Filed 6/24/21 P. v. Tanks CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304432
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA091031)
v.
RONALD OTIS TANKS,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Affirmed with
directions.
Sally Patrone Brajevich, under appointment by the
Court of Appeal, for the Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Analee J. Brodie,
Deputy Attorney General, for Plaintiff and Respondent.
____________________________
The jury found defendant and appellant Ronald O.
Tanks guilty of attempted premeditated and deliberate
murder. (Pen. Code, §§ 187, subd. (a)/664 [count 1].)1 It
found true the allegations that in the commission of the
crime, Tanks personally inflicted great bodily injury on the
victim (§ 12022.7, subd. (a)), and personally and
intentionally discharged a firearm proximately causing great
bodily injury (§ 12022.53, subd. (d)).
The trial court sentenced Tanks to life with the
possibility of parole in count 1, plus 25 years to life for the
section 12022.53, subdivision (d) enhancement, plus 3 years
for the great bodily injury enhancement.
Tanks contends that (1) his attorney’s actual conflict of
interest requires reversal of his convictions; (2) the trial
court erred in denying his motion to relieve counsel; (3) the
trial court erred in denying his motion to suppress evidence;
(4) the trial court erred by admitting his prior conviction
while excluding the prior convictions of the victim and his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
former co-defendant; (5) the trial court erred by admitting
evidence of the victim’s mental state; (6) the prosecutor
delayed in providing exculpatory evidence; (7) the trial court
failed to properly instruct the jury; (8) these errors were
cumulative; and (9) there are errors in the court’s minute
order with respect to fines and fees.
We agree with the parties that the minute order dated
January 15, 2020, does not properly reflect the trial court’s
oral pronouncement at sentencing. We order the notations
that the trial court imposed a $300 restitution fine (§ 1202.4,
subd. (b)), a $300 suspended parole revocation fine
(§ 12022.45), a $40 court operations assessment (§ 1465.8,
subd. (a)(1)), and a $30 criminal conviction assessment (Gov.
Code, § 70737) be stricken from the minute order. In all
other respects, we affirm the trial court’s judgment.
FACTS
Prosecution Case at Trial
Victim Testimony
The victim, Juan Barajas,2 lived in an apartment with
several other people. Barajas knew Tanks because he lived
2 Barajas admitted that in 2007, he was convicted of
felony transportation and sale of narcotics (Health & Saf.
Code, § 11352, subd. (a)).
3
in the same apartment complex. Tanks lived with his
girlfriend, Deborah Griffin.
On May 20, 2018, Barajas was in his apartment when
Tanks arrived, looking for Graciella Salas, who also lived
there. Tanks was angry. He yelled at Salas and “tried to
hit” her. Barajas told Tanks to leave. Barajas grabbed a
baseball bat because he was afraid of Tanks, but he did not
hit him or even threaten him with it, “because perhaps he
will hit me.” Barajas did not pull a gun on Tanks. Tanks
insulted Barajas and left. Barajas believed Tanks disliked
him because he thought Barajas was dating Salas.3
Later that afternoon, Barajas went to a liquor store
and bought alcohol.4 He drove home quickly, worried that
Tanks would return and threaten Salas or another
roommate.5
Barajas parked his car in the garage. He did not notice
that Tanks had followed him inside. When Barajas got out
3 Barajas was not certain how much time elapsed
between the argument in the morning and the shooting, but
he thought it was a matter of hours.
4 Barajas admitted to ingesting methamphetamine and
beer that day.
5 A woman who lived in unit 112 of the building was on
her balcony at approximately 5:20 p.m. She saw Barajas’s
car go “screeching” into the parking area. She saw Tanks
“running after it.” She heard four or five gunshots as she
was returning to her apartment.
4
of his car, Tanks approached and pointed a gun at his face.
Tanks said he was going to kill Barajas. He pulled the
trigger but the gun did not fire.
Barajas threw a can of alcohol at Tanks, but missed.
Tanks shot him in the leg and Barajas collapsed. Tanks
fired again, hitting Barajas in the shoulder. Tanks fired
another bullet into Barajas’s car.
Tanks told Barajas, “Open your mouth because I am
going to kill you.” He put the gun in Barajas’s mouth and
pulled the trigger, but the gun was out of bullets. Tanks
stood up and got a baseball bat.6 He beat Barajas with the
bat. Barajas raised his arm to shield his head, and Tanks
broke Barajas’s arm with the bat.
Barajas was hospitalized for four days. His left
shoulder was dislocated by the gunshot. Screws were
required to repair the bones in his hip.
Investigation Evidence
Los Angeles Police Department Officer Jose Moya
arrived at the scene at 5:23 p.m. He observed Dedrick Cook,
who looked “scared,” riding away on a bicycle. Another
officer stopped Cook, and Cook admitted he had a gun in his
backpack. The gun, a revolver, contained four spent bullet
casings. Cook told officers that Tanks had called him and
6At trial, Barajas identified the baseball bat recovered
from Griffin’s apartment as the one Tanks used to beat him.
5
said he was “having some trouble” with someone, and told
him to bring a gun. Cook denied having shot anyone, and
said he did not know if anyone had been shot. Cook said
Tanks and the victim had “got into it about some woman.”
Cook offered to show the officers the text messages from
Tanks on his phone.
After Cook was arrested, he was placed in a patrol car
and interviewed there by Officer Moya. The video of Cook’s
interview was played at trial. Cook told the officer, “I’m not
Tank,” and “I didn’t shoot the dude.” He did not know the
victim; he only knew that the victim had arrived in a white
car. During the interview, calls and messages from “Tank”
came in to Cook’s cell phone.
Los Angeles Police Department Officer Erik Peña
interviewed Barajas, who identified Tanks as the shooter in
a photographic lineup. Barajas testified consistently with
the statement of facts above. Officer Peña asked Barajas if
he had a gun. Barajas said he did not.
Later that evening, Officer Peña went to Tanks’s
apartment. Tanks was not there, but his girlfriend, Deborah
Griffin, let officers into the apartment to look for him.
Officers seized a small black baseball bat leaning against a
dresser near the bed, which Griffin stated Tanks brought
with him to the apartment that afternoon.
Tanks was arrested four days after the incident,
waived his right to remain silent, and was interviewed by
Detective Donald Goossens. The video of the interview was
played for the jury.
6
Tanks denied knowing Cook, and denied that Cook
gave him a gun to use. Tanks said he went to Barajas’s
apartment on the morning of the shooting, looking for Salas,
who was his girlfriend. “Well,” he clarified, “another
girlfriend I have . . . in [Barajas’s] house.” He went to see
Salas and confronted her because she had been “gone all
night” and did not answer his calls. As Tanks was “gettin’
on her,” Barajas left the room and returned with a baseball
bat. Tanks left the apartment, and Barajas followed him,
speaking angrily in Spanish. Barajas told Tanks not to
bother his girl, and said that if he saw Tanks again he would
kill him. Barajas told Tanks not to talk to Salas or come to
the apartment again. Tanks responded, “That’s my bitch,”
and, “I talk to my bitch any time I want.”
Approximately 30 minutes later, Tanks was outside the
apartment building, talking to Larry Woods and others,
when Barajas came out and ran toward him, his hand
reaching behind his back. Barajas and Tanks argued.
Tanks told Barajas, “I didn’t say nothing to you, I was
talking to my bitch in your house. Fuck you!” Barajas
pulled out a gun and threatened to kill Tanks. Barajas
walked away. Woods and Griffin witnessed the threats. As
Barajas passed Griffin on the steps going into the building,
he displayed the gun and said, “I’ll kill Tank, I’ll kill Tank.”
Tanks went back to his apartment because he did not want
Barajas to shoot him.
When asked about the baseball bat police recovered
from Tanks’s apartment, Tanks claimed he found the bat on
7
the street. Tanks maintained he did not shoot Barajas,
although he heard four shots while he was upstairs in his
apartment.
Tanks admitted he texted and called Cook, asking him
to come over. Tanks said Barajas “pulled the gun up on
[him]” and said, “I’ll kill you dead.” According to Tanks,
Barajas said this “in front of everybody up there on the
street.”
Detective Goossens pressed Tanks for the truth,
pointing out the inconsistencies between his story and
Cook’s. Tanks maintained, “I never shot him.” Tanks said
he never had a gun. Tanks said, “I’m telling you the truth.”
Jail Calls
While in jail awaiting trial, Tanks made recorded
telephone calls to Deborah Griffin. The jail calls were played
for the jury.
In one call, Griffin asked Tanks what he wanted her to
ask his attorney, who was coming to talk to her. Tanks told
Griffin to tell the attorney she had seen Barajas pull a gun
on Tanks. When Griffin said, “I wasn’t there,” Tanks
replied, “Yeah, well . . . you are now.” He wanted Griffin to
say that “Miss Gloven” had seen Barajas display a gun, and
that Barajas was “telling everybody he’s gonna kill me.”
Tanks also told Griffin to say that Barajas was “going
around paying people in the building to intimidate [her] to –
to make [her] back up –whatever.”
8
In another call, Tanks and Griffin discussed a Blythe
Street gang member, and whether that person would tell
Barajas that “what he’s doing is wrong.” Griffin was
reluctant to do what Tanks asked her to do.
Tanks repeatedly urged Griffin to give a police report
to a gang member called “YT.” He said, “Please give it to
him because . . . [they are going] to keep [Barajas] from
coming to court.” Griffin repeatedly cautioned Tanks, “Don’t
say no more. You’re being recorded. Shut up.”
Dedrick Cook’s Testimony
Cook testified at trial, after negotiating a plea and
accepting a reduced sentence of nine years for the attempted
murder of Barajas and two drug trafficking charges. Cook
sold drugs to make money. Before the shooting, he had
known Tanks for two or three months. He saw Tanks “on a
regular basis.” Tanks’s name and phone number were in
Cook’s phone. He knew Tanks’s girlfriend was “Cat,” but
Salas was also Tanks’s friend.
On the day of the shooting, Cook was staying in a
hotel. He took a nap and awoke in the afternoon to several
missed calls and text messages from Tanks. He did not
respond right away. Around 5:00 p.m., he called Tanks.
Tanks told Cook to come to him and bring his gun, which he
referred to as Cook’s “little friend.” He said “someone pulled
a gun on him over a bitch.” Tanks seemed “alarmed,” at
least when the earlier incident occurred. Cook rode to
9
Tanks’s apartment building on his bike, with the gun in his
backpack. He also had a small baseball bat strapped to his
bike, and some drugs in his backpack. The drugs were for
sale and for personal use.
Tanks and Woods were on the sidewalk in front of the
apartments when Cook rode up. Tanks told Cook to give
him the gun. It was a revolver loaded with four bullets.
Cook gave Tanks the gun. Cook noticed Barajas’s car
“hauling ass” down the street. The car pulled into the
parking garage and Tanks “instantly” went in after it. Cook,
straddling his bicycle, followed. He hid between two cars
and watched. Tanks hid behind the pillar near the spot
where Barajas parked. Barajas got out of his car with a bag
of two or three drink cans in his hand. Tanks approached
and pointed the gun at Barajas. Barajas lunged at Tanks
and the men “started throwing blows back and forth[,]” but
the blows did not connect. At some point, Barajas threw the
bag of drinks at Tanks.7
Cook heard four shots fired a few seconds apart.
Barajas fell to the ground. Tanks stood over Barajas,
pointing the gun at him, saying something. Tanks saw Cook
watching. He handed Cook the gun and took the baseball
bat Cook had strapped to his bike. Cook left without seeing
what Tanks did with the bat. When he was almost
immediately arrested, Cook said he had nothing to do with
7 Cook did not recall telling police Barajas had “a blunt
object” or a bat in his hand, but was reminded by reference
to the transcript of that interview.
10
the shooting “aside from giving [Tanks] the gun.” He
believed someone was “out to get [Tanks].”
After Cook was arrested, he and Tanks were
codefendants for a time. Cook saw Tanks on a jail bus, and
Tanks asked him what he was going to do about the case.
On several occasions, such as in the holding tank, Tanks
tried to dissuade Cook from testifying. He was angry and
yelled at Cook. This continued until Cook and Tanks were
given “keep away status.” When Tanks and Cook were
mistakenly placed together in custody at trial, Tanks tried to
coerce and manipulate Cook. According to Cook, “He asked
me to alter my statement for his benefit.”
Defense
Tanks’s Testimony
Tanks testified at trial. He lived with his girlfriend
Deborah Griffin. Tanks connected drug dealers with drug
seekers in exchange for an occasional referral fee. Tanks
recalled Barajas moving into the building in 2009.
On the night of May 19, 2018, Tanks walked to the
liquor store. He heard Barajas fighting with his girlfriend.
When he returned from the liquor store, Barajas’s girlfriend
was in the lobby of the apartment building. She had a
bruise on her face and a big knot on her forehead. She
declined Tanks’s offer to help. According to Tanks, Barajas
11
had beaten up his prior girlfriend as well, and had been
deported.
The next morning, Tanks went to the apartment where
Barajas lived to talk to Woods. He stayed less than five
minutes, and did not argue with Salas. Barajas let Tanks
into the apartment, then walked away. Barajas was sweaty
and appeared to be under the influence of drugs. Salas was
there as well, and Tanks talked to her because he was
concerned about her safety. Barajas heard them talking and
rushed back into the room. Tanks walked out of the
apartment, but heard Barajas coming up behind him.
Barajas had a baseball bat, and told Tanks, “Motherfucker,
don’t you talk to my bitch no more. That’s my bitch now.
You leave her alone. You keep talking to her, I fuck you up.”
Tanks replied, “Fuck you and that bitch,” and walked away
and returned to his apartment.
Tanks spoke with Griffin for a while, and then left on
an errand around 11:00 a.m. When he returned to his
apartment building around 4:00 p.m., he saw Woods outside
and stopped to talk to him. Barajas was across the street
looking at Tanks. Barajas approached Tanks and Woods,
reaching behind his back and into his waistband. He said to
Tanks, “Mother-fucker, you want to keep fucking with me,
mother-fucker?” and “I’ll fuck you up and kill you.” Barajas
pulled a gun from his waistband. Tanks recognized the gun
as a “.22 long barrel, chrome, with a rubber black handle.”
Barajas pointed the gun at Tanks’s chest and again
12
threatened to kill him. Tanks and Barajas exchanged
insults.
After 10 or 15 minutes of Barajas pointing the gun at
Tanks and threatening him, he stuck the gun in his
waistband and walked away, still saying he intended to kill
Tanks. Barajas went into the apartment building, flashing
the gun at another resident as she walked by. Barajas told
the woman, “I’m gonna kill Tank[s].”
Tanks called Cook but could not reach him. He did not
call the police because they were called to that apartment
building regularly for nothing, including his arguments with
Griffin. When Cook returned Tanks’s call, Tanks asked for
his help. Tanks referred to Cook’s gun as his “little friend.”
Cook showed up 10 minutes later. While Tanks was
waiting for Cook, he saw Barajas driving away, pointing his
gun at Tanks. Barajas told Tanks, “I be back [sic].”
About seven minutes after Cook arrived, Barajas came
speeding back in his car, and came to a screeching stop in
the parking garage. Tanks asked Cook for the gun he had
brought. With the gun in his hand, Tanks walked into the
garage, having decided he would rather be shot at inside the
concrete parking structure, “where innocent people wouldn’t
get hurt.”
When Barajas got out of his car and saw Tanks holding
a gun, he “turned furious.” Barajas hurled something at
Tanks, who ducked and fired his gun to scare Barajas. The
gunshot further enraged Barajas, who charged Tanks. The
men “tussled on the ground,” and Barajas “pulled the gun,”
13
causing it to fire one shot. Barajas held onto the gun, and it
fired again. The third time the gun fired, Barajas fell to the
ground.
Tanks saw that Barajas had been shot in the leg.
Tanks noticed Cook standing nearby. He returned the gun
to him, and Cook left on his bicycle. Tanks went home.
According to Tanks, Barajas was associated with the
Blythe Street criminal gang. The gang “taxed” Barajas’s
drug sale proceeds. While Tanks was in jail, Blythe Street
gang members asked him to “provide paperwork” regarding
the shooting. Tanks felt he had no choice but to cooperate.
He told Griffin to make a copy of a police report and give it to
a particular gang member.
However, Tanks testified, he eventually gave the police
report to a gang member himself but “nothing ever came of it
because [Barajas] came in here and testified for [the
prosecution].”
Prior to trial, Tanks was once housed with Cook in a
holding cell. Although it “hurt [his] feelings” that Cook
would testify against him, he did not threaten or intimidate
Cook.
Tanks denied telling a detective he went to Barajas’s
apartment to look for his girlfriend, Salas. He admitted
trying to get Griffin to lie and testify that she saw Barajas
with a gun, but Griffin “shut that down[.]”
Tanks never used or even had a baseball bat during the
fight with Barajas. However, he carried a bat for protection
“every day[.]” He admitted he “probably” told detectives he
14
had found the bat seized from his bedroom. Tanks also
admitted lying to police when asked if he knew Cook. In his
text message to Cook on the day of the shooting, he said the
problem with Barajas was “a matter of disrespect.”
Tanks admitted he lied to police when he said he only
heard the gunshots from his apartment. He lied because he
was “scared for [his] freedom” and “trying to lessen [his] role
in this at the time.”
Griffin’s Testimony
Griffin lived with Tanks. She heard the “commotion” of
the shooting and aftermath, and went outside to look. She
did not know until later who had been shot. Tanks came
home at some point and ate dinner with Griffin. They
watched television, and Tanks went out for beer at some
point. While he was gone, police officers came to the
apartment, asking for him.
Griffin told them Tanks was not home. The officer
asked Griffin to step outside, and she did. The officers went
into the apartment, looking for Tanks. They took a small
aluminum baseball bat from the bedroom. Griffin did not
give them permission to take the bat. Griffin told the
officers that Tanks had brought the bat home with him.
On May 24, 2018, police returned to the apartment,
looking for Tanks. Griffin told them Tanks was not at home.
Tanks called Griffin from jail several times. In one
conversation on June 3, 2018, Tanks told her not to go to
15
court after getting a subpoena for someone else. Griffin did
not recall a conversation on June 22, 2018, in which Tanks
told her to lie and say that she had seen Barajas with a gun.
She recalled a conversation they had on June 14, 2018,
regarding giving a copy of a police report to a Blythe Street
gang member, but stated “[n]othing ever came of it.”
Griffin “called immigration” and reported Barajas, and
he was deported. She did not recall telling Tanks “it’s done”
in a phone conversation on August 22, 2018.
Detective Goossens’s Testimony
Detective Goossens testified that he lied to Tanks
about several things when questioning him, as a “ruse” to
provoke him to deny what the detective suggested.
DISCUSSION
1. Conflict of Interest
Tanks contends the trial court abused its discretion by
denying his motion for new trial based on defense counsel’s
alleged conflict of interest. We conclude that the trial court
did not abuse its discretion because the record does not
reveal that it is reasonably probable the potential conflict of
interest resulted in deficiencies in counsel’s performance, in
the absence of which it was reasonably probable that Tanks
would have obtained a better result.
16
Legal Principles
Motion for New Trial
Pursuant to section 1181, a defendant may apply for
new trial when a verdict has been rendered or a finding
made against him under certain enumerated circumstances.
“Although ineffective assistance of counsel is not among the
grounds enumerated for ordering a new trial under Penal
Code section 1181, motions alleging ineffective assistance
are permitted pursuant to ‘the constitutional duty of trial
courts to ensure that defendants be accorded due process of
law.’ [Citation.]” (People v. Callahan (2004) 124
Cal.App.4th 198, 209.) “‘On appeal, a trial court’s ruling on
a motion for new trial is reviewed under a deferential abuse
of discretion standard. [Citation.] Its ruling will not be
disturbed unless defendant establishes “a ‘manifest and
unmistakable abuse of discretion.’”’ [Citation.]” (People v.
Jimenez (2019) 32 Cal.App.5th 409, 423.)
Conflict of Interest
“A criminal defendant is guaranteed the right to the
assistance of counsel by the Sixth Amendment to the United
States Constitution and article I, section 15 of the California
Constitution. This constitutional right includes the
correlative right to representation free from any conflict of
17
interest that undermines counsel’s loyalty to his or her
client. [Citations.] ‘It has long been held that under both
Constitutions, a defendant is deprived of his or her
constitutional right to the assistance of counsel in certain
circumstances when, despite the physical presence of a
defense attorney at trial, that attorney labored under a
conflict of interest that compromised his or her loyalty to the
defendant.’ [Citation.] ‘As a general proposition, such
conflicts “embrace all situations in which an attorney’s
loyalty to, or efforts on behalf of, a client are threatened by
his responsibilities to another client or a third person or his
own interests. [Citation.]”’ [Citation.]” (People v. Doolin
(2009) 45 Cal.4th 390, 417 (Doolin).)
“[C]laims of Sixth Amendment violation based on
conflicts of interest are a category of ineffective assistance of
counsel claims that . . . generally require a defendant to
show (1) counsel’s deficient performance, and (2) a
reasonable probability that, absent counsel’s deficiencies, the
result of the proceeding would have been different.
[Citation.] In the context of a conflict of interest claim,
deficient performance is demonstrated by a showing that
defense counsel labored under an actual conflict of interest
‘that affected counsel’s performance—as opposed to a mere
theoretical division of loyalties.’ [Citations.] ‘[I]nquiry into
actual conflict [does not require] something separate and
apart from adverse effect.’ [Citation.] ‘An “actual conflict,”
for Sixth Amendment purposes, is a conflict of interest that
18
adversely affects counsel’s performance.’ [Citation.]”
(Doolin, supra, 45 Cal.4th at pp. 417–418.)
“[A] determination of whether counsel’s performance
was ‘adversely affected’ under the federal standard ‘requires
an inquiry into whether counsel “pulled his punches,” i.e.,
whether counsel failed to represent defendant as vigorously
as he might have, had there been no conflict. [Citation.] In
undertaking such an inquiry, we are . . . bound by the record.
But where a conflict of interest causes an attorney not to do
something, the record may not reflect such an omission. We
must therefore examine the record to determine (i) whether
arguments or actions omitted would likely have been made
by counsel who did not have a conflict of interest, and (ii)
whether there may have been a tactical reason (other than
the asserted conflict of interest) that might have caused any
such omission.’ [Citation.]” (Doolin, supra, 45 Cal.4th at p.
418.)
Proceedings
After trial but before sentencing, defense counsel filed
a notice of actual conflict of interest with the court and
requested to withdraw as counsel.8 Defense counsel was
being prosecuted by the Los Angeles District Attorney’s
Office for misdemeanor planning and zoning and building
code violations. The case was filed on July 2, 2018,
8 The notice is not contained in the record, but
referenced in a minute order dated April 8, 2019.
19
approximately one week after counsel’s appointment to
represent Tanks. At a hearing on the matter, the trial court
elicited that Tanks had not known about counsel’s pending
case before the hearing and was not now willing to waive the
conflict. The trial court relieved defense counsel as
requested. The prosecutor asked for clarification. It was his
understanding that defense counsel confirmed with the state
bar that there was no reporting requirement. The
prosecutor was confused as to why the notice of conflict was
being filed at this juncture, after trial had completed. The
prosecutor asked when it was anticipated that the matter
would be resolved. Defense counsel responded that he was
having his architect draw up plans to submit a coastal
development permit, and that the process should take six to
eight weeks.
The court stated that defense counsel appeared to have
confused his duty to report to the bar with his duty to inform
Tanks about the potential conflict, so that Tanks could make
an informed choice about his representation. The court
proposed to relieve counsel and appoint new counsel, who
could investigate the potential conflict.
At a continued hearing the court relieved defense
counsel and appointed new counsel. New counsel
subsequently filed a motion for new trial, stating that Tanks
claimed his former attorney failed to investigate the facts
and available witnesses due to his attorney’s conflict of
interest, which arose at the outset and was not disclosed
until after trial. The motion was not specific regarding
20
counsel’s alleged failures. The prosecutor opposed the
motion on the basis that there was no evidence of actual
prejudice.
At the hearing on the motion for new trial, the parties
submitted on their filings. The trial court reiterated that the
issue arose on July 2, 2018, while the case was pending,
when former counsel was prosecuted by the District
Attorney for two counts of violation of planning and zoning,
and two counts of violation of the building code of the Los
Angeles Municipal Code regarding permitted structures on
property. The case was pending throughout trial. The
potential conflict was not disclosed to Tanks, the prosecutor,
and the court until after the verdict.
The trial court ruled that prejudice was not presumed
because Tanks had already had a full trial to verdict, and it
was not a concurrent representation of potentially adverse
clients. Employing the standard articulated in Doolin,
supra, 45 Cal.4th 390, the trial court found that former
counsel’s representation was “full and vigorous.” The court
saw no “pulling of punches”. Former defense counsel’s
“cross-examination of People’s witnesses was full and
vigorous and effective. And it became obvious during the
trial that Mr. Cohen had visited many of the witnesses on
this case, gone out himself to inspect certain locations
involved in the case. [¶] And, in fact, the entire defense on
this case really rested on the defendant’s testimony himself.”
The jury either had to believe Tanks that the gun fired
accidentally, or Barajas’s testimony that the shooting was
21
intentional. The jury was instructed on accident, but did not
find Tanks credible, and convicted him of attempted murder.
That could not be attributed to former counsel. Counsel did
everything necessary to defend Tanks. The trial court
denied the motion.
Analysis
Tanks’s contention lacks merit. He relies on Harris v.
Superior Court (2014) 225 Cal.App.4th 1129 (Harris) and In
re Gay (2020) 8 Cal.5th 1059 (Gay I), which are both readily
distinguishable.
In Harris, Gustavo Diaz represented the defendant at
the preliminary hearing. Mr. Diaz had a conflict of interest
in two respects. First, Mr. Diaz had been arrested and was
facing felony charges brought by the Los Angeles County
District Attorney. This was the same agency that was
prosecuting the defendant. Second, the same law
enforcement officer had arrested both Mr. Diaz and the
defendant. Further, the arresting officer was the sole
prosecution witness at the defendant’s preliminary hearing.
And the arresting officer was a potential witness in
proceedings against Mr. Diaz. The appellate court held Mr.
Diaz had an actual, not merely potential, conflict of interest.
(Harris, supra, 225 Cal.App.4th at pp. 1137–1144.) Further,
the court held no affirmative showing of prejudice was
required to obtain a dismissal of the information. (Id. at pp.
1145–1148.)
22
The Harris court held the denial of a substantial right
at the preliminary hearing renders the ensuing commitment
illegal and entitles a defendant to dismissal of the
information. The court reasoned: “When the issue is raised
in the trial court before the defendant’s conviction, a
challenge to counsel’s conflict of interest does not depend on
a showing that conflict-free counsel would have obtained a
better result. ([People v.] Pompa–Ortiz[(1980)] 27 Cal.3d
[519,] 529 [If the issue is raised before trial, prejudice is
presumed]); People v. Booker (2011) 51 Cal.4th 141, 157 [‘the
need for a showing of prejudice depends on the stage of the
proceedings at which a defendant raises the claim in a
reviewing court . . .’].” (Harris, supra, 225 Cal.App.4th at p.
1146.) No review petition was filed in Harris.
Harris does not control the outcome of our case. First,
in Harris, the conflict of interest came to light following a
preliminary hearing, not after a guilty verdict at trial.
Second, in Harris, the defendant brought a pre-trial motion
to dismiss the information, not a motion for a new trial. And
third, the motion to dismiss in Harris was governed by the
rule, applicable in that pre-trial context, that no affirmative
showing of prejudice is required. Here, Tanks could obtain a
new trial only by showing actual prejudice.
Except in a concurrent representation case where an
actual conflict arises from the dual representation, there is
no presumption of prejudice in the post-trial conflict of
interest context. (See People v. Gonzales (2011) 52 Cal.4th
254, 309; Doolin, supra, 45 Cal.4th at p.420; People v.
23
Ramirez (2006) 39 Cal.4th 398, 427–428.) There was no
concurrent representation in this case. Here, the trial court
was required to, and did, consider whether defense counsel’s
conflict of interest affected his performance and whether it
resulted in actual prejudice to Tanks. (Mickens v. Taylor
(2002) 535 U.S. 162, 166; People v. Mai (2013) 57 Cal.4th
986, 1009–1010; Doolin, supra, 45 Cal.4th at pp. 417–421.)
In Gay I, the defendant filed for a writ of habeas
corpus, alleging constitutionally ineffective representation
from his trial counsel, Daye Shinn. The Supreme Court
issued an order to show cause limited to a claim of
ineffective assistance at the penalty phase.
The Supreme Court granted the petition and ordered a
new penalty phase trial. (Gay I, supra, 19 Cal.4th at p. 780.)
The court held that Shinn had “rendered deficient
performance by inducing Gay to admit to having committed
several robberies—admissions that were used against him at
the penalty phase—while presenting ‘little mitigating
evidence’ even though ‘much more potentially mitigating
evidence was easily accessible.’ (Id. at p. 794.)” (In re Gay
(2020) 8 Cal.5th 1059, 1069 (Gay II).)
“These deficiencies . . . could be traced in part to
serious misconduct in the very foundation of the attorney-
client relationship. The referee concluded that Shinn—who
would later be disbarred for misappropriation of client funds
in an unrelated matter (Gay I, supra, 19 Cal.4th at p. 780,
fn. 5)—had used fraudulent means to induce Gay to retain
him as his attorney. Visiting Gay in county jail, Shinn and
24
an associate, Marcus McBroom, urged Gay to hire Shinn,
promising that a group of unidentified (and, in truth,
nonexistent) Black businessmen would pay his legal fees.
Shinn later directed Gay to tell the court—falsely—that his
parents had paid a retainer to Shinn and would pay his legal
fees. (Id. at pp. 781, 794.) Shinn engaged in these
machinations in order to engineer his eventual appointment
by the court. (Id. at p. 794.)” (Gay II, supra, 8 Cal.5th at pp.
1069–1070.)
“McBroom was an assistant to Dr. Fred Weaver, a
psychiatrist whom Shinn hired to examine Gay’s mental
health. (Gay I, supra, 19 Cal.4th at pp. 783, 797–797.) [The
Supreme Court] concluded that ‘Shinn did not select Dr.
Weaver because of his demonstrated competence,’ but
because ‘Shinn, McBroom, and Weaver had a capping
relationship pursuant to which Weaver was retained in cases
in which McBroom had arranged representation by Shinn.’
(Id. at p. 796.) Dr. Weaver accepted the assignment ‘only
with the understanding that the case would not be
complicated and would not place demands on his time.’ (Id.
at p. 828.) Shinn did not undertake, nor did he direct Dr.
Weaver to undertake, ‘the type of penalty phase
investigation and preparation expected of competent
professionals in a capital case,’ including a thorough
assessment of Gay’s mental health. (Id. at p. 796.)” (Gay II,
supra, 8 Cal.5th at p. 1070.)
“‘[A]t the time Shinn represented petitioner, Shinn
labored under [an] undisclosed potential conflict of interest—
25
he was being investigated for misappropriation of client
funds by the office of the same district attorney who was his
adversary in the prosecution of petitioner.’ (Gay I, supra, 19
Cal.4th at p. 828.) While the record did not reveal whether
Shinn was influenced by this ‘distraction,’ [the Supreme
Court] noted that the potential conflict ‘contribute[d] to [its]
lack of confidence in the verdict when considered with
Shinn’s other failings.’ (Ibid.)” (Gay II, supra, 8 Cal.5th at
p. 1070.)
The Supreme court summarized its conclusions: “‘We
are unable to put confidence in a verdict of death rendered
by a jury that reaches a death penalty verdict for a
defendant represented by an attorney who has defrauded the
court in seeking appointment, and whose unethical conduct
led directly to the retention of a mental health expert who
the attorney agreed would not be called upon to do a
thorough assessment of the defendant and who testified that
the defendant had a sociopathic personality. Confidence in
the verdict is further undermined by counsel’s incompetent
conduct contributing to the penalty phase jury’s
consideration of evidence that the defendant is a serial
robber with a sociopathic personality, and by recognition
that the jury did not have the opportunity to consider a
substantial amount of mitigating evidence that competent
counsel would have presented. We conclude there is a
reasonable probability that absent counsel’s numerous
failings and the conflicts of interest with which he was
burdened, a different penalty verdict would have been
26
reached. We do not, therefore, have confidence in the
penalty verdict reached in this case.’ (Gay I, supra, 19
Cal.4th at pp. 829–830, fn. omitted.)” (Gay II, supra, 8
Cal.5th at pp. 1070–1071.)
Gay I differs substantially from the case at bar. There,
counsel’s deficiencies were numerous and “could be traced in
part to serious misconduct in the very foundation of the
attorney-client relationship” (Gay II, supra, 8 Cal.5th at p.
1069.) Although in both cases the attorneys were being
prosecuted by the same District Attorney’s office, unlike Gay
I, in this case counsel’s conflict of interest was unrelated to
his representation of Tanks. Finally, it was the combination
of serious deficiencies and the conflict of interest that
undermined the court’s confidence in the penalty verdict in
Gay I. As we discuss, post, counsel’s representation of Tanks
was not marred by deficiencies.
Although Tanks claimed that former counsel failed to
investigate and call witnesses, he provided no specific
examples, and did not explain how he was prejudiced.
Tanks has filed a lengthy appeal, rife with arguments, and
none reveals a deficiency in counsel’s performance or
resulting prejudice. On this record, we cannot conclude that
the trial court abused its discretion in denying the motion for
mistrial.
27
2. Marsden Motion
Prior to trial, Tanks moved to relieve counsel pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). On
appeal, he contends that the trial court abused its discretion
in denying the motion. We find no abuse of discretion.
“When a defendant seeks new counsel on the basis that
his appointed counsel is providing inadequate representation
. . . , the trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of
inadequate performance. A defendant is entitled to relief if
the record clearly shows that the appointed counsel is not
providing adequate representation or that defendant and
counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.
Substitution of counsel lies within the court’s discretion.
The court does not abuse its discretion in denying the motion
unless the defendant has shown that a failure to replace
counsel would substantially impair the defendant’s right to
assistance of counsel. [Citation.]” (People v. Smith (2003) 30
Cal.4th 581, 604.) We review a ruling on a request to relieve
counsel for abuse of discretion. (Marsden, supra, 2 Cal.3d at
p. 124.)
In this case, the trial court held an in camera hearing,
at which Tanks was given an opportunity to explain his
dissatisfaction with counsel and recount specific instances of
inadequate performance. Tanks expressed concern that
counsel was a private lawyer rather than a public defender.
28
The trial court explained that that was not unusual. Tanks
said counsel planned to take a month away from his case to
work on a different case. Counsel explained that he had a
special circumstance murder trial that was starting the
following week and was estimated to last two to three weeks.
Tanks responded that this was counsel’s second trial since
his representation commenced, and he did not think counsel
had adequate time to work on his case.
Tanks complained that counsel did not file a motion to
suppress evidence until four months had passed. In Tanks’s
experience, an attorney would usually file a motion to
suppress within six weeks. Tanks stated that he did not
have personal problems with his attorney and “he would be a
brilliant attorney if he had the chance to talk with me.”
The court told Tanks that it had received a “pretty
well-prepared motion to sever” from defense counsel. Tanks
said he had read the motion, and agreed it was well-
prepared as far as he could tell as a layperson. The motion
to sever was filed on August 21. The trial court explained
that it was typical for attorneys to be busy and that defense
counsel was not working outside of the normal time range.
The court asked counsel to summarize counsel’s work
completed to date. Defense counsel stated that he was
appointed to represent Tanks on May 29, 2018. At the time
of the hearing he had been representing Tanks for about four
months. In that time, in addition to filing the motion to
suppress and the motion to sever, he had made several visits
to the jail and the crime scene, met with Griffin and
29
communicated with her numerous times, filed a successful
motion to appoint a defense investigator who was appointed
on June 7, met with the investigator and delivered all
discovery to him, extended a plea offer to the District
Attorney that was denied, and requested that the District
Attorney make a counteroffer.
The court inquired regarding counsel’s decision not to
file the motion to suppress at the preliminary hearing.
Counsel explained that Tanks wanted a speedy preliminary
hearing, but that counsel felt he needed more information so
he reserved the right to file it later.
The court asked Tanks whether there was something
specific he could think of that counsel had not done. Tanks
indicated that he felt the proceedings were not moving fast
enough, and “there are things that I have to -- that I don’t
understand, but that I have to get through to get where I
want to be.” The court set forth the basic legal process for
Tanks and advised him that at the preliminary hearing
defense counsel would not usually present a defense, but
would cross-examine witnesses. The court also explained
that there had been a continuance over Tanks’s objection
because he had a co-defendant whose needs had to be taken
into account as well.
The court told Tanks that it believed counsel was doing
everything he was supposed to do. Tanks explained that the
problem was lack of communication. The court responded
that in many instances counsel would be working on his
case, but that he would not hear about it. The court
30
encouraged Tanks to speak with defense counsel when he
had the opportunity on court days like the instant one when
not much was happening.
The trial court denied the motion. The court stated
that defense counsel was a good attorney, and if the court
replaced him, Tanks might get someone who hand-held him
a little more, but that would not be very valuable. The court
assured Tanks that he could renew the motion if some new
problem arose.
Tanks cites to his attorney’s conflict of interest and
errors that allegedly occurred at trial to support his
argument, but those facts were not before the trial court or
raised by Tanks at the Marsden hearing. The information
before the court was that Tanks wanted better
communication and a faster-moving trial, but that defense
counsel was proceeding at a pace and performing the tasks
that a reasonable attorney would perform at that stage in a
trial within a normal timeframe. Although counsel could
certainly have communicated more with Tanks, his
communication was not atypical or unreasonable given other
time constraints. Applying the Marsden test to this case, we
find no error in denying the motion for substitute counsel.
The reasons Tanks stated at the Marsden hearing to
substitute counsel do not, taking into consideration the
explanations offered by counsel, show any inadequacy of
counsel or irreconcilable differences. “Accordingly, we find
no basis for concluding that the trial court either failed to
conduct a proper Marsden inquiry or abused its discretion in
31
declining to substitute counsel. [Citation.]” (People v. Fierro
(1991) 1 Cal.4th 173, 206–207, overruled on another ground
in People v. Thomas (2012) 54 Cal.4th 908, 941.)
3. Motion to Suppress
Proceedings
Prior to trial, Tanks filed a motion to suppress evidence
(the bat) discovered in a warrantless search of Griffin’s
apartment. In a hearing on the matter, Los Angeles Police
Department Officer Erik Peña testified that, prior to the
seizure, the victim identified Tanks in a photographic six-
pack as the person who shot him and beat him with a bat.
The officers had detained Cook shortly after the shooting. At
the police station, Cook’s cell phone rang repeatedly. Based
on an address in Cook’s text messages, the officers believed
that Tanks was inside Griffin’s apartment. While standing
outside, Officer Peña heard voices in the apartment, which
caused him to believe that Tanks was hiding inside or
staying in Griffin’s apartment, and that a protective sweep
was necessary.
Officers knocked on the door, and Griffin answered.
Officer Peña advised her that they were doing a protective
sweep for Tanks. Griffin gave them permission to enter.
She confirmed that Tanks had been in the apartment earlier
that evening.
32
The officers conducted a sweep search for Tanks. They
did not open drawers or search other areas where Tanks
could not reasonably be hiding. In Griffin’s bedroom, Officer
Peña observed a black aluminum bat leaning against the bed
frame next to the dresser. Griffin told the officers that
Tanks had the bat in his possession when he arrived at the
apartment earlier that day.
Officer Peña testified that Griffin gave the officers both
verbal and written permission to enter the apartment.
Detective Mario Gonzalez provided Griffin a consent form,
which she executed after the sweep was conducted. Officer
Peña did not bring the written consent form to the hearing.
Officer Peña was not asked whether Griffin had signed a
property receipt form for the bat removed from her
apartment, and did not testify regarding a property receipt.
Griffin also testified at the hearing. Griffin and Tanks
had been dating for 15 years, and had lived in the apartment
together for 8 years. On the night of the shooting,
approximately 10 officers knocked on her door. When she
answered, the officers asked if Tanks was in the apartment,
and she responded that he was not. The officers asked her to
step outside. They did not ask her permission to enter the
apartment and she did not give them signed consent to enter
the apartment. She told them that they did not have
permission to remove anything from the apartment. She
was told to sign a piece of blank paper in acknowledgment
that they were taking an item out of the apartment. The
officer clarified that it was not permission, just
33
acknowledgment. Griffin had the piece of paper, but she did
not bring it to the hearing.
The trial court asked the prosecutor whether she had a
copy of the document that Griffin signed. The prosecutor
responded that she did not, because the form was not in the
discovery packet she received, but she offered to request the
document from the Los Angeles Police Department.
Defense counsel argued that Griffin was adamant that
she did not consent to the warrantless search. With respect
to the signed document, counsel said, “I don’t know exactly
what it was. It sounds like Ms. Griffin thought it was
perhaps a property receipt or something for the bat that was
taken. It seems odd that they would ask her to sign a
consent after the search has been completed, but we don’t
have the benefit of that document, so I’ll submit it.”
The prosecutor argued that performance of a protective
sweep is an exception to the warrant requirement. The
police had reason to believe that a suspect in a shooting
would be present at the specific location. The bat was found
in plain view in the course of the protective sweep. The
prosecutor asserted that the protective sweep, the seizure of
the bat, and the consent to search were all valid.
The trial court ruled, “The court’s going to deny the
1538.5 motion. The court finds that the testimony of Officer
Peña was credible testimony and it provided at least two
bases to support the seizure of the bat, one being the
protective sweep and the exigency involved in that and two
being the consent and so I’m going to deny the motion.”
34
Analysis
Tanks argues that the search of Griffin’s apartment
was not justified because Griffin never gave written consent.
Alternatively, he asserts that the search was not justified as
a protective sweep, as there were no exigent circumstances.
We conclude that Officer Peña’s testimony that Griffin gave
verbal consent is substantial evidence that supports the trial
court’s ruling.
Standard of Review for a Motion to Suppress
“‘An appellate court’s review of a trial court’s ruling on
a motion to suppress is governed by well-settled principles.
[Citations.] [¶] In ruling on such a motion, the trial court (1)
finds the historical facts, (2) selects the applicable rule of
law, and (3) applies the latter to the former to determine
whether the rule of law as applied to the established facts is
or is not violated. [Citations.] “The [trial] court’s resolution
of each of these inquiries is, of course, subject to appellate
review.” [Citations.] [¶] The court’s resolution of the first
inquiry, which involves questions of fact, is reviewed under
the deferential substantial-evidence standard. [Citations.]
Its decision on the second, which is a pure question of law, is
scrutinized under the standard of independent review.
[Citations.] Finally, its ruling on the third, which is a mixed
fact-law question that is however predominantly one of law,
35
. . . is also subject to independent review.’ (People v.
Williams (1988) 45 Cal.3d 1268, 1301, abrogated on another
ground as recognized in People v. Abilez (2007) 41 Cal.4th
472, 519; see People v. Ayala (2000) 23 Cal.4th 225, 255.) All
presumptions favor the trial court’s exercise of its power to
judge the credibility of the witnesses, resolve any conflicts in
the testimony, weigh the evidence, and draw factual
inferences, ‘“and the trial court’s findings on such matters,
whether express or implied, must be upheld if they are
supported by substantial evidence.”’ (People v. Leyba (1981)
29 Cal.3d 591, 596–597, quoting People v. Lawler (1973) 9
Cal.3d 156, 160 (Lawler).)” (People v. Werner (2012) 207
Cal.App.4th 1195, 1203 (Werner).)
“Based upon its factual findings, the trial court has the
duty to determine whether ‘the search was unreasonable
within the meaning of the Constitution.’ (Lawler, supra, 9
Cal.3d at p. 160.) California courts measure the
reasonableness of the search against federal constitutional
standards. (Cal. Const., art. I, § 28, subd. (d); see People v.
Woods (1999) 21 Cal.4th 668, 674.)” (Werner, supra, 207
Cal.App.4th at p. 1204.)
Griffin Consented to Officers Entering The
Apartment
“‘The Fourth Amendment proscribes all unreasonable
searches and seizures, and it is a cardinal principle that
“searches conducted outside the judicial process, without
36
prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated
exceptions.” [Citation.]’ [Citation.]” (Robey v. Superior
Court (2013) 56 Cal.4th 1218, 1224.)
“[An] established exception to the warrant requirement
is when consent is given by one authorized to give it.”
(People v. Superior Court (Chapman) (2012) 204 Cal.App.4th
1004, 1011–1012; see also United States v. Rubio (9th
Cir.1983) 727 F.2d 786, 797 [“Once consent has been
obtained from one with authority to give it, any expectation
of privacy has been lost”].)
In the opening brief, Tanks suggests that the
prosecutor’s argument and the court’s ruling were focused on
Officer Peña’s testimony that the officers obtained Griffin’s
written consent. He contends that, at trial, Officer Peña
inconsistently testified that Griffin signed a property receipt,
not a consent form. He asserts that the officer’s conflicting
statements regarding whether the form was a consent form
or a property receipt demonstrate that the motion to
suppress was erroneously denied and that there was no valid
consent to enter the apartment or search it.
Tanks misconstrues Officer Peña’s testimony. When
the prosecutor asked, “Did Deborah sign a property receipt
when you removed [the bat] from her residence?,” Officer
Peña responded, “Yes.” He was not questioned regarding the
purported written consent to search the apartment by either
party at trial. Defense counsel did not bring the alleged
37
inconsistency in the officer’s testimony to the trial court’s
attention.
Contrary to Tanks’s assertions, neither the prosecutor’s
argument nor the trial court’s ruling was limited to Griffin’s
written consent. The trial court found Officer Peña’s
testimony credible, and credited Officer Peña’s testimony
with respect to Griffin giving verbal consent. Credibility is
an issue decided by the finder of fact. Officer Peña’s
testimony that he personally heard Griffin give verbal
consent to the sweep of the apartment is substantial
evidence that Griffin consented to the search.
The Bat That Was Seized Was in Plain View
“[W]hether a lawful entry and search is based upon
exigent circumstances or consent, the law is clear that any
incriminating evidence observed in plain view may be seized.
[Citations.] The United States Supreme Court has said, ‘The
plain-view doctrine authorizes seizure of illegal or
evidentiary items visible to a police officer whose access to
the object has some prior Fourth Amendment justification
and who has probable cause to suspect that the item is
connected with criminal activity. [Citations.] The plain-
view doctrine is grounded on the proposition that once police
are lawfully in a position to observe an item first-hand, its
owner’s privacy interest in that item is lost; the owner may
retain the incidents of title and possession but not privacy.’
(Illinois v. Andreas (1983) 463 U.S. 765, 771; see also Katz v.
38
United States (1967) 389 U.S. 347, 351 [‘What a person
knowingly exposes to the public, even in his own home . . . is
not . . . subject [to Fourth Amendment] protection’].)”
(Chapman, supra, 204 Cal.App.4th at p. 1012–1013.)
Here, Officer Peña testified that the bat the police
seized was in plain view when he entered Griffin’s bedroom
to look for Tanks. This is substantial evidence to support the
trial court’s finding that the bat was visible to the officer and
not in an area that he was unauthorized to search.
Moreover, Officer Peña had probable cause to suspect that
the bat was connected to criminal activity. Barajas was
beaten with a bat and had positively identified Tanks as his
assailant. Cook, who was found with the gun in his
possession and whose cell phone texts with Tanks included
the address for Griffin’s apartment, had also identified
Tanks as the assailant. Griffin confirmed that Tanks had
been in the apartment earlier that evening when she gave
officers permission to enter and look for Tanks. Given these
facts, the officer had probable cause to believe that the bat
belonged to Tanks and that he had used it to beat Barajas.
The trial court did not err in denying Tanks’s motion to
suppress, given evidence that: Griffin gave officers
permission to enter the apartment; the officers had probable
cause to suspect that the bat was connected to the attempted
murder; and the bat was discovered in plain view.
39
4. Admission and Exclusion of Prior Crimes Evidence
Tanks contends that the trial court erred by (1)
excluding evidence of Cook’s 2007 felony conviction on the
basis that it was not a crime of moral turpitude; (2)
admitting evidence of Tanks’s 2006 conviction for grand theft
auto, which was too remote to be admissible; and (3)
excluding evidence of Barajas’s 2001 and 2002 felony
convictions and his illegal re-entry into the United States.
We conclude that the trial court’s determinations regarding
the admission and exclusion of evidence for purposes of
impeachment were not an abuse of discretion.
Legal Principles
Prior felony convictions are generally admissible to
impeach a witness’s credibility. (Cal. Const., art. I, § 28,
subd. (f)(4); Evid. Code, § 788; People v. Beagle (1972) 6
Cal.3d 441, 453.) “Misdemeanor convictions themselves are
not admissible for impeachment, although evidence of the
underlying conduct may be admissible subject to the court’s
exercise of discretion. [Citation.]” (People v. Chatman
(2006) 38 Cal.4th 344, 373.) “‘[T]he admissibility of any past
misconduct for impeachment is limited at the outset by the
relevance requirement of moral turpitude. Beyond this, the
latitude [Evidence Code] section 352 allows for exclusion of
impeachment evidence in individual cases is broad.’
40
[Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 931
(Clark).)
“When determining whether to admit a prior conviction
for impeachment purposes, the court should consider, among
other factors, whether it reflects on the witness’s honesty or
veracity, whether it is near or remote in time, whether it is
for the same or similar conduct as the charged offense, and
what effect its admission would have on the defendant’s
decision to testify. [Citations.]” (Clark, supra, 52 Cal.4th at
p. 931.) “Additional considerations apply when the proffered
impeachment evidence is misconduct other than a prior
conviction. This is because such misconduct generally is less
probative of immoral character or dishonesty and may
involve problems involving proof, unfair surprise, and the
evaluation of moral turpitude. [Citation.] As [the Supreme
Court has] advised, ‘courts may and should consider with
particular care whether the admission of such evidence
might involve undue time, confusion, or prejudice which
outweighs its probative value.’ [Citation.]” (Id. at pp. 931–
932.) “[A] misdemeanor offense or other misconduct not
amounting to a felony is less probative of moral turpitude or
dishonesty than is a felony. [Citation.]” (Id. at p. 932.)
“Because the court’s discretion to admit or exclude
impeachment evidence ‘is as broad as necessary to deal with
the great variety of factual situations in which the issue
arises’ [citation], a reviewing court ordinarily will uphold the
trial court’s exercise of discretion. [Citations.]” (Clark,
supra, 52 Cal.4th at p. 932.)
41
Cook’s 2007 Felony Conviction
Proceedings
Tanks sought to impeach Cook with his 2007 felony
conviction for driving while barred, habitual offender in
Iowa. The trial court reviewed Cook’s probation report, and
noted that his record appeared to contain only out-of-state
misdemeanors that did not involve moral turpitude. Defense
counsel noted that the 2007 conviction appeared to be a
felony.
The court indicated that the felony would only be
admissible if it involved moral turpitude, and the court did
not know if the Iowa felony qualified as a crime of moral
turpitude. The trial court noted that Cook’s testimony
should be finishing that day. The trial court proposed that if
Cook’s testimony did not conclude, the parties could research
the issue to determine whether the conviction was for a
crime of moral turpitude. If Cook’s testimony did conclude
and the conviction was for a crime of moral turpitude, the
parties could stipulate to the conviction after the fact.
Defense counsel agreed that this was a satisfactory solution.
On cross-examination, defense counsel elicited that
Cook was given a sentence of only nine years for three
offenses—the attempted murder of Barajas and two counts
of drug trafficking.
The next day, the court informed the parties that it
had researched the matter and although driving while
42
barred, habitual offender, was a felony in Iowa, it did not
appear to be a crime of moral turpitude. Unless defense
counsel could demonstrate otherwise, the court did not
intend to admit the 2007 conviction. The court noted that
“You’ve got plenty of moral turpitude to talk about[,]” as
Cook had admitted to being convicted of attempted murder
and to dealing drugs.
Analysis
Tanks contends that the trial court erred by concluding
that Cook’s 2007 felony conviction for driving while barred,
habitual offender, was inadmissible for impeachment
because it was not a crime of moral turpitude. Tanks cites to
People v. Clair (1992) 2 Cal.4th 629 (Clair) for the
proposition that all felonies are admissible for impeachment
purposes. Clair is inapposite. In Clair, the Supreme Court
held that the trial court did not abuse its discretion by
refusing to admit a witness’s conviction of a crime of moral
turpitude for impeachment purposes pursuant to Evidence
Code section 352. (Id. at pp. 653–656.) Clair did not hold
that every felony conviction is admissible for impeachment.
Moreover, Tanks could not have suffered prejudice.
The jury had been informed that Cook had been convicted of
attempted murder and two counts of drug trafficking for a
sentence of only nine years, and would understand that in
light of this leniency, Cook had a strong motivation to lie.
43
Tanks’s 2006 Conviction
Proceedings
At trial, the prosecution sought to admit evidence of
Tanks’s 2006 conviction for grand theft auto for purposes of
impeachment. The prosecutor argued that grand theft auto
was a crime of moral turpitude. Defense counsel countered
that the conviction was over ten years old, so “not
particularly relevant.”
The court stated that “10 years is not a brightline
rule”, and noted that “he does have several contacts here,
some convictions for drug offenses, couple from Indiana. So
the theft offense is a felony, from 2006. I don’t find it to be
too remote.” The trial court allowed the conviction to be
admitted for impeachment purposes.
Subsequently, the trial court excluded Griffin’s 2006
misdemeanor conviction as too remote. The court stated,
“I’m not convinced that loitering for the purposes of soliciting
prostitution is a moral turpitude offense.” It ruled: “I do
think that it’s too remote, and I’ll just -- I’ll leave it at that.
I’ll leave my other comments unsaid. But it’s too remote.”
Tanks testified that he moved into the apartment
building “in 2008 after I got off parole.” He admitted that he
was convicted of stealing a semi tractor-trailer in 2006.
Defense counsel examined Tanks regarding his use and
sale of narcotics. Tanks testified that he used drugs, but did
not sell them. Counsel asked if he knew that he had been
44
convicted of possession for sale of a controlled substance.
Tanks admitted that he knew the conviction was on his
record, but asserted that he had not served a prison term,
and that the conviction was 13 or 14 years old.
Analysis
Tanks contends that the trial court abused its
discretion by admitting his 2006 conviction for grand theft
auto, which was over 10 years old and therefore
presumptively too remote in time. He argues that the trial
court did not rule consistently in this regard—the court
excluded Griffin’s 2006 conviction for loitering for purposes
of soliciting prostitution as too remote and should have
excluded his 2006 conviction for the same reason.
Tanks relies on People v. Pitts (1990) 223 Cal.App.3d
1547 (Pitts), which he misconstrues to hold that a conviction
greater than 10 years old is presumptively too remote to be
admitted. In Pitts, the defendant argued that the court did
not exercise discretion in excluding a witness’s prior
conviction “but, instead, excluded it on the basis of an
inflexible rule of the trial court’s own making that any crime
more than 10 years old cannot be used for impeachment.”
(Id. at p. 1554.) The Pitts court stated: “As we noted in
People v. Burns (1987) 189 Cal.App.3d 734, 738, ‘[t]here is no
consensus among courts as to how remote a conviction must
be before it is too remote. [Citation]’ In our view
establishing 10 years as the presumptive cut-off date for
45
prior convictions is an exercise of discretion. It is preferable
that the trial court have in mind a presumptive standard of
remoteness rather than have no concept of remoteness and
issue inconsistent rulings each time the issue comes up.”
(Ibid.) The court held that the trial court properly exercised
its discretion. (Ibid.)
Pitts does not mandate a 10-year presumptive cut-off
date beyond which a prior conviction may not be used as
impeachment evidence. It holds that an individual court’s
determination that there is a presumptive cut-off date is
itself an exercise of discretion. In this case, it appears that
the trial court determined that a 16-year-old conviction is
presumptively too old to be admitted, but that this cut-off
was not a “brightline rule.” In Griffin’s case, there was no
reason for the court to deviate from the presumption—the
crime was a misdemeanor and the court noted that it was
doubtful that loitering for purposes of soliciting prostitution
was a crime of moral turpitude. Tanks’s situation was
different—he was convicted of a felony that was classified as
a crime of moral turpitude. (See People v. Wheeler (1992) 4
Cal.4th 284, 289 [theft “reflects dishonesty and is a crime
involving moral turpitude”].) The court additionally noted
that “[Tanks] does have several contacts here, some
convictions for drug offenses, couple from Indiana.”
In our view, the court properly exercised its discretion
in making these rulings. It acknowledged in both instances
that a conviction of over 16 years of age was remote, but
distinguished between the two convictions based on the
46
specific circumstances of each. In Griffin’s case, the
conviction was for a misdemeanor that was not likely a crime
of moral turpitude—i.e. the conviction was likely
inadmissible because it was not relevant to Griffin’s
credibility. In Tanks’s case, the conviction was for a felony of
moral turpitude—i.e. the conviction was presumptively
admissible—and Tanks also had a history of criminal
activity that the court found significant.
Regardless, in light of the overwhelming evidence of
Tanks’s guilt in this case, he was not prejudiced by
admission of the 2006 grand theft auto conviction. Both
Cook and Barajas identified Tanks as the shooter and
described the shooting as intentional. Although Cook’s
credibility may have been questionable due to his plea
agreement, the evidence corroborated his version of events.
Tanks admitted to threatening Barajas with the gun, and
scaring him by firing a shot. He claimed that the
subsequent shots were accidental but did not disavow that
the gun was in his physical possession when it was fired.
Cook stated that before he left, Tanks took a black
aluminum bat from him. Barajas testified that Tanks beat
him with a bat. Officers discovered a black aluminum bat in
Griffin’s apartment that evening, and Griffin admitted that
Tanks had arrived at the apartment with the bat earlier that
afternoon. Tanks has not demonstrated prejudice.
47
Barajas’s Narcotics Convictions and His
Purported Illegal Re-Entry into the United States
Proceedings
Tanks moved to admit evidence for impeachment of
Barajas’s prior convictions and re-entry into the United
States. The trial court reviewed Barajas’s RAP sheet and
noted that the only convictions for moral turpitude were
three felony convictions for transport or sale of narcotics (§
11352) in 2001, 2002, and 2007.9
The prosecution argued that the convictions were
remote in time. Defense counsel stated that Tanks told him
Barajas had recently been deported and re-entered the
country. Counsel had not seen any evidence to support
Tanks’s claim, and did not know if re-entering the country
following deportation was a crime of moral turpitude. The
court responded that, absent evidence of Barajas’s purported
deportation and re-entry, it could not be admitted.
Defense counsel then argued that all three of the prior
felony convictions should be admitted. Counsel asked if the
court had seen any misdemeanors involving moral turpitude
on Barajas’s RAP sheet. The court responded that there
were “a couple”, but that “those would have to be
investigated, and you have to find the witnesses and back up
9Barajas’s RAP sheet was listed under another name.
There was some question regarding whether the name
Barajas was an alias.
48
those claims.” Defense counsel stated that he would be
satisfied with the felony narcotics convictions. The court
admitted the 2007 felony conviction, but excluded the 2001
and 2002 convictions as too remote.
Defense counsel added that he had a short
conversation with Barajas, who indicated that he was
deported about two years before trial. The court asked if
either of the parties knew the circumstances of Barajas’s re-
entry, specifically if it was legal or not. The parties stated
they did not. The court then asked if the parties knew
whether re-entering illegally was a crime of moral turpitude.
The parties stated they did not. The court advised the
parties that they could take the issue up at the next break.
There was no further discussion about the issue.
Tanks testified that Barajas was an associate of the
Blythe Street gang and paid them to sell drugs in Tanks and
Barajas’s neighborhood. He also testified that Barajas was a
“trick” or a John, which meant all of Barajas’s girlfriends
were prostitutes.
On re-direct, counsel questioned Tanks regarding his
statements about Barajas:
“[Defense Counsel:] When you described Mr. Barajas
as being like the Mexican Mafia, what did you mean by that?
“[Tanks:] Exactly what it means. Like I said, when he
-- first time he got deported, he came back, he was normal.
He was okay. But last time he got deported, he came back
and he told me himself he was trying to get into the Mexican
Mafia. He couldn’t be seen fussing with the Blacks.”
49
The prosecutor objected on hearsay grounds. The trial
court ruled: “It’s already been gone over. It’s asked and
answered. The answer will stop there.”
Analysis
Tanks contends that the trial court abused its
discretion by excluding evidence of Barajas’s convictions in
2001 and 2002 as too remote, and by excluding evidence of
his illegal re-entry into the United States.
With respect to the 2001 and 2002 convictions, Tanks
argues that the trial court did not apply its cut-off date for
convictions uniformly. Tanks made no such argument before
the trial court or in his opening brief. Regardless, as we
have discussed, the trial court properly exercised its
discretion in ruling that Griffin’s 2006 conviction was too
remote to be admissible. It follows that, absent some other
compelling reason for admitting Barajas’s 2001 and 2002
convictions, as in the case of Tanks’s 2006 conviction, the
trial court properly exercised its discretion to find Barajas’s
even older convictions to be too remote.
With respect to Barajas’s alleged deportation and re-
entry into the United States, the trial court did not abuse its
discretion when it ruled that evidence of Barajas’s
immigration status could not be admitted absent some proof
of its existence. The only evidence offered was hearsay,
which is inadmissible, absent an exception to the hearsay
rule. (Evid. Code, § 1200, subd. (b).) Tanks does not argue
50
that he offered admissible proof of Barajas’s immigration
status. It is irrelevant whether it is a crime of moral
turpitude to re-enter the country after deportation because
there was no admissible proof that Barajas was deported or
re-entered.
Finally, Tanks cannot show prejudice. He personally
testified that Barajas was deported twice and re-entered the
country following each deportation. The jury was not
admonished to disregard this testimony. Tanks also testified
that Barajas was an associate of a criminal street gang, dealt
drugs, and dated prostitutes. Finally, Barajas was
impeached with his 2007 conviction. The jury was offered
ample information for it to question Barajas’s credibility and
testimony.
5. Admission of Evidence of the Victim’s Mental State
Proceedings
On re-direct examination, the prosecutor asked Barajas
whether he was fearful of testifying. Barajas confirmed that
he was afraid. After Barajas’s testimony that day, the court
inquired whether Barajas could be excused and released
from subpoena. The prosecutor stated that he might need to
recall him, and the trial court excused Barajas, but subject
to recall.
Two days later, the prosecutor informed the court and
defense counsel that Barajas had texted Detective Goossens
51
the prior evening. Barajas was very concerned because
Griffin had come to his apartment door that morning. She
had been harassing him for the prior six months.
The prosecutor indicated that he planned to recall
Barajas to testify regarding the intimidation. The court
stated that it would permit Barajas to testify briefly and
instructed the prosecutor to tailor the questioning to confine
it to Barajas’s state of mind as a witness.
Following a recess shortly thereafter, outside the
presence of the jury, the court noted on the record that
Barajas was not available to testify as a witness and that the
prosecution instead sought to admit Detective Goossens’s
testimony regarding Barajas’s state of mind after testifying.
Defense counsel objected to the statements as
“untimely.” When the court asked for clarification, counsel
explained, “[H]e is not available as a witness anymore.
Although that’s not one of the requirements -- I feel like we
have already touched on this, perhaps on [Evidence Code
section] 352 grounds as well. He was asked about it during
his testimony, and now we are going to allow hearsay
statements to -- at this late stage. I think it’s untimely, so
I’m objecting.”
The trial court ruled that the Detective Goossens’s
proffered testimony fell within the hearsay exception in
Evidence Code section 1250, because the state of mind of the
declarant, Barajas, was at issue. The court stated that it
would give a limiting instruction, and the detective’s
52
testimony would be brief and limited to “the effect on Mr.
Barajas and how he felt about testifying.”
At the beginning of Detective Goossens’s testimony, the
trial court instructed the jury that Detective Goossens’s
testimony was hearsay and would normally not be admitted.
The court explained that the testimony was relevant to
Barajas’s state of mind only, and was not being admitted to
show that the events in Barajas’s statements actually
occurred.
Detective Goossens testified that Barajas had
contacted him that morning, and the detective had
interviewed him at the District Attorney’s office. Barajas
told the detective that: Griffin had been taking photos of him
when she passed him on the street in front of the apartment
building. Griffin also called him a snitch and yelled out
“Snitch!” so other residents could hear her. On one occasion
she threw a water bottle at him. Griffin would also bump
Barajas in the hallway, use profane language, and tell him
that he should go back to Mexico. Griffin did this in front of
Danielle Wortham, Barajas’s fiancé, and her children.
Detective Goossens added that Barajas was “visibly shaken”
during the interview: he stammered, and he had tears in his
eyes. He told Detective Goossens that he wanted to stay at
the courthouse because he was afraid to go home.
Detective Goossens tried to locate Barajas before he
was scheduled to testify again, but was unable to reach him
by phone or text. On cross-examination, Detective Goossens
testified that Barajas had asked if could stay near the
53
District Attorney’s office that day. When the detective
discovered Barajas was not at the District Attorney’s office,
he tried to contact Barajas to make sure that he had left the
area voluntarily. Barajas had been in contact with victim
assistance for relocation assistance, but had not relocated
yet.
After Detective Goossens testified, the trial court again
admonished the jury that it was to consider the evidence
only with respect to Barajas’s state of mind, and not consider
it as evidence that any of the events actually occurred.
Legal Principles
Evidence Code section 1250, subdivision (a)(1),
provides that hearsay statements reflecting an existing state
of mind of the speaker are admissible for the limited purpose
of proving the declarant’s state of mind. (People v. Noguera
(1992) 4 Cal.4th 599, 621 (Noguera).) But this state of mind
exception applies only if the declarant’s state of mind is
relevant to a disputed issue at trial. (Ibid.) A trial court
errs by admitting a murder victim’s out-of-court statement of
fear of the defendant when the victim’s state of mind is not
at issue. (Ibid.) “‘[A] victim’s prior statements of fear are
not admissible to prove the defendant’s conduct or motive
(state of mind). If the rule were otherwise, such statements
of prior fear or friction could be routinely admitted to show
that the defendant had a motive to injure or kill.’ (People v.
Ruiz (1988) 44 Cal.3d 589, 609.) (People v. Flores (2020) 9
54
Cal.5th 371, 410–411 (Flores).) “‘“[A] victim’s out-of-court
statements of fear of an accused are admissible under
[Evidence Code] section 1250 only when the victim’s conduct
in conformity with that fear is in dispute. Absent such
dispute, the statements are irrelevant.”’ [Citations.]”
(Noguera, supra, 4 Cal.4th at pp. 621–622.)
The erroneous admission of statements under Evidence
Code section 1250 is subject to harmless error analysis
under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(Flores, supra, at p. 411.) Error is harmless if “[i]t is not
reasonably probable the jury would have reached a different
result had it not heard [the] evidence.” (Ibid.)
Analysis
Tanks argues that Detective Goossens’s testimony
should not have been admitted under Evidence Code section
1250 because Barajas’s state of mind was not at issue. He
further argues that, even if admissible under Evidence Code
section 1250, the trial court should have excluded the
testimony as distracting to the jury, irrelevant, and unduly
prejudicial under section 352. Tanks asserts that the
admission of this evidence violated his due process rights
and prevented him from receiving a fair trial. We conclude
that the trial court erred in admitting Detective Goossens’s
testimony, but that the error was harmless.
Preliminarily, we disagree with the People’s assertion
that Tanks has forfeited the argument that the detective’s
55
testimony was hearsay for failure to specifically raise it
below. Defense counsel expressly stated “[Barajas] was
asked about it during his testimony, and now we are going to
allow hearsay statements to [be admitted] at this late stage.”
The trial court ruled that the evidence was admissible under
Evidence Code section 1250, which is an exception to the
hearsay rule. The parties and the court were aware of the
hearsay issue and had the opportunity to address it. The
issue was not forfeited.
We agree with Tanks that Barajas’s mental state was
not at issue in this case. The jury had only to decide
whether the shooting was intentional or accidental, which
depended on Tanks’s state of mind, not Barajas’s conduct or
mental state.
We conclude, however, that the error in admitting the
statements was harmless. It is not reasonably probable the
jury would have reached a different result had it not heard
evidence that Barajas was afraid to testify. (See Watson,
supra, 46 Cal.2d at p. 836.) The jury was instructed
immediately before and after Detective Goossens testified
that his statements were relevant to Barajas’s state of mind
only, and were not being admitted to show that the events
actually occurred. We presume that the jury understood and
followed the trial court’s instructions. (People v. Lopez
(2020) 46 Cal.App.5th 505, 525 [“[j]urors are presumed to
follow the instructions they are given”]; see also People v.
Holt (1997) 15 Cal.4th 619, 662.) Moreover, as defense
counsel noted, Barajas had already testified that he was
56
fearful of testifying, so the jury was already aware of his
state of mind.
6. Delay in Providing Exculpatory Evidence
Proceedings
Barajas
At the hearing on admission of evidence of Barajas’s
prior convictions, the trial court reviewed Barajas’s RAP
sheet. Defense counsel asked if the court had seen any
misdemeanors involving moral turpitude on the RAP sheet.
The court responded that there were “a couple”, but that
“those would have to be investigated, and you have to find
the witnesses and back up those claims.” Defense counsel
stated that he would be satisfied with admission of the
felony convictions. The court stated, “If you want discovery
on any of the other potentially moral turpitude offenses, you
can ask [the prosecutor] for that.” Defense counsel
responded, “We can ask for discovery. This is the first time
it’s been mentioned to me . . . .”
Defense counsel added that he had a short
conversation with Barajas, who indicated that he was
deported about two years before trial. He then stated, “I
asked for RAP sheets in discovery. I got a list of crimes
regarding a witness by the name of Mr. Varga. I wasn’t
aware until I -- I suspected there was RAP information; I
57
didn’t receive it. I still haven’t received it, like in written
form. I just got information.”
Cook
At the hearing on admission of evidence of Cook’s prior
convictions, the trial court reviewed Cook’s probation report.
Defense counsel stated, “My experience is typically the
prosecution provides the RAP information, prior convictions,
and sometimes -- I don’t see it -- sometimes it’s just shared
with the judge. So to the extent that the District Attorney’s
office, a government agency, are probably in a better position
to find out more information about that conviction than I am
--” The court interrupted, “The one thing probation does
very well is providing information on prior offenses. So I
think we have a thorough look at Mr. Cook’s background
here from the probation report. So I feel comfortable making
my decision based on that.”
Analysis
Based on the above hearing testimony, Tanks contends
the prosecution violated its disclosure obligations under
section 1054.1. Tanks further claims this statutory violation
infringed on his federal constitutional rights to due process
of law and a fair trial, in contravention of Brady v. Maryland
(1963) 373 U.S. 83 (Brady).
58
Tanks argues the prosecution was not in statutory
compliance because it did not provide Barajas’s RAP sheet
and provided no information regarding the fact that Barajas
had been deported for his crimes and re-entered the country
illegally. Tanks also complains that the defense was
provided with Cook’s probation report rather than his RAP
sheet. Tanks argues that if he had had Barajas’s RAP sheet
he could have called witnesses to testify to Barajas’s
misdemeanor crimes of moral turpitude and his violation of
federal immigration laws. Tanks admits “[t]he delayed
disclosure was more pronounced and prejudicial with respect
to Barajas [than Cook] . . . However, there was a pattern of
withholding exculpatory evidence in this case.”
Section 1054.1
“Under section 1054.1, prosecutors are required to
disclose any exculpatory evidence and any relevant written
or recorded statements of witnesses or reports of the
statements of witnesses whom they intend to call at trial. (§
1054.1, subds. (e), (f).)” (People v. Morrison (2004) 34 Cal.4th
698, 713 (Morrison).)
Tanks admits that he failed to request a continuance,
which is fatal to his contention on appeal. (People v.
Thompson (2016) 1 Cal.5th 1043, 1103.) “‘It is defendant’s
burden to show that the failure to timely comply with any
discovery order is prejudicial, and that a continuance would
59
not have cured the harm.’ [Citations.]” (Ibid.) The issue is
forfeited.
Fourteenth Amendment and Brady v. Maryland
“Under the Fourteenth Amendment’s due process
clause, prosecutors must disclose evidence to a criminal
defendant when it is ‘“both favorable to the defendant and
material on either guilt or punishment.” [Citations.]
Evidence is “favorable” if it hurts the prosecution or helps
the defense. [Citation.] . . . Evidence probative of a
testifying witness’s credibility, including the potential for
bias, is evidence favorable to the accused. (See United States
v. Bagley (1985) 473 U.S. 667, 676.)” (Morrison, supra, 34
Cal.4th 698, 714.)
“Evidence is ‘material’ ‘only if there is a reasonable
probability that, had [it] been disclosed to the defense, the
result . . . would have been different.’ [Citations.] The
requisite ‘reasonable probability’ is a probability sufficient to
‘undermine[] confidence in the outcome’ on the part of the
reviewing court. [Citations.] It is a probability assessed by
considering the evidence in question under the totality of the
relevant circumstances and not in isolation or in the
abstract. [Citation.] Further, it is a probability that is, as it
were, ‘objective,’ based on an ‘assumption that the
decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision,’
and not dependent on the ‘idiosyncracies of the particular
60
decisionmaker,’ including the ‘possibility of arbitrariness,
whimsy, caprice, “nullification,” and the like.’ [Citation.]”
(In re Sassounian (1995) 9 Cal.4th 535, 544–545.)
Evidence of the conduct underlying Cook’s
misdemeanor convictions was not material. The trial court
reviewed Cook’s probation report, and concluded that his
record appeared to contain only out-of-state misdemeanors
that did not involve moral turpitude. The conduct
underlying a misdemeanor conviction is inadmissible if the
offense does not involve moral turpitude. (See Clark, supra,
52 Cal.4th at p. 931 [“‘the admissibility of any past
misconduct for impeachment is limited at the outset by the
relevance requirement of moral turpitude’”].) There is no
reasonable probability that disclosure of inadmissible
evidence would have affected the outcome of the trial.
Nor was evidence of the conduct underlying Barajas’s
misdemeanor convictions material. As we discussed, ante,
the jury was presented with overwhelming evidence of
Tanks’s guilt. The jury did not find Barajas’s 2007
conviction for a felony involving moral turpitude sufficient to
overcome the evidence. We cannot conclude there was a
reasonable probability that admission of the conduct
underlying his misdemeanors would have produced a
different result.
61
7. Instructional Error
Tanks contends that the trial court erred by not
instructing the jury that (1) Cook was an accomplice as a
matter of law whose testimony must be corroborated and
viewed with caution, (2) Tanks could be found guilty of the
lesser offense of attempted voluntary manslaughter under a
heat of passion theory, and (3) Tanks acted in self-defense.
We agree with Tanks that the trial court had a sua sponte
duty to instruct the jury that Cook was an accomplice as a
matter of law, whose testimony was insufficient to support a
guilty finding if uncorroborated. The error, however, was
harmless, in light of the other substantial evidence of
Tanks’s guilt presented at trial. We reject Tanks’s other
claims of instructional error, as there was insufficient
evidence to support instructions on heat of passion and self-
defense.
Legal Principles
“‘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.]’ . . .”
(People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v.
Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) This
obligation includes the duty to give instructions on lesser
included offenses, if there is substantial evidentiary support
for them. (Breverman, supra, at p. 160.) A trial court has a
62
sua sponte duty to instruct on an affirmative defense “‘if it
appears the defendant is relying on such a defense, 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.]” (People v. Boyer (2006) 38
Cal.4th 412, 469 (Boyer); see also People v. Martinez (2010)
47 Cal.4th 911, 908.) We review de novo the claim that a
trial court failed to properly instruct the jury on the
applicable principles of law. (People v. Cole (2004) 33
Cal.4th 1158, 1215.)
In determining whether substantial evidence exists to
support an instruction, trial courts should not usurp the
jury’s function of evaluating the credibility of witnesses.
(Breverman, supra, 19 Cal.4th at p. 162.) In the context of
lesser included offenses, substantial evidence means
“‘“evidence from which a jury composed of reasonable
[persons] could . . . conclude[ ]”’ that the lesser offense, but
not the greater, was committed. [Citations.]” (Ibid.)
Speculation is insufficient to require the giving of an
instruction on a lesser included offense. (People v. Mendoza
(2000) 24 Cal.4th 130, 174.)
“[I]n a noncapital case, error in failing sua sponte to
instruct, or to instruct fully, on all lesser included offenses
and theories thereof which are supported by the evidence
must be reviewed for prejudice exclusively under [People v.]
Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the
charged offense may be reversed in consequence of this form
of error only if, ‘after an examination of the entire cause,
63
including the evidence’ (Cal. Const., art. VI, § 13), it appears
‘reasonably probable’ the defendant would have obtained a
more favorable outcome had the error not occurred
[citation].” (Breverman, supra, 19 Cal.4th at p. 178.)
Accomplice Testimony
“In California, ‘[a] conviction can not be had upon the
testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with
the commission of the offense. . . .’ (§ 1111.) For purposes of
this rule, an ‘accomplice’ is ‘one who is liable to prosecution
for the identical offense charged against the defendant on
trial in the cause in which the testimony of the accomplice is
given.’ (Ibid.) ‘This definition encompasses all principals to
the crime [citation], including aiders and abettors and
coconspirators. [Citation.]’ (People v. Stankewitz (1990) 51
Cal.3d 72, 90.) . . . [L]iability as an aider and abettor
requires proof that the person in question ‘aid[ed] or
promote[d] the perpetrator’s crime with knowledge of the
perpetrator’s unlawful purpose and an intent to assist in the
commission of the target crime.’ (People v. Williams (2008)
43 Cal.4th 584, 637, italics omitted.) . . . [W]hether a
witness is an accomplice is a question of fact for the jury
unless no reasonable dispute exists as to the facts or the
inferences to be drawn from them. (People v. Valdez (2012)
55 Cal.4th 82, 145–146 (Valdez).)” (People v. Manibusan
(2013) 58 Cal.4th 40, 93.) The trial court has a sua sponte
64
duty to instruct the jury to view the testimony of accomplices
with caution and to instruct that, if the jury is to rely on
accomplice testimony, the testimony must be corroborated.
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303–304
(Gonzales); People v. Brown (2003) 31 Cal.4th 518, 555.)
In this case, Cook and Tanks were charged together.
Cook pleaded no contest to attempted murder and testified
against Tanks as part of a plea bargain. Tanks contends
that, having pleaded no contest to the identical crime, Cook
was an accomplice as a matter of law, and the trial court had
a sua sponte duty to instruct the jury that Cook’s testimony
required corroboration and should be viewed with caution.
The People argue that the duty to instruct does not
arise in every case where the witness pleads no contest to
the same crimes with which the defendant is charged. The
cases the People rely upon are distinguishable.
In People v. Coffman and Marlow (2004) 34 Cal.4th 1
(Coffman), the defendants were charged with, and convicted
of, murder, kidnapping, kidnapping for robbery, robbery,
residential burglary, and forcible sodomy. (Id. at p. 16.)
They argued that the trial court erred by failing to instruct
that two witnesses—one who pleaded guilty to falsely
imprisoning the victim and another who was convicted of
receiving property that was stolen from the victim—were
accomplices whose testimony required corroboration and
should be viewed with caution. (Id. at p. 105.) The Supreme
Court held that the trial court did not err because, although
the two witnesses suffered convictions for their roles in the
65
crimes against the victim, there was no evidence in the
record to support the finding that either witness aided,
abetted, or otherwise facilitated any of the defendants’
criminal actions with the requisite intent. (Id. at p. 105.)
In People v. Riggs (2008) 44 Cal.4th 248 (Riggs), the
trial court refused to instruct the jury that a witness who
had pleaded guilty to the same crime the defendant was
charged with was an accomplice as a matter of law. (Id. at p.
312.) The trial court reasoned that the jury could interpret
the instruction to foreclose the defendant’s alibi defense,
which placed the witness and the defendant together in a
location other than the crime scene on the day the crime was
committed. (Ibid.) Our Supreme Court affirmed, explaining
that “while it certainly would be highly irregular for [the
witness] to have pleaded guilty to the murder when she was
in fact uninvolved, for the trial court to have instructed the
jury she was [at the location of the crime] when [the victim]
was killed as a matter of law would have constituted a
finding of fact on an issue that was for the jury to decide.”
(Id. at p. 313.)
There are no such circumstances in this case. Unlike
the witnesses in Coffman, who were not convicted of crimes
identical to the defendants in that case, Cook was charged
with attempted murder in connection with the same
attempted murder for which Tanks was tried. Cook pleaded
no contest to the crime, and testified against Tanks in
exchange for a more lenient sentence. Cook testified that he
gave Tanks a loaded gun, watched Tanks shoot Barajas
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multiple times, and observed Tanks walking toward the
victim with a baseball bat. From these facts, a jury could
reasonably conclude that Cook shared Tanks’s intent to kill
Barajas. The only evidence that Cook did not share Tanks’s
state of mind was Cook’s self-serving testimony that he did
not know what Tanks had planned. The instant case also
differs from Riggs, as an instruction that Cook was an
accomplice as a matter of law would neither interfere with a
potential defense nor necessarily decide an issue that was for
the jury to determine. We conclude that the trial court erred
by not instructing the jury under CALCRIM No. 335 that
Cook was an accomplice, whose testimony required
corroboration and should be viewed with caution.
That error was harmless, however. “‘A trial court’s
failure to instruct on accomplice liability under section 1111
is harmless if there is sufficient corroborating evidence in
the record.’ (People v. Lewis (2001) 26 Cal.4th 334, 370.)”
(Gonzales, supra, 52 Cal.4th at p. 303.) “Corroborating
evidence may be slight, may be entirely circumstantial, and
need not be sufficient to establish every element of the
charged offense.” (People v. Hayes (1999) 21 Cal.4th 1211,
1271; CALCRIM No. 335.) Corroborating evidence is
“sufficient if it tends to connect the defendant with the crime
in such a way as to satisfy the jury that the accomplice is
telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792,
834.)
Here, sufficient corroborating evidence supported
Tanks’s conviction for attempted murder. Barajas testified
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that he was Tanks’s neighbor and knew him well. He
identified Tanks as the person who shot and beat him in an
attempt to kill him. We decline Tanks’s invitation to make
our own assessment of Barajas’s credibility. (See
Breverman, supra, 19 Cal.4th at p. 162 [credibility of
witnesses is an issue for the jury].) Tanks himself testified
that he followed Barajas into the garage with a loaded gun
and shot him, albeit that Tanks claimed he did so
accidentally during a struggle over the gun. In light of
Barajas’s and Tanks’s testimony, the only thing the jury
needed to decide was Tanks’s intent, which was amply
demonstrated by the circumstances of the attack as Tanks
himself described it. Significantly, Cook did not purport to
know Tanks’s intent, and did not testify to Tanks’s intent.
Regardless, it was not reasonably probable that Tanks
would have received a more favorable result had the trial
court given CALCRIM No. 335. The jury in this case had
good reason to view Cook’s testimony with distrust; he
pleaded guilty to the crime and received a more lenient
sentence for testifying against Tanks. Moreover, the trial
court instructed the jury with CALCRIM No. 226 that it
should consider whether any witness was biased or
prejudiced, or had a personal interest in how the case was
decided. The trial court also instructed the jury with
CALCRIM No. 316 that it could consider a witness’s
commission of a felony in evaluating the credibility of his or
her testimony. (See Gonzales, supra, 52 Cal.4th at p. 304
[where trial court instructed jury to view testimony with
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sufficient care and caution failure to give accomplice
instructions was harmless].) The jury was on notice that it
should treat Cook’s testimony with caution. Accordingly, it
was not reasonably probable that Tanks would have
achieved a different outcome had the trial court instructed
the jury with CALCRIM No. 335. (People v. Miranda (1987)
44 Cal.3d 57, 101 [where trial court fails to give accomplice
instructions and evidence is insufficient to corroborate the
accomplice’s testimony, “reversal is not required unless it is
reasonably probable a result more favorable to the defendant
would have been reached”].)
Attempted Voluntary Manslaughter Under Heat
of Passion
Tanks next contends that the trial court committed
prejudicial reversible error by failing to instruct on a heat of
passion theory of attempted voluntary manslaughter
pursuant to CALCRIM No. 570. He argues that substantial
evidence supported a conviction of the lesser included
offense, such that the trial court had a sua sponte duty to
give the instruction. We disagree.
Attempted voluntary manslaughter is a lesser included
offense of attempted murder, and the trial court must
instruct the jury on the theory where there is substantial
evidence to support it. (People v. Gutierrez (2003) 112
Cal.App.4th 704, 708 (Gutierrez).) Either imperfect self-
defense or heat of passion will reduce an attempted killing
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from attempted murder to attempted voluntary
manslaughter by negating the element of malice. (Ibid.)
“Heat of passion has both objective and subjective
components. Objectively, the victim’s conduct must have
been sufficiently provocative to cause an ordinary person of
average disposition to act rashly or without due deliberation
and reflection. . . . [¶] Subjectively, ‘the accused must be
shown to have killed while under “the actual influence of a
strong passion” induced by such provocation. [Citation.]
“Heat of passion arises when ‘at the time of the killing, the
reason of the accused was obscured or disturbed by passion
to such an extent as would cause the ordinarily reasonable
person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather
than from judgment.’ [Citations.]” [Citation.]’ [Citation.]”
(People v. Enraca (2012) 53 Cal.4th 735, 759.) To establish
attempted voluntary manslaughter under a heat of passion
theory, the defendant must affirmatively demonstrate both
provocation and heat of passion. (Gutierrez, supra, 112
Cal.App.4th at pp. 708–709.)
To support his argument that a heat of passion
instruction was required, Tanks points to Barajas’s
testimony that he threatened Tanks with a bat and stated he
would “fuck [him] up” that morning after the men quarreled
about Salas. Tanks also argues that his own testimony
constituted substantial evidence of heat of passion: Tanks
testified that Barajas confronted him in the apartment the
morning of the shooting, pointed a gun at Tanks in the
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afternoon as he was talking to Woods, and pointed a gun at
Tanks again as he was driving away.
The evidence that Tanks highlights demonstrates
provocation (though not necessarily provocation that would
cause a reasonable person to react as Tanks did), but it does
not demonstrate that Tanks subjectively acted under the
influence of a strong passion. All of the evidence presented
was to the contrary: Tanks testified that he carried the gun
into the garage to scare Barajas and had no intention of
shooting him. Tanks explained that he fired the first shot to
scare Barajas after Barajas threw something at him, but
testified that after that he did not fire the gun intentionally.
Tanks claimed that the gun fired the subsequent shots
because he and Barajas were fighting for control of it and
squeezed the trigger. The prosecution’s theory was that the
attempted murder was premeditated and deliberate, not the
product of a rash emotional reaction. Accordingly, we
conclude that Tanks was not entitled to the instruction
because he failed to affirmatively demonstrate the subjective
component of heat of passion.
Even if Tanks had introduced evidence that he acted
under a strong passion, however, his claim would still fail.
The jury’s finding that the attempted murder was deliberate
and premeditated was inconsistent with voluntary
manslaughter, and eliminated any reasonable possibility of
prejudice. (People v. Prettyman (1996) 14 Cal.4th 248, 276
(Prettyman).)
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Self Defense
Tanks also argues that the trial court erred in denying
his request for an instruction that self-defense is a complete
defense to murder under CALCRIM No. 3470. He asserts
that the evidence that Barajas threatened him once with a
bat and twice with a gun is sufficient to warrant giving the
instruction. We agree with the trial court that it is not.
“‘To justify an act of self-defense . . . the defendant
must have an honest and reasonable belief that bodily injury
is about to be inflicted on him. [Citation.]’ (People v. Goins
(1991) 228 Cal.App.3d 511, 516, italics in original.) The
threat of bodily injury must be imminent (In re Christian S.
(1994) 7 Cal.4th 768, 783), and ‘. . . any right of self-defense
is limited to the use of such force as is reasonable under the
circumstances. [Citation.]’ [Citations.]” (People v. Minifie
(1996) 13 Cal.4th 1055, 1064–1065.)
Tanks’s argument that the evidence showed he shot
Barajas in the reasonable belief that he was about to inflict
serious bodily injury upon him is inconsistent with his
defense at trial that the shooting was accidental. He was not
entitled to the instruction. (See Boyer, supra, 38 Cal.4th at
p. 469 [instruction on self-defense required only “‘if it
appears the defendant is relying on such a defense, 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.’”].)
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Regardless, as with heat of passion, there can be no
prejudice because the jury’s finding that the attempted
murder was deliberate and premeditated was inconsistent
with self-defense. (Prettyman, 14 Cal.4th at p. 276.)
8. Cumulative Error
Tanks contends that the cumulative errors at trial
deprived him of due process. The trial court erred in two
instances, the admission of Detective Goossens’s testimony
about Barajas’s state of mind and failing to instruct on
accomplice liability, and we both errors harmless. There was
no cumulative error.
9. Error in the Minute Order Regarding Fines and Fees
The parties agree that the trial court waived the
imposition of fines, fees, and assessments at the sentencing
hearing, and that the People made no objection, thereby
waiving any challenge on appeal. The abstract of judgment
properly reflects the trial court’s pronouncement, however,
the minute order dated January 15, 2020 improperly states
the court imposed a $300 restitution fine (§ 1202.4), a $300
suspended parole revocation fine (§ 12022.45), a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), and a $30
criminal conviction assessment (Gov. Code, § 70737), and
must be corrected. (People v. Zackery (2007) 147 Cal.App.4th
380, 385 [“Where there is a discrepancy between the oral
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pronouncement of judgment and the minute order or the
abstract of judgment, the oral pronouncement controls.”].)
DISPOSITION
We order that the notation that the trial court imposed
a $300 restitution fine (§ 1202.4), a $300 suspended parole
revocation fine (§ 12022.45), a $40 court operations
assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal
conviction assessment (Gov. Code, § 70737), be stricken from
the minute order dated January 15, 2020. In all other
respects, we affirm the trial court’s judgment.
MOOR, J.
We concur:
RUBIN, P.J.
KIM, J.
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