P. v. Epps















Filed 4/27/17 P. v. Epps CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JAMAL EPPS,

Defendant and Appellant.


F070160

(Super. Ct. No. BF150098A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Jamal Epps was convicted by jury of the first degree murder of Terry Ellis (count 1) (Pen. Code, § 187, subd. (a)),[1] participation in a criminal street gang (count 2) (§ 186.22, subd. (a)) and the attempted murder of Trenttin Francies (count 3) (§§ 664/187, subd. (a)). The jury found true that the attempted murder was willful, deliberate and premeditated (§ 189), and that the murder and attempted murder were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the jury found true the attached enhancements for use of a firearm (§ 12022.53, subds. (d)–(e)(1) (counts 1 & 3) and § 12022.5, subd. (a) (count 3)). In a bifurcated proceeding, the trial court found true that defendant suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior conviction within the meaning of the three strikes law (§ 667, subds. (c)–(j)), and served a prior prison term (§ 667.5, subd. (b).)
For the murder of Ellis (count 1), defendant was sentenced to a term of 50 years to life, plus 25 years to life for the firearm enhancement and an additional five years for the prior serious felony conviction. The gang enhancement was imposed and stayed. For the substantive gang offense (count 2), defendant was sentenced to the upper term of six years, plus an additional five years for the prior serious felony conviction, stayed pursuant to section 654. For the attempted murder of Francies (count 3), defendant was sentenced to a term of life with the possibility of parole after 14 years, plus an additional 25 years to life for the firearm enhancement and an additional five years for the prior serious felony conviction. The gang enhancement was imposed and stayed.
Defendant advances three claims on appeal: (1) he is entitled to reversal of all counts because favorable material evidence was withheld from the defense, in violation of Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady),and the trial court erred in concluding otherwise;[2] (2) the court erred in its instructions to the jury on aider and abettor liability; and (3) the court’s true findings as to the prior serious felony conviction and strike conviction were not supported by sufficient evidence that the underlying conviction relied on was a serious felony within the meaning of section 1192.7.
The court’s prior serious felony and strike conviction findings were based on defendant’s 2006 conviction for violation of section 4501.[3]The People concede that the court’s findings were not supported by sufficient evidence because the statute can be violated in more than one way, and that the court possibly impermissibly relied on a notation on a fingerprint card in making its determination that defendant was convicted of assault with a deadly weapon. (§ 1192.7, subd. (c)(13)).They otherwise dispute defendant’s claims for relief.
We agree with defendant that Brady error occurred in this case, depriving him of his right under the due process clause to a fair trial and necessitating reversal of his convictions. In light of this finding, we do not reach his remaining claims of instructional error and insufficiency of the evidence supporting the prior serious felony and strike conviction findings.[4]
CHRONOLOGICAL SUMMARY
I. Crimes
On October 24, 2012, at approximately 12:45 p.m., Francies, his friend Michael Gage and Gage’s friend Darnell Worthy were hanging out and talking outside Francies’s residence on Madison Avenue in Bakersfield. A white Cadillac with two Black men inside drove by and then parked. The passenger exited the car and pulled a gun. Francies, Gage and Worthy ran in different directions. The gunman pursued Francies and shot him several times on his left side, but he survived. Detective Ryan Kroeker with the Bakersfield Police Department was the lead investigator assigned to the attempted murder case.
On October 31, 2012, at approximately 7:00 p.m., two Black men, one dark complexioned and one light complexioned, approached Terry Ellis, Jermey Nelson, Joel Johnson, Albert Dansby and Lekendrick Ellis in the alley behind Nelson’s apartment on Pacheco Avenue in Bakersfield, where the group was hanging out.[5],[6] The two men left, but then subsequently returned at approximately 7:20 p.m. One of them pulled out a gun and started shooting, hitting Ellis in the head and killing him. Detective Richard Dossey, Jr., also with the Bakersfield Police Department, was the lead investigator assigned to the murder case.
Defendant and codefendant Cory Hunter were charged with Ellis’s murder and unlawful participation in a criminal street gang (counts 1 and 2). Defendant was also charged with the attempted murder of Francies (count 3). Approximately one year later, in December 2013, the prosecution added a charge against Hunter for violation of section 32 (accessory after the fact). Hunter pled no contest to that charge and the prosecution moved to dismiss the remaining counts against him.
II. Case Reassignment
In October 2013, Dossey’s supervisor transferred him from homicide to general investigations, resulting in his removal from Ellis’s murder case.
III. Talisha Hunter’s Statement to Police
Talisha Hunter, Cory Hunter and McKinley Womack are cousins.[7] On January 23, 2014, prior to defendant’s trial, Talisha contacted the Bakersfield Police Department and reported an incident earlier in the day during which Womack tried to reach in her car, spit on her and her sister, and offered people money to beat her up. She also said she had information about a homicide. Detectives King andCegielski, who were the on-call homicide detectives for the week, subsequently met with her and took her statement.
Relevant to defendant’s claim of Brady error, Talisha told detectives that in May 2013, she was with Womack and others at her aunt’s apartment. Womack, who was on parole, became upset after police were allowed inside the apartment to resolve a child custody related dispute involving his brother. After the police left, Womack “went off on everybody” and said, “You guys better ask about me. I killed Terry Ellis on Pacheco.”He also said, “I did it. He didn’t do it. You guys had better ask about me,” and something to the effect of, “I killed him, because he’s from the bread.”Talisha stated that Womack is from the East Side and saying someone was from the bread was a “diss.”She also stated that Womack said he was with Tiny MT, who she then identified via lineup as defendant. Additionally, Talisha told detectives that Womack had been driving a silver car, which belonged to one of the mothers of his children.[8]
Talisha told King and Cegielski that she had recently told Womack she was going to report what he said about the shooting and he was harassing her as a result, including the spitting incident that day.
King explained to Talisha that they had “to do a lot of homework” and “research,” and would not be arresting Womack right away.He asked if she was okay with them following up with her as things progressed. She responded affirmatively.
By the time Talisha gave her statement to King and Cegielski, Dossey had been transferred and was no longer involved in any homicide cases, including Ellis’s. In the weeks that followed, King spoke with Kroeker and Dossey, and Cegielski possibly spoke with Dossey regarding Talisha’s statement inculpating Womack in the murder of Ellis.[9] Based on those conversations, it was King’s understanding that witnesses had viewed photo lineups with Womack’s photo in them and excluded him as a suspect. Talisha’s statement was disclosed to neither the prosecutor nor defense counsel, and jury trial commenced on March 5, 2014.
IV. Trial[10]
A. Attempted Murder of Francies
1. Prosecution’s Case
a. Francies’s Testimony
Francies’s father owned two group homes located next door to one another on Madison Avenue.[11]One was not in use and Francies was living there. Gage and Worthy stopped by on October 24, 2012, shortly before Francies was due at work.[12] The three men were hanging out in Francies’s driveway. Francies was standing, and Gage and Worthy were sitting on the end of his El Camino.
Francies testified that he saw an off-white, older model Cadillac in nice condition with trim around it drive up Madison Avenue northbound. The car passed his group, stopped fast and parked in front of the driveway of the house next door. Two Black men were sitting in front and the passenger had a darker complexion than the driver. The passenger exited the vehicle, revealing the car’s brownish tan interior, and Francies saw a black or dark colored gun. Francies only glimpsed the gunman’s face as he, Gage and Worthy ran.
Running to his own house would have required Francies to run toward the gunman so he ran south toward his father’s group home. Gage ran south down the street, and Worthy cut between Francies’s father’s two houses and jumped a fence. Francies was still in the driveway when he heard the first shot, and as he was running away, he heard another shot and his dog scream as if stepped on. He ran to the group home, but could not get in because the door had a padlock on it. He heard footsteps, turned around and saw a man in a gray or navy blue T-shirt and shorts with a black or dark gray gun approximately six to eight feet away. The man fired. Francies fell to the ground with his hands up and said he “wasn’t from out here.”[13]The man fired again and then walked off.
Francies testified there were two sets of multiple shots. The first set of two or three shots occurred while he was running away and the second set of three shots was fired at him. He saw a bullet hole on the ground next to him and felt his arm, trying to determine where the other two bullets went. He then got up and was able to enter the house. Francies did not realize he had been shot until Worthy, who was in the back pacing, told him to look at his arm. Francies testified he sustained three bullet wounds, two of which were entry and exit wounds from one bullet.
Francies testified he was shown three different six-pack photo lineups by Kroeker. He did not identify anyone in the first two lineups, but he selected defendant’s photo from the third lineup and told Kroeker he was “70 percent” sure.He said Kroeker asked him if anyone “looked similar” and “who best fit the description.”He testified defendant’s skin tone was correct, but he needed to see the body to be sure. Kroeker then showed him four full body shots of defendant he had in a folder, and Francies said he was now “80” percent sure.
Francies later learned Gage had been served with a subpoena to appear in court on November 20, 2013. Reasoning the case involved him more than Gage, Francies showed up for the proceeding and sat in the courtroom. Francies testified he saw the person who shot him in court that day and, at trial, he identified that person as defendant.
Regarding the car that drove up with the two men inside, Kroeker showed Francies a printout from Google maps of an address on Grace Drive in Paso Robles with a white car parked in the driveway.Francies told Kroeker the car was “[a]bout the same model, same year.”Francies testified he did not know whether the car’s trim was gold or silver or both, but it had a “real shine to it.”
On cross-examination, Francies testified he spoke with his friend, Tony Haynes, about the case. Defendant called Francies from jail on December 22, 2013, in a three-way call that involved Haynes’s girlfriend. Francies did not feel threatened, but he wondered why defendant called. He testified he was not really paying attention to what defendant said and he changed his phone number after he received the call.
Francies also testified he had described the Cadillac as white or off-white, possibly with two doors, and without an emblem sticking up on the hood. At trial, Francies said he did not remember the car having an emblem sticking up, and he did not recall telling an officer at the hospital that the Cadillac “was a big two door.”[14] Regarding the Google map photo of the car, he testified the car in the photo looked like the vehicle, as opposed to was the vehicle.
At the scene of the shooting, Francies described the gunman to Sporer as 5 feet 10 inches to 6 feet tall and 175 to 185 pounds with an athletic build. Francies is 6 feet 2 inches tall and he subsequently described the suspect to Sporer at the hospital as shorter than that, approximately 5 feet 8 inches to 6 feet tall and 150 pounds. In response to Sporer’s comment that 150 pounds is skinny for 6 feet tall, Francies said the man was thin, but not skinny and had an athletic build.
Regarding the photo lineups, Francies testified that Kroeker showed him three different sets of photos on three different occasions, two of which occurred the same day. Francies did not recognize anyone in the first six-pack of photos and he was 70 percent sure of his identification of defendant from the second six-pack of photos. Kroeker returned later that day with single, full body photographs of defendant, including one that had a white car in the background. After seeing those photographs, Francies increased his level of certainty regarding the identification to 80 percent, and regarding the photo with the white car in the background, Francies testified, “It made sense.”
b. Investigation
1) Kroeker’s Testimony
Kroeker testified that on November 6, 2012, he showed Francies a photo lineup based upon an individual who was similar in description to the suspect. The next day, he showed Francies a second lineup based around defendant, who was also similar in description to the suspect. Kroeker testified Francies selected photo number three, which was defendant’s photo, and said he was 70 percent sure of the identification, but asked to see some full body photos. The next day, Kroeker returned with four photos taken from defendant’s cell phone and, after asking Francies if seeing full body photos would help him, showed him the photos. After viewing the photos, Francies said he was 80 percent sure defendant was the shooter.
On November 19, 2012, police stopped and impounded a white Cadillac driven by Kai Williams.Kroeker described Williams as a Black male in his mid-20s, approximately 5 feet 10 inches tall and 175 to 190 pounds, with short black hair.
Police previously had contact with Williams in Bakersfield on October 14, 2012, while he was driving a white Cadillac. Based on that contact, Kroeker identified the registered owner as Mary Gonzalez and looked up her Paso Robles address on Google maps. Kroeker printed the Google map photo of the address, which included a white Cadillac parked in the driveway.Prior to the date police located the vehicle and impounded it, Kroeker showed Francies the Google map photo.
On cross-examination, Kroeker testified that on November 6, 2012, he and Dossey went to an address on Dolores Street after an officer spotted a gray Grand Prix with a white fender, which matched the suspect vehicle being sought in the Ellis murder. Officers made contact with defendant at that address and he accompanied Kroeker and Dossey to the police station voluntarily. At the station, defendant allowed them to check his cell phone and they found photos of defendant with a white car in the background, photos of defendant with Williams and a video with a white Cadillac in it. A connection between defendant and the attempted murder of Francies had not yet come up, but Kroeker testified that seeing the white Cadillac “raised some suspicions.”
Kroeker subsequently ran a records search on Williams and found the contact on October 14, 2012, during which police stopped Williams while he was driving a white, four door Cadillac. Kroeker testified defendant became a suspect in the attempted murder of Francies because he matched the description provided by the witnesses and he had a personal connection to Williams, who was in turn connected to a white Cadillac.
Kroeker further testified on cross-examination that police had issued a wanted notice for an off-white 90’s Cadillac, possibly with two doors. He also testified that, in his opinion, obtaining background information prior to conducting a lineup does not necessarily taint it. Before he showed Francies the Google map photo of the white Cadillac, he stated to Francies that he remembered reading in the report the car had gold trim, information he conceded had not been provided by Francies.
Kroeker testified that the Cadillac was photographed after it was impounded, but those photos were not shown to Francies or Gage; the Google map photo was the only photo of the car they saw. Kroeker testified that Francies was unsure if the paint condition was a match, as the car he saw had shiny paint and the car in the Google map photo appeared dull. Kroeker stated Francies believed the car in the photo was the suspect vehicle and Kroeker considered that to be a positive identification.
Kroeker explained the purpose behind showing Francies the Google map photo was to see if it was similar to the suspect vehicle rather than to obtain a certain identification. Although neither the hood emblem nor the interior of the car was visible in the Google map photo and there were available photos of both features following the car’s impound, Kroeker stated he did not show Francies the additional photos because Francies had already seen the Google map photo of the vehicle and said it was similar to the suspect vehicle. Regarding his reason for not showing Gage the additional photos of the impounded vehicle, Kroeker stated, “I believe this was a suspect vehicle. My intention was to seize it, analyze it, look for evidence inside the vehicle, also contact the driver who was in the vehicle and establishing a nexus between who I believe the suspect was as well as who was driving the vehicle.”
As to the photo lineups, Kroeker testified he did not show Francies full body photos of anyone other than defendant. He agreed that when he showed Francies the photos, he stated, “There is one in particular.”However, he did not remember which photo he was referring to and he denied paying particular attention to any one photo. Francies responded that one looked familiar and told Kroeker he was 80 percent sure of his identification. Kroeker noted in his police report that Francies was “now very sure” of his identification of defendant.Toward the end, after Francies had seen the other photos and stated he was 80 percent sure, Kroeker showed him a full body photo of defendant and four vehicles, including a white, four door sedan in the background, and stated, “Here’s the picture of the person that you said you were at this point 80 percent sure. You see the vehicle behind him[?]”[15]Kroeker then said he had enough to arrest the man Francies had identified.
Kroeker showed Gage the same six-pack photo lineup Francies had seen on November 8, 2012. Gage stated he “got a pretty good decent look at him,” but after viewing the lineup, he said it was “[h]ard to say.”Gage said photo numbers one and four “look[ed] similar,” but it was hard to choose between them.Gage then selected number one. Kroeker testified Gage did not sign the lineup, and he noted in his police report that Gage looked at defendant’s photo momentarily but was not sure if he could identify him because “he did not get a good look.”
2) Other Evidence
Eight spent nine-millimeter shell casings were found on the ground and in the gutter at the scene on Madison Avenue.
On the day of the crime, no phone calls from defendant’s cell phone connected with the cell phone towers that provided coverage to the area of the crime scene.
2. Defense Case
a. Gage’s Testimony
Gage was called to testify by the defense. At approximately 12:45 p.m., he was sitting on the tailgate of Francies’s El Camino talking to Francies and Worthy. He saw a car drive by them going southbound, make a U-turn, pull up past them and park. There were two men in the car. Within minutes of the crime, he described the car to police as a 2000 to 2005 white Cadillac Deville with four doors, gold trim, tinted windows and stock rims. He also said he would be able to recognize the shooter if he saw him again but not the driver. He explained that because the car pulled past them and parked, his view into the car was through the back window.
Gage subsequently met with Kroeker on November 9, 2012. Gage told Kroeker, “I got a pretty decent look at him. Full stock.”Kroeker then showed Gage a lineup and he said he was not sure whether the gunman was pictured. Although still unsure, he selected two photos—numbers one and four—as looking similar; neither photo was of defendant. Gage went on to eliminate four of the photos, including defendant’s, before settling on photo number one. He told Kroeker, “I’m going to roll with number one, man.”Gage testified he then signed the lineup.
When Kroeker showed Gage a photo of a car, Gage said it looked like the car, but did not say it was the car.
On cross-examination, Gage explained he had not been sure if the shooter was in the lineup, but if he had to select one, it was number one. Gage also selected a photo, number five, from a different lineup as similar to the suspect. Gage testified that defendant looked most similar to photo number five he selected from one of the two lineups, and that photo five was the most similar to the shooter, followed by defendant and then photos one and four from the other lineup. He also testified Kroeker “told [him] to go with one, and [he] pretty much picked one [he] wasn’t sure of.”
Gage testified that after the car pulled up and parked, the occupants talked for about 30 seconds before the passenger got out of the car. He took two or three steps, pulled out a chrome weapon and began shooting. Gage described the car as pearl white with four doors and trim around the doors midway between the windows and the bottom of the car. The car had chrome Cadillac wheels and no window tinting.
After hearing seven or eight shots and then nothing further, Gage looked back down the street. He saw the car take off, continuing northbound on Madison Avenue, and he walked back to Francies’s house.
On redirect, Gage testified Kroeker showed him only one photo of a car, and if he saw six similar but different cars, he would not be able to tell them apart.
On recross-examination, Gage testified he told officers the passenger was dark complexioned and the driver had a lighter complexion, and he described defendant as having a dark complexion.
On the second redirect, Gage agreed he described the shooter to police as a Black male, age 24, 5 feet 9 inches tall and pudgy with a dark complexion. After initially denying he said “[t]he driver was dark skinned,” he agreed he told an officer the driver was a six-foot Black male of unknown age with a stocky build, dark complexion and short black hair.He also confirmed he saw defendant’s photo two times during the lineups, but did not select his photo.
b. Dontavia Henderson’s Testimony
Henderson was Williams’s girlfriend at the time of the crimes and the white Cadillac that was impounded was registered to her mother. Henderson testified she was at work on October 24, 2012, from 10:00 to 2:30 and she had the car with her. Kroeker verified she had been at work, but was unable to verify whether the car was there because there was no video surveillance of the exterior.
Kroeker testified Henderson told him she let Williams drive her car alone approximately 10 times. However, Henderson testified Williams had driven the car without her being present only twice and both times, he was pulled over. She also testified that while she may have told Kroeker that Williams had driven the car approximately 10 times, she was also present in the car with him.
c. Expert Testimony onEyewitness Memory
Dr. Mitchell Eisen testified for the defense as an expert on eyewitness memory and factors that affect that memory. Eisen, who held a Ph.D. in psychology and was a professor at the University of California, Los Angeles, explained that eyewitness evidence is subject to contamination through various factors. As an initial matter, the admonition that the suspect’s photo may not be in the lineup is important. Otherwise, he testified, “people are much more likely to choose somebody from that group mistakenly because they assume the bad guy’s there and they’ll choose even if they’re not—they don’t have strong recognition.”The admonition serves the purpose of attempting to counteract the witness’s assumption that the suspect must be in the lineup, which in turn leads the witness to select someone even if unsure.
Eisen also explained the concept of latency, which is the length of time it takes to make a choice. He testified that basic memory research shows recognition occurs quickly, outside of one’s awareness, but because some witnesses may not say anything immediately, they should be given 20 to 25 seconds to consider photos. However, if after 30 seconds the person has not made a definitive decision, there is no tangible recognition. Instead, the search type changes. People begin searching the photos in spite of the admonition that the suspect’s photo may not be present and in the absence of clear recognition, and they begin to “narrow it down to the one that mostly resembles their memory.”
Eisen testified that the person administering the lineup should not talk, as any inadvertent behavior, even something simple or unconscious, can cue the eyewitness. He explained that in an effort to avoid cuing, approximately one-third of the country now conducts double blind procedures, where someone other than the case investigator conducts the lineup. This removes from the process any inadvertent influence that might result from the involvement of an investigator who has invested in a hypothesis and a suspect, and has an incentive in an identification.
Eisen also described the carryover effect and the commitment defect. The former involves testing someone’s memory of a face twice. After someone has seen a face once, it becomes familiar and is familiar on subsequent viewing. Familiarity is therefore generated simply by showing the same person’s photo more than once, and that familiarity in turn leads to selection of the same person’s photo more frequently. Commitment defect occurs once a selection is made. The witness comes to believe the person selected is the suspect and subsequent viewing of the person’s photo confirms the selection. Eisen testified that for these reasons, if a witness requests additional photos of a suspect, it indicates the person is seeking confirmation.
Eisen also testified that the failure to recognize someone in a lineup is more predictive that those included in the lineup were not involved than recognizing someone is predictive of the person being involved.
In addition, Eisen addressed postidentification feedback effect, in which feedback that an identification is correct inflates the person’s confidence in the selection. The opposite effect also occurs and a person’s confidence in a selection can be decreased through negative feedback. Eisen described confidence-inflating feedback as significant and stated that it explains “how the ‘kind of looks like’ can turn into I’m 100 percent confident over time.”
On cross-examination, Eisen testified that, in his opinion, the most persuasive identification evidence is the initial identification, along with evaluation of the procedures employed to obtain and preserve the identification. In contrast, testimony given “months or years later is by definition the product of the whole process.”
B. Ellis’s Murder
1. Prosecution’s Case
On the evening of October 31, 2012, Ellis, Nelson, Johnson, Lekendrick and Dansby were hanging out in the alley behind Nelson’s apartment on Pacheco Road, celebrating Ellis’s 50th birthday. The alleyway was dark and lit only by Nelson’s porch light.[16] The location was not within traditional ESC or CBC boundaries, but the gang expert testified there were pockets of gang members in the area and he came into more contact with CBC members.
a. Nelson’s Testimony
On direct examination, Nelson testified that a Pontiac Grand Prix with two Black men inside drove fast through the alley where Ellis’s group was hanging out, going westbound. Subsequently, two Black men approached and from a distance asked the group if they knew Jessica. They responded no and the men walked away. Nelson described “subject one” as wearing a tank top with blue jeans.He was lighter complexioned and smaller than the second man. “[S]ubject two” was wearing a white T-shirt with black jeans, and was darker complexioned and larger.As soon as the men asked about Jessica and Ellis’s group responded they did not know her, Lekendrick left.
About three minutes later, the Pontiac Grand Prix traveled down the alley a second time at a normal rate of speed, heading eastbound. Only the driver was inside, “sloped down real low in the seat.”Nelson could only see the top of his head, but said he was Black. The car parked and its brake lights were visible to Nelson. A man then started shooting at them before fleeing.Nelson testified he did not see what the gunman was wearing or what the gun looked like, but that he was Black. Nelson ran through the building to the front apartment on Pacheco. When he came back out, Ellis was lying on the ground dead.
Nelson recalled telling Officer Martinez that the second time the Grand Prix drove through the alley, subject two was driving; but at trial, he stated he was not sure and could not tell. Nelson denied telling Martinez he saw the gunman aiming at them from approximately 50 to 60 feet away and he stated that Dansby was the one who saw the gunman.
Nelson initially described the car to police as a gray, late 1990’s Pontiac Grand Prix with a white front fender and standard tint around the back windows. When later shown photos of a car with a white hood, Nelson told Dossey and Kroeker it was possibly the same car, but he did not recall it having a white hood. At trial, he explained he was sitting in a chair next to his lowrider and had a side view of the car. He stated the car in the photos was “similar” to the one he saw go down the alley because “[i]t’s got the white on the fenders on both sides and it’s gray.”
On cross-examination, Nelson denied telling officers the night of the crime that he was standing in the alleyway. He testified adamantly that he was sitting in a chair leaning against his lowrider the entire time. He also denied telling officers both people in the car were lying back in their seats and it drove through the alley slowly. He reiterated that the car was going fast the first time and slow the second time.
Nelson testified that the first time the car went through the alley, the darker complexioned man and the lighter complexioned man were in the car, and the second time through, the darker complexioned man was driving. He also testified the darker man was in the car when shots rang out, but he could not tell the complexion of the man with the gun, whom he described as wearing a white pullover sweatshirt with the hood up. He denied telling officers that he saw subject one approaching with a gun and that he frequently saw that man at a specific 7-Eleven store. Nelson testified that officers later showed him a photo of an older man and it was the man in the photo he had seen at the 7-Eleven store. He also testified he had never seen the two men before the night of the crime and police reports contained statements he knew he did not make.
Nelson agreed he told officers he had seen a similar vehicle parked in the area of Balboa Drive and Calcutta Avenue. When Dossey and Kroeker met with Nelson at his apartment on November 6, 2012, he told them he would be able to recognize the vehicle. He denied he told them “[n]o” when they showed him two photos of a vehicle. He also denied telling them the hood was not white when asked what was different about the car in the photos. Nelson testified that he did not see the hood of the car and said he told detectives he was not sure if the hood was white. He agreed he told them that the car in the photos could have been a newer model and that it could have been gold in color. He also described the car to them as having “stock Pontiac wheel[s].”
On redirect, Nelson explained that by “stock” wheels, he meant wheels that would have come from the dealership. He also again stated he told detectives the fenders were white.
b. Johnson’s Testimony
Johnson testified he saw a gray Pontiac Grand Prix drive through the alley.[17] He did not see who was inside. The car came back through a second time. He did not see the occupants that time either, as he was not paying attention. At some point, two Black men approached from a distance. One had a tank top on and the other a white T-shirt, and one was taller than the other. He could not see their facial features. Johnson was not sure in which sequence the men approached and the car drove down the alley twice, but he testified he heard gunshots approximately 10 minutes after the car drove down the alley the second time. He ran to his mother’s house in the front of the building. When he went back outside, his uncle was lying face down.
On cross-examination, Johnson testified he was sitting down when the vehicle came through the alley the first time. Subsequently, the two men approached and then the car came through the alley a second time.[18] Lekendrick left between the time the car drove through a second time and the shooting.
The day after the shooting, Johnson told Dossey the vehicle looked like a 2000 gray, four-door Pontiac Grand Prix with tinted windows. He did not observe any white on it; but at trial, he testified he was not paying attention. He also told Dossey he was not sure if the occupants of the vehicle were the same men who approached on foot. He testified he did not see the people in the vehicle and his statement to police the night of the shooting that there were two people in the car was based on what Lekendrick had told him. Johnson initially told an officer one man was wearing a white tank top; but the next day, he told Dossey it was a dark tank top and he is colorblind.
Johnson agreed that when the defense investigator interviewed him in March 2013, he said he did not know defendant well, but had seen him a couple of times within the past year. At trial, he testified he had seen defendant a number of times prior to the shooting, but did not know him. Johnson initially denied and then conceded telling the investigator he would have recognized defendant if he had seen him that night. He subsequently testified, “If I seen anybody.”On redirect, he stated, “I didn’t see anybody,” and reiterated he did not see anything with respect to the occupants of the vehicle.
Also on redirect, Johnson testified the only time he saw the car was when it drove through the alley. He conceded he told Dossey the man wearing a white T-shirt and standing a distance away was wearing dark jeans, and that he described the man to Dossey as Black with a dark complexion, 20 to 21 years old, and approximately 195 pounds with short black hair.
On recross-examination, defense counsel questioned Johnson regarding his statement to the defense investigator that his cousin showed him photos of defendant and he did not recognize defendant as one of the men from Halloween night. Johnson responded that he did not see the men, they did not come up to him and he did not see who shot his uncle. He also again denied saying his group was standing in the alley.
c. Lekendrick’s Testimony
Lekendrick testified his mother lived in the front apartment of the building they were behind and it had a walkway to the back alley. It was his uncle’s birthday and they were hanging out in the alley, preparing to cook some fish. A gray Grand Prix with a white fender drove through the alley fast, traveling westbound. He testified that after the car parked, two Black men got out and asked if someone lived there or something to that effect. The taller man had on a white T-shirt and the shorter man had on a white tank top. Lekendrick could not see them well because it was dark, but he could tell the taller man in the T-shirt was dark complexioned and the shorter man in the tank top was light complexioned. They stood a roughly estimated 30 to 40 feet away. After Lekendrick’s group responded in the negative, the men walked back to their car.
Lekendrick got in his car, which was parked in the alley, and followed the route taken by the Grand Prix. As he turned onto the street, he slowed slightly and saw the two men standing beside each other right next to the car. He did not see anyone else in the car. He was going to ask them a question, but decided it would be better not to say anything to them. He lived two streets away and as he passed the car, he saw them reach for the front passenger door. Concerned they were going to follow him home, he sped up a little. He did not see the men enter the car, but from his rearview mirror, he saw the car make a U-turn. He drove home. As he entered his house and grabbed his phone to call his uncle, he heard gunshots. He, his mother and his wife got in his car and drove back up the street toward the alley, where they found his uncle lying on the ground.
Lekendrick was later shown a photograph of a car. He testified it was the same car that came down the alley. He was also shown a photographic lineup of six men. He testified it was dark in the alleyway and he could only see the men’s silhouettes as they approached his group in the alley, not their features. He selected photo number two, which was defendant’s photo, from the lineup based on head shape.
On cross-examination, Lekendrick confirmed he had prior arrests. He also confirmed he told officers the two men were lying back in their seats when they drove through the alley and, even though it was dark, he could see it was a silver car with a white bumper. He denied telling the officers that he saw a Black male in his 20’s or early 30’s wearing a white, hooded sweatshirt walking toward them and said the officers got witnesses’ names mixed up, as he was not there during the shooting.[19]He testified he told officers he saw a gray, late 90’s Pontiac Grand Prix with a white fender. He did not tell them the car had a white hood. He also testified he told officers the car had a “tail” or “windbreaker” on the back, but after being unable to find that information in the police report, he said he could not remember exactly what he said.
When he was interviewed by Dossey on November 8, 2012, Lekendrick said his previous statement that the men asked for Jessica was not true and they instead asked if the group had any weed. At trial, Lekendrick did not remember what he said word for word, but he did not dispute that aspect of his statement to police. He testified he did not sell drugs, however, and he had a job.
Lekendrick also testified that he signed the lineup because he was told to and he selected the photo based on head shape, not facial features. Further, he provided that same information to the district attorney’s investigator in March 2013. Regarding the car photo the eyewitnesses were shown, Lekendrick testified that Nelson told both him and an officer that the car in the photo was not the same car.
Lekendrick denied telling the defense investigator that he would recognize defendant if he saw him, that he saw defendant approximately two weeks before the shooting sitting in the car with his niece or that he did not recognize either of the two men as defendant. He testified he did not know who defendant was and had never met him, and he had only one niece, who was four years old.
On redirect, Lekendrick testified he had been employed with a company for the past two years, approximately, and had put his past behind him. He also testified that he and the others saw the right passenger side of the car when it drove through the alley and he saw the car’s white fender. When he passed the car on the street, he passed the driver’s side. He thought the man with the tank top had on short pants while the man in the T-shirt had on long pants.
On recross-examination, Lekendrick testified he is 5 feet 10 inches tall and, along with the others, was standing up when the car drove down the alley, but he did not see the white hood. He explained he was looking at the car from the side rather than from the front. He also testified he had consistently stated he never saw the men’s faces and he signed his name to the lineup based on head shape. He testified that he told Dossey the lighter complexioned man appeared to be counting persons present and the darker complexioned man was “walking funny like someone who got out of prison.”
On the second redirect, Lekendrick testified that they were sitting, standing and doing different things. He also testified the shorter man was kind of pacing back and forth while the taller man did the talking, which is what led him to think the man was counting people. The photo he selected from the lineup was the taller, darker skinned man, although he never saw the man’s face.
d. Investigation
1) Dossey’s Testimony
Dossey was the lead investigator assigned to Ellis’s murder between the time of the crime and October 2013. He interviewed Dansby, Johnson, Nelson and Lekendrick.
Dossey testified that on November 6, 2012, after an officer located a Grand Prix parked outside a residence on Dolores Street, police made contact with defendant, who initially denied knowledge of the car, but then admitted to driving it. The registered owner of the car was Darren Bailey, who was in custody as of October 31, 2012.
Dossey testified that Lekendrick told him suspect two was wearing dark jeans, possibly shorts, and that Lekendrick selected defendant’s photo from the lineup based on skin tone and head shape. Dossey also testified Lekendrick said he had never seen defendant before.
2) Kroeker’s Testimony
On cross-examination, Kroeker testified that Nelson said he got a good look at the vehicle and would be able to recognize it from a photo.[20] Nelson then responded to the photo, “[N]o.”When Kroeker asked him what was different, Nelson said, “[T]he hood wasn’t white.”He also said the vehicle in the photo looked like a newer model and the car was “a fettered gold.”Kroeker testified that the Grand Prix located on Dolores Street was a 1999, approximately, and had a spoiler, which was a feature not present on all 1999 Pontiac Grand Prix models. Kroeker also testified that although Nelson mentioned the bubbly rear window tint, he did not mention the car having a spoiler.
3) Other Evidence
Seven spent nine-millimeter shell casings were recovered from the crime scene. The casings came from the same gun, and they were compared to the casings found at the scene of the attack on Francies. The ballistics expert concluded the casings from both crime scenes matched and were fired from the same gun. The gun was not located, however.
The prosecution’s cell phone data analyst testified that two phone calls were made from defendant’s phone within minutes of Ellis’s murder. Based on the location of the cell phone tower those calls connected to, the analyst testified defendant’s phone could not be excluded from presence at or near the scene of Ellis’s murder. The precise location of defendant’s phone could not be determined, however. The analyst explained the phone was in the “general area” of the crime, or anywhere in the cell phone tower’s coverage area of several miles. Calls from defendant’s phone also hit that cell phone tower at times other than within minutes of the shooting. Based on the records, calls from his phone hit that tower 76 times between October 1, 2012, and November 19, 2012.
2. Defense Case
Tiara Lowe, an investigator for the defense, interviewed Johnson and Lekendrick. Lowe testified that Johnson stated he was not sure if the two men who approached them in the alley were the same two involved in the shooting. Johnson alsostated he did not know defendant, but had seen defendant around town and said, “If I would have seen him that night I would have recognized that person.”Johnson also told Lowe his cousin showed him photos of defendant on Facebook after the shooting. Johnson did not recognize defendant as being there that night, but would have, had defendant been one of the two men who walked up to him.
Lekendrick told Lowe he did not identify anyone and was not present for the shooting. He said he did not know defendant, but had seen defendant in the weeks prior to the shooting in the back of a vehicle with his niece, and when he drove by the two men, he did not recognize defendant as one of them. He also described the involved vehicle to Lowe as a gray Grand Prix with a white fender.
V. New Trial Motion
The jury returned its verdicts on March 27, 2014.On August 29, 2014, prior to sentencing, defendant filed a motion seeking a new trial based on the discovery of material evidence withheld by the prosecution, in violation of his rights under Brady.Following receipt of the opposition and reply, the trial court held a hearing on the motion on September 19, 2014.
A. Orozco and Madden’s Testimony
As summarized, ante, approximately two months before trial, Talisha contacted police to report Womack had spit on her and attempted to hit her through her open car window, and that he may have been involved in Ellis’s murder. Officer Juan Orozco went to Talisha’s residence, took the report and passed the information on to his supervisor. He testified during the hearing that he also tried to locate Womack regarding the assault allegation, but was not successful.
Officer Clayton Madden was the duty sergeant on January 23, 2014.[21] He received a call from a field supervisor regarding someone who had information on a homicide. Madden notified King and Cegielski, who took Talisha’s statement. Madden had no further involvement, as per procedure, King and Cegielski were required to follow up with the homicide sergeant.
B. King’s Testimony
King testified that after he and Cegielski took Talisha’s statement, he did notfollow up with her, although he attempted to reach her by phone and she did not answer. He did not try to contact her at her place of employment or her residence, and he did not follow up with her sister, with any of the witnesses she said were present in the apartment when Womack stated he killed Ellis, with the mother of Womack’s children or with Womack.
King testified that, pursuant to procedure, he spoke with Dossey and Kroeker, who were the investigating officers. He also testified he had previously read somewhere that witnesses had eliminated Womack as a suspect from a lineup, and Dossey and Kroeker confirmed that when King spoke with them. After his conversation with Dossey and Kroeker, it was King’s understanding that “they had already looked into … Womack and that they had excluded him as a witness. It doesn’t mean he couldn’t have … been involved. It just means—at least my understanding was that they could not prove his involvement.”King did not do any further follow up, as he “trusted … [it] had been done.”
C. Dossey’s Testimony
Dossey testified that he was the lead investigator in Ellis’s murder and was in control of the investigation. He said that during the early stages of the investigation, he recalled “hearing information from the streets that [Womack] was possibly involved”He testified, however, that “[Womack’s] physical stature didn’t necessarily meet what I was being provided by the victims, but I still used a photographic line-up to my key witness, which he was unable to identify him.”Dossey also subsequently testified that he conducted photo lineups with witnesses that included Womack’s photo.
Referring to his report, Dossey testified to the following physical descriptions provided by Lekendrick the night of the shooting. Suspect one was a “Black male, 25 to 26, 5’9”, 170 pounds, medium build, dark complected, white T-shirt, dark jeans, might have been shorts, and hair in a short black fade.”Suspect two was a “Black male, 23 to 25, 5’6” to 5’7”, 150 pounds, light complected, thin build, wearing a loose white top, light colored, gray or tan, Dickie style shorts or pants, and his hair was black and short in length.”Based on descriptions provided by all the witnesses, one of the men “was very dark complected [and] a little bit taller than the second suspect,” and “[t]he other suspect was very light skinned and shorter, 5’5”, 5’6” area.”
Dossey testified that Dansby described the first suspect “as a black male, 5’7” to 5’8”[,] 145 pounds, thin build, wearing a white tank top, having a black faded style hair.”Dansby was not shown any lineups, however, “because he could not identify them by their face. He only saw a general description.”
Dossey testified he did not show Johnson or Dansby a lineup with Womack’s photo in it and, after initially testifying he showed Lekendrick a lineup with Womack’s photo in it, Dossey conceded he did not do so and stated he had been confused over the interview he did with Shamar Hill.[22] Dossey testified he did not include Womack’s photo in any of the lineups nor did he show Womack’s photo to any of the witnesses, and he was not aware of anyone else including Womack’s photo in a lineup. He also testified that in June 2014, he told the defense investigator he first showed Lekendrick a lineup with Womack’s photo in it before showing him a lineup with defendant’s photo in it, but denied telling Lowe that Talisha’s statement regarding Womack’s confession was not “credible.”
Dossey testified that he became aware of Talisha’s statement to police approximately one week after it was made, and he recalled having a conversation with Cegielski. However, he was no longer the lead detective on the case at that pointand he considered the investigation complete by the end of October 2013, as he had identified two suspects: defendant and Hunter. Dossey also testified he was not responsible for relaying the information to the prosecutor and he assumed the detectives would do so.
On cross-examination, Dossey testified he showed Lekendrick lineups that included photos of defendant, Hunter and Williams. He explained he had showed a photo of Womack to Hill in December 2012 and, when he spoke with the defense investigator in June 2014 and told her Womack’s photo was included in the lineups, he was relying on his memory.
He testified he recalled discussing Talisha’s statement with Cegielski approximately one week after it was taken and with King approximately a week or so after that. However, since he was no longer assigned to the case, he “just was trying to hear what was going on more or less.”He recalled discussing with King a family relationship between Talisha, Hunter and Womack, and “that it was suspect that it took so long for her to come forward with the information.”He testified he was not aware of anyone passing on information about Talisha’s statement to the prosecutor or the district attorney’s office, but he had assumed someone was doing a follow up since he was no longer assigned to the case.
On redirect, Dossey explained that Hill was with other individuals at the 99 Cent Store and the purpose of showing Womack’s photo to him related to making identifications in the 99 Cent Store video; Hill was not a suspect in or a witness to Ellis’s murder. Dossey confirmed he was of the opinion that Talisha’s statement was “suspect” and “self-serving,” but he was not aware of the entire contents of the statement or that she was being threatened by Womack and others.
D. Lowe’s Testimony
Lowe testified she spoke with King on May 28, 2014, Dossey on June 10, 2014, Johnson on June 23, 2014, and Talisha twice, the second time on June 25, 2014. King told Lowe he spoke with Dossey and Kroeker regarding Talisha’s statement, and he believed Dossey showed a lineup with Womack’s photo in it to witnesses and they were unable to identify him. He also told Lowe he attempted to contact Talisha several times, but was unable to find her.
Lowe testified Dossey told her the information in Talisha’s statement “was not credible,” and he specifically stated he believed it was not credible “because he recalled showing a photo line-up to Lekendrick Ellis.”He also stated he showed Lekendrick a photo lineup that included Womack before showing a lineup including defendant, and Lekendrick excluded Womack as being involved in Ellis’s murder.
Lowe testified she showed Johnson several booking photos of Womack and a still photo of Womack from the 99 Cent Store video. Johnson said Womack’s physical description and clothing matched one of the suspects in Ellis’s murder.
Finally, Lowe testified she made contact with Talisha without difficulty: she left her business card at Talisha’s residence and Talisha called her. Lowe also contacted Talisha on June 25, 2014, at Talisha’s place of employment, where she had worked for eight years. Talisha was emotional, but cooperative and still had the same cell phone number, was residing at the same address and had the same employer as when she gave her statement to King and Cegielski. When Lowe asked Talisha about her statement that Womack was with defendant, Talisha said Womack never stated he was with defendant and she brought up defendant’s name only because he and Hunter were locked up for the crime. Talisha also said that as far as she knew, King did not try to make contact with her, as no cards were left at her residence and no messages were left on her voicemail.
E. Trial Court’s Ruling
The trial court ruled that the evidence of Talisha’s statement was suppressed, but because the evidence was neither favorable to the defense nor material, no Brady error occurred. The court found that because Womack allegedly said he was with defendant, evidence of Womack’s involvement as the shooter did not undermine or contradict the prosecution’s evidence or argument at trial and even arguably supported it. Additionally, the court found that Talisha’s subsequent posttrial statement did not “change that fact.”It explained, “[T]he determination of whether the evidence that was suppressed, which is the evidence the officers were aware of at the time, was favorable material evidence is not based on the cast of what someone gives to it later or on a differ[ent] statement that someone else makes later or on what they say as far as their motivations. It is based on the information they are aware of at the time and they know, because that is all they can either disclose or not disclose.”
The trial court first considered the evidence as it related to the attempted murder of Francies and then as it related to Ellis’s murder. The court noted the two crimes were separate, but linked by the firearm and cell phone records.[23] It found that Talisha’s statement was unrelated to the shooting of Francies and there was no reasonable probability it would have led to a different verdict. As to the murder of Ellis, the court found that the evidence was not favorable, material evidence because it did not undercut the prosecution’s case. The court then denied defendant’s motion for a new trial on the ground that Brady elements one and three were unmet.
DISCUSSION
I. Standard of Review
A claim of Brady error is “subject to independent review.” (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) “Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence.” (Ibid.)
“[A] trial court’s ruling on a motion for new trial is reviewed under a deferential abuse of discretion standard. [Citation.] Its ruling will not be disturbed unless [the] defendant establishes ‘a “manifest and unmistakable abuse of discretion.”’ [Citations.]” (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27, abrogated in part on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 641–643.) Where, as “[h]ere, the asserted abuse of discretion is the asserted failure of the trial court to recognize violations of defendant’s constitutional rights[,] [o]ur constitutional analysis … also addresses the abuse of discretion issue.” (People v. Hoyos, supra, at p. 917, fn. 27.)
II. Brady Error
“‘A fair trial in a fair tribunal is a basic requirement of due process.’” (People v. Freeman (2010) 47 Cal.4th 993, 1000, quoting In re Murchison (1955) 349 U.S. 133, 136.) “‘It is the duty of the district attorney, not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands on trial and it is the solemn duty of the trial judge to see that the facts material to the charge are fairly presented and the constitutional guarantees of a defendant neither violated nor infringed.’ [Citation.] The right of an accused to a fair trial, conducted substantially according to law, is at the same time the right of every person to protection against procedures which might illegally deprive him of life or liberty. ‘It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to [the] defendant shall be respected.’” (People v. Kiihoa (1960) 53 Cal.2d 748, 753.)
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87; accord, Wearry v. Cain (2016) revd. per curiam, __ U.S. __, __ [136 S.Ct. 1002, 1008]; In re Sodersten (2007) 146 Cal.App.4th 1163, 1225.) A true Brady violation has three components: “‘[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” (In re Sodersten, supra, at p. 1226.)
“‘For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness.’ [Citation.] ‘[The] touchstone of materiality is a “reasonable probability” of a different result .…The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.”’ [Citation.] In determining whether evidence is material under this standard, we consider ‘“the effect of the nondisclosure on defense investigations and trial strategies.”’” (People v. Williams (2013) 58 Cal.4th 197, 256; accord, Wearry v. Cain, supra, ___ U.S. at p. ___ [136 S.Ct. at p. 1006].)
“Because ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police’ [citation], ‘Brady suppression occurs when the government fails to turn over even evidence that is “known only to police investigators and not to the prosecutor”’ [citations]. Moreover, the duty to disclose exists regardless of whether there has been a request by the accused, and the suppression of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent, or inadvertent.” (In re Sodersten, supra, 146 Cal.App.4th at p. 1225.)
“A determination that the prosecution improperly withheld material information requires reversal without further harmless error analysis.” (People v. Williams, supra, 58 Cal.4th at p. 256.)
III. Analysis[24]
On appeal, defendant argues that the suppression of Talisha’s statement entitled him to a new trial on all counts, and articulates five specific grounds. He points out that the trial court failed to consider Talisha’s subsequent disavowal of her earlier statement that Womack said he was with defendant. He also points out that witnesses described a dark complexioned man and a light complexioned man, and both Womack and defendant are dark complexioned. Further, he contends Kroeker’s involvement in suppressing Talisha’s statement was prejudicial, independently, because one of the defense theories involved Kroeker’s animus toward defendant and the withheld evidence was relevant to that animus. In addition, it is unknown whether the jury convicted defendant as the shooter or the aider and abettor. Finally, the two crimes were linked through the gun and the modus operandi, and the suppressed evidence was therefore “‘cross-inculpatory’” as to each crime.
In response, the People assert that Talisha’s statement neither hurt the prosecution nor helped the defense and, as the trial court concluded, it helped the prosecution by establishing defendant’s role as the aider and abettor in the murder of Ellis. The People also contend that the record excluded Womack, a dark complexioned man wearing a white tank top, as a suspect and even if he was the shooter, the prosecution’s theory was that defendant was the driver. They further contend that the statement was not material to the attempted murder count because it had no bearing on that crime. Regarding defendant’s argument that Kroeker “improperly influenced the case,” the People respond that Kroeker did not handle the murder case and did not act improperly with respect to Talisha’s statement.
A. Favorableness
The trial court found that Talisha’s statement regarding Womack’s alleged inculpation of himself as the shooter in Ellis’s murder was neither helpful to defendant nor harmful to the prosecution because the prosecutor’s theory was that defendant aided and abetted the murder as the driver.[25] It reasoned that Womack’s statement not only did not exculpate defendant from involvement in the crime, but it still placed him at the scene with Womack. While true as far as it went, this view of the evidence was overly narrow.
It is true that Talisha’s first statement expressly placed defendant at the scene of the crime and, as such, would have further bolstered the prosecution’s theory that defendant was the driver rather than the shooter. However, “[a] criminal defendant has a right to present evidence of third party culpability if it is capable of raising a reasonable doubt about his own guilt.” (People v. Sandoval (1992) 4 Cal.4th 155, 176; accord, People v. Hall (1986) 41 Cal.3d 826, 833.) Here, as we explain, the statement not only directly inculpated another person in the crime, but, in doing so, it provided new evidence upon which the defense could base its reasonable doubt argument. (People v. Casares (2016) 62 Cal.4th 808, 830; People v. Abilez (2007) 41 Cal.4th 472, 517.)
First, the trial court and the People’s focus on Womack’s alleged placement of defendant at the scene ignores Talisha’s subsequent disavowal of that aspect of her statement. While this disavowal does not directly deal a fatal blow to the prosecution’s theory of the case that defendant aided and abetted the murder as the driver, it certainly walks back some of the initial statement’s force as it pertained to express inculpation of defendant in the crime. We recognize the trial court seemingly limited its consideration to the first statement because that was the information withheld prior to trial. However, Brady error analysis takes into consideration the effect on investigation and trial strategy and Talisha’s second statement was obtained as a direct result of the investigation the defense initiated once it learned of her first statement. We need not resolve the issue of whether the trial court erred in confining its analysis to the first statement, however, because there exists additional and more compelling grounds for concluding the evidence was favorable to the defense.
By all accounts, two men were involved in Ellis’s murder, and defendant and Hunter were codefendants charged with the crime until Hunter pled no contest to a reduced charge. We need not and do not determine the ultimate admissibility of Hunter’s no contest plea, as the trial court and the parties had no opportunity to consider the issue in the context of its relevance as potentially exculpatory evidence, in particular when viewed through the lens of Womack’s allegedly inculpatory statement. (See People v. Cummings (1993) 4 Cal.4th 1233, 1321–1322 [evidence of the codefendant’s guilty plea offered to bolster witness credibility more prejudicial than probative], disapproved on another ground in People v. Merritt (2017) 2 Cal.5th 819, 831; People v. Leonard (1983) 34 Cal.3d 183, 187–188 [probative value of the coarrestee’s guilty plea questionable while prejudicial effect substantial]; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1061–1062 [evidence of the conspirator’s conviction admissible on grounds other than to show the defendant’s guilt].) Inescapably, however, Womack’s allegedly inculpatory statement added a third potential suspect to what was a two-man crime, a development that clearly helps the defense and hurts the prosecution.
Critically, witnesses described the two suspects as a taller, darker complexioned man and a smaller, lighter complexioned man. Although Dossey testified during the new trial hearing that Womack did not fit the general suspect description, we are left perplexed as to the basis for his conclusion, as defendant and Womack both have dark complexions and were generally similar in height and weight.[26] Moreover, Hunter is affirmatively described in the record as light complexioned.[27]
While there was conflicting evidence regarding whether some witnesses knew who defendant was and excluded him as being involved, no witness testified to seeing the face of the shooter or the driver at the time of the shooting and, according to all three eyewitnesses who testified, Lekendrick, who arguably provided the most detail, was not even present during the shooting. Involvement in the crime by one dark complexioned man and evidence of two potential suspects with dark complexions is, again, obviously favorable to the defense in its effort to create reasonable doubt regarding whether defendant was at the crime scene. Such evidence has the potential to be particularly powerful given the existence of a third man, Hunter, who was apparently light complexioned.
The evidence also had impeachment value that was helpful to the defense and harmful to the prosecution. Given the facts of this case, that value is not trivial. Womack’s photo was not included in any lineups or otherwise shown to any eyewitnesses. This failure by investigators is surely an avenue the defense would have pursued with great vigor, and it was a failure that is potentially very damaging to the prosecution in light of its two lead investigators’ alleged representations to others that Womack had been eliminated by witnesses as a suspect.
With regard to the attempted murder count, the trial court addressed that count first and found the suppressed evidence was not relevant given it did not relate to that crime. Ultimately, the constitutional issue is whether the suppression of evidence deprived defendant of a fair trial, however, and we are not persuaded that the murder and attempted murder counts can be so cleanly excised from one another. (Kyles v. Whitley (1995) 514 U.S. 419, 434–436; In re Sodersten, supra, 146 Cal.App.4th at pp. 1226–1227.) The mere fact the crimes were joined together in the same trial despite being committed on different days against different victims militates against an argument there exists no overlap between the two. (§ 954; People v. Armstrong (2016) 1 Cal.5th 432, 455.) At a minimum, approaching the crimes as the trial court did cut off consideration of the overall impact of the suppressed evidence on defendant’s right to a fair trial on all counts.
The murder and attempted murder counts were linked through use of the same gun and modus operandi: a car passed a group of men, one time in rival CBC territory and one time in “soft” rival CBC territory; the car turned around; the men in the car took some time to contemplate; and the shooter then approached and fired.[28]Defendant argues the two counts “sank or swam together.”While we are not persuaded the two crimes are that inextricably intertwined, we agree that the suppressed evidence, while directly relating to the murder count, was nevertheless also favorable to the defense on the attempted murder count. The evidence’s impeachment value as it relates to the credibility of Kroeker and the integrity of the murder investigation is not strictly limited to Ellis’s murder. Any inroads the defense might have made regarding Kroeker’s action or inaction as it related to Womack’s involvement in Ellis’s murder, and any alleged misrepresentations he made regarding Womack’s exclusion as a suspect, necessarily had potential impact on the jury’s view of his testimony concerning his own investigation into the attempted murder. Notably, one of the defense’s trial strategies was to show preexisting animus between Kroeker and defendant. The defense also presented expert testimony on the issues of eyewitness memory and lineup procedure, and defendant’s counsel questioned Kroeker at length regarding the lineups he conducted and what he said and did while conducting them, issues on which the jury’s view might have been affected had the defense been able to offer the additional impeachment evidence against Kroeker.
Also, any potentially exculpatory evidence the defense would have been able to present regarding the murder would have had some corresponding impact on the attempted murder count given the crimes shared the same weapon and, arguably, the same modus operandi. The People have not persuaded us that the impact of exculpatory evidence which helps the defense and hurts the prosecution as to one crime can necessarily be so cleanly confined to that crime where, as here, there are shared commonalities linking the crimes.[29] In determining whether Brady error occurred, we are not called upon to determine how jurors might resolve such issues or whether their resolution might lead to a different verdict for defendant. We need only determine whether the evidence is favorable to defendant, and evidence that potentially exculpates him in one crime necessarily bears on the jury’s evaluation of evidence offered against him for a second crime, to the extent that evidence allegedly ties the two crimes together. It is in this regard that the favorable impact of exculpatory evidence relating to one crime may also be favorable to the defense as to the second crime.
For these reasons, we conclude that Talisha’s suppressed statement, while in part favorable to the prosecution as the trial court determined, was also clearly favorable in part to the defense, both as potentially exculpatory evidence and as impeachment evidence. Moreover, it was favorable as to both the murder and the attempted murder counts.
B. Materiality
We reiterate that materiality does not entail a substantial evidence analysis and defendant does not have to demonstrate a reasonable probability of a different verdict had the suppressed evidence been disclosed to the defense. (Kyles v. Whitley, supra, 514 U.S. at pp. 434–435; accord, People v. Williams, supra, 58 Cal.4th at p. 256.)
The prosecution’s case against defendant was not airtight for either crime. Ellis’s murder took place at night in a poorly lit alleyway. None of the witnesses purported to have seen the face of either the shooter or the driver. Defendant’s photo was selected from a lineup only by Lekendrick, and that selection was made in the context of head shape and skin tone that were similar to one of the suspects.
Witnesses mostly consistently described a taller man with a dark complexion wearing a white T-shirt and a shorter man with a light complexion wearing a white tank top. Nelson testified that the driver of the Grand Prix was solo the second time it passed through the alley, and the darker complexioned man was driving, but only the top of his head was visible. He also testified he did not see the light complexioned man, the shooter was wearing a white sweatshirt with the hood up and he could not tell the complexion of that person. Johnson did not see the men’s faces, did not see who was in the car and was not sure if the men who approached on foot were the men from the car. The limited description of the men he provided was of the men who had approached on foot. Lekendrick was not present for the shooting, according to his testimony and that of Nelson and Johnson.
There were also inconsistencies relating to the identification of the Grand Prix. The vehicle investigators linked to defendant was a gray 1999 Pontiac Grand Prix with a white fender, white hood and spoiler on the back. None of the eyewitnesses described the car that went down the alley as having a white hood, although Lekendrick and Nelson described a white fender. Lekendrick positively identified the car, but did not see the white hood and, although he testified he told police the car had a “tail” or “windbreaker,” that information was not in the police report and he conceded he did not remember what he said.
Nelson testified the car in the photo investigators showed him was similar in that it was gray and had a white fender. At trial, he testified he did not remember a white hood, but he was adamant that he was sitting down when it passed through and only had a view of the side. He also denied having previously stated that the car in the photo was not the car that drove through the alley because that car’s hood was not white; however, Lekendrick and Kroeker both testified that Nelson had stated the car in the photo was not the car that drove through the alley, as its hood was not white. Nelson had also described the car as possibly gold and a newer model.
The gun was never located, although over the defense’s objections, the trial court permitted the prosecutor to introduce a redacted photo taken from defendant’s cell phone, which showed an individual with a semiautomatic handgun.From the presence of the photo on defendant’s phone, the prosecutor argued defendant had access to a handgun similar to the gun used in the crimes, although no evidence was introduced that defendant was the individual in the photo, and the gun used in the crimes was described only as a black or dark gray nonrevolver by Francies and a chrome or silver gun by Gage.[30]
Cell phone records placed defendant’s phone within several miles of Ellis’s murder at the time of the crime and it could not be excluded as being at the scene of the crime. Conversely, the phone could not be specifically placed at the scene of the crime.
Regarding the attempted murder count, Francies and Gage reached different conclusions when shown the lineups. Francies selected defendant’s photo with a certainty level of 70 percent. He reached 80 percent certainty after viewing full body photos of defendant, one of which included a white sedan in the background, and 100 percent certainty after viewing defendant during a hearing. Although Gage testified he got a good look at the gunman, he viewed two lineups that included defendant’s photo and he did not select defendant either time. In one lineup, he excluded defendant.
Regarding the car, investigators linked defendant with Williams and Williams to a white Cadillac registered to his then-girlfriend’s mother. Francies and Gage were shown a Google map photo of a white Cadillac parked in the driveway of the registered owner. Neither Francies nor Gage positively identified the car in the photo as the one involved in the crime, but each said it looked like the involved car. Francies had described the car as shiny white with brownish tan interior and without a hood emblem that stuck up, features that were not visible in the Google map photo.[31] Gage described the car as pearl white. Neither witness was shown any additional photos of the car once it was impounded, although those photos included the car’s interior and revealed an upright hood emblem.
Given the exculpatory and impeachment value of the suppressed evidence, which we have already discussed in some detail, its nondisclosure compels the conclusion that the defendant did not receive a fair trial. At its most obvious, the nondisclosure deprived defendant of an opportunity to pursue a defense based on the third party culpability of Womack and Hunter. Given that witnesses described a dark complexioned man and a light complexioned man, defendant and Womack are dark complexioned, and no witnesses to Ellis’s murder considered Womack’s photo, the potential impact of this evidence cannot be overstated.
This is particularly true when considered in the context of additional information obtained by the defense following the disclosure of the statement. As an initial matter, we note that Talisha told detectives Womack was driving a silver car. While we express no opinion on the odds of that particular car being a Pontiac Grand Prix with a white fender, the identification of the involved car was not without some inconsistencies and any reasonably competent defense attorney would want to consider this information.
Regarding the investigation undertaken by the defense following the disclosure of Talisha’s statement, counsel attested he had information that Hunter and Womack, who are cousins, are also related to Bailey, the registered owner of the Pontiac Grand Prix.[32] Moreover, Womack allegedly lived a couple houses away from where the car was located by police, he had the keys to the car at the time it was located and he had parked the car where it was located.This information standing alone presents an obvious avenue of investigation for the defense, but it takes on added significance when considered in combination with information regarding defendant’s and Womack’s presence at the 99 Cent Store prior to Ellis’s murder.
At approximately 6:00 p.m. on the day of Ellis’s murder, defendant was captured on surveillance video at the 99 Cent Store. He was wearing a white T-shirt, and still photographs from the video were introduced at trial as evidence of defendant’s appearance and what he was wearing fewer than two hours before the murder. In addition, defendant’s phone was used in the area of the 99 Cent Store at 6:00 p.m. and the still photos show him with his phone to his ear.
As related to the investigation into Ellis’s murder and to the new trial motion hearing, there is evidence in the record that Womack, Williams and Hill were also at the 99 Cent Store. According to information provided to police, Womack, who was allegedly in possession of Hunter’s cell phone, was at the store when some CBC members began hassling him. Williams and Hill arrived to provide assistance; defendant was also present. Additionally, Hunter’s mother arrived and allegedly retrieved Hunter’s cell phone from Womack.
Defendant’s counsel attested he had been informed by defendant that Womack had defendant’s cell phone at the time Ellis was shot. Counsel further attested that he had been informed that defendant, Womack and Hill left the 99 Cent Store in Bailey’s Pontiac Grand Prix, with Womack driving. Womack dropped defendant off and left in the car with defendant’s cell phone in his possession.
Regarding the attempted murder of Francies, the effect of the nondisclosure of evidence is collateral, but not negligible. While the potentially exculpatory evidence did not directly relate to the crime against Francies, the prosecution’s case nevertheless drew strength from linking the crimes via the gun and similar modus operandi. To the extent the exculpatory evidence undercuts the prosecution’s case on the murder count, the gun link and the modus operandi argument lose force, as we have discussed.
As well, the impeachment evidence involving Dossey and Kroeker is potentially compelling, as it directly related to Dossey and Kroeker’s credibility and to the integrity of their investigations. Evidence that investigators failed to follow up at all on evidence inculpating a third party in Ellis’s murder and then mislead others regarding the inclusion of that party’s photo in a lineup and his exclusion by witnesses is very powerful.
Any impact from the impeachment of Kroeker relating to the murder investigation would also be relevant to his involvement in investigating Francies’s attempted murder. Kroeker was not only the lead detective in that case, but was integral in building the case from the ground up. Defendant was not a suspect until Kroeker saw the photos on defendant’s phone, which he testified raised some suspicion in his mind. Kroeker also conducted the photo lineups and showed Francies and Gage the Google map photo of a white Cadillac for identification. In addition to cross-examining Kroeker about his investigation and the processes he employed, including but not limited to the photo lineups and identification of the Cadillac, defense counsel elicited testimony from Kroeker that he knew who defendant was and had used physical force against him in 2010. During closing argument, counsel argued he had never “seen a case where law enforcement officers proactively [and] against all evidence—just proceeded.”The availability of additional impeachment evidence against Kroeker clearly bolsters this trial strategy and as we have previously observed, the evidence of what investigators did or did not do following their receipt of the information provided by Talisha has the potential to be very compelling.
As well, we have no way of knowing how much weight the jury gave the defense expert’s testimony or how it resolved the conflicting eyewitness identification evidence. Given that Francies’s first two identifications of defendant were, although more certain than not, nevertheless tentative, any impeachment of Kroeker as to the murder count might have led the jury to view the expert’s testimony more favorably and Kroeker’s investigatory techniques more critically. It might have also led the jury to find Gage the more credible of the two eyewitnesses and to place greater weight on his response to the lineups. The possibilities are numerous in this case, but, in sum, it is enough that “there is ‘“[a] reasonable likelihood”’ [that the nondisclosed evidence] could have ‘“affected the judgment of the jury.”’” (Wearry v. Cain, supra, ___ U.S. at p. ___ [136 S.Ct. at p. 1006].)
C. Conclusion
We acknowledge that the evidence shows defendant was an active member of ESC at the time of the crimes, with a prior criminal record. We do not know whether he was involved in the attempted murder of Francies and/or the murder of Ellis. It is not for us to determine wherein the truth lies here. Just as Francies and Ellis deserve justice, so, too, does defendant. Regardless of the reprehensibility of the crimes for which they stand accused, all criminal defendants are entitled under the law to a fair trial, and justice is not served in the absence of a fair trial.
Defendant was entitled to have the jury view the evidence offered against him and make its findings of fact in the context of any exculpatory and impeachment evidence that might have resulted from the disclosure of Talisha’s statement. For the reasons we have identified, the suppression of the statement by law enforcement undermines our confidence in the jury’s verdict and we find the nondisclosure violated defendant’s right to due process. The trial court erred in concluding otherwise.
DISPOSITION
The trial court’s denial of defendant’s motion for a new trial is reversed. We reverse the judgment of conviction in its entirety and remand this matter to the trial court for further proceedings.


_____________________
KANE, Acting P.J.
WE CONCUR:


_____________________
FRANSON, J.


_____________________
SMITH, J.


Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com



[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Defendant’s claim of Brady error relates to counts 1 and 3. However, the felonious criminal conduct element of the substantive gang offense was defined as first or second degree murder. (§ 186.22, subd. (a).) Defendant’s conviction on count 2 was therefore dependent on his conviction on count 1 of first or second degree murder and a reversal of count 1 necessitates reversal on count 2.

[3] At the time of defendant’s conviction, section 4501 provided: “Except as provided in Section 4500, every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively.

[4] We have noted the People’s concession that error occurred as to the latter claim. We note further that although the issue was not raised on appeal, both the substantive gang offense under section 186.22, subdivision (a), and the gang enhancement under section 186.22, subdivision (b), must be supported by substantial evidence. (People v. Franklin (2016) 248 Cal.App.4th 938, 947.) The mere showing that defendant was an active East Side Crip (ESC) gang member at the time of the crimes, and that the crimes occurred in territory with pockets of rival gang members (count 1) and traditional rival gang territory (count 3) does not suffice to support either. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130–1131, 1139; People v. Albillar (2010) 51 Cal.4th 47, 55–56, 60; People v. Johnson (2014) 229 Cal.App.4th 910, 920–921.)

[5] We shall refer to Lekendrick by his first name because he and Ellis share the same last name. No disrespect is intended.

[6] Nelson was friends with Ellis. Johnson and Lekendrick are cousins and Ellis was their uncle.

[7] We refer to Talisha by her first name because she and Hunter share the same last name. No disrespect is intended.

[8] As discussed, post, after defense counsel became aware of Talisha’s statement to police and began investigating, Talisha gave a second statement to the defense investigator. In the second statement, Talisha said Womack never stated he was with defendant when he shot Ellis.

[9] King, Dossey, Kroeker and Cegielski gave posttrial statements to the defense investigator, andKing and Dossey testified during the hearing on defendant’s motion for a new trial. In his statement, Cegielski denied speaking with Dossey or Kroeker, but Dossey testified he recalled speaking with both Cegielski and King.

[10] We do not include a summary of the gang evidence introduced at trial, as it is not relevant to resolution of the issues raised on appeal. We note, however, that the parties stipulated ESC is a criminal street gang and they stipulated to ESC’s primary activities. (§ 186.22, subd. (f).) Relying on an order prohibiting defendant from having contact with other gang members and on defendant’s tattoos, gang clothing, prior contacts with law enforcement, self-admissions to gang membership and associations with self-admitted gang members, the prosecution’s gang expert testified defendant was an active member of ESC at the time of the crimes.

[11] The gang expert testifiedthat ESC and the Country Boy Crips (CBC) are rivals, and Francies’s residence on Madison Avenue was within the traditional boundaries of CBC territory.

[12] Per the transcript, defense counsel asked Francies about October 21, 2012. It is unclear if counsel erred or the error lies with the transcription, but the crime occurred on October 24, 2012.

[13] Francies testified he was not in a gang and had no record. He explained he said he was “not from around here” because he figured the shooting was gang related, as there was no other reason for it.

[14] Detective Kenneth Sporer, then an officer, spoke with Francies at the hospital. Based on Francies’s description of the car, Sporer put out a wanted notice for a “1990 Cadillac, possible two door, off-white, possible tinted windows.”In subsequent testimony, Sporer said Francies first said Francies did not know if the car had two or four doors and then said it was a big Cadillac with two doors. Sporer also explained the wanted notice was his best compilation of multiple witnesses’ descriptions.

[15] It was not apparent from the photo whether the white sedan was a Cadillac.

[16] Officer Ryan Miller testified the area was not well lit, but there was light in the area from individual apartments.

[17] Johnson was the first person to place a phone call to 911. It was received at 7:22 p.m. During the call, he described the car as a silver Grand Prix. At trial, he testified silver and gray are the same thing to him.

[18] It appears Johnson took issue with the word “approach,” because it suggested to him the men came close to his group. Nelson and Johnson both testified the men remained at a distance from them, and Johnson estimated to an officer they were 25 to 30 feet away.

[19] Officer Ryan Miller took Lekendrick’s statement that night at the scene of the murder. Miller testified Lekendrick said he was there during the shooting.

[20] Kroeker’s testimony on direct examination was summarzied, ante.

[21] Madden is Talisha’s maternal uncle. He testified he is not related to Womack, who is her paternal cousin, and he was not aware of her involvement in the matter until June 2014. However, we note that Talisha mentioned her uncle during her interview and he was the one who received the information from Orozco and directed King and Cegielski to meet with her.

[22] Hill was one of the men who was with defendant and Womack at the 99 Cent Store approximately one hour and 15 minutes before Ellis’s murder, an issue addressed in greater detail, post.

[23] The prosecutor argued the crimes were linked through use of the same firearm and a same or similar modus operandi. While cell phone records placed defendant’s phone in the general area of Ellis’s murder at the time it occurred and the expert opined it could not be excluded as being present at the scene, there was no similar showing regarding the area where the attack on Francies occurred.

[24] There was no question in the trial court, nor is there on appeal, that Talisha’s statement was suppressed by the state and, therefore, our analysis is limited to the issues of favorableness and materiality.

[25] As we have summarized in detail, the parties elicited testimony regarding what the two men were wearing and their general descriptions, with emphasis in this case placed on the white T-shirt versus the white tank top and one man’s darker complexion versus the other man’s lighter complexion. In addition, the prosecutor linked defendant to Bailey’s car, which it theorized was the car that drove through the alley twice. In closing argument, the prosecutor specifically argued that defendant was the driver, and he aided and abetted Ellis’s murder.

[26] The record contains booking information for defendant and Womack. Defendant’s booking information for November 19, 2012, listed his height as 5 feet 10 inches tall and his weight as 180 pounds. Womack’s booking information for April 5, 2013, listed his height as 5 feet 9 inches tall and his weight as 170 pounds. Subsequent booking information listed Womack’s height as 5 feet 7 inches tall and weight as 160 poundson June 20, 2013; height as 5 feet 9 inches tall and weight as 200 pounds on December 31, 2013; and height as 5 feet 9 inches tall and weight as 200 pounds on April 3, 2014.

[27] Defense counsel attested in his declaration supporting the new trial motion that Hunter “is obviously very fair in complexion.”

[28] The prosecutor and the trial court also referred to the cell phone data evidence, but we note that while defendant’s cell phone could not be excluded from being present at the scene of Ellis’s murder, there was no corresponding similarity regarding the attempted murder of Francies. With respect to that crime, no calls were made from the phone in the general area of the crime around the time of the crime. However, the prosecutor argued that based on the cell phone records, defendant was approximately three miles north of the crime scene prior to and after the shooting.

[29] We take care to note that we are speaking not of broad general propositions, but of the facts specific to this case.

[30] Defendant was prohibited from arguing he lacked knowledge or access to the firearm in the photo.

[31] Kroeker testified the interior of the impounded car was a “tannish-gray.”

[32] It appears Hunter and Bailey are cousins, and Womack and Bailey are siblings.