P. v. Johnson

Filed 5/14/07 P. v. Johnson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Lonnie Lorenzo Johnson was convicted of first degree murder. In addition, the jury found true the special circumstance that the murder was committed during the commission of a robbery. (Pen. Code, 190.2, subd. (a)(17)(A).) The jury also found that defendant personally used a deadly or dangerous weapon during the commission of the murder. (Pen. Code, 12022, subd. (b)(1).) Defendant was sentenced to prison for a term of life without the possibility of parole.

On appeal, defendant contends: (1) the prosecutor used a peremptory challenge to exclude an African-American potential juror in violation of People v. Wheeler (1978) 22 Cal.3d 258(Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson); (2) the trial court erroneously excluded evidence of third party culpability; and (3) the trial court denied him due process by instructing the jury under CALJIC No. 2.15. We affirm.

FACTS

This case arises out of the stabbing and asphyxiation death of Yolanda Espinoza (the victim). On June 15, 2003, Bakersfield Police Officer Todd Dickson was on assignment, patrolling downtown Bakersfield, when he was dispatched to an apartment complex on 17th Street around 9:00 p.m. Officer Dickson was accompanied by one other officer. They went to the victims apartment and knocked on the door. After getting no response, they went around to the back of the apartment and looked in the window. The window, which was about four feet from the ground, was open a few inches. Officer Dickson could see the victim lying on the floor in the living room. The officers returned to the front door, which was unlocked, and entered the apartment. The officers secured the apartment, and then turned over the investigation to detectives.

A crime lab technician took photographs and a video-recording of the crime scene and tested for fingerprints. A plastic bag found over the victims head included no usable prints. A plastic bag, containing two videotapes, and a red cloth purse were found on the bed in the victims bedroom at the back of the apartment. A latent print on the plastic bag with the videotapes matched defendants right index finger. One of the videotapes (The Wizard of Oz) also included a print that matched defendants right middle finger. A wooden-handled knife, which tested positive for blood, was found on the kitchen counter. No usable prints were found on the knife. Other items were found on the bed in the back bedroom, including several pieces of paper, Mickey Mouse earrings in a plastic bag, and Lip Smacker lip balm in a plastic bag. The parties stipulated that a pair of shoeprints beneath the back window did not belong to defendant.

The victims autopsy showed that the cause of death was asphyxia due to suffocation by a plastic bag. The victim also had numerous stab wounds on the front part of her body, including 45 to 50 stab wounds in the right side of the chest above the breast. She also had stab wounds on her neck, abdomen, left wrist, and right thigh. The victim had defensive wounds on her hands and wrists, the pattern of which was consistent with raising her hand up in front of her face to try to avoid being stabbed. There were also bruises on her neck consistent with someone grabbing her neck, and then scratching it as the person pulled away.

The victims daughter, Yolanda Espinoza, and her boyfriend visited the victim and spent the night at the victims apartment on the Thursday before she was killed. Espinoza confirmed that the victim had a little portable boombox stereo in the apartment, which she kept in her bedroom. When Espinoza went through the apartment with police officers, she pointed out that the boombox was missing.

According to Espinoza, the victim was shy and mostly kept to herself. The victim also had epilepsy and was mentally slow. Espinoza knew her mother to not let strangers into her house. The victim received assistance from a public agency, and had been living at the apartment for about a year before she was killed.

Stephen Anthony^[1]acknowledged that he had contact with defendant in June 2003, and testified that he bought a boombox from defendant in exchange for a $20 piece of crack cocaine. Just before Anthony bought the boombox from defendant, Anthony was at the house of someone named Alvin which was located around 28th Street. Defendant arrived at the house with a youngster. Defendant was the one carrying the boombox. Anthonys stereo in his car had gone out, so he talked to defendant about buying the boombox. During the exchange, Anthony did not talk to the youngster.

The fact that Anthony bought a boombox from defendant came to the attention of police when Anthony was arrested for driving a stolen car. Anthony claimed that he rented the car from defendant in exchange for rock cocaine. During an interview with Detective Mark Charmley on June 23, 2003, Anthony revealed that, prior to renting the car from defendant, he had also bought a boombox from defendant. Anthony told the detective that the boombox was in his own car which had been impounded (the reason he needed to rent a car from defendant). Detective Charmley got Anthonys car released from the impound lot for Anthony, and retrieved the boombox, which was identified as the one missing from the victims apartment.

Anthony had three prior convictions: one for possession of narcotics in 1982, one for felony possession of stolen property in 1993, and one for nonresidential burglary in 1997. Anthony testified that nobody ever promised him anything for coming in and testifying.

Detective Mark Charmley, and his partner, Detective Dennis McBride, were assigned to investigate the homicide. Detective Charmley interviewed 13-year-old T.C., who implicated himself in the incident. Detective Charmley also interviewed defendant following defendants arrest on June 22, 2003. Tapes of these interviews were played to the jury. According to Detective Charmley, T.C. was about 5 feet 10 inches to 5 feet 11 inches tall, and defendant was about 5 feet 4 inches to 5 feet 5 inches tall.

Detective Charmley denied that either he or Detective McBride used any force or made any threats against defendant in connection with his interview. Defendants booking photograph showed defendant had a red mark on the right side of his face, an injury which was apparently sustained during defendants arrest.

The parties stipulated that at the time of the incident, defendant was residing on Pinion Springs Circle in Bakersfield. They further stipulated that DNA recovered from scrapings taken from the victims fingernails belonged only to the victim.

The defense

The victims sister-in-law, Ruth Flores, testified that she had seen defendant before around the apartment complex where the victim lived. On that occasion, defendant waved to the victim. The victim waved back and smiled at defendant. When Flores asked the victim who he was, the victim said it was somebody who lived in the apartments.

Gary Sampley testified that he was an attorney practicing in Bakersfield, and that he represented Stephen Anthony in June 2003, in two misdemeanor cases. While he was working on those cases, he and the district attorney (a different prosecutor than the one in defendants trial) negotiated a plea bargain based on Anthony providing information in a recent murder case. Sampley could recall that one of the misdemeanors was dismissed, and the other was either dismissed or it was a credit-time-served/no probation type of result. Sampley testified that the favorable dispositions were a direct result of Anthonys cooperation in the murder case.

Defendant testified on his own behalf. According to defendants testimony, he once lived in the victims apartment complex for about a week but had not become acquainted with the victim at that time. On an afternoon in June 2003, he and T.C. went to the apartment complex. On this particular day, defendant was trying to find a telephone so he could call his sister to come get him, and give him a ride to her apartment on Pinion Springs. He was also looking for some water to drink because it was very hot.

While he and T.C. were sitting underneath some shade trees at the apartment complex, the victim came out and started talking to them. The victim eventually invited them into her apartment. She allowed defendant to use her telephone, and gave them some water and something to eat.

After they ate, the victim told defendant and T.C. they could watch a videotape. They looked through her videotapes and selected one entitled Next Friday. They watched part of the movie, while defendant waited to use the telephone to call his sister again. Eventually, defendant thanked the victim and told her he needed to leave. While he was in the apartment, no one attacked the victim and she was fine when he and T.C. left.

Defendant acknowledged that he handled two videotapes in the victims apartment: The Wizard of Oz and Next Friday. Defendant testified that the victim handed him a bag and he put the videotapes in the bag for her. The victim then grabbed the bag from him and sat on the couch.

Defendant testified that police officers used force against him when he was arrested on June 22, 2003. Defendant described one officer holding a gun to his head, and another slamming him headfirst into a closet. Then other officers were jumping on him and stomping on his hands. Defendant claimed to have suffered multiple injuries. He explained that one side of his face was slammed on the floor, and that he had splits in his lip from his teeth hitting the inside of his mouth. He also had bruises all over his chest, arms, shoulder, stomach, ribs, and back.

Later, when defendant spoke to the detectives, he began by telling them the truth, i.e., that the victim was fine when he and T.C. left the apartment. However, because the detectives threatened him, he started to tell them the victim had been attacked even though this was not the truth. Defendant explained that the detectives basically told me what they wanted to hear.

Defendant acknowledged that during the interview with detectives and as reflected on the tape played to the jury, he provided a number of descriptions of what he claimed T.C. did to the victim. Defendant also acknowledged talking about a stereo which he had claimed was carried out of the apartment by T.C. Defendant testified that that he actually did not know anything about a stereo; when he described T.C. carrying it, the detectives had already told him a stereo had been taken.

Defendant denied either selling a stereo or renting a car to Stephen Anthony. He also denied that he handled any knives belonging to the victim while he was in her apartment. Defendant admitted he had his own knife with him when he was inside the apartment, and that he also had it on him when he was arrested. However, he denied using the knife inside the victims apartment.

On cross-examination, defendant acknowledged that during the interview with the police detectives, he described a number of specific details surrounding the attack on the victim which he attributed to T.C. Although defendant claimed to have been told some details by the detectives, a majority of the details he claimed to have guessed based on his own instincts, watching gang murder flicks, and from his personal experiences, which included having once being stabbed 23 times, stealing from his mothers purse as a child, and in 2001, pleading guilty to a felony conviction based on an incident where he was with a friend who tried to steal a womans purse. The details defendant claimed to have guessed included: that the victim was choked, that she could not speak during the attack, that T.C. grabbed the knife he used to stab the victim from the kitchen, that the victim was stabbed multiple times in the front part of her body, that the victims body was all curled up on the floor by one of the couches, that the victims purse had been rifled through, and that the stereo the detectives told him was missing had been sold for crack cocaine.

Defendant also testified during cross-examination that he carried a knife at all times. When asked why, he explained that he liked to cut himself on his arms when he got irritated or depressed.

Defendant had a prior felony conviction for spousal abuse.

Rebuttal

Officer Martin Heredia participated in the arrest of defendant on June 22, 2003. Several other officers were also present. Officer Heredia testified that he and Officer Slayton went into defendants bedroom. Officer Heredia asked defendant to get out of the bed. When defendant did not respond, the two officers approached the bed. Officer Heredia was on defendants left, and Officer Slayton was on his right. Defendant had a blanket covering about three-quarters of his body. As Officer Heredia grabbed defendants left hand, defendant woke up, moved around, and somehow moved the blanket so that Officer Slayton was able to see a knife on defendants chest.

Officer Slayton advised Officer Heredia there was a knife present. The officers immediately grabbed defendants hands, and pulled him off the bed and onto the ground face first. Detectives Charmley and McBride were notified that defendant was in custody, and defendant was transported to the police department. Other than having to take defendant off the bed to the ground, neither Officer Heredia nor Officer Slayton used any force on defendant.

Detective Charmley testified that the entire conversation he had with defendant was on the recording played to the jury, except for a few portions that were redacted based on evidentiary rulings. Detective Charmley denied that the detectives made any threats to defendant, or told him any information other than what was reflected in the recording.

DISCUSSION

I. Wheeler-Batson

Defendant contends the prosecutor used a peremptory challenge to exclude an African-American potential juror (Juror No. 516470) solely on the basis of her race in violation of Wheeler and Batson. After considering the matter, the trial court determined that the prosecutor exercised his peremptory challenge of the prospective juror for a legitimate, race-neutral reason. This determination is supported by the record. Given the deference we must extend to the trial court, we uphold this determination and reject defendants contention on appeal.

A. Background

In response to preliminary questions from the trial court, Juror No. 516470 stated that she was an instructional assistant for special need mobility with no prior juror experience, and that she had two adult sons.

Juror No. 516470 answered negatively when defense counsel asked if she might have a problem viewing gory photographs.

In response to questions from the prosecutor, Juror No. 516470 explained she worked with autistic children. When asked how long she had been doing this work, Juror No. 516470 responded: I just went back to work this year. I have been out of work for nine months. When asked what she had been doing previously, Juror No. 516470 stated: I was in the school system and then they had like the budget cut and then I was homeless. When asked whether her earlier experience in the school system also involved working with special needs, Juror No. 516470 replied: No, it was working I was still an instructional assistant but it was like going around delivering packages to different classes.

In response to further questioning from the prosecutor, Juror No. 516470 acknowledged some hesitation respecting the prosecutors question, posed to the entire panel, as to whether she would have a problem with a witness who had a criminal background. Juror No. 516470 disclosed that ten years ago, two of her nephews had been shot and that they never did find that person. When the prosecutor asked whether the fact nobody was ever arrested was going to cause a problem for one side of [sic] the other, Juror No. 516470 answered: I still think about it but, you know, your duty is your duty. Juror No. 516470 then stated she would not hold it against anyone. In response to further questioning, the prospective juror indicated she would not have any problem if there was not an eye witness to all the different facts in the case.

Towards the end of voir dire, the prosecutor used a peremptory challenge to excuse Juror No. 516470. Defense counsel made a motion for mistrial under Wheeler. The trial court asked defense counsel to explain the basis for the motion, and the following discussion took place:

[DEFENSE COUNSEL]: Well, we had two African-Americans on the in the box and People excused one of those two for reasons which I dont I dont see a connection as far as prejudice, so it appears to me it was solely based on race.

THE COURT: All right. Mr. Pafford [the prosecutor], its not clear to me why Ms. (516470) was released after she had been accepted twice.

[THE PROSECUTOR]: Your Honor, the strategy on accepting the panel two other times, I had noted that I was intending to kick additional people, it was a strategy because I knew Mr. Kinnison [defense counsel] was going to be kicking some individuals.

I think that is that does in and of itself does not should not prove any case of racial discrimination.

As to Ms. (516470), I think she said she was homeless for a period of time, which caused me some concern for the case and her, given the nature of the case and the nature of the theories of the case, it caused me some concern that she was homeless recently, within the past year, so I think that was my basis.

THE COURT: Mr. Kinnison [defense counsel].

[DEFENSE COUNSEL]: Homeless can mean a lot of things, can mean she had to live with relatives; doesnt mean she was wandering the streets.

I dont think there was any indication that shes unable to perform her duties.

THE COURT: Well, your basis is race.

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: Okay.

[DEFENSE COUNSEL]: People of all races have become homeless. I maintain the position that that was the motivating factor. [] []

THE COURT: All right. The status, if you will, or even class, if it can be characterized as a class, of homelessness, is race neutral. I am denying the motion.

B. Applicable legal principles

In Wheeler, our Supreme Court held that the California Constitution prohibited the use of peremptory challenges to exclude jurors on the basis of group bias, i.e., solely because of their membership in a cognizable class such as race or religion.^[2](Wheeler, supra, 22 Cal.3d at pp. 276-278, 287.) It is well settled that African Americans are a cognizable class within the meaning of Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 192-193.)

But a peremptory challenge may constitutionally be exercised on the basis of specific bias, i.e., a bias relating to the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 276.) [T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. (Id. at p. 275.)

It is important to remember the legitimate bases for peremptory challenges, which include various factors which suggest the possibility of pro-defense or pro-prosecution bias. For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. (Wheeler, supra, 22 Cal.3d at p. 275.)

For a number of reasons, including respect for counsel as officers of the court, it is presumed that a prosecutors peremptory challenge is exercised on a constitutionally permissible ground. (Wheeler, supra, 22 Cal.3d at p. 278.) That presumption is rebutted if the defendant shows a prima facie case that peremptory challenges were exercised solely on the basis of group bias. (Id. at pp. 278-281; see Johnson v. California (2005) 545 U.S. 162, 168 (Johnson); People v. Alvarez, supra, 14 Cal.4th at p. 193.)^[3]

If the defendant makes a showing of a prima facie case, the burden shifts to the prosecutor to show that the peremptory challenges were made on the basis of specific bias, i.e., legitimate race-neutral factors reasonably relevant to the particular case being tried or its parties. (Wheeler, supra, 22 Cal.3d at pp. 281-282; see People v. Johnson (1989) 47 Cal.3d 1194, 1216.)

Once a race-neutral explanation is put forth by the prosecutor, the trial judge must determine whether the defendant has proven the challenge was based on group bias rather than legitimate nondiscriminatory reasons. (Johnson, supra, 545 U.S. at p. 168; Wheeler, supra, 22 Cal.3d at p. 282; see People v. Johnson, supra, 47 Cal.3d at p. 1216.) The trial court ... must make a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily .... [Citation.] (People v. Johnson, supra, 47 Cal.3d at p. 1216, quoting People v. Hall (1983) 35 Cal.3d 161, 167-168; see People v. Silva (2001) 25 Cal.4th 345, 385-386.)

[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. [Citation.] Inquiry by the trial court is not even required. [Citation.] All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. [Citation.] A reason that makes no sense is nonetheless sincere and legitimate as long as it does not deny equal protection. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101.)

The standard of review applied after the trial judge has made a reasoned evaluation of explanations for peremptory challenges is one of great deference. When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Since the trial court was in the best position to observe the prospective jurors demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutors reasons for excusing [a prospective juror], including the demeanor-based reason, were sincere and genuine, is entitled to great deference on appeal. [Citations.] (People v. Reynoso (2003) 31 Cal.4th 903, 926.)

C. Analysis

Defendant recognizes the prosecutor articulated a race-neutral reason for excusing Juror No. 516470, and that the reason is supported by the record. Nonetheless, he asserts further inquiry by the trial court was required because the prosecutors explanation was inherently implausible. (People v. Silva, supra, 25 Cal.4th at pp. 385-386 [where the prosecutors stated reasons are not supported by record or inherently implausible, the trial court is required to examine each stated reason as applied to challenged jurors; if that is not done, a global finding that the prosecutors reasons are sufficient is not enough to rebut the earlier finding of purposeful discrimination].) Defendant urges us to conclude that the circumstance of Juror No. 516470 being homeless favored the prosecution rather than the defense, thereby suggesting the reason articulated by the prosecutor for excusing the juror was a sham.

In support of his contention that the prosecutors reason was inherently implausible, defendant claims that, at the time Juror No. 516470 was excused, the only theory of the case to which homelessness related was a defense theory the theory that a man who appeared to be homeless could have been the killer. In support of this claim, defendant cites to a brief pretrial discussion regarding a witness the defense was trying to locate.^[4] Defense counsel told the trial judge that the witness, a resident in the victims apartment complex, could testify that she saw a tall, thin, black male subject who was essentially loitering around the apartment where the body was found . and that at one point she observed him go into the apartment through the back window and come out again .

The pretrial discussion defendant cites does not support his claim that the defense theory at the time of jury-selection was related to homelessness. There is no indication that the third party allegedly seen loitering around the victims apartment and entering and exiting the apartment was characterized by defense counsel as a homeless person. That person was simply described as loitering a description which could arguably be applied to defendants description of what he and T.C. were doing before they were allegedly invited into the victims apartment and does not support a conclusion that the prosecutor would necessarily have been thinking a juror sympathetic to the circumstance of homelessness would favor the prosecution over the defense.

In our view, defendants argument is overly narrow and takes the prosecutors justification out of its proper context. The jurors experience of being homeless was mentioned in connection with her loss of employment, and the two conditions tend to go hand-in-hand. Homelessness, like unemployment, can be temporary or chronic; it is not a condition distinguishing any particular race, religion, or ethnic group. Everyone is subject to its effects. Moreover, it had repeatedly been held that employment, or the lack of it, can be a proper race-neutral criteria for exercising a peremptory challenge. (People v. Trevino (1997) 55 Cal.App.4th 396, 411-412 [occupation can be a permissible, nondiscriminatory reason for exercising a challenge]; People v. Dominick (1986) 182 Cal.App.3d 1174, 1195, fn. 13 [it is permissible to have exercised a peremptory challenge against a prospective juror who is an unemployed divorcee with three children who quit her last job after only three months]; Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1107 [a jurors employment status or income level is a permissible reason for exercising a peremptory challenge]; Howard v. Moore (4th Cir. 1997) 131 F.3d 399, 408 [erratic work history, spouses unemployment, and unstable work history are not pretextual]; U.S. v. Hunter (7th Cir. 1996) 86 F.3d 679, 683 [prospective juror had limited education, unstable employment history, he was unmarried and his family did not have strong ties to the community]; U.S. v. Brown (1994) 34 F.3d 569, 571 [challenge striking a juror because she and everyone in her household are unemployed will survive scrutiny, especially when, as here, the defendant is also unemployed; the prosecutor of such an unemployed defendant may have concerns that an unemployed juror might be improperly sympathetic].)

In this case, the jurors homelessness, like the circumstance of unemployment, was a plausible race-neutral justification for excusing the juror and was supported by the record. There is no indication that the trial court here failed to make a sincere and reasoned effort to evaluate the nondiscriminatory justification offered, and we therefore defer to the trial courts ability to distinguish bona fide reasons from sham excuses. (People v. Avila (2006) 38 Cal.4th 491, 541.) Because there is substantial evidence to support the trial courts implied finding the prosecutors race-neutral explanation was genuine and not a pretext for racial or improper group discrimination, we conclude the trial court properly denied defendants challenge to the prosecutors use of a peremptory challenge against Juror No. 516470.

II. Exclusion of Third-Party-Culpability Evidence

During cross-examination, defense counsel started to ask Lisa Espinoza: Now, your mother, she had been talking about a man who had been bothering her for a while . The prosecution interjected an objection on relevance and hearsay grounds. After discussing the issue outside the presence of the jury, the trial court sustained the prosecutors objection on both grounds.

On appeal, defendant contends the trial court erred in excluding evidence that someone other than defendant had been bothering the victim shortly before she was killed, even though it was hearsay, because the ruling prevented him from presenting evidence of third-party culpability, thereby depriving him of his right to due process, the right to a fair trial, and the right to present a defense. We disagree with defendants contention.

To be admissible, third-party culpability evidence need not show substantial proof of a probability that a third person committed the act but instead need only be capable of raising a reasonable doubt of defendants guilt. (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) The law does not require that any evidence, however remote, must be admitted to show a third partys possible culpability. (Ibid.) To the contrary, evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt since there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Ibid.) Like any other evidence, the court may rule third-party culpability evidence inadmissible if the risk of undue delay, prejudice, or confusion substantially outweighs the probative value. (Id. at p. 834; Evid. Code, 350, 352.)

In this case, the evidence the defense sought to elicit from Espinoza did not meet the relevancy threshold established in Hall. Defense counsel made no offer of proof linking the third person to the actual perpetration of the crime. (Hall, supra, 41 Cal.3d at p. 833.) Defense counsel argued that Ruth Floress evidence (presumably, her testimony that the victim waved and smiled at defendant) would show that defendant was not the man who had been bothering her and, therefore, evidence that someone else besides defendant was bothering the victim before she was killed would tend to exonerate [his] client as being the person who perpetrated this incident. However, even assuming defendant was not the person the victim said was bothering her, the defense offered no evidence that the person bothering the victim was the one who committed the murder. Rather, counsel simply speculated that the person bothering the victim could have been the same person seen lurking around the apartments by the witness he was unable to locate. Nor did the defense offer to show how or in what manner the third party had been bothering the victim. Although defendant implies throughout his argument on appeal that the bothering was of a menacing nature, no evidence supporting this interpretation was offered. Bothering may encompass a wide range of behaviors, including behaviors that may be annoying but otherwise relatively benign or harmless. No link was shown here between the bothersome behavior of the third party and the brutal physical attack on the victim. Because the defense offered no evidence capable of raising a reasonable doubt as to defendants guilt, we reject defendants contention that the trial court erroneously excluded evidence of third party culpability.

Defendants federal constitutional argument likewise fails to persuade us. The right to present relevant testimony is not without limitation and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. (Rock v. Arkansas (1987) 483 U.S. 44, 55, quoting Chambers v. Mississippi (1973) 410 U.S. 284, 295.) Few rights are more fundamental than that of an accused to present witnesses in his [or her] own defense, but the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. (LaGrand v. Stewart (9th Cir. 1998) 133 F.3d 1253, 1266-1267, quoting Chambers v. Mississippi, supra, 410 U.S. at p. 302.) [W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability even if the defendant would prefer to see that evidence admitted. (Crane v. Kentucky (1986) 476 U.S. 683, 690.) Since the trial courts ruling sustaining the prosecutors objection on hearsay grounds was well within the scope of that power, and defendant did not meet the relevancy threshold for the admission of third-party-culpability evidence set forth in Hall, defendants federal constitutional argument is without merit.

III. CALJIC No. 2.15

Defendant contends the trial court denied him due process by instructing the jury under CALJIC No. 2.15. We disagree.

CALJIC No. 2.15, as read to the jury, stated:

If you find the defendant was in conscious possession of recently stolen property, the fact that that possession is not by itself sufficient to permit an inference that the defendant committed robbery and/or burglary. Before that may be inferred, there must be corroborating evidence tending to prove the defendant committed robbery and/or burglary.

However, this corroborating evidenceneed only be slight and need not by itself be sufficient to warrant an inference of that conclusion.

As corroboration, you may consider the attributes of possession, time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendants conduct, his false or contradictory statements, if any, or other statements he may have made with reference to the property, a false account of how he acquired possession of the stolen property and any other evidence which tends to connect the defendant with the crime charged.

CALJIC No. 2.15 generally is a permissive, cautionary instruction which inures to a criminal defendants benefit by warning the jury not to infer guilt merely from a defendants conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendants guilt. [Citations.] (People v. Barker (2001) 91 Cal.App.4th 1166, 1174.) CALJIC No. 2.15 has previously withstood due process constitutional attacks in cases where theft-related offenses were the predicate felonies for a felony-murder charge. (People v. Johnson (1993) 6 Cal.4th 1, 37-38; People v. Smithey (1999) 20 Cal.4th 936, 975-978; People v. Holt (1997) 15 Cal.4th 619, 677.) Our Supreme Court has consistently held that CALJIC No. 2.15 does not create an improper presumption of guilt arising from the mere fact of possession of stolen property. Rather, it relates a contrary proposition: a burglary [or robbery] may not be presumed from mere possession unless the commission of the offense is corroborated. (People v. Johnson, supra, 6 Cal.4th at p. 37.) Furthermore, CALJIC No. 2.15 does not permit an inference of guilt based on insufficient foundational facts or reduce the quantum of evidence to anything less than reasonable doubt. (People v. Holt, supra, 15 Cal.4th at p. 677.) It is equally well established that requiring only slight corroborative evidence in support of a permissive inference, such as that created by possession of stolen property, does not reduce the prosecutors burden of proving every element of the offense or otherwise violate the accusers right to due process. (Ulster County Court v. Allen (1979) 442 U.S. 140, 167; People v. McFarland (1962) 58 Cal.2d 748, 754-756; People v. Gamble (1994) 22 Cal.App.4th 446, 454-455.)

Defendants reliance upon United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray) is misplaced. There, a trial court instructed that only slight evidence was necessary to establish a defendants participation in a conspiracy. In Gray, the Fifth Circuit Court of Appeals reiterated an earlier holding that such an instruction was erroneous because it tainted the reasonable doubt standard that applied to each element of an offense. (Id. at p. 500; see United States v. Brasseaux (5th Cir. 1975) 509 F.2d 157.) The instruction directly addressed the defendants participation in the conspiracy and, because actual participation in the conspiracy is an essential element of a conspiracy charge (e.g., United States v. Avila-Dominguez (5th Cir. 1980) 610 F.2d 1266, 1271), created confusion over the prosecutions burden to prove each element beyond a reasonable doubt.

Here, the jury was cautioned about inferring the commission of a robbery based on defendants possession of the stolen property and the need for other corroborating circumstantial evidence. Therefore, unlike the instruction in Gray, CALJIC No. 2.15 did not address a particular element of the offense charged and undermine the requirement that the element must be proven beyond a reasonable doubt a topic addressed in other instructions.

In summary, we adhere to the position established by the California Supreme Court and reject defendants argument that CALJIC No. 2.15 is unconstitutional.

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

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VARTABEDIAN, Acting P.J.

_____________________

WISEMAN, J.

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^[1] Anthony was in custody at the time of his testimony for not complying with the subpoena he had received from the district attorneys office.

^[2] Subsequently, the United States Supreme Court ruled that such use of peremptory challenges violated the federal Constitution. (See Batson, supra, 476 U.S. 79.)

^[3] In Johnson, the United States Supreme Court invalidated Californias requirement that a defendant show a prima facie case by a standard of more likely than not that the challenge was based on discrimination or group bias. All a defendant need show is evidence sufficient to permit the trial judge to draw an inference that the challenge was so based. (Johnson, supra, 545 U.S. at pp. 168-173.)

^[4] Defendant also relies on evidence presented in support of his new trial motion, which included testimony from the missing witness, who described a black guy roaming around in the alley and apparently drinking an alcoholic beverage from a container inside a sack. However, because this evidence was not presented until after the trial, it is irrelevant to the analysis of whether the prosecutors use of the peremptory challenge was improper.