant did not object.
In any event, even if the stipulation was violated by questioning and testimony
regarding defendant’s address (which we do not decide), reversal is not required because
any error was harmless under either People v. Watson (1956) 46 Cal.2d 818, 836
(reasonable probability of harm) or Chapman v. California (1967) 386 U.S. 18, 24
(harmless beyond a reasonable doubt). Defendant himself characterizes his address as a
“slight fact corroborated with other facts.” We agree that defendant’s address, which
may have been communicated to police via defendant’s driver’s license rather than his
own statement, was a minimal portion of the prosecutor’s case. Defendant’s guilt was
primarily—and strongly—established by Echeverria’s testimony, defendant’s
apprehension near the crime scene, and his disposal of the distinctive tequila bottle.
Admission of testimony that defendant lived in Inglewood did not prejudice him.
Defendant also contends the prosecutor committed misconduct when he referred to
defendant’s address during rebuttal argument. Defendant objected at trial on the grounds
that the prosecutor misstated the evidence, but such an objection did not encompass the
contentions he raises on appeal. (People v. Thomas, supra, 54 Cal.4th at pp. 938-939.)
19
Moreover, the prosecutor’s rebuttal arguments plainly were responsive to defendant’s
extended discussion of his address in closing. When we consider the challenged
comments in context, we cannot conclude the prosecutor’s arguments were deceptive,
reprehensible, or resulted in a violation of defendant’s due process rights. (See People v.
Christensen (2014) 229 Cal.App.4th 781, 803.) Additionally, the court admonished the
jurors that it was up to them to decide where defendant lived and what weight to give that
fact, and further instructed the jury that the attorneys’ remarks were not evidence. We
presume the jury followed these instructions and obeyed the admonishment, on which
defendant expressly declined to be heard. (People v. Scott (2015) 61 Cal.4th 363, 399.)
2. Instructional Error
Defendant also challenges the court’s instructing in terms of CALCRIM Nos. 358
and 359, both of which regarded his out-of-court statements. He contends “there should
have been no instructions on defendant’s statements if any reference to any of his
statements were ruled out” pursuant to the alleged stipulation. In defendant’s view,
absent the testimony about his address “and instructions how to use that inadmissible
statement to infer appellant’s guilt,” there was a reasonable probability that he would
have received a more favorable outcome. We are not persuaded.
First, this argument is forfeited because the record does not reflect that defendant
objected to either instruction. “Generally, a party may not complain on appeal about a
given instruction that was correct in law and responsive to the evidence unless the party
made an appropriate objection.” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
Both instructions were correct in law. (People v. Rosales (2014) 222 Cal.App.4th 1254,
1260-1261 [CALCRIM No. 359]; see People v. Diaz (2015) 60 Cal.4th 1176, 1188-1190
(Diaz) [CALCRIM No. 358].) Both also were responsive to the evidence, namely Officer
Pedersen’s testimony that defendant may have stated he lived in Inglewood.
Accordingly, defendant could not preserve for appeal a challenge to these instructions
without making a proper objection.
Second, even if we were to consider defendant’s argument on its merits, we would
not find it persuasive. Both CALCRIM Nos. 358 and 359 are cautionary instructions that
20
operate to defendants’ benefit. Our Supreme Court has characterized No. 358 as
cautionary (Diaz, supra, 60 Cal.4th at pp. 1184-1185), and by its terms No. 359 cautions
the jury not to convict a defendant based solely upon his out-of-court statements or if the
People fail to prove guilt beyond a reasonable doubt. The purpose of these instructions is
to aid the jury in evaluating whether a defendant actually made a statement ascribed to
him or her and what weight, if any, to give such statement. (See Diaz, supra, 60 Cal.4th
at p. 1184.) We therefore have difficulty ascertaining how defendant could have been
prejudiced by them, particularly where defendant did not object to the prosecutor’s
questions or the officer’s testimony regarding the alleged out-of-court statement, and
defendant himself highlighted the information allegedly contained in that statement
during his closing argument.
IV. Preservation and Disclosure of Evidence
Defendant claims the People “failed to preserve the alleged bottle” of Jose Cuervo
tequila and “destroyed appellant’s gray jacket.” He contends these actions violated
Brady v. Maryland (1963) 373 U.S. 83 (Brady), California v. Trombetta (1984) 467 U.S.
479 (Trombetta), Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood), and Kyles v.
Whitley (1995) 514 U.S. 419 (Kyles). Defendant claims that, had the bottle and jacket
been preserved properly, he “could have showed the jury that his light gray jacket could
not match the suspect’s description and that his prints were not on that bottle and would
have ultimately exonerated him.” Defendant further argues that he was prejudiced by the
People’s “withholding” of “the 2 most relied on pieces of evidence.” We reject these
contentions.
A. Background
Defendant presented a defense of mistaken identity at trial. He highlighted
inconsistencies between Echeverria’s descriptions of the perpetrator’s clothing on the
stand (“dark clothing,” including a “dark gray hoodie or black hoodie [and] black pants”)
and during the 911 call (“black hoodie”), and attempted to impeach her by asking if she
ever had said the clothing defendant wore when she identified him was “lighter” than
those she saw on the perpetrator. Defendant also emphasized other weaknesses and
21
discrepancies in Echeverria’s identification, including her inconsistent statements about
his gender and her inability to identify him in court. His primary focus was evidence
about the hoodie, sweatshirt, or jacket. During closing, defendant emphasized the
varying descriptions of the garment and criticized Officer Pedersen’s failure to
photograph it or book it into evidence. Defendant argued that “at the very least,” the
People should have brought the jacket to court for the jurors to examine.
Defendant also argued the police failed to adequately connect him to the liquor
bottle Officer Pedersen recovered from the grassy area. He called into question
Echeverria’s identification of the bottle, as well as Officer Pedersen’s inability to identify
the bottle upon first seeing defendant. Defendant also questioned the plausibility of
Officer Pedersen’s testimony that the perpetrator had a large bottle of tequila in his
waistband. Defendant further argued that the tequila bottle should have been booked into
evidence, photographed, and fingerprinted, or at least given to the defense so they could
test it for fingerprints.
Neither the jacket nor the tequila bottle was admitted into evidence at trial.
Defendant asked the jury to infer that their absence that they would have undermined the
People’s case.
B. Analysis
The due process clause of the federal constitution prohibits the prosecution from
suppressing material evidence that is favorable to the defense. (Brady, supra, 373 U.S. at
p. 87.) It requires the prosecution to disclose certain evidence to the defense. The duty
of disclosure exists “irrespective of the good or bad faith of the prosecution” (Brady,
supra, 373 U.S. at p. 87), and regardless of whether the defense has requested the
evidence in question (United States v. Agurs (1976) 427 U.S. 97, 107; People v.
Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano), disapproved on other grounds by
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). The duty of disclosure extends to
evidence that would impeach a prosecution witness (United States v. Bagley (1985) 473
U.S. 667, 676), as well as to “evidence known to others acting on the government’s
behalf, including the police” (Kyles, supra, 514 U.S. at p. 437).
22
For the purposes of Brady, evidence is favorable if it helps the defense or hurts the
prosecution. (Zambrano, supra, 41 Cal.4th at p. 1132.) The “touchstone of materiality is
a ‘reasonable probability’ of a different result. . . . The question is not whether the
defendant would more likely than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence. A ‘reasonable probability’ of a different result is
accordingly shown when the government’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’ [Citation.]” (Kyles, supra, 514 U.S. at p. 435.)
In determining whether evidence is material under this standard, we consider the effect
nondisclosure may have had on defense investigations and trial strategies. (People v.
Verdugo (2010) 50 Cal.4th 263, 279.)
The prosecution’s failure to preserve evidence also may violate a defendant’s due
process rights, though “[t]he duty to retain, rather than simply disclose, potentially
exculpatory evidence is somewhat different.” (People v. Alvarez (2014) 229 Cal.App.4th
761, 771.) The affirmative duty to retain or preserve evidence is “limited to evidence that
might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra,
467 U.S. at p. 488.) To meet this materiality standard, “evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” (Id. at p. 489.) “Destroyed evidence with only potential,
rather than apparent, exculpatory value is without remedy under Trombetta, but
Youngblood provides a limited remedy when the state has acted in bad faith in failing to
preserve the evidence.” (People v. Lucas (2014) 60 Cal.4th 153, 221, disapproved on
other grounds in People v. Romero (2015) 62 Cal.4th 1, 53, fn. 19.) However, even
under Youngblood, “unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due
process of law.” (Youngblood, supra, 488 U.S. at p. 58.)
Here, the liquor bottle – which was not destroyed but rather returned to its rightful
owner – was at best “potentially useful” to defendant. Echeverria reported a full bottle of
23
tequila missing from her house and positively identified the bottle recovered from the
“grassy area” down the street as hers. Officer Pedersen testified that he saw defendant
drop a large object precisely where the bottle almost immediately was recovered and did
not attempt to dust the bottle for fingerprints because he personally observed defendant
drop it. The record contains no evidence suggesting that Officer Pedersen made this
decision in bad faith. Moreover, the police do not have an affirmative duty to discover
potential evidence for the defense, such as the presence or absence of fingerprints on an
object. (See People v. Bradley (1984) 159 Cal.App.3d 399, 405.) Additionally, the
absence of fingerprints on an object does not necessarily “prove to a certainty” that the
object was untouched by a particular person, as defendant suggests.
As for the jacket, defendant’s claim that it was destroyed or withheld from him is
not supported by the record. The evidence before us indicates that the jacket (or hoodie,
or sweatshirt) defendant was wearing at the time of his arrest was booked into his
personal property at the police station. There is no indication that the police acted in bad
faith by booking the jacket into defendant’s property, or that they or the prosecutor
withheld from defendant the jacket or any of the varying accounts of its hue and styling.
In any event, defendant cross-examined witnesses about the color and styling of the
jacket and argued to the jury that the jacket he was wearing was lighter in color than that
worn by the perpetrator Echeverria described to the 911 operator.
To the extent defendant’s claim that the jacket should have been booked into
evidence is a claim challenging the strength of the evidence that was admitted, we
conclude that sufficient evidence supported his conviction. When considering a
challenge to the sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it contains reasonable, credible evidence
of solid value from which a reasonable jury could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (2015) 60 Cal.4th 966, 988.) That standard is met
here: eyewitness testimony placed defendant at the scene of the crime; he was
apprehended a few minutes later near the crime scene, nervous, sweaty, and in possession
24
of gloves; and a witness saw him drop an item that was later determined to have been
stolen from the crime scene.
V. Jury Instructions
Defendant argues that the court made two additional errors when instructing the
jury. He contends that the court improperly instructed the jury on an aiding and abetting
theory because such that theory was not supported by the evidence and was not argued by
the People. He also contends that the court improperly failed to instruct the jury on third-
party culpability. We disagree on both points.
A. Aiding and Abetting
1. Background
The court instructed the jury with CALCRIM No. 1702 (“Burglary: Intent of
Aider and Abettor”). That instruction provides: “To be guilty of burglary as an aider and
abettor, the defendant must have known of the perpetrator’s unlawful purpose and must
have formed the intent to aid, facilitate, promote, instigate, or encourage the commission
of the burglary before the perpetrator finally left the structure.” The record does not
reflect that defendant objected to this or any other instruction, or requested any additional
instructions that were not given.
During the People’s closing argument, defendant objected to the People’s
comment that some of the jurors were victims of burglaries. The court called a sidebar to
address that objection. During sidebar, the court stated that it would admonish the jurors.
The following exchange also occurred:
The Court: “Do you intend to argue that even if there is no evidence - - because
you have no evidence he was ever in the house. You have no evidence of that. There’s
no prints, you got nothing - - do you intend to argue that somebody was in that house and
that he was a participant in this crime, yes or no? Do you intend - - are you going to
leave it alone and argue that he was the one in the house? Because - - ”
“[The People]: I don’t know if he was the one in the house so I will need the
aiding and abetting.
“The Court: Okay.
25
“[Defense counsel]: I would move to strike it. I don’t see there’s any evidence of
aiding and abetting.
“The Court: Firstly, I already gave that instruction yesterday. But what I didn’t
do is give both the instructions. Because if I give one, which is the 1600 - - we’ve
already went [sic] over this, you didn’t object to it yesterday, so it’s been read. But what
I - - honestly, lying in bed, I was thinking about it and thought you know what, I think
I’m also supposed to give something else if I give that, because that’s just a bare
instruction. And the instruction I think is - - what is it? 1700 or 16 something. 1702. So
the instruction is 1702, and it says here, the court has a sua sponte duty to give this
instruction when the defendant is charged with aiding and abetting a burglary and there is
an issue about whether the defendant allegedly formed the intent to aid and abet. This
instruction must be given with 401, aiding and abetting crimes.
“And let’s see here. Going over to 401, it’s - - this - - it’s 401. So here’s what I
want to tell you guys. I am going to give 401 as well. I’m going to print it out right now.
And you will have it for your argument. Because when it’s all done, when it’s all over, I
will, so as not to highlight this over any other one, I will read over again just the burglary,
all the burglary stuff and then these two, and then I’ll just merge them. They won’t
notice the difference. I don’t want to point out something about it.”
The court instructed the jury with CALCRIM Nos. 400 (“Aiding and Abetting:
General Principles”) and 401 (“Aiding and Abetting: Intended Crimes”). It did so in the
manner it said it would, upon conclusion of the closing arguments.
During the People’s closing, after the sidebar discussed above, the prosecutor
argued that “[t]here could have been someone helping the defendant” with the burglary
and removal and disposal of Echeverria’s items. Defendant more explicitly referred to
aiding and abetting during his closing argument. He told the jury, “I won’t be able to
come back up here so I have to anticipate what she’s going to try to argue now because
she’s argued initially that my client planned this, knew they were going to be out of town,
went in there. So what is she left with? That he was an aider and abetter [sic], that he did
this with somebody, that some perpetrator committed the crime that he knew, and I’m
26
just looking at the jury instruction, that kind of thing, and he was aiding this person.
Who’s the perpetrator? What evidence do we have of the person that did this?” The
People did not address aiding and abetting in rebuttal.
2. Analysis
“Even without a request, a trial court is obliged to instruct on ‘“general principles
of law that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case”’ [citation] . . . . In
particular, instructions delineating an aiding and abetting theory of liability must be given
when such derivative culpability ‘form[s] a part of the prosecution’s theory of criminal
liability and substantial evidence supports the theory.’ [Citation.]” (People v. Delgado
(2013) 56 Cal.4th 480, 488.) “A party is entitled to a requested instruction if it is
supported by substantial evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose
if it is ‘sufficient to “deserve consideration by the jury,” that is, evidence that a
reasonable jury could find persuasive.’ [Citation.] At the same time, instructions not
supported by substantial evidence should not be given. [Citation.] ‘It is error to give an
instruction which, while correctly stating a principle of law, has no application to the
facts of the case. [Citation.]’ [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033,
1049-1050.)
Here, derivative culpability did not form the basis of the prosecutor’s theory. Nor
did substantial evidence suggest the involvement of anyone other than defendant in the
crime; the only suggestion of a second person’s involvement in the crime was made by
the prosecutor during the People’s closing argument. Thus, the court was not required to
give an aiding and abetting instruction and erred in doing so.
The question then becomes whether the court committed reversible error by
delivering an aiding and abetting instruction. The answer to that question is no. Nothing
in the record indicates that defendant would have achieved a more favorable result had
the instruction not been given. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
Under Watson, our review “focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration.”
27
(People v. Breverman (1998) 19 Cal.4th 142, 177.) The evidence supporting the existing
judgment is strong, and there is no reasonable probability that the giving of the irrelevant
aiding and abetting instruction affected the result, particularly where the court also told
the jury that some of the instructions it was receiving “may not apply, depending on your
findings about the facts of the case.”
B. Third Party Culpability
Defendant’s trial counsel did not ask for a pinpoint instruction on third party
culpability, but he contends the trial court had a sua sponte obligation to give such an
instruction even in the absence of a request. As the Supreme Court held in People v.
Abilez (2007) 41 Cal.4th 472, 517 (Abilez) and in People v. Gutierrez (2009) 45 Cal.4th
789, 824-825 (Gutierrez), the trial court has no such duty.
“The applicable principles are clear. A criminal defendant may introduce
evidence of third party culpability if such evidence raises a reasonable doubt as to his
guilt, but the evidence must consist of direct or circumstantial evidence that links the
third person to the crime. It is not enough that another person has the motive or
opportunity to commit it. [Citation.] A trial court has a duty to instruct the jury ‘sua
sponte on general principles which are closely and openly connected with the facts before
the court.’ [Citation] Finally, a trial court has a sua sponte duty to give instructions on
the defendant’s theory of the case, including instructions “as to defenses ‘“that the
defendant is relying on . . ., or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s theory of the case.’”’
[Citation.]” (Abilez, supra, 41 Cal.4th at p. 517.) Defendant bears the burden of
requesting pinpoint instructions. (Gutierrez, supra, 45 Cal.4th at p. 824.) “‘Such
instructions relate particular facts to a legal issue in the case or “pinpoint” the crux of a
defendant’s case, such as mistaken identification or alibi. [Citation.] They are required
to be given upon request when there is evidence supportive of the theory, but they are not
required to be given sua sponte.’ [Citations.]” (Ibid.)
The jury properly was instructed that defendant was presumed innocent and that to
convict him, the jury had to find him guilty beyond a reasonable doubt. Had the jury
28
entertained a reasonable doubt that defendant burglarized Echeverria’s home and instead
believed another person committed those crimes, presumably it would have acquitted
defendant. Moreover, defendant did not introduce any evidence of third party culpability.
No special instruction on third party culpability was necessary to apprise the jury of the
pertinent legal principles. (Abilez, supra, 41 Cal.4th at p. 517; Gutierrez, supra, 45
Cal.4th at pp. 824-825.)
VI. “Read PSR Before Sentencing”
In his letter, defendant contends in a single sentence that the trial court erred by
failing to ensure that he and his counsel “read PSR before sentencing.” We are not
certain what, precisely, defendant is claiming, but our review of the record and applicable
law reveals no reversible error. Section 1203, subdivision (b)(1) requires the court to
refer a matter to a probation officer for investigation of the crime and the defendant’s
criminal history where the defendant is convicted of a felony and is eligible for probation.
Defendant correctly conceded that he was ineligible for probation. The court accordingly
was not obligated to obtain a presentence report. Since the court was not obligated to
obtain a report, it could not possibly have been required to review that report with
defendant and his counsel.
To the extent defendant may be suggesting his counsel failed to adequately review
the probation officer’s report, such suggestion is belied by the record. Defense counsel
filed a motion to strike defendant’s prior strike convictions that were enumerated in the
report. Defense counsel also obtained and submitted to the court police reports pertaining
to those convictions and argued that defendant lacked a history of violence.
VII. Motion for New Trial
Defendant contends that the court erred in failing to rule on his motion for new
trial. Defendant forfeited this challenge by neglecting to press for a hearing or otherwise
acquiescing in the court’s failure to hear the motion.
Section 1202 provides that in pertinent part that “‘If the court shall refuse to hear a
defendant’s motion for a new trial or when made shall neglect to determine such motion
before pronouncing judgment or the making of an order granting probation, then the
29
defendant shall be entitled to a new trial.’” Our Supreme Court has interpreted this
statute to require a defendant seeking its protections to “promptly object and demand a
new trial” if he wishes to preserve the issue for appeal. (People v. Braxton (2004) 34
Cal.4th 798, 812, 814.) “If the trial court’s failure to hear or rule on the new trial motion
appears to be inadvertent,” as it does from the record in this case, “the defendant must
make some appropriate effort to obtain the hearing or ruling.” (Id. at p. 813.) “This is an
application of the broader rule that a party may not challenge on appeal a procedural error
or omission if the party acquiesced by failing to object or protest under circumstances
indicating that the error or omission probably was inadvertent.” (Ibid.) “‘“In the hurry of
the trial many things may be, and are, overlooked which readily have been rectified had
attention been called to them. The law casts upon the party the duty of looking after his
legal rights and of calling the judge’s attention to any infringement of them.” [Citation.]’
[Citations.]” (Id. at p. 814.)
Here, defendant made a timely motion for new trial. He concurrently filed a
motion requesting that the court strike one or both of his prior strikes and a statement in
mitigation. The trial court addressed the latter two filings at a hearing but proceeded
directly into a bench trial on defendant’s priors and sentencing without addressing the
motion for new trial. Defendant did not mention the court’s omission, which appears to
have been inadvertent. Accordingly, he cannot raise the issue here.
Even if were we able to review it, we would not reverse because defendant cannot
demonstrate actual prejudice or a miscarriage of justice. (People v. Braxton, supra, 34
Cal.4th at pp. 817-818.) “[A] new trial may not be ordered for a trial court’s failure to
hear a new trial motion when a reviewing court has properly determined that the
defendant suffered no prejudice as a result. This will occur when, for example, the record
shows that the trial court would have denied the new trial motion and the reviewing court
properly determines that the ruling would not have been an abuse of discretion, or the
reviewing court properly determines as a matter of law that the motion lacked merit.”
(Id. at p. 818.) Similarly, “[a] trial court’s refusal to hear a new trial motion does not
result in a miscarriage of justice if the appellate record allows the reviewing court to
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determine, as a matter of law, that the new trial motion lacked merit or that the trial
would properly have exercised its discretion to deny the motion.” (Id. at p. 820.)
Here, the record demonstrates that defendant’s new trial motion was not
meritorious. His motion was predicated entirely on a purported “total lack of eyewitness
identification and scientific evidence to support a conviction of Defendant for the subject
crime.” Despite Echeverria’s inability to identify defendant in court and the absence of
fingerprints and DNA at the scene, the circumstantial evidence against defendant was
substantial and supported the inference that he was guilty beyond a reasonable doubt. He
was apprehended mere blocks from Echeverria’s home, on the same street, shortly after
the burglary. He was unusually sweaty and nervous. He was carrying gloves. He was
seen dropping an object later determined to be a distinctive bottle of liquor identical to
one reported missing from Echeverria’s home. (See 2 Witkin, Cal. Crim. Law 4th (2012)
§ 157, subd. (1) [“In a prosecution for burglary, proof of the defendant’s possession of
stolen property is one of the strongest of incriminating circumstances.”].) Regardless of
the precise hue of the jacket he was wearing, he matched several physical attributes of the
suspect Echeverria saw in the walkway next to her home, including height, race, gender,
and age. As a matter of law, the trial court properly would have exercised its discretion
to deny the motion.
VIII. Cumulative Error
Defendant’s final contention is that his conviction should be reversed due to the
cumulative effect of the various errors he alleges. The only error we found, that
pertaining to the aiding and abetting instruction, was harmless. We therefore reject
defendant’s argument that an accumulation of errors prejudiced him and warrants
reversal.
Defendant has, by virtue of counsel’s compliance with the Wende procedure and
our review of the record, received adequate and effective appellate review of the
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judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278;
People v. Kelly (2006) 40 Cal.4th 106, 112-113.)3
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
3
Because defendant has appointed appellate counsel and the court has thoroughly
reviewed the record, defendant’s request in his September 25, 2015 filing that new
counsel be appointed is denied. We also deny his request that we take judicial notice of
People v. Osband (1996) 13 Cal.4th 622, 693-701,which addresses prosecutorial
misconduct and ineffective assistance of counsel. Defendant’s claim of prosecutorial
misconduct does not have merit, and his theory of ineffective assistance was not timely
presented.
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