Filed 1/18/18 P. v. Byrd CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH RAY BYRD et al.,
Defendants and Appellants.


A144835

(Contra Costa County
Super. Ct. No. 051305176)


This is the joint appeal from judgment filed by defendants Kenneth Ray Byrd and Joseph Gregory Ellis following their convictions by separate juries for first degree felony murder and second degree robbery. In addition, Ellis’s jury found him guilty of being a felon in possession of a firearm, and found true the felony-murder special circumstance allegation. Byrd was then sentenced to 25 years-to-life in prison, while Ellis was sentenced to life in prison without possibility of parole. Defendants challenge their convictions on many grounds, including, among others, insufficiency of evidence, erroneous admission of evidence, various due process violations, misinstruction of the jury and judicial and prosecutorial misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2013, a criminal information was filed charging defendants with first degree murder and second degree robbery, possession of a firearm by a convicted felon (Ellis only), and felony-murder special circumstance. In addition, it was alleged that, in the commission of these crimes, Byrd personally used a .22 caliber rifle and Ellis personally used and discharged a .38 caliber revolver causing great bodily injury and death. Finally, as to Ellis only, the charges were enhanced for a prior strike conviction and a prior serious felony conviction. These charges were based upon the following facts revealed at a joint trial before separate juries for each defendant.
A. The Prosecution’s Case.
In the early evening hours of March 12, 2012, defendants Byrd and Ellis were at the apartment of Byrd’s girlfriend, M.H., in San Pablo. M.H. arrived home from work at about 5:15 p.m. to find defendants hanging out with two other men. Byrd told M.H. he had been in an altercation with J.H., a close friend of theirs. After the men then left the apartment, M.H. began receiving text messages from J.H., who was upset about the altercation and threatened to come over to kill Byrd in front of her children.
At about 9:30 p.m., defendants returned to the apartment with two guns. Byrd kept the smaller gun in the front pocket of his hoodie, while Ellis placed the larger gun under a child’s stroller outside. Before midnight, M.H., concerned about the situation, called the police to report J.H.’s threat, and two patrol cars were dispatched to her apartment shortly thereafter. M.H. eventually went to sleep after J.H. failed to show up, but was then awakened by Byrd about 1:30 a.m., who told her as he left the apartment that he had seen a suspicious car outside.
Meanwhile, shortly before 2:00 a.m. on March 13, 2012, Jairo Lopez, the victim, was walking on a street near Contra Costa College in San Pablo on his way to purchase gin at a nearby store for his home-bound friend, R.W. At 1:50 a.m., the victim called R.W. to inform him the liquor store he had intended to visit was closed and that he was therefore on his way to a nearby 7-Eleven store. When the victim had not returned by 2:30 a.m., R.W. became worried and tried several times unsuccessfully to call him on his cell phone.
At 2:03 a.m., a gunshot detection system known as “Shot Spotter,” located at the 2300 block of El Portal Drive near Contra Costa College, alerted the San Pablo police department to respond to the area. While en route to this location, Officer Greg Niemi saw two men, one African-American and the other Caucasian or Hispanic, walking on Mission Bell Drive toward the college. Dressed in dark clothing, the two men, later identified as defendants, were walking casually and appeared to be joking and talking. After looking briefly toward the officer’s vehicle, defendants kept walking.
About 250 yards from where he saw defendants, Officer Niemi found the victim lying on the sidewalk along El Portal Drive, still breathing but unable to speak. Officer Niemi, noticing blood on the victim’s chest, called for paramedics and police backup. A search of the victim revealed a Visa bank card bearing his name, but no wallet, cell phone or money. The victim died a short while later of a single gunshot wound to the left chest that punctured his heart and aorta before lodging in his left lung.
At about 2:04 a.m., Officer Brett Bennett arrived at the scene to assist Officer Niemi. As he approached, Officer Bennett saw one person on the ground and two people walking away. He then saw these two people running at full sprint inside the Contra Costa College campus. Officer Bennett activated his emergency lights and pursued them. Officer Bennett was eventually able to detain one of them (Byrd), but the other one (Ellis) got away.
Officer Melgoza, who also responded to the scene, arrived to find Officer Bennett detaining Byrd. Officer Melgoza saw Ellis attempting to hide behind some bushes near one of the college’s buildings. Clutching his waistband, Ellis ignored Officer Melgoza’s instructions to come forward, prompting the officer to use assistance from his K-9 helper. Ellis was then detained just moments after Byrd.
Detective David Neece, a detective on the case, later collected defendants’ clothing. In the front right pocket of Ellis’s jeans, Detective Neece found $46.97 in neatly folded bills and change. Elsewhere on Ellis’s person, Detective Neece found a crumpled $5 bill and three plastic baggies containing marijuana.
Detective Neece searched the victim’s clothing as well, finding no cash. Later, Detective Neece found two guns in shrubbery near a creek on the Contra Costa College campus, near where Ellis was seen running. One of the guns was a black handgun with wood grips and the other was a black sawed-off rifle. The rifle, which had the capacity to hold 10 rounds, held six live rounds in the magazine, with an additional round in the chamber. The handgun, which could hold a maximum of six rounds, had four live rounds. Detective Neece conducted a gunshot residue test on Byrd; however, ultimately, the results were never submitted for evaluation.
During the booking process, Byrd spontaneously told Terence Keefe, a jailer with the San Pablo police department, that: “We heard the shots and we started running.” He then added: “I mean I heard the shot and that’s why I was running.”
After some initial questioning by police, defendants were placed in a transport vehicle and driven to county jail. During this ride, defendants engaged in an approximately 20-minute conversation captured by the van’s recording device. This recording was later played for the juries.
During their recorded conversation, defendants confirmed that they had told the police that they had “heard a shot and ran.” Byrd then asked Ellis about their firearms:
“[BYRD]: Where did you put the- the- bank?
“[ELLIS]: They didn’t find them?
“[BYRD]: They didn’t find none of them?
“[ELLIS]: I don’t think so – I don’t know.
“[BYRD]: I think they found one.
“[ELLIS]: I don’t know.
“[BYRD]: Nah, they haven’t – they haven’t found the other one.
“[ELLIS]: What other one?
“[BYRD]: Uh, Darrell. [ ]
“[ELLIS]: Oh.
“[BYRD]: You threw that over there by the – by the uh, little creek, huh?
“[ELLIS]: Yeah.”
Byrd later asked Ellis whether, “You hid Asa’s, too?” Ellis responded that he “threw it over the fence” near where Byrd was arrested. The topic then turned to gunshot residue:
“[BYRD]: Bro – they didn’t find no fucking powder on me. I pissed on my hands.
“[ELLIS]: Yeah, they found a little bit from the .22.
“[BYRD]: Yeah, they didn’t find any on me. ‘Cause I had to pee, bro, I stuck my hands in my pants and pissed on my fingers.
“[ELLIS]: They checked your clothes, though, and it’s on your clothes. . . . [¶] . . .
“[BYRD]: Nah, it’s not on my clothes.
“[ELLIS]: You wanna bet?
“[BYRD]: It’s probably on my sweater.
“[ELLIS]: Ouch.”
Later, Ellis stated: “If they test the gunshot residue on my hands they’ll see it came from a little deuce – deuce, you feel me?” Ellis also expressed concern that he might be facing murder charges because “they knew I had the gun” and “I had some of that uh – that uh, uh, gun powder.”
Detective Michael Downey, who also participated in the investigation, found two cell phones in the left pocket of Ellis’s coat. One of the phones belonged to Ellis, the other to the victim. On Ellis’s phone, Detective Downey found two photographs, one in which Ellis was holding the murder weapon and another in which Byrd was holding it.
With respect to evidence of defendants’ prior joint criminal conduct, Gilbert Asido testified that, on February 16, 2012, he was awake in his second-floor apartment in Vallejo at 2:30 a.m. Out of his window, Asido saw two men (later identified as defendants) peering into parked car windows, trying to open some of them. Police responded to Asido’s 911 call, and Asido thereafter identified defendants as the culprits. Police found keys in Ellis’s possession, which they were able to use to open a nearby vehicle. Inside this vehicle were multiple GPS devices.
B. Prosecutorial Evidence Before Byrd’s Jury Only.
On March 13, 2012, at 8:30 a.m., Detectives Downey and Lindblom interviewed Byrd at the San Pablo Police Department. This interview was recorded and played at trial for Byrd’s jury only. Byrd initially told the detectives that he was taking a walk on the night in question when he heard a gunshot and ran. Without prompting, Byrd stated: “I didn’t have a gun on me, at all, didn’t throw no gun at all.” He explained that he did not know Ellis previously, but met him that night on his walk when he asked Ellis for a cigarette. Byrd then backtracked and acknowledged knowing Ellis from school, but insisted he had randomly run into him that night on the street. Changing his story yet again, Byrd then said that, after someone threatened to kill him and his family earlier in the evening, he heard two gunshots around midnight near his apartment. Later, as he and Ellis were taking a walk, they passed the then-alive victim. After they had continued walking, they heard a gunshot and took off running.
The detectives asked Byrd whether there was a chance he could have gunshot residue on him. Byrd responded affirmatively, explaining he had played with gun powder earlier in the evening by lighting it on fire in the front yard of his friend Ernie’s house. When Detective Downey asked whether Ernie could corroborate his statement, Byrd stated he did not know Ernie’s number and, while acknowledging that he knew where Ernie lived, that, “yeah I can show you but you know what I’m saying, I don’t know what times he be home. ‘Cause he do work, so, I don’t know.” After briefly leaving the interview room, Downey returned and told Byrd they had tested the gunshot residue on his hands and it was consistent with shooting a gun, not from playing with gun powder. Byrd responded by admitting he had not “been completely honest,” and that, the previous afternoon at Hilltop Park, he had “shot a small .38.” Byrd added that he was alone at the time, and had later returned the gun to its owner, Maurice. However, Byrd claimed not to be able to put the detectives in contact with Maurice to corroborate his story because “he in and out of motels, basically.” When asked which motel, Byrd said Maurice usually stayed at “San’s,” but he was unsure of the room number because “he have his door open, I don’t even go in.”
At this point, Detective Downey warned Byrd that forensic analysis could reveal the type of firearm that produced the residue, and that his story was not believable. The detective added that Byrd could either be a witness or a suspect, and that he should think of his family. In response, Byrd told Detective Downey that he and Ellis had come across the victim during a walk, and that Ellis had robbed and killed him. Byrd explained that Ellis had approached the victim, who was texting on his phone, and demanded that he give Ellis “everything in your pocket.” The victim gave Ellis some balled-up cash, but requested to keep his debit card. This response appeared to anger Ellis, who then shot him. Byrd claimed not to know what type of gun Ellis used, but admitted briefly handling it earlier in the evening, before returning it to Ellis, along with a .22 caliber that Byrd had carried earlier.
Byrd also told the detectives that Ellis had planned to rob someone before the men left for their walk, telling Byrd: “Let’s go rob somebody.” Byrd said, however, that he had not participated in planning the robbery, and “d[id]n’t think” Ellis intended to shoot the eventual robbery victim.
C. Ellis’s Defense Case.
Celia Hartnett, a gunshot residue expert who examined Ellis’s coat, testified before Ellis’s jury only. Harnett found 24 lead particles on the coat, to wit, a significant quantity given that the coat was handled a considerable amount from the time of the shooting until the time of gunshot residue testing (which could have resulted in the loss of some particles). According to her analysis, the person wearing the coat must have been standing in front of and to the left of the person who fired the gun. Hartnett would not expect gunshot residue particles to transfer to Ellis’s coat if he merely handled the gun after the shooting.
Ellis testified in his own defense in front of both juries. According to his testimony, Ellis went to Byrd’s house around 4:00 p.m. on March 12, 2012. There, he witnessed an altercation between Byrd and J.H., but he did not hear J.H. make any threats before leaving. Defendants spent the rest of the afternoon hanging out and smoking marijuana.
When Byrd’s girlfriend, M.H., returned home at about 5:30 p.m., she told defendants that she had received threatening texts from J.H. on the phone she shared with Byrd. Defendants left a short while later to go to the Sands Motel to obtain two “Mollys” (pure form ecstasy). After taking the narcotics, defendants returned to the apartment, where a panicked M.H. had been continuing to receive threatening texts. She told them that J.H. had threatened to shoot up their house, prompting her to call the police. Defendants decided to procure weapons in order to protect the household. Eventually, they got a .38 caliber revolver from Darrel Grockett, and a .22 caliber rifle from Asa Barrow. They tested the rifle at a nearby creek by firing it into a piece of wood. Ellis was wearing his coat at the time.
Just before midnight, back at the apartment, defendants photographed themselves with the two guns because they “thought it would be cool . . . .” Around this time, defendants thought they saw a suspicious vehicle, and Ellis left, taking the .38 caliber revolver with him, to investigate. When Ellis returned, not seeing anything suspicious, he gave the weapon to Byrd. Defendants then remained on the patio of the apartment until around 1:30 a.m., when they saw another suspicious vehicle and went to investigate.
Although they ultimately did not see any vehicles, defendants, feeling “pent up from the Molly,” decided to take a walk. At around 2:00 a.m., they came across the victim, a stranger, and Ellis decided to approach him to offer to sell him marijuana. The victim declined this offer, and Ellis told him he was always in the area if he ever needed marijuana. During this exchange, Byrd was “within arm’s reach” behind and to the right of Ellis. As their conversation ended, Ellis heard a gunshot. His own gun, the .22-caliber rifle, was in the waistband of his coat. After hearing the shot, Ellis noticed a phone on the ground that resembled his own, so he picked it up and put it in his pocket before running away from the body with Byrd.
After turning the corner, Byrd stopped running, clutching his stomach, and told Ellis his stomach hurt. Ellis turned toward Byrd and saw that he was holding the .38-calliber revolver. Just before vomiting, Byrd handed Ellis the gun, and Ellis placed it on the right side of his waistband, keeping the .22-caliber rifle on the left side. The men began to walk, not talking. Within half a minute, a police vehicle passed them. Once the vehicle was out of sight, they took off running across a parking lot. Toward the end of the parking lot, Byrd slowed again, and Ellis, still running, threw the guns to his right side. He did not stop until the police dog bit him.
Ellis was taken to the hospital to treat his dog bite. There, he told officers that he had not seen anyone shot, but had merely started running after hearing the gunshot.
Ellis acknowledged selling marijuana and committing petty theft for a living, and explained that he had the crumpled $5 bill in his pocket separate from his other cash because of “a sale earlier in the day that [he] didn’t get around to putting with everything else.” Ellis also acknowledged that, three weeks prior to the victim’s death, on February 16, he and Byrd went to Vallejo together to burglarize cars.
D. Byrd’s Defense.
Byrd rested his case without presenting any evidence.
E. Verdicts, Sentencing and Appeals.
Following the trial, Byrd’s jury convicted him of murder and second degree robbery. Byrd’s jury found untrue the allegations that he harbored the intent to kill, was a “major participant” in the robbery, or personally used a .22 caliber rifle during commission of these crimes.
Ellis’s jury likewise convicted him of murder and second degree robbery, as well as possession of a firearm by a convicted felon. Ellis’s jury found true the felony-murder special circumstance, but found untrue the allegation that he personally used and discharged a .38 caliber revolver during commission of these crimes.
On April 3, 2015, the trial court sentenced Byrd to 25 years-to-life in prison for the murder conviction, and stayed the sentence imposed for the robbery conviction pursuant to Penal Code section 654. The trial court sentenced Ellis to life in prison without possibility of parole for the special circumstance murder conviction, and stayed the sentences imposed for robbery and being a felon in possession of a firearm. Defendants thereafter filed timely notices of appeal.
DISCUSSION
The following issues have been raised by defendants, collectively or individually, on appeal. First, Byrd contends that the evidence was insufficient to support his conviction for robbery, and that his constitutional rights to due process and a fair trial were violated by, one, the trial court’s ruling to permit Ellis to testify before his separate jury, two, the trial court’s prejudicial mistreatment of his defense attorney during trial, and, three, the court’s failure to sua sponte instruct the jury on the requisite nexus between the homicidal act and the underlying robbery when finding felony murder. In addition, Byrd contends the trial court prejudicially erred by admitting into evidence photographs taken the day of the crime depicting him holding the murder weapon. Ellis, in turn, contends that there was insufficient evidence to support the jury’s special circumstance finding that he acted with reckless indifference to human life; and that his constitutional rights to due process and a fair trial were violated, first, by the trial court’s ruling to permit him to be cross-examined regarding Byrd’s incriminating police statement, to wit, evidence not admissible at his trial, and, second, by the prosecutor’s inconsistent arguments to the juries regarding which defendant fired the weapon that killed the victim. Finally, both defendants contend the trial court committed prejudicial error by failing to sua sponte instruct the jury on the lesser included offense of second degree murder or theft, by admitting evidence of their prior criminal acts, and by accepting the murder verdict despite the jury’s failure to specify the degree of murder. Finally, both defendants contend prejudicial cumulative error requires reversal. We address each issue in turn below.
I. Sufficiency of Evidence Supporting Defendant Byrd’s Conviction.
Defendant Byrd first contends the evidence was insufficient to support his conviction for felony murder because there was little, if any, evidence that he committed, or aided and abetted the commission of, the underlying robbery. We disagree.
“All murder . . . which is committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery and burglary] . . . is murder of the first degree.” (§ 189.) The mental state required is simply the specific intent to commit the underlying felony [citation], since only those felonies that are inherently dangerous to life or pose a significant prospect of violence are enumerated in the statute. (People v. Roberts (1992) 2 Cal.4th 271, 316 [6 Cal.Rptr.2d 276, 826 P.2d 274] [“the consequences of the evil act are so natural or probable that liability is established as a matter of policy”]; [citation]; 2 La Fave, Substantive Criminal Law (2d ed. 2003) § 14.5(b), p. 449.) “Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning‒if a death results from his commission of that felony it will be first degree murder, regardless of the circumstances. [Citation.]” (People v. Cavitt (2004) 33 Cal.4th 187, 197.)
Robbery, the underlying felony offense charged in this case, is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Also relevant, “an accomplice is liable for killings occurring while the killer was acting in furtherance of a criminal purpose common to himself and the accomplice, or while the killer and the accomplice were jointly engaged in the felonious enterprise. [Citation.] In order to support defendant’s conviction as an aider and abettor [of felony murder], therefore, the record must contain substantial evidence that (a) [the perpetrator] committed the robbery [to wit, the felony offense] (the perpetrator’s actus reus), (b) defendant knew [the perpetrator’s] intent to rob [to wit, to commit the felony] and intended to assist in the [commission of the felony] (the aider and abettor’s mens rea), and (c) defendant engaged in acts that assisted the [felony] (the aider and abettor’s actus reus).” (People v. Thompson (2010) 49 Cal.4th 79, 117.)
On appeal, where, as here, the defendant challenges the sufficiency of the evidence supporting a finding of guilt, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-77.) “Substantial evidence” is defined as “evidence which is reasonable, credible, and of solid value.” (People v. Maury (2003) 30 Cal.4th 342, 396.) The reviewing court must accept logical inferences the jury might have drawn from both the direct and circumstantial evidence. (People v. Maury, supra, 30 Cal.4th at p. 396.) ‘ “A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.’ ” [Citations.]’ [Citation].)” (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417. See also People v. White (1969) 71 Cal.2d 80, 83 [“elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence”].)
In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314; see also People v. Cortes (1999) 71 Cal.App.4th 62, 71.) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Applying these principles to the record at hand, we find the following substantial evidence supporting the jury’s finding that Byrd committed or aided and abetted the felony offense of robbery. First, undisputedly, Byrd and Ellis obtained their firearms together earlier in the evening on the night in question. Then, when defendants later decided to go for a walk (during which they encountered the victim), Ellis told Byrd he wanted to go “rob somebody,” after which Byrd voluntarily accompanied him. Further, while the evidence was conflicting as to whether Ellis or Byrd perpetrated the robbery and fatally shot the victim, the evidence was undisputed that defendants were next to each other when these events occurred, that they thereafter left the scene together, and that they attempted to flee from the police when being pursued. And once they had been detained and were being taken to jail, defendants were recorded in the police transport van discussing alibis and whether there could be gunshot residue on their bodies or clothing. Finally, there was evidence that, just a month or so before committing the charged offenses, defendants were apprehended attempting to burglarize parked cars in Vallejo in the early morning hours.
This evidence, viewed collectively and in a light most favorable to affirming the judgment, more than suffices to support the jury’s finding that Byrd committed the felony offense of robbery, either as the direct perpetrator or, more likely, as the aider and abettor. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 [factors relevant to whether a person aided and abetted a crime include “presence at the scene of the crime, companionship, and conduct before and after the offense”]; People v. Campbell (1994) 25 Cal.App.4th 402, 409-410 [substantial evidence supported the jury’s aiding and abetting finding where “the evidence and the reasonable inferences therefrom taken together support a finding that Smith knew about and shared Campbell’s intent to rob . . . and that in a supportive role, he affirmatively facilitated Campbell’s attempt”].) No further showing was required. As the California Supreme Court has aptly stated, “a sharp line does not always exist between the direct perpetrator and the aider and abettor: ‘It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator. . . . The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.’ [Citation.]” (People v. Thompson, supra, 49 Cal.4th at pp. 117-118.) The verdict thus stands.
II. Allowing Ellis to Testify Before Byrd’s Separate Jury and Ellis to be
Cross-Examined regarding Byrd’s Otherwise Inadmissible Police Statement.
Both defendants challenge certain aspects of the procedures employed by the trial court in conducting their joint trial. The following facts are relevant.
Below, the prosecutor requested a combined trial with dual juries, explaining that it intended to offer evidence of Byrd’s extrajudicial statements to police describing how the crime transpired and identifying Ellis as the triggerman, which would be admissible in Byrd’s trial, but not in Ellis’s trial if Byrd chose not to testify. (See Bruton v. United States (1968) 391 U.S. 123, 133-134 (admission of a codefendant’s extrajudicial statement implicating a jointly tried codefendant violates the nondeclarant’s Sixth Amendment right to confrontation and cross-examination) (Bruton); People v. Aranda (1965) 63 Cal.2d 518 (Aranda) (a codefendant’s extrajudicial statements implicating the other, jointly tried codefendant not admissible against nondeclarant codefendant) (collectively, Bruton/Aranda.) The trial court granted the prosecutor’s requests over both defendants’ objections.
On appeal, defendants raise separate challenges based upon the trial court’s subsequent decision to allow Ellis to testify in front of both juries, rather than his jury alone, given Byrd’s decision not to testify. According to Byrd, the trial court’s ruling to permit Ellis to testify before his separate jury rendered his trial fundamentally unfair and a violation of his due process rights for a variety of reasons, including that his attorney’s cross-examination of Ellis was unfairly restricted. Ellis, in turn, contends the trial court ran afoul of Bruton/Aranda when it allowed both the prosecutor and Byrd’s defense attorney to question him with respect to Byrd’s statement to police implicating Ellis as the robber and shooter in this case. We address these issues in appropriate order below after setting forth the relevant law.
In California, “[o]ur Legislature has . . . ‘expressed a preference for joint trials,’ ” which are deemed to promote both efficiency and the interests of justice. (People v. Avila (2006) 38 Cal.4th 491, 574.) Nonetheless, “the court may, in its discretion, order separate trials ‘in the fact of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ ” (Id. at pp. 574-575.)
Alternatively, dual juries, the procedure employed here, is a permissible practice that “affords a practical and reasonable means by which to minimize the inconvenience and not inconsiderable burden on those witnesses who would otherwise have to testify in separate trials, and to conserve judicial resources.” (People v. Harris (1989) 47 Cal.3d 1047, 1056.)
With respect to cross-admissibility of evidence in joint trials, “section 954.1 expressly provides that ‘where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.’ (Italics added.) Thus, ‘cross-admissibility is not the sine qua non of joint trials.’ ” (People v. Geier (2007) 41 Cal.4th 555, 575.)
“When the trial court’s denial of severance and impanelment of dual juries is urged as error on appeal after trial, . . . the error is not a basis for reversal of the judgment in the absence of identifiable prejudice or ‘gross unfairness . . . such as to deprive the defendant of a fair trial or due process of law.’ ” (People v. Cummings (1993) 4 Cal.4th 1233, 1287 (Cummings); see also People v. Harris, supra, 47 Cal.3d at p. 1075 [use of dual juries is not a basis for reversal on appeal in the absence of identifiable prejudice resulting from the manner in which it is implemented]; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [Chapman standard of review applies to a trial court’s error in admitting a nontestifying accomplice’s out-of-court confession at a defendant’s trial].)
A. Byrd: Due Process Challenge to Admission of Ellis’s Testimony.
When testifying in self-defense, Ellis, among other things, denied having a plan when leaving the house to commit robbery and insisted Byrd alone robbed and killed the victim after Ellis unsuccessfully tried to sell the victim marijuana. Pointing to this testimony, Byrd contends that permitting Ellis to testify before Byrd’s separate jury was unduly prejudicial, particularly in light of defendants’ “directly antagonistic” defenses and the significant restrictions placed on his own trial attorney’s cross-examination of Ellis on character issues such as his prior criminal history and evidence relating to lyrics from a rap song on his phone that glamorized killing. More specifically, Byrd contends that, by “allowing Ellis to testify to both juries before the prosecutor rested his case in chief in Byrd’s trial, the trial court allowed Ellis’ attorney to become essentially a ‘second prosecutor’ who elicited evidence that was harmful to Byrd.” This, in turn, “hampered Byrd’s defense that Ellis alone committed the robbery and murder and unfairly strengthened the prosecution’s case again Byrd.” We reject these contentions for reasons set forth below.
First, with respect to Byrd’s argument that Ellis’s testimony before his separate jury was improper because his defense was “directly antagonistic” to Byrd’s defense, under California law, antagonistic defenses do not, in and of themselves, prove error, much less prejudicial error. “That defendants have inconsistent defenses and may attempt to shift responsibility to each other does not compel severance of their trials [citation], let alone establish abuse of discretion in impaneling separate juries.” (Cummings, supra, 4 Cal.4th at p. 1287.)
Our case is on all fours with Cummings. Here, as there, “the defense positions were antagonistic because the identity of the killer was disputed by defendants. That each was involved in the incident was undisputed, however, and the prosecution had offered evidence sufficient to support verdicts convicting both defendants. . . . [T]his was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was [the guilty] person.” (Cummings, supra, 4 Cal.4th at p. 1287. See also People v. Turner (1984) 37 Cal.3d 302, 312-313 [“As to conflicting defenses, counsel could articulate no reason for separate trials except to point out that the prosecution would simply put on its case, then sit back and watch as defense counsel became the real adversaries. Of course, if that point has merit, separate trials would appear to be mandatory in almost every case”].) Given these circumstances, here, as in Cummings, the mere fact of inconsistent defenses does not demonstrate any abuse of discretion by the trial court in ordering dual juries and permitting Ellis to testify in front of both.
Moreover, with respect to Byrd’s argument that the challenged ruling improperly permitted Ellis’s counsel to act as a “second prosecutor” by eliciting from Ellis testimony harmful to his case, we again find no error. People v. Jackson (1996) 13 Cal.4th 1164, 1208 (Jackson) is insightful. There, the defendant argued that counsel for his co-defendant essentially served as a second prosecutor by repeatedly bringing out in cross-examination testimony detrimental to him. In that case, unlike here, neither defendant testified. Nonetheless the California Supreme Court’s reasoning in rejecting the defendant’s “second prosecutor” argument resonates: “[The defendant] does not identify any evidence elicited by [the co-defendant’s] counsel that would have been inadmissible at a separate trial. The mere fact that a damaging cross-examination that the prosecution could have undertaken was performed instead by codefendant's counsel did not compromise any of defendant's constitutional or statutory rights.” (Ibid. (Italics added).) The same is true here. Byrd points to no testimony from Ellis that that would have been inadmissible in a separate trial. And contrary to his suggestion, there is “no provision of law or authority in this state that on a joint trial a codefendant is not a competent witness for himself or for his codefendant.” (People v. Yeager (1924) 194 Cal. 452, 488.) As such, the mere fact that this testimony was damaging – and elicited from Ellis’s counsel rather than Byrd’s counsel – does not demonstrate error, much less reversible error.
Next, Byrd insists that certain restrictions placed on his counsel’s cross-examination of Ellis further undermined the fundamental fairness of his trial. He points to the trial court’s exclusion of evidence of Ellis’s prior crimes and of the lyrics of a rap song found on Ellis’s cell phone that “glamorized being a robber and a killer.” We disagree. Byrd’s attorney was granted substantial leeway by the trial court with respect to her cross-examination of Ellis. The trial court could, nonetheless, properly restrict cross-examination on these two particular topics as significantly more prejudicial than probative within the meaning of Evidence Code section 352, particularly when considered in light of the court’s simultaneous ruling to admit other evidence relating to Ellis’s past crimes for cross-examination purposes, including evidence of his commission of residential burglary, which he described as “something I did without [Byrd].” Thus, any impact the challenged rulings may have had on Byrd’s attorney’s ability to effectively cross-examine Ellis were incidental and certainly not constitutionally invalid.
Finally, in variations of the aforementioned arguments, Byrd insists the dual jury procedure employed here rendered his trial fundamentally unfair by, among other things, fostering guilty verdicts and/or “somewhat inconsistent” verdicts and undermining the strength of his own exculpatory extrajudicial statements, given that Ellis’s live testimony directly contradicted them. We reject these arguments for the same essential reasons identified above. To reiterate, the standard for reversal where the dual jury procedure is employed is whether any error in declining severance in favor of dual juries engendered “identifiable prejudice or ‘gross unfairness . . . such as to deprive the defendant of a fair trial or due process of law.’ ” (Cummings, supra, 4 Cal.4th at p. 1287.) In this case, this standard has not been met.
As we have already made clear, a dual jury procedure is a permissible means by which to “achieve the goal of facilitating the legislative preference for the trial of jointly charged defendants together.” (People v. Harris, supra, 47 Cal.3d at p. 1071.) And, here, the trial court acted well within its discretion in declining Byrd’s request for severance. The evidence of defendants’ joint participation in this robbery/murder, described in detail above, was quite strong. While the identity of the shooter remained unclear given the lack of any eyewitness, as the prosecutor made amply clear to both juries, California law does not distinguish between the principal and the aider/abettor for purposes of liability for felony murder. (See People v. Cavitt, supra, 33 Cal.4th at p. 197 [“The purpose of the felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony”].) Moreover, Byrd had ample opportunity at trial to present his theory that Ellis was the shooter, and to cross-examine Ellis extensively on his contrary theory. Thus, notwithstanding the fact that Ellis’s testimony could potentially have weakened Byrd’s case, the use of dual juries at this joint trial provides no grounds for reversal as to him. (See People v. Capistrano (2014) 59 Cal.4th 830, 850.)
B. Ellis: Prosecutorial Misconduct Claim.
For his part, Ellis raises a Bruton/Aranda challenge to the prosecutor’s cross-examination at trial. Specifically, Ellis contends the prosecutor elicited responses from him during cross-examination that were designed to (and did) inform the jury that Byrd had made an extrajudicial statement to police naming Ellis as the shooter:
“[PROSECUTOR]: And at that point in time, you were hoping that [Byrd] had stuck to the game plan, We heard a gunshot and ran.
“[DEFENSE]: Objection.
“[COURT]: Overruled.
“[ELLIS]: Um, I believe I was. I believe that I didn’t think he would say anything.
“[PROSECUTOR]: But, in fact he had?
“[ELLIS]: In fact, he had.”
According to Ellis, this line of questioning “caused [him] to testify that Byrd had given a statement to the police,” and, in doing so, constituted prosecutorial misconduct “because [the prosecutor] violated [Ellis’s] confrontation clause rights under Bruton and Aranda.” Further, Ellis contends, this purported misconduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process under the 5th and 14th Amendments.”
The People disagree, arguing, first, that the prosecutor’s questions met the requirements of Bruton/Aranda and, second, that, even if his questions could be deemed prosecutorial misconduct under Bruton/Aranda, there was no resulting prejudice given the overwhelming evidence of defendants’ guilt. We agree with the People.
The rules governing prosecutorial misconduct claims are well-established. “ ‘ “A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] . . . Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.)” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Here, to demonstrate prosecutorial misconduct based upon the above-identified cross-examination, Ellis points to the well-established rule that “a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.” (People v. Visciotti (1992) 2 Cal.4th 1, 52.) We find his reliance misplaced.
In so finding, we first point out that, while Ellis may be accurate in describing the prosecutor’s questions as leading, the law is clear “such questions are not improper when asked in good faith of a presumptively hostile witness on cross-examination.” (People v. Visciotti, supra, 2 Cal.4th at p. 52, citing Evid. Code, § 767, subd. (a)(2).) Further, with respect to the subject matter of these questions, we do not agree with Ellis that the prosecutor elicited from Ellis the fact that Byrd made an inculpatory extrajudicial statement to police. Rather, the record reflects Ellis was asked whether, after he arrived at jail, he “hoped” Byrd had stuck to the “game plan” the men adopted in the police van on the way to jail to deny culpability. Yet the prosecutor never mentioned Byrd had provided a statement to police. Nor did the prosecutor mention any specific information contained within Byrd’s statement, or even insinuate or imply that he had provided any such information. As such, the prosecutor’s line of inquiry does not fall within the scope of Bruton/Aranda. (People v. Capistrano, supra, 59 Cal.4th at p. 870 [“statements that incriminate by implication, however, are not within the scope of Bruton”].)
Moreover, in reaching this conclusion, we decline to assume, as does Ellis, that the jury viewed his cross-examination as proof of Byrd’s inadmissible statement rather than as, simply, evidence that, at some point after arriving at jail, defendants gave inconsistent accounts of what happened on the night in question, choosing to protect their own self-interests rather than to stick to their preconceived “game plan,” as co-defendants often do. (See People v. Floyd (1970) 1 Cal.3d 694, 720 [“To hold that the interests of codefendants in a joint trial ‒ especially a joint penalty trial ‒ are identical is to defy reality. Frequently, as in the instant case, one defendant attempts to show that he is less, or his codefendant more, blameworthy, in the hope of avoiding [a harsher] penalty”].) The record more than supports our reading of the evidence. For example, notwithstanding Byrd’s statement, Ellis himself provided unchallenged testimony that, “The police said that Mr. Byrd told them what happened and it’s not looking good for me,” and that he “didn’t really believe the police when they told me that that’s what [Byrd] said.” The jury also heard the actual conversation between Byrd and Ellis in the police van, during which Ellis warned Byrd of the common police tactic to inform a suspect that his accomplice “was in there snitching” in order to try to “get you to turn on me.” Similarly, Detective Downey confirmed in testimony that, as a matter of practice, police often use ruses to goad a suspect into talking during an investigation.
Accordingly, for the reasons stated, we conclude on this record that the prosecutor’s cross examination did not “pose[] a substantial threat to [defendant's] right to confront the witnesses against him,” which, of course, is the evil that Bruton/Aranda is intended to cure. (Bruton v. United States, supra, 391 U.S. at p. 137.) Rather, the prosecutor’s inquiry was fairly grounded in the record before the jury and, as such, outside the scope of this constitutionally-grounded doctrine. (Ibid.)
Finally, and in any event, we agree with the People that, even were we to conclude the prosecutor committed misconduct, it did not amount to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” and, thus, was not prejudicial error. (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Nor was there “a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (Ibid.) To the contrary, it is beyond dispute that Ellis played a significant role in these crimes. Putting aside the issue of which defendant shot the victim, as we have already discussed in this opinion, the record established that Ellis worked with Byrd to procure the firearms earlier in the day, was present when the victim died, disposed of both weapons (including the murder weapon) after fleeing the scene, and was in possession of the victim’s money and cell phone when arrested. In addition, Ellis is heard in the recorded van conversation admitting “they knew I had a gun,” was seen in photographs on his cell phone with Byrd holding the murder weapon, and was involved in a separate burglary incident with Byrd not long before the present crimes. Given this wealth of incriminating evidence, and the fact that, under California law, principal defendants and aiding/abetting defendants share culpability for felony murder, we conclude any error in permitting the challenged line of inquiry by the prosecutor cannot be deemed prejudicial.
C. Ellis: Improper Cross-Examination by Byrd’s Counsel.
Relevant to his next claim, after the prosecutor’s cross-examination, Ellis was questioned by Byrd’s defense attorney regarding what actually happened on the night in question:
“[BYRD’S COUNSEL]: Mr. Ellis, when you saw Mr. Lopez walking along the street, isn’t it correct that you went up to Mr. Lopez and pointed that revolver at him?
“[ELLIS]: I did not.
“[BYRD’S COUNSEL]: Isn’t it correct that you went up to Mr. Lopez and said, Give me your money?
“[ELLIS]: That is not correct.
“[BYRD’S COUNSEL]: Or you said something like, give me everything you got; isn’t that the truth?
“[ELLIS]: No, that’s not.
“[BYRD’S COUNSEL]: And isn’t it correct that Mr. Lopez gave you money, a cell phone, and a debit card?
“[ELLIS]: No, that’s not correct.
“[BYRD’S COUNSEL]: Isn’t it correct that - - -
“[ELLIS’S COUNSEL]: Objection.
“[COURT]: Overruled.
“[BYRD’S COUNSEL]: - - - that Mr. Lopez said to you something about wanting that card back?
“[ELLIS]: No, that’s not correct.
“[BYRD’S COUNSEL]: And, in fact, you gave the card back to Mr. Lopez, didn’t you?
“[ELLIS]: I did not.
“[BYRD’S COUNSEL]: And you saw Mr. Lopez put that debit card back in his pants pocket, isn’t that correct?
“[ELLIS]: That’s not correct.
“[BYRD’S COUNSEL]: And when Mr. Lopez did that, you took out ‒ you took out that revolver, pulled that trigger, and you shot Mr. Lopez; isn’t that the truth?
“[ELLIS]: No, that is not the truth.
“[BYRD’S COUNSEL]: And isn’t it true that you did that because you are heartless?
“[ELLIS]: No.
“[ELLIS’s COUNSEL]: Objection, your Honor.
“[THE COURT]: Last one will be stricken and sustained.
“[BYRD’S COUNSEL]: Mr. Ellis, at some point in time, you planned to commit a robbery, didn’t you?
“[ELLIS]: No, I did not. . . .
“[BYRD’S COUNSEL]: Kenneth never said to Mr. Lopez, Give me all your money; did he?
“[ELLIS]: Neither one of us did.
“[BYRD’S COUNSEL]: Did Kenneth ever say that?
“[ELLIS]: No. Neither one of us did.
“[BYRD’S COUNSEL]: Did Kenneth ever say, give me what you’ve got?
“[ELLIS]: No.
“[BYRD’S COUNSEL]: Did Kenneth ever say anything to Mr. Lopez?
“[ELLIS]: No.
“[BYRD’S COUNSEL]: And the truth is, Kenneth never pointed that revolver at Mr. Lopez, isn’t it?
“[ELLIS]: No, that’s not the truth.
“[BYRD’S COUNSEL]: Now, as I understand your testimony, you were between Mr. Lopez and somebody with a gun who shot Mr. Lopez through the heart; is that correct?
“[ELLIS]: Not directly in between, but I was in ‒ there was someone behind me and then Mr. Lopez in front of me, yes.
“[BYRD’S COUNSEL]: So you’re between those two people?
“[ELLIS]: Correct.
“[BYRD’S COUNSEL]: You didn’t get shot, did you?
“[ELLIS]: I did not.
“[BYRD’S COUNSEL]: You were just lucky that night, huh?
“[ELLIS’S COUNSEL]: Objection.
“[THE COURT]: Argumentative. Sustained.
“[BYRD’S COUNSEL]: The truth is, Mr. Ellis, Kenneth Byrd wanted nothing to do with your plan to rob Mr. Lopez; isn’t that correct?
“[ELLIS’S COUNSEL]: Objection.
“[THE COURT]: Sustained.
“[BYRD’S COUNSEL]: The truth is, Kenneth Byrd did not rob Mr. Lopez, did he?
“[ELLIS]: No. Neither one of us did.
“[BYRD’S COUNSEL]: And he certainly didn’t shoot Mr. Lopez, did he?
“[ELLIS]: He did.”
In a variation of his previous argument, Ellis contends the above-identified inquiry by Byrd’s counsel improperly implied “the existence of facts which cannot be proven because they are based on speculation . . . or because such proof is prohibited by the Constitution (such as under Bruton)” (referring, again, to Byrd’s excluded police statement).
We reject Ellis’s argument. To be improper under Bruton, the attorney must have “ask[ed] questions which clearly suggested the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied.” (People v. Blackington (1985) 167 Cal.App.3d 1216, 1221.) Yet, here, Ellis points to no evidence that this questioning was made in the absence of a good faith belief by the attorney that the questions would be answered by him in the affirmative, or with a belief on the attorney’s part that the facts could be proved, and with a purpose to prove them if denied. Indeed, the attorney’s questions simply mirrored Byrd’s defense that Ellis, not Byrd, robbed and killed the victim. Thus, rather than being speculative or based on inadmissible evidence, the questions appropriately related to Ellis’s credibility in contending that Byrd was the principal actor in this homicide. (People v. Capistrano, supra, 59 Cal.4th at p. 870 [“Statements that incriminate by implication, however, are not within the scope of Bruton”].)
In particular, Byrd’s attorney’s questions were based on substantial evidence in the record supporting Byrd’s defense, including the evidence identified above that Ellis, not Byrd, disposed of the weapons after fleeing the scene, was arrested in possession of the victim’s money and cell phone, and was heard in the recorded police van conversation admitting “they knew I had a gun.” Thus, while, as the prosecutor himself indicated, the evidence considered as a whole did not weigh heavily in favor of either defendant with respect to who fired the shot that killed the victim, ultimately this circumstance was of no import: California law does not distinguish between the principal actor and the aider/abettor for purposes of felony-murder culpability.
In reaching this conclusion, we find Ellis’s authority, People v. Blackington, supra, 167 Cal.App.3d 1216, inapposite. There, Blackington and his co-defendant were jointly tried for murder. Before trial, Blackington successfully moved under Bruton/Ananda to exclude an extrajudicial police statement given by the non-testifying co-defendant. Nonetheless, during his own cross-examination, the prosecutor questioned Blackington regarding the content of the co-defendant’s excluded statement while waving a copy of the statement transcript in front of the jury. On appeal, the reviewing court reversed the judgment on the ground that the prosecutor’s cross-examination violated Blackington’s constitutional confrontation-clause rights. (People v. Blackington, supra, 167 Cal.App.3d at pp. 1221-1224.)
Ellis insists that, similar to the prosecutor in People v. Blackington, Byrd’s counsel essentially “waved a copy” of Byrd’s police statement in front of the jury because her questions tracked, nearly verbatim, the substance of Byrd’s statement. Nothing of the sort occurred in this case. Rather than quote exact statements from the inadmissible transcript, as occurred in People v. Blackington, counsel’s questions to Byrd – including, “Kenneth never said . . . Give me all your money” or “give me what you got” – tracked Byrd’s theory of the case and were a fair attack on Ellis’s credibility and, thus, his opposing theory. In particular, unlike in People v. Blackington, the challenged questions did not imply Byrd had made a police statement and, in any event, were not incriminatory as to Ellis. We thus decline, in the absence of any affirmative indication, that Byrd’s counsel was asking these questions in bad faith for the purpose of sneaking before the jury the excluded fact that Byrd gave such a statement. To the contrary, the record, reasonably read, reflects that, at bottom, this was merely a case of two co-defendants shifting blame for their charged crimes to each other, a not uncommon situation.
Lastly, even assuming for the sake of argument that error occurred, we would find any infringement upon the principles underlying Bruton/Aranda harmless beyond a reasonable doubt on this record. (Chapman v. California (1967) 386 U.S.18, 24.) As the California Supreme Court has explained: “ ‘The improper admission into evidence of a codefendant’s extrajudicial statement does not automatically require reversal of the defendant's conviction.’ ” (People v. Floyd, supra, 1 Cal.3d at pp. 720-721.) And here, for all the reasons we have already stated, including the wealth of incriminating evidence against Ellis and the fact that he and Byrd share culpability for felony murder regardless of who actually pulled the trigger under California law, we conclude any error in permitting the challenged line of inquiry by Byrd’s counsel does not warrant reversal.
III. The Trial Court’s Conduct Toward Byrd’s Defense Attorney Before the Jury.
Byrd contends he was deprived of his constitutional rights to due process and a fair and impartial trial as a result of the trial judge’s biased and inappropriate conduct towards his trial attorney. Byrd’s argument is based upon several incidents during trial where he contends the trial judge acted with hostility towards his attorney in a manner that “discredited [his] counsel and the defense she presented.” For example, he points to the following interactions between judge and defense counsel:
During cross-examination of prosecutorial witness Gilbert Asido, the trial judge corrected defense counsel after she mistakenly told the witness to wait for her to finish her answer, stating: “Questions. You ask questions, he does answers.”
Then, when cross-examining Ellis regarding his contact with the murder weapon, the following transpired between counsel and court:
Q. So you took the gun, put your fingerprints on it that you knew, according to your testimony, had been used to kill somebody?
A. Correct.
Q. You’ve been around the block, right?
MS. FULLERTON: Objection.
THE COURT: Sustained, Ms. Barker.
BY MS. BARKER:
Q. You certainly know what can happen if your fingerprints end up --
THE COURT: Ms. Barker, we’re going in the back.
Later, when Byrd’s counsel cross-examined Ellis regarding his conversation with Byrd while they were waiting to be transported from the police station to the jail, the following transpired:
BY MS. BARKER:
Q. And you testified that there is sort of a -- I guess you said your generation -- or there’s a sense that it is not wise to snitch when you’re about to go into the jail?
A. Correct.
Q. And why is that?
A. Because it’s --
MR. OCONNELL: Objection, your Honor. Relevance.
THE COURT: Sustained.
MS. BARKER: May we approach?
THE COURT: No.
BY MS. BARKER:
Q. You and Kenneth [Byrd] are both housed in the same jail; is that correct?
MR. OCONNELL: Objection, your Honor.
THE COURT: Sustained.
MS. BARKER: May we approach?
THE COURT: I think we’ll have to at this point.
After Ellis finished his testimony, Byrd’s counsel moved for mistrial based on the way the trial judge spoke to her in front of the jury. The judge explained that her reaction was due to counsel’s violation of its order placing certain restrictions on Ellis’s cross-examination. Byrd’s counsel insisted the trial judge had spoken to her in an inappropriate fashion multiple times in front of the jury, to which the trial judge disagreed and insisted counsel had been given “some rope” several times, yet “[y]ou continued to violate my order. At that point, I spoke sternly.”
In his subsequent written motion for new trial, Byrd raised the issue of judicial misconduct (among others), supported by a declaration from attorney Nancy Brandt from the Office of Alternate Defender of Contra Costa County, who was present in the courtroom during the alleged misconduct. Brandt attested the trial judge’s “dismissive, patronizing” behavior toward defense counsel, including the judge’s “chiding tone,” deprived Byrd of a fair trial. Brandt added that “three, possibly four times in rapid succession,” the judge made a dramatic verbal showing when instructing Byrd’s counsel to enter into chambers by addressing her in a patronizing and reprimanding way as “Ms. Barker!” Brandt further attested that, once, after the trial judge refused defense counsel’s request to approach the bench and counsel reiterated her request, the judge responded in an irritated fashion, “Well, I suppose we have to . . . .” According to Brandt, “jurors reacted visibly to these incidents, and some made comments to each other when [Byrd’s counsel] was taken into chambers. Some of the jurors seemed to register amusement at the chastising of [counsel].” The trial court denied Byrd’s motion for a new trial at the sentencing hearing.
In deciding whether Byrd is correct that the trial judge’s conduct in these instances constitutes judicial misconduct, the following legal principles govern. “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.) The trial court has the authority “ ‘ “to take whatever steps [are] necessary to see that no conduct on the part of any person obstruct[s] the administration of justice” ’ [citation], to “maintain ‘the dignity and authority of the court’ [citation] and to summarily punish for acts committed in the immediate view and presence of the court when they impede, embarrass or obstruct it in the discharge of its duties [citations].” [Citation.] It has further been noted that the trial judge “has the responsibility for safeguarding both the rights of the accused and the interest of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial.” [Citations.]’ ” (People v. Ponce (1996) 44 Cal.App.4th 1380, 1387, quoting People v. McKenzie (1983) 34 Cal.3d 616, 626-627.)
“When an attorney engages in improper behavior, such as ignoring the court’s instructions or asking inappropriate questions, it is within a trial court’s discretion to reprimand the attorney, even harshly, as the circumstances require. [Citation.] Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. [Citations.] Moreover, a trial court’s numerous rulings against a party‒even when erroneous‒do not establish a charge of judicial bias, especially when they are subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111-1112, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) To the contrary, a trial judge “commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.” (People v. Carpenter (1997) 15 Cal.4th 312, 353.)
“On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of ‘ “a fair, as opposed to a perfect, trial.” ’ [Citations.]” (People v. Guerra, supra, 37 Cal.4th at p. 1112.)
Having reviewed the relevant record in this case, we conclude the trial judge’s conduct in front of the jury toward defense counsel does not meet this standard of judicial misconduct or bias so prejudicial that it deprived Byrd of his fundamental right to a fair trial. (People v. Guerra, supra, 37 Cal.4th at p. 1112.) Rather, the record reflects the trial judge took valid actions on the identified occasions aimed at discharging the court’s duty to control the proceedings and enforce its rulings. (Ibid.; § 1044 [“It shall be the duty of the judge to control all proceedings during the trial . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”].) In fact, at several points during trial, the trial judge made clear to Byrd’s counsel that she would not be permitted to cross-examine Ellis on matters related to his character, including his past criminal history or prison experience beyond the evidence on these topics that had already been ruled admissible. As the court directly told counsel, her repeated failure to comply with its rulings is what prompted the judge’s “stern” words.
In all events, on appeal, our task is to “ ‘determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ ” (People v. Snow (2003) 30 Cal.4th 43, 48, 78; see also Liteky v. United States (1994) 510 U.S. 540, 555-556 [“Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as . . . judges, sometimes display. A judge’s ordinary efforts at courtroom administration ‒ even a stern and short-tempered judge's ordinary efforts at courtroom administration ‒ remain immune”].) And applying this standard here, we conclude the trial judge’s words and actions, viewed alone or collectively, do not convey allegiance to the prosecution or disdain for defense counsel to such a degree that we could find prejudicial error. As the California Supreme Court has aptly stated, while “some of the court’s comments during the examination of [the witness] ‘would have been better left unsaid’ [citation], we do not believe the court’s behavior ‘was so prejudicial that it denied [defendant] a fair, as opposed to a perfect, trial. . . . The jury may well have received the impression that the court disliked counsel’s methods of examination, but not that the court disparaged or discredited [the party’s] favorable evidence itself.” (People v. Snow, supra, 30 Cal.4th at pp. 81-82.) We thus continue to the next challenge.
IV. Sufficiency of the Evidence Supporting the Jury’s Special Circumstance
Finding that Ellis Acted with Reckless Indifference to Human Life.
Defendant Ellis contends the evidence was insufficient to support the robbery-murder special-circumstance finding that he acted with reckless indifference to human life. In doing so, Ellis relies on three cases wherein the reviewing court concluded the evidence was insufficient to support the jury’s reckless-indifference finding – People v. Banks (2015) 61 Cal.4th 788, In re Miller (2017) 14 Cal.App.5th 960, and People v. Clark (2016) 63 Cal.4th 522. We find these authorities inapposite and affirm the jury’s special circumstance finding as well-supported by the evidence in this case.
“Section 190.2, subdivision (d) provides that ‘every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a [specified felony, including robbery,] which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a[n enumerated] special circumstance . . . has been found to be true under Section 190.4.’ ‘The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life.’ ([People v.] Banks, supra, [61 Cal.4th at p.] 798, fn. omitted [(Banks)].) Participating in a robbery murder is one of the special circumstances for which an aider and abettor may be punished by death or life imprisonment without parole. (§ 190.2, subd. (a)(17)(A).)” (In re Miller, supra, 14 Cal.App.5th at p. 967 (Miller).)
The California Supreme Court has devised the following set of questions, none of which is determinative, for courts to consider when deciding “the ultimate question, whether the defendant’s participation ‘in criminal activities known to carry a grave risk of death’ [citation] was sufficiently significant to be considered ‘major’ ” for purposes of section 190.2, subdivision (d): “[1] What role did the defendant have in planning the criminal enterprise that led to one or more deaths? [2] What role did the defendant have in supplying or using lethal weapons? [3] What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? [4] Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? [5] What did the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
In Banks, after considering these questions, the California Supreme Court concluded, first, the defendant was not a major participant in the felony murder because, inter alia, there was no evidence he planned the robbery, obtained the guns used in its commission, knew his confederates had killed before, or was present at the scene of the robbery/homicide. (Banks, supra, 61 Cal.4th at p. 805.) Turning to the reckless indifference question, the court clarified that “participation in an armed robbery, without more, does not involve ‘engaging in criminal activities known to carry a grave risk of death.’ [Citation.]” (Id. at p. 805.) The court then noted that the defendant was “no more than a getaway driver . . . .” (Ibid.) He “did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop the shooting or render assistance.” Thus, although there was evidence the defendant knew he was taking part in an armed robbery, this fact did not prove he knew “his own actions would involve a grave risk of death.” (Id. at pp. 807, 811.) Accordingly, the court reversed the jury’s special circumstance finding of reckless indifference for insufficient evidence.
In People v. Clark, supra, 63 Cal.4th 522 (Clark), the California Supreme Court expressly recognized the “ ‘significant[] overlap’ ” in the legal analysis for determining whether, under section 190.2, subdivision (d), an aiding and abetting defendant acted as a “major participant” and with “reckless indifference” in committing felony murder. (Clark, supra, 63 Cal.4th at pp. 614-615, quoting Tison v. Arizona (1987) 481 U.S. 137, 153.) Factors of particular relevance to the reckless indifference inquiry include the defendant’s knowledge of weapons, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the offense conduct; the defendant’s awareness that his accomplice(s) was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime. (Clark, supra, 63 Cal.4th at pp, 618-623.) Then, applying this analysis to the record before it, the court found that, while the evidence proved the defendant “planned and organized the attempted robbery and . . . was orchestrating the events at the scene of the crime,” the evidence was not sufficient to prove he acted with reckless disregard for human life where, inter alia, he was not present at the murder scene, his plan was for his accomplice to carry an unloaded firearm, and there was no evidence of “his awareness of the past experience or conduct of . . . the shooter,” or “of the particular dangers posed by the crime, beyond his concern to schedule the robbery after the store’s closing time.” (Clark, supra, 63 Cal.4th at pp. 612-614; see id. at p. 623 [“there appears to be nothing in the plan that one can point to that elevated the risk to human life beyond those risks inherent in any armed robbery”].)
And finally, in Miller, our colleagues in the Second District, Division Five, summarized the relevant evidence as follows before vacating the jury’s special circumstance finding that the defendant exhibited reckless indifference to human life: “Like the defendant in Banks, defendant ‘did not see the shooting happen, did not have reason to know it was going to happen, and could not do anything to stop the shooting or render assistance.’ (Banks, supra, 61 Cal.4th at p. 807.) He was not ‘aware of and willingly involved in the violent manner in which the particular offense [was] committed . . . .’ (Id. at p. 801.) Under Banks and Clark, the evidence of defendant’s individual culpability was insufficient to support the special circumstance finding that resulted in a sentence of life in prison without the possibility of parole.” (Miller, supra 14 Cal.App.5th at pp. 976-977.)
Applying the lessons of the three cases relied upon by Ellis to the matter at hand, we conclude the facts of our case differ in several key regards. Most significant, unlike in those cases, Ellis, undisputedly, was physically present at the murder scene. (Cf. Banks, supra, 61 Cal.4th at p. 803, fn. 5 [“[i]n cases where lethal force is not part of the agreed-upon plan, absence from the scene may significantly diminish culpability for death”].) Also undisputed is the fact that, when Ellis was detained by police just minutes later, he had the victim’s cell phone in his pocket, as well as what appeared to be the victim’s cash. While Ellis points to his self-serving testimony that he merely picked up the victim’s cell phone from the ground after the shooting because he mistakenly believed it was his own, in reviewing the record on appeal for substantial evidence, we are not obligated to accept the defendant’s version of events so long as the jury’s finding is reasonable. (Miller, supra, 14 Cal.App.5th at p. 974 [“The standard of review for a sufficiency of the evidence claim as to a special circumstance is whether, when evidence that is reasonable, credible, and of solid value is viewed ‘in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the allegation beyond a reasonable doubt.’ [Citations.] . . . We presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial. [Citation.]’ ”].)
Moreover, there is additional evidence in this record of Ellis’s reckless indifference to human life, including evidence that he worked with Byrd to procure the firearms earlier in the day, that he had photographs on his cell phone depicting himself holding the murder weapon, that he fled the murder scene with Byrd after the shooting, and that he disposed of both his and Byrd’s firearms (one of which was undisputedly the murder weapon) shortly before being arrested. In addition, Ellis is heard in the recorded van conversation admitting, among other things, “they knew I had a gun.” And, lastly, there was evidence admitted for the sole purpose of demonstrating shared intent that he and Byrd, just weeks before the felony murder, jointly committed another theft crime late at night in nearby Vallejo.
No further evidentiary showing is required. While Ellis insists there is no evidence that he used the murder weapon, was in a position to prevent the victim’s death, shared the intent to kill, or was aware that Byrd intended to kill (see Banks, supra, 61 Cal.4th at p. 803), the fact remains there is a wealth of other incriminating evidence in this record relevant to whether, as an aider/abettor, he exhibited reckless indifference in committing this felony murder. (Id. at p. 805; Clark, supra, 63 Cal.4th at pp. 614-615.) Accordingly, we conclude no grounds exist for vacating the jury’s special circumstance finding.
V. The Prosecutor’s Closing Arguments as to Ellis.
Ellis next contends the prosecutor engaged in prejudicial misconduct during closing arguments by making inconsistent statements to the jury with respect to which defendant actually fired the shot that killed the victim. Specifically, Ellis contends the prosecutor argued to his jury that he fired the fatal shot during the robbery, while arguing to Byrd’s jury there was “overwhelming evidence” that Byrd fired the fatal shot. According to Ellis, the prosecutor’s inconsistency deprived him of his constitutional rights to due process and a fair trial.
The relevant law is not in dispute. As the California Supreme Court explained in In re Sakarias (2005) 35 Cal.4th 140, “fundamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained. . . . [¶] We also conclude, however, that where . . . the available evidence points clearly to the truth of one theory and the falsity of the other, only the defendant against whom the false theory was used can show constitutionally significant prejudice.” (In re Sakarias, supra, 35 Cal.4th at pp. 155-156.)
“By intentionally and in bad faith seeking a conviction or death sentence for two defendants on the basis of culpable acts for which only one could be responsible, the People violate ‘the due process requirement that the government prosecute fairly in a search for truth . . . .’ [Citation.] In such circumstances, the People’s conduct gives rise to a due process claim (under both the United States and California Constitutions) similar to a claim of factual innocence. Just as it would be impermissible for the state to punish a person factually innocent of the charged crime, so too does it violate due process to base criminal punishment on unjustified attribution of the same criminal or culpability-increasing acts to two different persons when only one could have committed them. In that situation, we know that someone is factually innocent of the culpable acts attributed to both. (See [Poulin,] Prosecutorial Inconsistency, [Estoppel, and Due Process: Making the Prosecution Get Its Story Straight (2001)] 89 Cal. L.Rev. [1423,] 1425 [‘When the prosecution advances a position in the trial of one defendant and then adopts an inconsistent position in the trial of another on the same facts, the prosecution is relying on a known falsity’].)” (In re Sakarias, supra, 35 Cal.4th at p. 160.)
According to Ellis, here, the prosecutor’s purportedly inconsistent comments regarding who fired the fatal gunshot was fundamentally unfair and a violation of his “duty of consistency.” We find no validity to his argument.
First, as the People correctly note, notwithstanding Ellis’s reliance on the so-called “duty of consistency,” here, there was in fact no inconsistency on the part of the prosecutor. For example, before Ellis’s jury, the prosecutor argued per CALCRIM No. 3500 (given by the trial court) that jurors need not unanimously agree on the shooter’s identity to hold both men liable as co-participants in felony murder. (People v. Jenkins, supra, 22 Cal.4th at p. 1025 [“Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder”].) The prosecutor then discussed with the jury the law reflected in CALCRIM Nos. 540A and 540B governing felony murder and the related concept of accomplice liability (also given by the trial court): “[F]or felony murder, you have a perpetrator and an aider and abettor. It doesn’t matter which one you’re calling Joseph Ellis, but they commit a robbery together. [¶] A person dies during the course of that robbery. Again, doesn’t matter how the person dies. They just have to die. All participants are guilty of felony murder, which is murder in the first degree.” And finally, after returning to the jury-unanimity concept, the prosecutor concluded that it did not matter who committed the fatal act because, “again, the defendant was engaged in the robbery, whether he is a perpetrator or an aider and abettor in the robbery.”
Similarly, to Byrd’s jury, the prosecutor argued: “There is some unknown as to whether or not Joseph Ellis or Kenneth Byrd is the trigger man. We all know they went out there armed with those two guns, came upon [the victim] and did what they did. Again, . . . doesn’t matter whether you think he’s the aider or [abettor] or the perpetrator. He’s guilty of robbery.” The prosecutor continued that, while there is “plenty of evidence that Kenneth Byrd is the actual killer,” it was not conclusive, a circumstance that “doesn’t matter for the robbery, felony murder, or special circumstances.”
Thus, in front of both juries, the prosecutor relied upon the relevant principles of jury unanimity and direct perpetrator and aider/abettor liability to emphasize that the shooter’s identity was ultimately insignificant for purposes of the felony murder charge. In doing so, the prosecutor discussed with each jury the facts relating to Byrd’s and Ellis’s joint participation in the robbery that led to the victim’s death, facts derived almost entirely from a common body of evidence. And while the prosecutor’s emphasis before each jury may have differed, his basic factual and legal positions were in all significant regards consistent: The evidence proved both defendants guilty of felony murder beyond a reasonable doubt regardless of who fired the fatal shot. (Sakarias, supra, 35 Cal.4th at p. 161, fn. 4, [citing State v. Lavalais (La. 1996) 685 So.2d 1048, 1056-1057 as follows “no due process violation where prosecutor argued in successive trials that Lavalais was and was not under the domination and control of coperpetrator: the fundamental facts the prosecutor presented did not vary, and the appearance of inconsistency merely reflected the fact that ‘the state's emphasis as to culpability was different in the two trials’ ”].)
Accordingly, there is no basis for finding the prosecution’s conduct in these proceedings improper, much less reversibly so. It is well-established prosecutorial misconduct must rise to the level of reprehensibility or deception to warrant reversal on appeal. (People v. Hill (1998) 17 Cal.4th 800, 822-823.) Here, given the uncertainty in the record regarding who fired the fatal shot, and yet at the same time the wealth of evidence of defendants’ joint participation in the robbery that led to the victim’s death, we conclude there was nothing reprehensible or deceptive about the prosecutor’s arguments, notwithstanding some possible inconsistencies before the two juries. And while the two juries’ findings were also inconsistent in certain regards, as the California Supreme Court explains: “Many reasons may explain apparently inconsistent verdicts: lenience, compromise, differing evidence as to different defendants, or, possibly, that two juries simply viewed similar evidence differently. If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant. . . . [¶] . . . The law generally accepts inconsistent verdicts as an occasionally inevitable, if not entirely satisfying, consequence of a criminal justice system that gives defendants the benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the evidence.” (People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 13.) Thus, even assuming for the sake of argument any of the prosecutor’s remarks could be deemed improper, on this record, we are confident there was no reasonable likelihood “the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
VI. Challenges Relating to the Jury Instructions and Verdict.
A. Failure to Instruct on the Logical Nexus Required for Felony Murder (Byrd).
Byrd contends the trial court’s failure to provide the jury a complete instruction on the prosecution’s felony-murder theory is reversible error. Specifically, he contends the trial court’s instruction was incorrect because it failed to include language instructing on the requisite “logical nexus” between the homicidal act and the underlying robbery that he allegedly committed. Acknowledging his attorney’s failure to request this particular component of the instruction, Byrd contends the trial court nonetheless had a sua sponte duty to give it. The governing law is not in dispute.
It is well-established that a trial court must instruct on general principles of law relevant to the issues raised by the evidence in the case even absent a party’s request. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) “The court has no duty to give an instruction if it is repetitious of another instruction also given.” (People v. Barajas (2004) 120 Cal.App.4th 787, 791.)
“Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘ “ ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” ’ [Citation.] ‘ “Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.” ’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089.)
According to Byrd, CALCRIM No. 540B, the felony murder instruction given in this case, was inadequate because it failed to specifically instruct jurors on the aspect of felony murder requiring “a logical connection between the cause of death and the [robbery]. The connection between the cause of death and the robbery must involve more than just their occurrence at the same time and place.” In so arguing, Byrd relies upon People v. Cavitt (2004) 33 Cal.4th 187, 196, in which the California Supreme Court held that a nonkiller charged with a felony murder committed by another may be found guilty only where the jury finds both a causal connection and a temporal relationship between the underlying felony and the act resulting in death. In other words, there must be “proof the felony and the homicidal act were part of one continuous transaction,” citing People v. Cavitt, supra, at pages 193 and 207. According to Byrd, “[a]lthough the evidence at trial could be deemed to support a finding that Ellis killed Lopez during his commission of robbery, there was also evidence that tended to support another conclusion – namely, that Ellis fired the fatal shot for reasons independent of the robbery. The trial court’s felony murder instructions [omitting the nexus requirement] erroneously denied the jury the opportunity to consider this theory.” We reject Byrd’s argument for several reasons.
First, assuming for the sake of argument that Byrd has not forfeited the right to challenge the trial court’s version of CALCRIM No. 540B on appeal (see People v. Guiuan (1998) 18 Cal.4th 558, 570 [“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language’ ”], the CALCRIM Bench Notes from this instruction make clear the omitted language is not in fact a mandatory element of first degree felony murder. Contrary to Byrd’s argument, the Bench Note clarifies: “There is no sua sponte duty to clarify the logical nexus between the felony and the homicidal act. If an issue about the logical nexus requirement arises, the court may give the following language: [¶] There must be a logical connection between the cause of death and the _________________ <insert felony or felonies from Pen. Code, § 189> [or attempted _________________ <insert felony or felonies from Pen. Code, § 189> ]. The connection between the cause of death and the _________________ <insert felony or felonies from Pen. Code, § 189> [or attempted _________________ <insert felony or felonies from Pen. Code, § 189> ] must involve more than just their occurrence at the same time and place.]” (CALCRIM No. 540B, Bench Notes.)
Moreover, Byrd’s authority, People v. Cavitt, supports our reading of this Bench Note, holding that “The existence of a logical nexus between the felony and the murder in the felony-murder context, like the relationship between the robbery and the murder in the context of the felony-murder special circumstance [citation], is not a separate element of the charged crime but, rather, a clarification of the scope of an element. [Citation.] . . . [¶] Hence, if the requisite nexus between the felony and the homicidal act is not at issue and the trial court has otherwise adequately explained the general principles of law requiring a determination whether the killing was committed in the perpetration of the felony, ‘it is the defendant’s obligation to request any clarifying or amplifying instructions on the subject.’ [Citation.]” (33 Cal.4th at pp. 203-204.) Applying these principles here, we conclude the trial court had no sua sponte duty to give the omitted portion of CALCRIM No. 540B because the evidence did not raise an issue as to the existence of a logical nexus between the robbery and the homicide. Indeed, the record we have already described, including the evidence that Byrd and Ellis left the house together after Ellis expressed the desire to rob someone with guns jointly acquired earlier that day, more than supports our conclusion. Simply put, “on this record, one could not say that the homicide was completely unrelated, other than the mere coincidence of time and place, to the . . . robbery.” (People v. Cavitt, supra, 33 Cal.4th at p. 204.)
And lastly, even if a contrary argument could be made, we would nonetheless conclude that, given the totality of the jury charge in this case, there is no reasonable likelihood the jury misunderstood or misapplied the applicable law notwithstanding the court’s failure to give the logical-nexus instruction in CALCRIM 540B. (See People v. Barajas, supra, 120 Cal.App.4th at p. 791.) The instructions given advised the jury that, to be guilty of felony murder, it needed to find, among other things, that the defendant committed or aided and abetted the commission of a felony (with intent to do so) and, “[w]hile committing robbery, the perpetrator caused the death of another person.” The instructions further advised: “The defendant must have intended to commit or aid and abet the felony of robbery before or at the time that he caused the death. [¶] It is not required that the person die immediately, so long as the act causing death occurred while the defendant was committing the felony. [¶] It is not required that the defendant be present when the act causing the death occurs.” (Italics added.) These instructions, read together, and without more, adequately apprised the jury of the need for both a temporal connection and a logical nexus between the felony robbery and homicide in this case to support Byrd’s conviction. (Accord People v. Crone (1997) 54 Cal.App.4th 71, 76; see also People v. Barajas, supra, 120 Cal.App.4th at p. 791 [a court has no duty to give an instruction “repetitious of another instruction also given”].)
Accordingly, based upon the record as a whole, we reject Byrd’s claim that, but for the claimed instructional error, it was reasonably probable the jury would have acquitted him of felony murder. (See People v. Crone, supra, 54 Cal.App.4th at pp. 78-79.)
B. Failure to Instruct on The Lesser Included Offenses of Second Degree
Murder and Theft.
The trial court instructed the jury on first degree felony murder, as both the perpetrator and aider and abettor, but did not instruct on the lesser included offense of second degree murder. Nor did the court instruct on theft as a lesser included offense of robbery. Although defendants did not rely on a second degree murder or theft theory, or request such instructions below, they claim on appeal the trial court had a sua sponte duty to give them and its failure to discharge the duty is reversible error.
We independently review a trial court’s failure to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596.) A trial court’s duty to sua sponte instruct the jury on a lesser included offense arises when there is substantial evidence raising a question as to whether all elements of a charged offense are present, and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the jury, would exculpate the defendant from guilt of the greater offense. (Ibid.; People v. Cunningham (2001) 25 Cal.4th 926, 1008; People v. Cole (2004) 33 Cal.4th 1158, 1218.) No sua sponte duty arises to instruct the jury on a lesser included offense when “ ‘there is no evidence that the offense was less than that charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) More specifically, “ ‘ “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense . . . .’ [Citation.] Such instructions are required only where there is “substantial evidence” from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.’ [Citation.] ‘Substantial evidence,’ in this context, ‘is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Williams (2015) 61 Cal.4th 1244, 1263-1264.)
“For purposes of determining a trial court’s instructional duties, we have said that ‘a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (People v. Smith (2013) 57 Cal.4th 232, 240.) When applying the accusatory pleading test, “[t]he trial court need only examine the accusatory pleading.” (Id. at p. 244.) “[S]o long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense.” (Ibid. [Italics added].)
An error in instructing on lesser included offenses requires reversal only if the entire record establishes a reasonable probability the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.)
Here, Ellis points to the accusatory pleading in his case, alleging in relevant part that, “On or about March 13, 2012 . . . [he] did unlawfully and with malice aforethought murder [the victim], a human being.” Ellis, joined by Byrd, then argues that, because the pleading alleges murder committed with malice aforethought, the trial court had a sua sponte duty to instruct on second degree murder as a lesser included offense, citing People v. Banks (2014) 59 Cal.4th 1113, 1159-1161. Further, with respect to the evidence, Ellis argues the record is consistent with a theory of second-degree murder followed by an independent theft, in that the jury could have reasonably found that he merely accompanied his “highly-volatile” friend, Byrd, to the crime scene, was present when Byrd rashly killed the victim in anger over his refusal to buy marijuana from Ellis, and then helped him escape. However, rather than commit robbery during the course of this homicide, the jury could have reasonably found he merely retrieved the victim’s cell phone after the victim was killed under the mistaken belief it was his own.
We reject this line of argument. As both parties admit, the prosecutor proceeded solely on the theory of felony murder, which, moreover, was the only murder theory upon which the jury was instructed. The jury then found, aside from finding Ellis guilty of first-degree murder, that he aided and abetted Byrd in his commission of robbery and was a “major participant in the robbery and acted with reckless indifference to human life” (although he did not personally use a .38 revolver or share the intent to kill the victim). As these findings reflect, the jury thus found that, distinct from the murder verdict, Ellis and Byrd committed felony robbery. This was, of course, based on undisputed evidence that Ellis was, among other things, arrested shortly after and in the vicinity of the homicide with the victim’s possessions in his pocket. This demonstrates that the jury rejected the underlying premise of Ellis’s second-degree murder theory ‒ that there was no robbery. While Ellis insists this fact could stem from the jury’s belief that he was “guilty of something” and that “it had no alternative other than to find him guilty of first degree felony murder”, his argument ignores that the jury was properly instructed on each element required for finding him guilty of robbery beyond a reasonable doubt. We thus decline to assume the jury failed to discharge its duty to follow its instructions simply because the jurors wanted to find him, in Ellis’s words, “guilty of something.” (See People v. Seumanu (2015) 61 Cal.4th 1293, 1336 [reviewing court must assume the jury properly followed the instructions provided].)
As the California Supreme Court has aptly stated: “In California, the first degree felony-murder rule ‘is a creature of statute.’ [Citation.] When the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists, ‘by operation of the statute the killing is deemed to be first degree murder as a matter of law.’ [Citations.] Thus, there are no degrees of such murders; as a matter of law, a conviction for a killing committed during a robbery or burglary can only be a conviction for first degree murder. [¶] That such murders can only be of the first degree has several significant consequences at trial. Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first degree murder.” (People v. Mendoza (2000) 23 Cal.4th 896, 908 (Mendoza).) Thus, even assuming for the sake of argument there was substantial evidence in this record to support Ellis’s second-degree murder or theft theory, the ultimate question on appeal is whether it appears “reasonably probable” the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d [at p. 836]).’ [Citation.]” (People v. Blakeley (2000) 23 Cal.4th 82, 93.) Applying this rule here, we conclude there is no such reasonable probability.
C. The Validity of the Murder Verdict.
Defendants contend their murder conviction must be reduced from first degree to second degree because the jury failed to specifically find first degree murder in its verdict. We disagree.
Defendants correctly refer us to section 1157, providing that, “[w]henever a defendant is convicted of a crime which is distinguished into degrees,” the jury, or the court if a jury trial is waived, “must find the degree of the crime of which he is guilty. Upon the failure of [the jury or the court] to so determine, the degree of the crime of which the defendant is guilty, shall be deemed to be of the lesser degree.” However, as we will explain, under the circumstances of this case, “section 1157 does not apply because the defendant has not been ‘convicted of a crime . . . which is distinguished into degrees’ within the meaning of that section. Thus, the conviction is not ‘deemed to be of the lesser degree.’ ” (Mendoza, supra, 23 Cal.4th at p. 901.)
In Mendoza, like here, the defendant was prosecuted on a theory of felony murder. His defense was that he was not present at the murder scene and, as such, his attorney never requested instruction on malice aforethought or lesser degrees of criminal homicide than first degree felony murder. Accordingly, the trial court instructed Mendoza’s jury only on first degree felony murder, and the jury thereafter found him “guilty of the offense charged in Count I, a felony, to wit, murder in violation of Section 187(a) of the Penal Code of the State of California,” and returned true findings as to the special circumstances that the “murder was committed by [the defendant] while [he] was engaged in the commission of the crime of robbery” and “in the commission of the crime of burglary in the second degree.” (23 Cal.4th at pp. 903-904.)
On appeal, the California Supreme Court rejected a comparable challenge to the jury’s verdict based upon the absence of an express finding of first degree murder. In doing so, the court specifically distinguished felony murder from malice-based forms of murder: “In California, the first degree felony-murder rule ‘is a creature of statute.’ [Citation.] When the prosecution establishes that a defendant killed while committing one of the felonies section 189 lists, ‘by operation of the statute the killing is deemed to be first degree murder as a matter of law.’ [Citations.] Thus, there are no degrees of such murders; as a matter of law, a conviction for a killing committed during a robbery or burglary can only be a conviction for first degree murder.” (Mendoza, supra, 23 Cal.4th at p. 908.) The court continued: “That such murders can only be of the first degree has several significant consequences at trial. Where the evidence points indisputably to a killing committed in the perpetration of one of the felonies section 189 lists, the only guilty verdict a jury may return is first degree murder. [Citations.] Under these circumstances, a trial court ‘is justified in withdrawing’ the question of degree ‘from the jury’ and instructing it that the defendant is either not guilty, or is guilty of first degree murder. [Citation.] The trial court also need not instruct the jury on offenses other than first degree felony murder or on the differences between the degrees of murder. [Citations.] Nor need it give CALJIC No. 8.70, which provides: ‘Murder is classified into two degrees. If you should find the defendant guilty of murder, you must determine and state in your verdict whether you find the murder to be of the first or second degree.’ [Citations.] [Fn. omitted]. Because the evidence establishes as a matter of law that the murder is of the first degree, these procedures violate neither the right under section 1126 to have a jury determine questions of fact [citation] nor the constitutional right to have a jury determine every material issue the evidence presents. [Citations.] Finally, if, under these circumstances, a jury returns a verdict for a crime other than first degree murder, the trial court must refuse to accept the verdict because it is contrary to law, and must direct the jury to reconsider.” (Mendoza, supra, 23 Cal.4th at pp. 908-909.)
Thus, the California Supreme Court ultimately held in Mendoza that where, as in our case, “the trial court correctly instructs the jury only on first degree felony murder and to find the defendant either not guilty or guilty of first degree murder, section 1157 does not apply. Under these circumstances, as a matter of law, the only crime of which a defendant may be convicted is first degree murder, and the question of degree is not before the jury. As to the degree of the crime, there is simply no determination for the jury to make. Thus, a defendant convicted under these circumstances has not, under the plain and commonsense meaning of section 1157, been ‘convicted of a crime . . . which is distinguished into degrees.’ ” (Mendoza, supra, 23 Cal.4th at p. 910.)
Returning to our case, we conclude that, based on this controlling authority, defendants’ challenge to the murder verdicts based on the jury’s failure to identify the degree of the crime must fail. Simply put, the jury was correctly instructed by the trial court only on first degree felony murder with respect to count one and, as such, it was not presented with the question of degree. Accordingly, as in Mendoza, section 1157 has no application to this case because “the only crime of which [defendants] may be convicted is first degree murder . . . .” (Mendoza, supra, 23 Cal.4th at p. 910.)
VII. Challenges Relating to Admission of Evidence.
Defendants raise two challenges to the trial court’s admission of evidence. First, defendants jointly challenge the trial court’s admission of evidence of their prior commission of a theft crime (attempted burglary) and, second, Byrd alone challenges the court’s admission of photographic evidence found on Ellis’s cell phone depicting defendants holding the murder weapon hours before the homicide. We address each challenge in turn below.
A. Evidence of Prior Crimes.
At trial, the trial court admitted, over defendants’ objections, evidence that Ellis and Byrd jointly committed attempted burglary in Vallejo just weeks before committing the crimes charged in this case. Specifically, the prosecution’s evidence consisted of police records indicating defendants were seen attempting to break into several parked cars in a residential area in Vallejo in the early morning hours of February 16, 2012. After being arrested, several GPS devices were found in a vehicle linked to Ellis. Relying on Evidence Code section 1101, subdivision (b) (hereinafter, section 1101(b)), the court admitted this evidence for the limited purpose of showing defendants’ shared intent to commit robbery. The court subsequently denied defendants’ motions for reconsideration and for new trial based on this evidence. According to defendants, admission of this evidence is prejudicial error pursuant to Evidence Code sections 352 and 1101. The applicable law is not in dispute.
Generally, all relevant evidence is admissible. (People v. Champion (1995) 9 Cal.4th 879, 922.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 940.)
“ ‘Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, “[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.” [Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667.) Thus, “[b]ecause evidence of other crimes may be highly inflammatory, the admission of such evidence ‘ “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ” ’ [Citations.] Under Evidence Code section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] ‘We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 602.)
Returning to the case at hand, the trial court found the proffered evidence that defendants had previously acted in concert to commit an early morning theft crime admissible pursuant to under section 1101(b) to prove that, on the day in question, they jointly and intentionally committed the robbery that resulted in homicide. In doing so, the trial court rejected defendants’ challenge to this evidence under Evidence Code section 352, concluding the evidence was highly relevant with respect to the issue of shared intent to commit the crime and not substantially prejudicial. At the same time, to eliminate potential prejudice, the trial court subsequently instructed the jury that this evidence of defendants’ prior crime could be considered only for the limited purpose of deciding whether, if it found it more likely than not that defendants jointly committed the prior Vallejo offense, that “[Byrd] acted with the intent to commit a theft offense with Mr. Ellis in this case.”
Based on the legal principles set forth above and in light of the record as a whole, we find no basis for disturbing the trial court’s decision. As the trial court aptly noted, regardless of certain differences between the past and present theft incidents, such as the fact that the previous incident was nonviolent, the incidents were nonetheless similar in key regards – mainly, both incidents involved defendants jointly engaged in theft crimes in the East Bay in the early morning hours. As such, the trial court could reasonably find the probative value of this evidence with respect to the important issue of defendants’ shared intent substantially outweighed its potential prejudicial impact. In addition, the trial court substantially lessened any potential prejudice by clearly and correctly instructing the jury that their consideration of this evidence was restricted to the sole issue of defendants’ shared intent. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [the least degree of similarity is required to establish relevance on the issue of intent].) Under these circumstances, the lower court’s ruling stands as a proper exercise of its broad discretion to admit evidence.
B. Photographic Evidence of Defendants With Murder Weapon (Byrd).
Next, Byrd challenges as prejudicial error the trial court’s admission of photographic evidence found on Ellis’s cell phone depicting defendants showing off the firearms later used in the robbery/homicide, including photographs of defendants holding the murder weapon (to wit, the .38 revolver). As he did below, Byrd objects to this evidence on the ground that the prejudicial impact of the photographs outweighs its probative value because they show defendants “flashing signs that might or might not be gang signs.” (Evid. Code, § 352.) According to Byrd, “the photos . . . undoubtedly created an impression for the jury that [defendants] were gang members and therefore dangerous criminals who surrounded themselves with guns and used guns to commit crimes.”
We reject Byrd’s challenge. While some of these photographs may depict defendants making hand gestures that Byrd’s counsel perceived as possible gang signs, as Byrd himself acknowledges, they also show defendants holding the murder weapon. As such, the evidence was highly relevant in that it linked defendants to the commission of the charged homicide that occurred just hours later. (People v. Harris, supra, 47 Cal.3d at p. 1095.)
As explained above, a “trial court is vested with wide discretion in determining the admissibility of evidence. Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.] Moreover, the record must affirmatively show that the trial court did in fact weigh the prejudicial effect of the evidence against its probative value.” (People v. Karis (1988) 46 Cal.3d 612, 637.) Here, the record confirms the trial court properly weighed the probative value of the photographs against their prejudicial impact before admitting them into evidence. In doing so, the trial court noted that it was far from clear in the photographs that defendants were making hand signs, much less gang-related hand signs. On the other hand, the trial court found the photographs of defendants standing together with the murder weapon hours before the homicide “quite probative, and the hand sign, if it is a hand sign, I don’t know what its conveying, the probative value outweighs any prejudice by that particular sign, especially since we’re not having any gang testimony.” Consistent with the trial court’s reasoning, there is no evidence of, or even reference to defendants’ involvement or association with gangs in these proceedings.
Under these circumstances, we conclude Byrd has failed his burden of demonstrating an abuse of discretion in the court’s ruling. (People v. Harris, supra, 47 Cal.3d at p. 1095.) As the California Supreme Court has aptly explained: “ ‘[All] evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ (People v. Karis, supra, 46 Cal.3d at p. 638.) In this case, the trial court reasonably found that the balance of probative value to potential prejudicial impact tips in favor of admitting the evidence. We therefore affirm.
VIII. Cumulative Error.
Finally, defendants claim the cumulative effect of the identified errors at trial was to deprive them of their right to due process under the federal Constitution. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32; see also People v. Williams (2009) 170 Cal.App.4th 587, 646.)
We reject this remaining argument. As we have discussed at length above, there were few errors made at trial, and no prejudicial error requiring reversal. “Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice.” (People v. Hill (1998) 17 Cal.4th 800, 844.) Here, even assuming defendants’ trial was less than perfect, the requisite showing of injustice was not made. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [“The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial’ ”].) Accordingly, the cumulative error doctrine provides no basis for reversal on appeal.
DISPOSITION
The judgments against defendants Byrd and Ellis are affirmed.
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Jenkins, J.


We concur:


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Pollak, Acting P. J.


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Siggins, J.


















People v. Kenneth Ray Byrd et al., A144835