P. v. Pina

Filed 7/17/07 P. v. Pina CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John L. Davidson, Judge. Affirmed.

A jury convicted Jose Alfredo Pina of first degree murder (Pen. Code,  187, subd. (a).^[1]) and found true allegations that he personally and intentionally discharged a firearm proximately causing death. ( 12022.5, subd. (a), 12022.53, subds. (c), (d).) The court sentenced defendant to an indeterminate prison term of 50 years to life, consisting of 25 years to life for the murder count plus 25 years to life on the firearm use allegation. On appeal, defendant contends (1) he was denied his Fourteenth Amendment due process rights because the evidence at trial was insufficient to support his conviction for first degree murder; (2) the trial court prejudicially abused its discretion in showing the jury a photograph of his tattoo to aid a witness's identification (3) the trial court erroneously denied his request to present third party culpability evidence (4) the prosecutor committed prejudicial misconduct during his closing argument; (5) the trial court erred by denying his motion for new trial based on juror bias/taint; and (6) his 25-year-to-life sentence on the firearm allegations constitutes cruel and unusual punishment under the state and federal Constitutions. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of December 21, 2004, Jose Martinez, who lived at 2818 Clay Avenue in San Diego, was in an alley working on his vehicle when he heard a noise sounding like a car backfiring. He looked up and about four or five houses down the alley saw a person pointing what appeared to be 12-gauge shotgun at another person standing with their hands raised and open. The armed man shot the victim once, reloaded, then stood on top of the victim and shot him again while he was on the ground. Martinez saw a bluish-green colored 1989 or 1990 Chrysler Plymouth minivan parked on the right side of the alley, about three to five feet from the shooter. Martinez watched as a third shot was fired and then saw another person come around towards the front of the minivan and hit the prone victim a couple of times in the face and body. The men left in the minivan.

Although Martinez "didn't really [have] a chance" to look at their faces, he was able to say the men were both Latino; the "shooter" had darker skin, with short hair, mustache and rough shave, and the "hitter" was younger looking, with light skin and short hair. The men were 5 feet 8 to 5 feet 10 inches tall. The shooter wore black pants and a flannel shirt. Martinez believed both men spoke to the victim, but he did not hear anything. The victim tried to pull himself inside a gate, but some other individuals inside the gate closed it on him. Martinez had his brothers call the police.

Before trial, Martinez was presented with photographs, and while he saw similarities in head and facial hair, he could not identify the defendant as the shooter from that day. Nor could he testify that defendant was the shooter. As for the minivan, Martinez testified he had previously seen a similar minivan parked in the alley in the general vicinity, but he was not 100 percent certain it was the same vehicle.

Michael Major lived in a house at 2810 Clay Avenue on December 21, 2004. That afternoon, he was sitting in his couch in his living room when he heard five gunshots. He looked outside, and asked Martinez what happened. Martinez pointed down the alley and said, "They shot him." Major saw a body on the ground lying on the fence as if he was trying to get in, and saw the gate moving as it was being shut. He ran in and called 911. Martinez told him that he saw a van drive up the alley and a guy get out and shoot the man at close range.

San Diego Police Officer John Howard received a call about the shooting at about 1:40 or 1:41 p.m. that day. He drove to the area where he found the victim, later identified as Jose Cardona, Sr., in the alley, about 15 to 20 feet from a gate of the residence at 2850 Clay Avenue. Officer Howard saw a man exit the 2850 Clay Avenue gate and ordered the man at gun point to come towards him with his hands up. The man, who the officer later learned was Jose Palacios, looked at him and the body lying in the alley, and then ran back into the backyard. After medics arrived, Martinez approached Officer Howard and told him that the shooter wore a brown flannel-like Pendleton shirt and black pants, and the other man wore a white T-shirt and black pants. Martinez reported that the minivan was a teal green 1989 or 1990 Plymouth minivan. Martinez, a painter, showed the officer a color wheel indicating that the general color of the vehicle was green.

Joseph Leakes lived at 2862 Clay Avenue and was a neighbor of Cardona Sr. and his girlfriend Diane Pina, who lived at 2850 Clay Avenue. Leakes knew that Cardona Sr. had been living in a trailer in the back of the house. At about 11:00 a.m. on the morning of the shooting, Leakes heard Cardona Sr. and Diane Pina yelling and engaging in an argument lasting a few minutes in the backyard of the house. During that argument, two of the girls who lived with Diane Pina, approximately ages 8 and 12, ran to the front of his house and asked his wife to use the telephone to call their aunt. She refused, and the girls ran up the street. In a later statement about the incident, Leakes described the girls as "hysterical."

A few minutes later, Cardona Sr., who had done work for Leakes, came to Leakes's house and asked him to keep an eye on his trailer so it would not be damaged. Cardona Sr. appeared upset. Because Leakes was aware that Cardona Sr. and Diane had argued before and Diane had previously asked him to leave, he asked Cardona why he did not just leave. Cardona Sr. left to a neighbor's house to finish work on her fence. About an hour later, Leakes heard three gunshots and walked to his back gate, where he saw Cardona Sr. lying in the alley. Leakes also watched a boy who was sitting next to Cardona Sr.'s trailer come toward the gate and run back the other way when confronted by Officer Howard. He had previously seen the boy with Cardona Sr.'s son. Leakes testified that about 20 minutes before the gunshots, he heard male and female voices arguing in Spanish in the back porch area of Diane Pina's house.

Joseph Leakes's wife Estephanie was home sitting on her porch at the time of the shooting. Just before the shooting, she saw a van with faded light blue or grey primer-like paint and tinted windows pull up into the next door driveway and a couple of men exit. At trial, the prosecutor showed Estephanie Leakes pictures of a blue van, but she testified they were not of the van she saw that day. In September 2005, she was taken to an impound yard to view a blue Dodge van that had been seized by police in connection with the case, and told the detective that she was certain it was not the van she had seen on the day of the incident. She testified that she saw a female Sunday school teacher pick up Diane Pina's girls in a blue van, but that was not the van she saw that day.

Annie Ridgell, who owned a 2003 blue Windstar van, lived on Clay Avenue off the alley. She knew that Diane Pina and her family lived at 2850 Clay Avenue, and that in December 2004, Cardona Sr. was also living there. Cardona Sr. would do work on her house on occasion, and they were friends. She understood that Cardona Sr. and Diane were dating. On December 21, 2004, Cardona Sr. was supposed to finish work on her fence. He came to her house and told her had to leave and would not be able to finish his work because he gotten into an argument with Diane and her sons. About ten minutes later, Ridgell heard three gunshots. She testified that earlier that morning, she had seen Diane and her sons talking. That day, Ridgell had a doctor's appointment and when she returned, she parked her blue van in front of her house.

Another neighbor, Alma Eleutereo, was standing inside her backyard fence

along the alley on Clay Avenue on December 21, 2004, and heard gunshots at about 1:45 p.m.. She heard a man say in Spanish, "You fucked me up" and, "What you wanted."

Bernada Lopez Garcia was in the vicinity of the alley behind 2800 Clay Avenue on December 21, 2004. That day around 1:30 or 1:40 p.m., she heard four shots, and looked out her kitchen window. About 30 seconds after hearing the shots, she saw the back of a blue truck passing by. Garcia identified the rear of the vehicle from a picture as the same as a blue van that police had impounded after finding it in front of defendant's apartment.

Jose Cardona Jr. lived with his father Jose Cardona Sr. at 2850 Clay Avenue. He testified that Diane Pina, his father's ex-girlfriend, lived with him and his father for a time at his grandmother's house. Diane Pina's children also lived with them. After Diane Pina and his father's relationship began to deteriorate, she moved to the house on 2850 Clay Avenue with her children, including her sons Tony, Alonzo and defendant, who Cardona Jr. knew as "Freddy." Eventually, Cardona Jr. and Cardona Sr. moved back in with Diane Pina and her family at 2850 Clay Avenue. Due to his father and Diane Pina arguing over the lack of money, he and his father later moved into a trailer located in the back yard of the house. Cardona Jr. acknowledged that before December 21, 2004, he and his father had been involved in arguments with Diane Pina and her family.

On December 21, 2004, Cardona Jr. was walking up porch stairs of the house to use the restroom when he accidentally bumped into Alonzo Pina, who was coming down the stairs. Cardona Jr. said, "My bad," meaning he was sorry. Alonzo responded with, "Why you got to be disrespectful?" Cardona Jr. said, "I told you, my bad." According to Cardona Jr., Alonzo was "kind of mad" and to appeared to want to fight, saying, "Well, what do you want to do?" Cardona Sr. then exited from the back door of the house, and told Alonzo to step away, asking, "Why are you trying to get into it with my son?" When Alonzo responded that the matter was between him and Cardona, Jr., Cardona Sr. asked, "Why don't you do something to me?" Alonzo had a "little grin" on his face and his hand toward his side as if he was holding something; Cardona Sr. said, "Well, if you are going to stab me, stab me then." Diane Pina then exited the house, stood next to Alonzo, and told Cardona Sr., "Take off. We don't want you guys here." Cardona Sr. responded that he would leave in a little while, that he had to get his stuff.

About five minutes later, a vehicle pulled up and the defendant, wearing a white shirt and white painter's pants, came out of the house, saying something to his brother Alonzo and then telling Cardona Sr., "You got to take off." At that time, Diane Pina and Alonzo were in the corner talking. Cardona Sr. repeated that he would leave when he got his stuff and when he was ready. Defendant responded, "All right, all right," but Cardona Jr. stated the defendant looked mad as if he was not really "all right" about the situation. Diane Pina and Alonzo continued to tell the Cardonas to leave and that they did not want them there.

According to Cardona Jr., things calmed down and Alonzo and Diane Pina went back up to the porch. Diane Pina then said something to Cardona Jr. and his father like, "Oh, don't be surprised if I see you on TV or on the news."^[2] Someone else said, "Oh, you are going to leave one way or another." Defendant was leaving, and Cardona Sr. told his son to leave to his friend's house and he would meet him later when things calmed down. Cardona Jr. left on his bicycle. He saw defendant leave, driving a blue van belonging to the mother of defendant's girlfriend, Brenda Cano. About 15 to 20 minutes later, Cardona Jr. returned to the Clay Avenue house where he found police and his father in the alley.

The deputy medical examiner testified she was called out to the crime scene on December 21, 2004, and determined Cardona Sr.'s death was caused by shotgun wounds to the torso and extremities. At the time of his autopsy, Cardona Sr.'s blood tested positive for methamphetamine, amphetamine and marijuana.

Defendant worked at Fabrication Arts as a painter's assistant. Barbara Bauer was the project manager and office manager at Fabrication Arts. On December 21, 2004, Baur received a call at about 12:45 p.m. from Pina's girlfriend Brenda. She paged defendant, who picked up the call, and then walked quickly by, telling her, "I have to go take care of something." Bauer noticed that at about 2:45 p.m., defendant had returned to work. When she asked him, "How is everything" he responded with something like, "Everything is fine." Defendant did not say anything that day about going to the doctor for his girlfriend Brenda, who was pregnant. Baur estimated that after the phone call, defendant left work at about 12:55 p.m.. After defendant had returned to work, she noticed nothing unusual in his behavior or conduct. She recalled him telling her in response to her question that "The doctor said Brenda is okay." A day or two after the incident, Baur told police that defendant had to leave at about 1:30 p.m. for a family emergency.

Juan Jose Sanchez-Munoz was a painting supervisor at Fabrication Arts. At 1:30 p.m. on December 21, 2004, he noticed that defendant was gone and asked some other workers where he was. They told him he had some stuff to go take care of and he would be back. Sanchez-Munoz did not know exactly how long defendant was gone, but he stated it was a half-hour to 45 minutes. According to Sanchez-Munoz, defendant's timecard showed he had handwritten in a break from 1:45 to 2:30 p.m. The card indicated that from 12:59 to 1:45 p.m., defendant had worked on a project. Sanchez-Munoz recalled seeing defendant back to work around 2:15 or 2:30 p.m. Sanchez-Munoz testified that on occasion, defendant would drive a blue minivan to work.

Brenda Cano lived with defendant at the time of Cardona Sr.'s death and was his wife at the time of trial. Brenda drove a 1993 blue Dodge Caravan minivan given to her by her parents.

Police located the blue Dodge van at the apartment in which defendant and Brenda Cano lived on the day of Cardona Sr.'s death. The van was not tested for gunshot residue. Nor did police test defendant for gunshot residue. Police seized a flannel shirt and white painter's clothing from defendant and his residence. No DNA from Cardona Sr. was found on any of the clothing seized from defendant. Police searched both Cano's residence and the Clay Avenue house, but did not find any weapons. Defendant was cooperative and voluntarily entered the conference room when police arrived at his workplace to speak with him.

Defense Evidence

Defendant called one of his investigators, Gregory Basham, to testify about his efforts to contact a couple of witnesses including Alicia Pina. He also called Michael Major, who heard the shots fired on December 21, 2004, and called 911.

I. Sufficiency of the Evidence

Defendant contends there is insufficient evidence to prove Cardona Sr.'s killing was deliberate and premeditated to support his conviction for first degree murder. In particular, he argues that because there is insufficient evidence connecting him as the perpetrator, there is no evidence of "planning" activity or the sort of preexisting reflection necessary to make a finding of premeditated and deliberate conduct.

A. Standard of Review

"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

In making our determination, we focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Stewart, at p. 790.)

B. Legal Principles

"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . " ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080; see also People v. Stewart (2004) 33 Cal.4th 425, 495; People v. Memro (1995) 11 Cal.4th 786, 862-863.)

Faced with a challenge to the evidence of deliberation and premeditation on appeal, the test is whether a rational juror could, on the evidence presented, find the essential elements of premeditation and deliberation beyond a reasonable doubt. (People v. Stewart, supra, 33 Cal.4th at p. 495, citing People v. Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez).) To undertake this analysis, we consider all evidence and logical inferences relevant to the question, including general factors of planning activity, motive as established by a prior relationship or conduct with the victim, and the manner of killing. (Sanchez, supra, 12 Cal.4th at p. 32; People v. Perez (1992) 2 Cal.4th 1117, 1126; People v. Anderson (1968) 70 Cal.2d 15 (Anderson).)

C. Analysis

Unquestionably, the evidence on this question is circumstantial for the most part and rests on inferences. In such cases, we must be careful not to substitute our judgment for the jury's; "even if we might have made contrary factual findings or drawn different inferences, we are not permitted to reverse the judgment if the circumstances reasonably justify those found by the jury." (People v. Perez, supra, 2 Cal.4th at p. 1126.) We conclude that a trier of fact could reasonably infer, based on all of the evidence presented, including the history between Diana Pina and her family and Cardona Sr., and the circumstances on the day of Cardona's death as well as his brutal, execution style killing, that Cardona Sr.'s murder was deliberate and premeditated, i.e., "a result of 'preexisting reflection rather than unconsidered or rash impulse.' " (Sanchez, supra, 12 Cal.4th at p. 33.)

The relevant facts, and rational inferences therefrom, supporting the jury's findings may be summarized as follows: Diane Pina and Cardona Sr. had a history together, having lived with each other and combining their families for some time in the same house. It is apparent that as a result of frequent arguments, Cardona Sr. and his son eventually moved out of the house in which Diane Pina lived, and there was continued arguing going on between the families. On the morning of Cardona Sr.'s death, Annie Ridgell saw Diane Pina talking to her sons. Later that morning, a heated argument took place between Diane Pina, her sons Alonzo and defendant, and Cardona Sr. and his son, which caused Diane Pina to react by ordering Cardona Sr. off the property, telling him to move out. The argument was so intense that Diane Pina's daughters ran hysterically to the neighbor's house to use the telephone, leaving in a hurry when their request was denied. The jury could reasonably conclude that at that time, one or more of the Pina family members made threats to Cardona, Sr.; Cardona Jr. testified one of them told his father he would be leaving "one way or another" and that he shouldn't be surprised if he was seen on the television news. In context, it is no stretch to infer that the comment meant Cardona Sr. would suffer some wrongdoing or harm of such significance that it would be picked up by the local media. Indeed, Cardona Sr. was visibly upset when he arrived at Leakes's house after the argument.

Although the time frames differ among the witnesses, thereafter, Martinez witnessed Cardona Sr. shot multiple times with a shotgun by a Hispanic man who stood over him to deliver the final shots, and stabbed in the head by another man, both of whom left in a van that Bernada Garcia testified resembled one driven by defendant and his girlfriend, Brenda Cano. Garcia was the only person to place Brenda Cano's van at the scene immediately after the shooting, and her testimony was not shown to be inherently unbelievable. If not inherently incredible, the testimony of a single witness is sufficient to support a conviction. (People v. Keltie (1983) 148 Cal.App.3d 773, 781-782; People v. Young (2005) 34 Cal.4th 1149, 1181.) While Martinez was unable to positively identify defendant as the shooter, he testified that there were similarities in appearance between them. Seizing onto the lack of any positive identification before or during the trial, defendant argues there is nothing to tie him to the crimes. But purported weaknesses in identification testimony must be evaluated by the jury, not this court. (Keltie, at pp. 781-782.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young, at p. 1181.) The evidence permits an inference, based on defendant's presence at the scene of the argument and the circumstances of his leaving his workplace that day just before the time of the shooting, it was in fact defendant at the scene of Cardona Sr.'s murder. It is also reasonable to infer based on the nature of the argument and the threats made that the Pina sons had decided they would defend their mother by ridding her of Cardona Sr., and that they planned to do so before Cardona Sr.'s death, as they were seen talking that morning and had to obtain weapons and Brenda Cano's van as an escape vehicle between the time of the argument and Cardona Sr.'s death. Based on Annie Ridgell's testimony and the circumstances of the arguments occurring that day just before Cardona Sr.'s death, the jury could accept that Diane Pina and her sons had discussed their actions beforehand, and planned for defendant and his brother to confront and kill Cardona Sr. Drawing all of these inferences permits us to uphold the jury's implied findings of planning and motive as supported by substantial evidence.

Finally, the jury could infer from the evidence that the manner of killing tended to demonstrate defendant acted with premeditation and deliberation. In People v. Stewart, the court found the fact the victim's killing was "accomplished by a single execution-style shot fired from close range into the victim's forehead, in circumstances showing no evidence of a struggle . . . plainly support[ed] a finding of premeditation and deliberation." (People v. Stewart, supra,33 Cal.4th at p. 495; see also People v. Thomas (1992) 2 Cal.4th 489, 518 [victims killed by "single contact shots" to head and neck, a method "sufficiently ' "particular and exacting" ' to warrant an inference that defendant was acting according to a preconceived design"].) Here, defendant's actions in shooting Cardona Sr. occurred after the argument had calmed down, and after he had retrieved weapons and Brenda Cano's van. Defendant shot Cardona Sr. multiple times in a cold, calculated manner, standing over him to deliver the final shot. A rational finder of fact could infer that the manner of killing is sufficient to support the trier of fact's implied finding that defendant formed the plan to kill Cardona Sr. that morning, located the murder weapon, and deliberately murdered him. (Accord, Sanchez, supra, 12 Cal.4th 1, 34.) Drawing all reasonable inferences as we must, we conclude the combined facts recited above compel our conclusion that substantial evidence supports the jury's finding of premeditation and deliberation.

Recognizing it is not definitive on the issue of premeditation and deliberation (see People v. Hawkins (1995) 10 Cal.4th 920, 957, overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 109-110), defendant relies upon People v. Anderson, supra, 70 Cal.2d 15, in which the California Supreme Court identified the types of evidence that are indicative of premeditation and deliberation.^[3] However, Anderson's guidelines "are 'descriptive, not normative,' and reflect the court's attempt 'to do no more than catalog common factors that had occurred in prior cases.' [Citation.] In developing these guidelines, the court did not redefine the requirements for proving premeditation and deliberation." (People v. Young, supra, 34 Cal.4th at p. 1183.) Instead, Anderson's "goal . . . was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse." (People v. Perez, supra, 2 Cal.4th at p. 1125.) "The categories of evidence identified in Anderson . . . do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight." (People v. Young, at p. 1183.)

Defendant's arguments concerning the lack of direct evidence tying him to Cardona Sr.'s shooting simply do not convince us to reject the jury's verdict based on the evidence recited above.

II. Admission of Tattoo Evidence

Before trial, defendant moved in limine to exclude evidence that he had the numbers "685" tattooed on his upper left arm. In arguing the motion, the prosecutor pointed out that one of the defense theories was that defendant was not at the Clay Avenue house that day; that defendant's identity as the perpetrator was in issue and Cardona Jr.'s familiarity with defendant, including the fact he knew defendant so well that he was aware of defendant's tattoo, was particularly important. The prosecutor assured the court he would not present witnesses to interpret the tattoo's meaning. Defense counsel objected, arguing the existence of defendant's tattoo was irrelevant because Cardona Jr. did not identify defendant on December 21, 2004, by virtue of his tattoo nor did he see the tattoo that day, and there was no dispute that Cardona Jr. personally knew the defendant based on their prior history. He argued the testimony would lead to speculation by jury about the tattoo's meaning.

The trial court admitted the evidence of the fact of defendant's "685" tattoo, ruling that as long as there was no evidence as to its meaning or gang affiliation, it was probative on the issue of defendant's identity from a particular witness. The court reasoned: "[T]here's millions of people that have tattoos that have no significance whatsoever except that people like to put tattoos. All you have to do is have teenagers to understand that. And that doesn't mean that they're involved in criminal activity or that they committed any crime or did anything wrong, and I don't think that the jury will draw that inference because I'm not going to allow any testimony for them to draw that inference. [] But the mere fact that he has a tattoo of "685". . . if that's part of an identification by a particular witness, that's in my mind probative, and I'll allow the people to bring it in for that purpose only. But I won't allow any expert testimony as to what it means or is it gang affiliated or anything of that nature. [] I mean, I don't know if there's anything except for the numbers "685." That's what I saw in your moving papers, "685." To me that means nothing. It has no meaning whatsoever except that he has the numbers 685 tattooed on his upper left arm. So what? Except for does it go to the identification and then it's relevant [] . . . [] and then its probative."

At trial, Cardona Jr. was permitted over defense counsel's objection to testify that he was aware that defendant, who he had known for a number of years, had a tattoo on his arm "of numbers." Cardona Jr. identified defendant from a photograph that also depicted defendant's tattoo; he testified he had seen the "685" tattoo before. The trial court excluded the photograph from evidence.

Defendant contends admission of this evidence was prejudicial error; that there was no need to present evidence of the existence of defendant's tattoo on the issue of identification and that its minimal probative value was substantially outweighed by its prejudicial impact. He further maintains the trial court's decision "created a substantial danger of the jury punishing [him] for the unorthodox and unpopular ideas associated with being a gang member," and "First Amendment considerations inherent in using association with a gang" are policies favoring exclusion that the trial court should have considered in resolving the issue.

"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; see also People v. Guerra (2006) 37 Cal.4th 1067, 1113.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)

These settled principles compel us to reject defendant's contentions. Cardona Jr., was the only witness placing defendant at the Clay Avenue house that day, shortly before his father's shooting. The trial court made a considered judgment that it was important for the jury to know that Cardona Jr. was very familiar with the defendant and personally knew him well enough to know he had a distinctive tattoo of numbers on his arm. The court minimized any prejudice by prohibiting testimony about the tattoo's meaning, and the jury was without any evidence from which to speculate it was gang related. We will not presume that any such speculation took place in the absence of evidence indicating otherwise. Concededly, evidence of defendant's tattoo tended to be cumulative for purposes of Cardona Jr.'s identification of defendant given the history between defendant and Cardona Jr. However, as stated in People v. Medina (1995) 11 Cal.4th 694, 749, "the weighing of probative, although possibly cumulative, evidence against its potentially prejudicial nature is a matter entrusted to the sound discretion of the trial court." The trial court's decision was not arbitrary or patently absurd, and thus we ascertain no abuse of discretion.

As for defendant's First Amendment argument, this specific argument was not made to the trial court and is thus forfeited on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433-434; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) It nevertheless fails because it is premised on a fact not present in the record, namely, the notion that the jury viewed the photograph of defendant and his tattoo. There is no indication the jury saw the photograph when it was presented to Cardona Jr. on the stand, and the court ultimately excluded it from evidence on defense counsel's objection.

III. Third Party Culpability Evidence

Defendant contends he was deprived of his state and federal constitutional rights to present a defense and confront witnesses when the trial court denied him the opportunity to present third party culpability evidence. Defendant characterizes this third party culpability evidence as "testimony concerning the fact that [the] victim, Jose Cardona, frequently purchased drugs from the location where he was killed."

The above-quoted characterization is unsupported by the record. In fact, the third party culpability evidence proffered by defense counsel before trial was that witnesses, including Martinez, would testify generally that drug dealings had occurred at the gate where Cardona Sr. was shot and through which he attempted to crawl after the shooting.^[4] Counsel sought to present a defense that his killing was committed by an individual involved in a drug transaction with Cardona and resulted from a "drug deal gone bad." The trial court cautioned that a significant foundation would have to be laid before it would permit defense counsel to proffer such a defense; that the fact there may have been what some people perceived was drug dealing going on in the alley was irrelevant. When counsel responded that Martinez would testify that drug transactions were occurring over the fence, the court stated it would not permit Martinez to testify absent evidence of personal knowledge such as evidence he walked up and saw drugs passed over and money exchanged. For purposes of defendant's in limine motion, the court ruled, "[H]aving someone render an opinion as to what they're doing without personal knowledge and/or the expertise to be able to render an opinion, it would be pure speculation as far as what they were doing, and I wouldn't allow that." It offered counsel an opportunity to bring Martinez in to establish his personal knowledge on the question.

At trial, Martinez was the only witness to testify concerning activities occurring at the gate where Cardona Sr. was shot. He testified that at the time of the shooting, the only other vehicle in the alley was his own. He testified that he had seen the gate before, and had seen a lot of people by the gate, which got opened and closed. According to Martinez, before December 21, 2004, he had observed people at the gate, but he "couldn't see if they were receiving something or not;" he testified he had seen "transactions" but did not know what kind because he was not personally involved in them. Acknowledging Cardona Sr. was shot right in front of the gate, Martinez testified he had not previously seen Cardona Sr. do any transactions by that gate. The court sustained objections to questions about whether Martinez had observed "a lot of drug activity," seen individuals drive up to the gate before, or observed "a lot of activity at that gate area."

The trial court revisited the issue when the prosecution sought to exclude evidence of Cardona Sr.'s blood levels of marijuana and methamphetamine at the time of his death. Defense counsel stated he intended to introduce evidence that Cardona purchased drugs from that location, and argued the blood evidence was critical, showing Cardona Sr. was a drug user. The court found it a "far stretch," irrelevant, and unduly prejudicial to say that evidence of drugs in Cardona Sr.'s system meant he was at the house buying drugs and someone there executed him. It ruled there was no foundation for third party culpability, and thus the evidence of Cardona Sr.'s blood tests would be admissible solely for showing Cardona Sr.'s state of mind during the argument. The court also pointed out that Martinez never testified about seeing any exchange of money at the gate, seeing anyone come out of that gate, or seeing anyone get out of the van into the gate, and it would be "pure speculation as far as what occurred out in that alleyway," confusing, and unduly prejudicial to permit Martinez to testify about any money exchange. The trial court denied defendant's motion for new trial on grounds of improper exclusion of third party culpability evidence, ruling the proffered theory that Cardona Sr. was killed by unknown persons behind the gate was speculative and merely a postulated theory with no supporting credible evidence.

A. Standard of Review and Applicable Legal Principles

We review defendant's evidentiary contention for abuse of discretion, and thus decline to disturb the trial court's ruling unless we hold it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra, supra, 37 Cal.4th at p. 1113.)

Our state's high court has repeatedly held that "[to] be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime." (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Sandoval (1992) 4 Cal.4th 155, 176, affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1; People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) In Hall, the court explained, "[C]ourts should . . . treat third-party culpability evidence like any other evidence: if relevant it is admissible . . . unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion . . . . " (Hall, at p. 834.) "To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of

raising a reasonable doubt of defendant's guilt. At the same time, we do not require

that any evidence, however remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, 41 Cal.3d at p. 833.)

Recently, the United States Supreme Court cited the principles expressed in Hall with approval in Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct. 1727] (Holmes). In Holmes, the court explained: "While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." (Holmes, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 1732].) Specifically, third party evidence " 'may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial [ ]'. Such rules are widely accepted . . . . " (Holmes, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 1733], fn. omitted.)

B. Analysis

The trial court did not abuse its discretion in the rulings we have summarized above relating to defendant's claimed third party culpability defense. Although Martinez was permitted to testify about the fact he had seen transactions at the gate in the alley, other testimony the defense sought to elicit regarding numerous unspecified "activities" or individuals driving up to the gate was reasonably excluded as vague or irrelevant. Indeed, Martinez's testimony was directly contrary to defendant's proposed third party culpability theory; he testified he had never seen Cardona Sr. involved in any transactions occurring at the gate.

Defendant points to evidence from a 911 audio tape indicating that Michael Major, who heard the gunshots from his living room and called police, told a 911 dispatcher that "those people inside the gate" shot Cardona, Sr. He argues the call "confirmed that . . . Martinez identified the shooters as shooting from inside the gate, and that this area was notorious for drug trafficking." However, as the People point out, at trial Major testified that when he looked outside at the time, Martinez only pointed his hand down the alley and said, "They shot him." Major confirmed that he gave the wrong information to the 911 dispatcher. Nor does anything about Major's testimony indicate there was drug trafficking in the area. Defendant's characterization of Major's testimony on that point is unsupported by the record.^[5]

Defendant's proffered evidence does not indicate either directly or circumstantially that any unidentified person behind the gate was involved in a drug transaction, much less that any one of those persons was the perpetrator of the crime. None of the evidence that defendant sought to present through Martinez (or presented from Major) tended to establish a motive to kill Cardona Sr. by any particular person because of an unsuccessful drug deal. On a much stronger showing, evidence of third party culpability has been rejected as lacking a sufficient link between an identifiable third party and the victim around the time of death. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1134-1138 [trial court did not err in excluding proffered evidence that a third party involved in drug trafficking might have killed the victim; defendant offered to prove that the victim dealt in marijuana and other narcotics and owed a large sum of money to a drug dealer; that the victim had asked him to provide armed protection for her during a drug transaction planned for the night before her murder and that she had purchased ammunition for this purpose; and that on the night before the murder, he and the victim met a Mexican man named Pablo for the purpose of consummating the drug deal, and that the transaction was postponed when the drugs did not arrive].) As stated, evidence does not constitute third-party culpability evidence unless there is " 'direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' " (People v. Avila (2006) 38 Cal.4th 491, 578.) The proffered evidence does not raise a reasonable doubt as to defendant's guilt, and therefore its exclusion was proper.

IV. Prosecutor Misconduct

Defendant contends the prosecutor engaged in prejudicial misconduct during his rebuttal closing arguments; that the prosecutor assertedly offered personal opinions about defendant's guilt and made personal attacks on defense counsel,^[6] commented on defendant's exercising his right to jury trial and right to remain silent,^[7] and shifted the "burden of producing witnesses" to defendant to prove his innocence. On the latter assertion of misconduct relating to burden of proof, defendant points to the prosecutor's statement: "Obviously you are the judges of the credibility of everyone here. And the defense says, well, you know, I could have called Miss Cano. She could have been called as a witness here. She is subject to subpoena by either side. I didn't call her as a witness, didn't get a whole lot of cooperation from the family, if you know what I mean, weren't too interested in saying anything that might contribute to [defendant] being held responsible for the murder of Mr. Cardona [Sr.]"

We need not further detail or put in context the rebuttal arguments of the prosecutor, because we agree with the People that defendant forfeited these claims of misconduct. When the arguments were made, his counsel did not make a timely or specific assignment of misconduct and he did not request the jury be admonished to disregard the impropriety, as he must do to preserve the claim for appeal. (People v. Brown (2003) 31 Cal.4th 518, 553; People v. Prieto (2003) 30 Cal.4th 226, 231; People v. Hill (1998) 17 Cal.4th 800, 820.) In his reply brief, defendant maintains he did assert an objection to the challenged arguments. However, defense counsel said nothing well into the prosecutor's arguments until after the prosecutor's statement about calling Brenda Cano as a witness. Then, defense counsel merely asserted, "Your honor, I will object to this form of argument." The trial court responded: "Continue on, Mr. Panish." Such an unspecific objection without any request for admonition is insufficient to preserve the misconduct claim.

For the first time in his reply brief, defendant points out a failure to object to prosecutorial misconduct will not constitute a waiver where the potential prejudice is so great it could not have been cured. While we agree a claim may be raised on appeal when the harm could not have been cured (People v. Hill, supra, 17 Cal.4th at p. 820), we have reviewed each of the alleged instances of impropriety and do not consider the comments so egregious as to fall within that exception. (See, e.g., People v. Hill, at p. 820; People v. Bradford, supra, 15 Cal.4th at p. 1335.) In other words, we conclude an admonition would have cured any prejudice from the alleged misconduct. (People v. Silva (2001) 25 Cal.4th 345, 373.) And defendant does not explain in any meaningful way why an objection on this ground and request for admonition would have been futile, other than to say no admonition would have cured error "given the context of the prosecutor's improper comments and the fact that it cut right to the heart of appellant's defense . . . ." Defendant points to nothing in the record showing the court somehow gave its imprimatur on counsel's statements or otherwise indicated it was disinclined to consider further objections. (E.g. People v. Hill, supra, at pp. 821-822.) The record does not support defendant's argument that an assignment of misconduct and request for admonitions would have been futile.

V. New Trial Based on Juror Misconduct

Defendant contends he was denied his constitutional rights to a fair trial by an impartial and unanimous jury; that the trial court prejudicially erred by declining to excuse two jurors who assertedly lacked the ability to be fair and impartial as a result of a collect telephone call one of the jurors received from the Riverside County Jail.

A. Background

On the fourth day of the jury's deliberations, a Monday, the court received the following note from Juror No. 1: "Judge Davidson, [] Friday night at approximately 9:30 a.m. I received a collect call from Riverside County Jail. It caused me such anguish that I called Juror #4, our foreperson, because I could not tell my husband why I was so upset. She calmed me down and told me I needed to inform you. We did not discuss anything else. [] #1."

When questioned about the matter, Juror No. 1 repeated what she wrote in her note, adding that the voice was male, with an accent she could not identify. The court thanked her for bringing it to its attention, and commented it probably was just a wrong number. The juror responded that she presently felt she may have overreacted, but she had never gotten such a call and she had three children. The juror stated she had not received any other calls; she had left to Disneyland with her family all weekend and forgot about the matter until that day. When asked by defense counsel whether the incident would impact her ability to be a fair juror, Juror No. 1 said, "No," repeated that she felt she had overreacted, and explained the incident had surprised her. She elaborated: "You know, I couldn't write 'Freaked me out' in my note, so I couldn't write that in my note. [] . . . [] I mean, like, that's slang. I can't write slang in a letter to a judge. [] But no, I don't think it's going to impact me at all. It's not that big of a deal anymore. If it happens again, then it may be an issue. But I can't imagine it happening again."

The trial court denied defense counsel's request to excuse both Juror No. 1 and the foreperson, Juror No. 4, on counsel's assertion they had been tainted by the call. It found no grounds to inquire about the matter with the foreperson who had helped Juror No. 1 calm down, and, finding Juror No. 1 was not impacted by the matter, it ruled there were no grounds to exclude either juror. It noted that while the juror was initially shocked, she was able to leave and enjoy herself for a family weekend at Disneyland, and she had entered the courtroom that morning in a "bubbly mood," smiling and jovial, "under no distress whatsoever."

Defendant moved for a new trial, claiming the collect call tainted the ability of Juror Nos. 1 and 4 to be fair and impartial. Defense counsel argued it was reasonable to infer that Juror No. 1, who was aware defendant's brother Alonzo Pina was a codefendant, would conclude the call was from defendant's brother in an attempt to coerce or intimidate her. The court denied the motion, finding the call did not taint juror deliberation in any way.

B. Review Standard

"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (People v. Davis (1995) 10 Cal.4th 463, 524; see also People v. Williams (1997) 16 Cal.4th 635, 686.)

To prevail on a new trial motion asserting juror misconduct, the moving party has the burden to establish a factual basis for the misconduct. Decisions concerning the weight and sufficiency of the misconduct allegations are for the trial court, and must be affirmed on appeal if supported by substantial evidence. (People v. Stanley (2006) 39 Cal.4th 913, 951; People v. Nesler (1997) 16 Cal.4th 561, 582.) The trial court's credibility determinations are upheld if supported by substantial evidence. (Nesler, at p. 582.) Further, in evaluating a new trial motion based on juror misconduct, "[t]he standard is a pragmatic one, mindful of the 'day-to-day realities of courtroom life' [citation] and of society's strong competing interest in the stability of criminal verdicts." (In re Hamilton (1999) 20 Cal.4th 273, 296.) The courts recognize that jurors are

" 'imbued with human frailties' " and that a certain level of imperfection must be tolerated, unless there is actual bias shown. (Ibid.) " 'To demand theoretical perfection from every juror during the course of a trial is unrealistic.' " (People v. Danks (2004) 32 Cal.4th 269, 304.)

C. Analysis

Defendant alternately characterizes the new trial issue presented here as involving "juror misconduct," "exposure to extrajudicial matters," and "jury tampering." We question the application of these principles to the facts presented by the collect call to Juror No. 1. Nevertheless, we address each posited theory in turn. We conclude that under any of them, the trial court did not abuse its discretion in denying defendant's new trial motion.

Juror misconduct typically occurs when a juror obtains information about a party or the case that was not part of the evidence received at trial. (People v. Nesler, supra, 16 Cal.4th at p. 578; People v. Ramos (2004) 34 Cal.4th 494, 519.) Where misconduct involves receipt of information from an extraneous source, the entire record must be reviewed and we will set aside a verdict " 'only if there appears a substantial likelihood of juror bias.' " (People v. Danks, supra, 32 Cal.4th at p. 303.) Such bias can appear in two different ways. "'First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror.' " (Ibid.) Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (Ibid.) The judgment must be set aside if the court finds a substantial likelihood of prejudice under either test. (Id. at pp. 303-304.)

Here, it is obvious that the juror simply received an unsolicited collect call, about which she immediately informed the court. Thus, this case does not present a typical misconduct scenario. Nevertheless, assuming we can somehow characterize her mere receipt of the call as "misconduct," there is nothing in the record indicating the caller communicated any information or "evidence," much less evidence relating to the case. We decline to conclude as an objective matter that the mere fact of a collect telephone call by an unknown man from the Riverside County Jail is "so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment." (People v. Danks, supra, 32 Cal.4th at p. 303.) Thus, it is not inherently and substantially likely to have prejudiced the juror, particularly when the juror herself ultimately denied any impact on her ability to be fair and impartial.

Nor does the record reflect any actual bias, which arises when a juror becomes "unable to put aside her impressions or opinions based upon the extrajudicial information she received and to render a verdict based solely upon the evidence received at trial." (People v. Nesler, supra, 16 Cal.4th at p. 583.) After reviewing all of the circumstances, the trial court made an unambiguous finding that neither juror was impacted in any way by the telephone call. The finding is amply supported by the juror's own assurances to the trial court the following week, when she was specifically asked whether it would impact her ability to be a fair juror. Ignoring the substantial evidence test, defendant asks us to reach a different conclusion, pointing to the fact Juror No. 1 was fearful after the call, and asking us to infer that she would think the call could have been made by a member of the Pina family, thereby influencing her verdict. But there is nothing in the record demonstrating that, contrary to Juror No. 1's assertions otherwise to the trial court, she was unable to exercise her ability to be a fair and impartial juror. We decline to draw an inference that Juror Nos. 1 or 4 were unable to put aside their feelings about the telephone call, or that the call constituted tampering because it "interfered with the jury's deliberations by distracting one or more of the jurors" as defendant argues. The circumstances are nothing like United States v. Dunkel (9th Cir. 1999) 192 F.3d 893, on which defendant relies, in which there was no dispute that a co-defendant bribed a juror.

VI. Claim of Cruel & Unusual Punishment

Defendant contends his 25-year-to-life sentence imposed for the fire