Filed 12/7/18 P. v. Rodgers CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Kerry Burns, the murder victim, recruited defendant Victor Bernard Rodgers to participate in a bank fraud scheme. After defendant did not receive any money from the scheme, but learned the bank was investigating his account for fraud, he retaliated against Burns by shooting and killing him. The jury found defendant guilty of first degree murder and found true the firearm enhancement. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The trial court sentenced defendant to 50 years to life in prison.

On appeal, defendant contends the trial court erred in excluding evidence of third party culpability relating to defendant’s fellow fraudster Cerwilliam Pryor (also known as Man-Man). Specifically, defendant contends it was error to exclude statements made by the victim and his wife that suggested Pryor was present at the scene near the time of the killing; he also contends error in excluding evidence of Pryor’s false alibi and anger at Burns to show consciousness of guilt and motive. He argues it was error to admit a hearsay statement to rehabilitate his brother’s testimony, and these errors were cumulatively prejudicial. Defendant adds a request for remand due to the trial court’s new discretion to strike the firearm enhancement and to hold a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

The People concede a remand for consideration of dismissal of the firearm enhancement is necessary, but urge the judgment should otherwise be affirmed. We agree and remand for the limited purpose of allowing the trial court to exercise its discretion to strike the firearm enhancement. We otherwise affirm the judgment.

FACTS

Events Before the Murder

Murder victim Burns set up a scheme to defraud banks and recruited defendant and Pryor to participate. The scheme involved setting up accounts for defendant and Pryor and writing checks to withdraw funds before the bank realized it. Defendant’s understanding of the scheme was that Burns and a woman at the bank who was helping him would receive a portion of the proceeds of the withdrawals from the account defendant established and he would receive the remainder. Defendant never received any money; instead, the bank called him about the fraud.

Defendant was angry with Burns about the failed scheme and this anger was documented in a series of text messages between Burns and defendant. On May 11, 2012, Burns told defendant he needed to speak with him because the woman at the bank “let [him] know something.” A few days later, defendant texted Burns that he had received notice from the bank that $586.21 had been withdrawn but he had not received any of the money and asked what was going on. Over the next few days, text messages showed defendant becoming increasingly angry at Burns and his refusal to respond. On May 19, defendant exchanged text messages with Brianna Huff, the mother of his child. Huff asked about defendant’s financial situation and defendant replied it was bad, that his “stuff” had been stolen and he should have listened to her. Later, Huff asked, “You didn’t do anything stupid to the guy, did you?” Defendant replied, “No, not yet, but I’ma feed him hot one though.” Huff told defendant to be careful and defendant backtracked. “I will. I’m not even going to do. I’ma just clear my name.”

Pryor was also angry and went to Burns’s mother’s house looking for Burns, where he pounded on the door and asked for him. Burns’s mother told him Burns was not there and not to come back. She later told the police that Pryor hung out down the street. Burns sent Pryor an angry text about going to his mother’s and claimed either Pryor or defendant must have called the bank about the scheme.

Defendant spoke with his brother Malik about the scheme in which he and Burns were involved and told him it was not working out. Defendant told Malik that if he did not get money from Burns, Burns was not going to like the outcome. Defendant said Burns was threatening him and it was going to get ugly; he said he would handle the problem with Burns by “shootout or a fade.” According to Malik, defendant possessed a revolver.

The Murder

On the evening of May 22, 2012, Burns and his wife Sheila went to his mother’s house. Sheila saw a group of black males down the street; the only one she recognized was defendant’s brother Malik. Burns and Sheila spent five to 10 minutes talking to Burns’s mother and then Burns left. He pulled up to a group of people along the same street. The group included Malik, twins Andrew and Andre Jones, and a woman named Nicki. Burns asked for “TB,” who is Thabit Shaaf, the uncle of defendant and Malik. Burns then made a U-turn, which was caught on surveillance video. Shortly after that, the video showed Malik, the twins, and Nicki running.

Sheila heard the music from Burns’s car as he pulled into his mother’s driveway. Burns was standing on the porch when Sheila heard five to seven gunshots in rapid succession. Sheila ran out of the house and saw Burns on the grass; his underwear and shorts were pulled down to his ankles.

Valerie Gaylord was in a parking lot facing the same street when she heard gunshots and saw the flash of a gun. She saw a tall, slender black man in a black shirt fire another four shots. Gaylord called 911 at 8:25 p.m.

Burns suffered two gunshot wounds, one to his upper right chest and one through his back left hip. The pathologist testified the shot to the hip traveled through several internal organs and was fatal. The shot to the chest went through the lung and had a very high likelihood of fatality.

Defendant Implicated in the Shooting

The police interviewed Malik and the twins (Andre and Andrew) and eventually all three men implicated defendant in the shooting. Andrew testified that after Burns left the group, Malik made a call saying “hurry up, he’s here” or “Bro, he here.”[1] Malik used Nicki’s phone to make the call. After Malik hung up, shots were fired.

Andrew saw a “black dude” hopping the fence and shooting. The man wore black pants and a hoodie and had dreadlocks with blonde tips. Both defendant and Shaaf wore such dreadlocks; Shaaf was shorter than defendant. Defendant had been wearing a colorful shirt earlier that day, but after the shooting defendant was wearing a black hoodie and pants. Andrew later saw the shooter and identified him as defendant.

Andre also testified he saw Nicki give Malik her phone and he used it to call defendant and tell him Burns was there. Then there were shots and he ran. The next day, Malik told a group ,including Andre, that his brother had shot Burns over “some taxes.” Malik testified pursuant to a plea agreement; he had pleaded to being an accessory, for time served, in exchange for testifying truthfully in defendant’s trial. Once on the stand, Malik claimed not to remember many events surrounding the shooting. Outside the presence of the jury, the trial court admonished Malik to sit up straight and answer the questions, telling him it was perjury if Malik said he could not remember when in fact he could. The court had Malik consult with his attorney about his plea agreement.

Malik testified defendant asked for his hoodie that night and Malik gave it to him. He had previously testified he called defendant; the call went to Huff’s phone. He claimed he did not know what phone he used to make the call. Malik also acknowledged he had previously told the police he saw defendant running from the scene of the shooting. Defendant asked his grandmother for a ride to the south area 20 minutes after the shooting and two days later he talked about going to Las Vegas.

Both Malik and Andrew testified they saw Pryor on Burns’s mother’s street hours before the shooting.

Defendant’s Admissions

Sergeant Chris Leveque of the Las Vegas Metropolitan Police Department arrested defendant in Las Vegas. Defendant claimed his trip to Las Vegas has been pre-arranged after a meeting with his counselor. His probation case manager testified they had discussed defendant moving to Las Vegas where his aunt lived.

During the initial interview, defendant stated he did not shoot Burns. When Leveque took defendant out for a smoke break, defendant told Leveque he wanted to “tell them what happened.” Defendant said he went to Burns’s and they argued over money; tempers were heated and he shot Burns. When defendant and Leveque returned to the detention center, defendant saw a Bank of America sign and became nauseated. Apparently referencing the failed conspiracy to commit bank fraud, which involved Bank of America, he said, “that’s how all this shit started.” In the next interview, defendant still denied he shot Burns, but he said the day of the shooting he had received a call from Malik that Burns was looking for Shaaf.

Back in Sacramento, defendant admitted to law enforcement that he shot Burns. Defendant said he went to visit Burns and they had words. Defendant was wearing black sweats and a hoodie. He slipped on some rocks; Burns heard and came after him. Burns approached him “forceful about the money” and, defendant claimed, the gun defendant was carrying went off accidentally. Burns kept coming at him and defendant fired at the ground to scare him off. He did not know if the shot hit Burns. He threw the gun, a silver revolver, behind some apartments. Defendant begged the officers not to charge Malik.

The Defense

At trial, defendant denied shooting Burns. He claimed he was not on Burns’s mother’s street that night but nearby at his grandmother’s. He testified he falsely confessed so he could go home and to protect Malik.

Defendant presented testimony that he was at his grandmother’s at the time of the shooting and was wearing colorful clothing, not a black hoodie. He also offered evidence that Malik had told people he had lied to the police about defendant to get out of jail.

DISCUSSION

I

Third Party Culpability Evidence

Defendant contends it was prejudicial error to exclude third party culpability evidence. His defense was that Pryor was the shooter. To bolster this defense, defendant sought to admit the following evidence: (1) Sheila told Detective Turnbull she saw Pryor down the street when she and Burns arrived at Burns’s mother’s house; (2) upon that arrival, Burns told Sheila, “There’s that niggah Man-Man [Pryor];” (3) Pryor told Detective Belli he was partying somewhere else at the relevant times, but phone records established that alibi was false; and (4) Pryor told Belli he was angry at Burns over the failed bank scheme.

A. Background

At the beginning of the second trial,[2] the parties filed in limine motions to admit or exclude third party culpability evidence. The trial court noted that in the first trial much of defendant’s proffered third-party culpability evidence was admitted during the People’s case-in-chief, so the court would defer ruling until the close of the People’s case. After ruling on other pretrial matters, the court turned to defendant’s motion to admit Pryor’s statement to Detective Belli, claiming a false alibi and anger with Burns, as evidence of Pryor’s culpability in the murder.

The motion summarized Pryor’s statement in relevant part as follows: Pryor had told Belli he was getting calls from the bank and was not happy about it. He stopped by Burns’s mother’s house to talk to Burns but he was not there. Burns called him and yelled at him for going to his mother’s house. Pryor said the day Burns was killed, Pryor was partying at an apartment near Auburn and Garfield. “I stayed at that apartment all day and night . . . I never went to [Burns’s mother’s street] that night at all.” Cell phone records showed Pryor was all over Sacramento that day, so Pryor was lying about staying at the apartment all day and night. The records showed Pryor was not at Auburn and Garfield until 8:53 p.m., almost 30 minutes after the shooting. At 8:05 p.m., Pryor was approximately 6.3 miles from the shooting. The defense proffered that Google Maps estimates the travel time between the two points at nine minutes, and a defense investigator traveled the distance in eight minutes and 21 seconds. That was enough time for Pryor to get to the murder scene by the time of the shooting.

The parties had stipulated that Pryor would assert his right not to testify under the Fifth Amendment, as he had in the first trial. The trial court ruled Pryor’s statement to the police did not fall within the hearsay exception of Evidence Code section 1291 because it was not prior testimony and excluded it.

Despite initially expressing its intent to defer ruling on third party culpability evidence, the trial court then excluded evidence of Burns’s statement to Sheila about seeing Pryor (“there goes Man-Man”), ruling that it was hearsay and not a spontaneous statement. The court ruled all other third-party culpability evidence proffered by the defense that was not admitted during the People’s case went only to motive and opportunity and did not raise a reasonable doubt that defendant was the shooter. The court excluded that evidence under Evidence Code section 352.

The trial court held a hearing pursuant to Evidence Code section 402 regarding Sheila’s alleged statement to Detective Turnbull that she saw Pryor shortly before the shooting. Turnbull testified he had interviewed Sheila the night of the shooting. He asked her if she saw Pryor when she and Burns arrived at her mother-in-law’s and she said no. However, in the probable cause statement supporting defendant’s arrest, Turnbull had written that Burns told Sheila he had seen Pryor and when Sheila looked down the street, she had seen him too. Turnbull claimed his assertion in the probable cause statement about Sheila also seeing Pryor was a mistake on Turnbull’s part. Defendant wanted to ask Sheila at trial about this alleged statement.

The People provided the trial court with a transcript of Turnbull’s interview with Sheila. On page 6 of the transcript, Sheila clearly indicated she did not see Pryor that night, but on page 19 she said, “Like I explained to him, there’s a blue car that was there, and I noticed the guy was looking funny at [Burns] named Man-Man.” At a hearing held before the first trial, Sheila had made clear that she had met Pryor and knew what he looked like but had not seen him the night of Burns’s murder.

The trial court ruled the transcript did not establish that Sheila had told Turnbull she saw Pryor that night. The court found the transcript confusing and opined that Sheila could have been telling Turnbull what Burns had told her, so the second statement was not necessarily inconsistent with the first. The court excluded the evidence of the statement that Sheila saw Pryor that night as “not factually-based” and under of Evidence Code section 352.

At trial, Sheila testified she recognized only Malik in the group of black males down the street. In response to the prosecutor’s question of what she saw when she and Burns arrived at the house, she testified Burns said he saw Pryor. The defense objected that the answer was nonresponsive and asked that it be stricken; the trial court complied. Moments later, defendant renewed his request to admit Burns’s statement to Sheila about seeing Pryor and the court denied it. During Turnbull’s testimony, the court denied a renewed request to admit Burns’s statement (as told to Turnbull through Sheila) and evidence of Pryor’s false alibi given to Detective Belli. Before the defense closing statement, defendant asked to reopen to admit evidence of Sheila’s statement to Turnbull that she had seen Pryor. The court denied the request.

B. Analysis

“A criminal defendant has a right to present evidence of third party culpability if it is capable of raising a reasonable doubt about his own guilt.” (People v. Sandoval (1992) 4 Cal.4th 155, 176.) “To be admissible, the third-party [culpability] 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.” (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).)

“[C]ourts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible [citation] unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [citation].” (Hall, supra, 41 Cal.3d at p. 834.)

1. Sheila’s Statement That She Saw Pryor

Defendant contends the trial court erred in excluding evidence of Sheila’s statement to Detective Turnbull that she saw Pryor the night of the murder. Defendant contends the trial court improperly made a credibility determination during the in limine hearing by concluding that inclusion of this statement in the probable cause statement was a mistake. Defendant asserts it was for the jury to determine whether Sheila said she saw Pryor.

The trial court was tasked with assessing the probative value of the evidence; in doing so, it considered the transcript of Turnbull’s interview with Sheila and found it did not establish that she had made the statement at issue, which Turnbull had denied she made. The court also considered that Sheila had previously denied seeing Pryor that night. This was a proper evaluation of the probative value of the evidence, which was well within the trial court’s discretion. The probative value was low at best. Further, admission of this statement would have opened the door to a protracted mini-trial on its accuracy. If Sheila denied seeing Pryor that night (as she had already done and did again during her trial testimony), the defense could attempt to impeach her with the Turnbull’s probable cause statement. In turn, the People could then introduce Turnbull’s testimony that he made a mistake in that statement, potentially supported by the (confusing and inconclusive) transcript of Turnbull’s actual interview of Sheila. On appeal, defendant proposes that he could then have attacked Turnbull’s veracity in multiple ways.

We review for an abuse of discretion a trial court’s rulings on exclusion of evidence under Evidence Code section 352. (People v. Thompson (2016) 1 Cal.5th 1043, 1114.) Given the limited probative value of the statement, for reasons we have already described, coupled with the time-consuming process its admission would have required, the trial court did not abuse its discretion by excluding it. (People v. Daniels (2009) 176 Cal.App.4th 304, 323.) Moreover, any error in excluding the statement was harmless. The proper standard of harmless error here is that set forth in People v. Watson (1956) 46 Cal.2d 818, 837, whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Hall, supra, 41 Cal.3d at p. 836.) “[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.)

Defendant argues exclusion of this evidence deprived him of his right to present a full defense and thus violated his constitutional right to due process and a fair trial. He contends the proper standard for prejudice is the test of Chapman v. California (1967) 386 U.S. 18 at page 24, whether the error was harmless beyond a reasonable doubt. We reject this contention, as did our Supreme Court in Hall. “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (Hall, supra, 41 Cal.3d at p. 834.)

Whatever support the excluded evidence arguably provided to the defense theory its admission was proffered to bolster--that Pryor, not defendant, shot Burns--was minimal for the reasons already described. The source of the evidence--Turnbull--testified it was set forth in error. The actual transcript created more confusion than clarity. No other witness who was present that night testified to seeing Pryor in the area immediately before the shooting. While Pryor arguably had the same motive as defendant--anger over the failed bank scheme--the excluded evidence was, even if fully credited, evidence of mere opportunity. There was no evidence linking Pryor to “the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833, italics added.)

In contrast, there was ample evidence connecting defendant to the crime. Defendant had a revolver and blond-tipped dreadlocks and had borrowed a black hoodie that night, matching Andrew’s description of the shooter. Andrew later identified defendant as the shooter. There was evidence from several witnesses that Malik called defendant and told him Burns was present just before the shooting. Defendant admitted on multiple occasions, to law enforcement officers, that he shot Burns; the circumstances of his statement to Leveque--wanting to get something off his chest and expressing nausea at the sight of a Bank of America sign--added veracity to the admission. Further, defendant had threatened to harm Burns, telling Malik he would handle the problem with Burns by “shootout or a fade” and threatening to “feed him [a] hot one” in a text message to Huff. Finally, he fled to Las Vegas shortly after the shooting.

2. Burns’s Statement to Sheila That He Saw Pryor

Sheila had also told Turnball in her interview that she heard Burns say “there’s Man-Man” when they arrived at his mother’s house; the trial court excluded this evidence because the statement was hearsay and no exception permitted its admission. Defendant recognizes the statement is hearsay, but contends the hearsay rule must yield to his constitutional right to present a defense, as recognized in Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers).

In Chambers, a police officer was shot and killed when a crowd attempted to prevent him from arresting a resisting youth. Before the officer died, he fired into the crowd and shot Chambers, who was then arrested for the officer’s murder. (Chambers, supra, 410 U.S. at pp. 285-286.) Another man, McDonald, gave a sworn statement to Chambers’s attorneys that he shot the officer, but later he repudiated his confession. (Id. at pp. 287-288.) At trial, Chambers called McDonald as a witness and introduced his sworn statement. On cross-examination, the People elicited his repudiation of the sworn statement. (Id. at p. 291.) The trial court, relying on Mississippi’s voucher rule--that a party who calls a witness “vouches for his credibility”--denied Chambers cross-examination of McDonald about the repudiation. (Id. at p. 295.) Chambers then sought to present three witnesses to whom McDonald had admitted he shot the officer. This evidence was excluded as hearsay. (Id. at pp. 292-293.) Mississippi recognized a hearsay exception for statements against pecuniary interest but not statements against penal interest. (Id. at p. 299.)

The United States Supreme Court concluded “the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process.” (Chambers, supra, 410 U.S. at p. 302.) The court found McDonald’s statements to the three witnesses were made under circumstances providing “considerable assurance of their reliability.” (Id. at p. 300.) They were made spontaneously to close acquaintances shortly after the murder, were corroborated by other evidence, including witnesses who saw McDonald shoot the officer, were self-incriminating, and clearly against interest. (Id. at pp. 300-301.)

The high court reasoned: “Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] In the exercise of this right, 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. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” (Chambers, supra, 410 U.S. at p. 302.)

This case is readily distinguishable from Chambers. First, the evidence that Burns said he saw Pryor that night was less reliable than the admissions at issue in Chambers. Although neither Burns nor Sheila had an apparent motive to lie, Burns could have been mistaken and there was no corroboration for his statement; no other witness saw Pryor at that time, although witnesses had seen him on that same street earlier that day and the day after. Unlike the statement against penal interest in Chambers, Burns’s statement did not fall within any generally recognized exception to the hearsay rule based on trustworthiness. More importantly, the evidence was not as critical to the defense by any measure. Evidence that Burns saw Pryor that night was not even arguably sufficient to raise a reasonable doubt as to defendant’s guilt. The jury heard that Pryor was angry with Burns and knew where Burns’s mother lived; it heard evidence that Pryor had angrily gone to the house looking for Burns the day before the murder. At most, the excluded evidence provided some evidence that Pryor was in the area some time before the shooting. It did not, however, link Pryor to the shooting. “As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Further, as discussed ante, the evidence linking defendant to the shooting was strong.

The trial court did not abuse its discretion in excluding testimony about Burns’s statement.

3. Pryor’s Statement to Detective Belli

Defendant contends the trial court erred in excluding Pryor’s statements to Detective Belli regarding his anger and his (false) alibi. He contends portions of the statement were statements against penal interest, an exception to the hearsay rule. (Evid. Code, § 1230.) He further contends Pryor’s (false) alibi was not hearsay because it was not offered for the truth. Rather, the alibi--and that it was false--was offered to show consciousness of guilt--not that what Pryor said was true, but the opposite.

The People contend defendant has forfeited this contention as to the statements allegedly against penal interest because he failed to raise this ground of admissibility at trial. At trial, defendant sought to admit Pryor’s statement under Evidence Code section 1291, arguing it was akin to prior testimony of an unavailable witness. He did not offer Evidence Code section 1230 as a basis for admissibility. It is, of course, “the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” (People v. Rogers (1978) 21 Cal.3d 542, 548; see Evid. Code § 354.) The claim is forfeited.

The claim also fails on the merits. The erroneous exclusion of evidence will not result in reversal unless the error resulted in a miscarriage of justice. (Cal. Const. art. VI, § 13; Evid. Code, § 354.) Only Pryor’s statement admitting his participation in the bank scheme was a statement against penal interest as it was the only statement that subjected him to criminal liability. (Evid. Code, § 1230.) The jury heard evidence that Pryor was involved in the bank scheme, as well as evidence he went Burns’s mother’s house and angrily demanded to see Burns. The defense pointed to this evidence in closing argument. Additional evidence on these points was therefore cumulative. There was no miscarriage of justice in excluding this cumulative evidence. (People v. Mincey (1992) 2 Cal.4th 408, 440 [no abuse of discretion to exclude cumulative evidence].)

Defendant contends the portions of Pryor’s statement that related his false alibi were not hearsay because they were not offered for the truth. (See Evid. Code, § 1200, subd. (a).) We agree that the statements regarding the alibi were not offered to show Pryor had an alibi, which would be a hearsay purpose. Rather, Pryor’s alibi statements were offered because they were false, not because they were true, to show his consciousness of guilt. These statements were not hearsay.

In response to the People’s contention that this claim was forfeited because it was not made below, defendant asserts this court may nonetheless review it because it asserts deprivation of a fundamental constitutional right (the right to present a defense), this court has inherent power to review any claim, and the failure of trial counsel to assert the nonhearsay nature of the evidence was ineffective assistance of counsel. To counter the claim of ineffective assistance of counsel, we consider whether it was prejudicial error to exclude this evidence of Pryor’s false alibi and conclude it was not.

First, it was hardly remarkable that Pryor lied to the police. The jury heard that all the witnesses near the murder scene lied to the police, at least initially. As Malik explained to the jury, for people with his background, “sometimes when you get asked questions by certain people, you know what I mean, you just got to lie.” Malik said that talking to anyone connected with law enforcement is considered snitching.

Second, evidence of Pryor’s consciousness of guilt did not raise a reasonable doubt as to defendant’s guilt. The common flaw in all of defendant’s arguments concerning the exclusion of third party culpability evidence pointing to Pryor as the shooter is that there was no evidence directly linking Pryor to the shooting, while there was substantial evidence pointing to defendant as the shooter. As we have already described, defendant confessed several times to shooting Burns, he matched the shooter’s description, he had threatened Burns, his brother called him to tell him Burns was at the scene moments before the shooting, and he fled the state after the shooting. No prejudice appears from excluding evidence of Pryor’s statements.

II

Admission of Andre’s Hearsay Statement

Defendant contends it was error to admit Andre’s testimony that Malik said his brother shot Burns over taxes. He contends the statement was double hearsay and while defendant’s statement to Malik was a party admission, there was no exception to the hearsay rule for Malik’s statement to Andre. He argues the statement did not fall within the exception for prior consistent statements because the requirements of Evidence Code section 791 were not met.

On direct examination, the prosecutor asked Andre about his statement to the police concerning a conversation between Malik and group of people the day after the shooting. Initially, Andre responded he was not there that day. After his recollection was refreshed with the transcript of his statement to the police, Andre agreed he had told the police that Malik said his brother shot Burns. He further testified that conversation had in fact occurred.

During a break, the trial court noted the defense objection to this testimony. Defendant had objected to the admission of Malik’s statement on the basis of inadequate foundation (as Andre’s original story was that he was not there), hearsay, and Evidence Code section 352. The court overruled the objections. It ruled there was an adequate foundation because Andre subsequently admitted he was present when Malik made the statement. Malik’s statement was hearsay, but the court found ample evidence of prior inconsistent statements in police interviews and previous proceedings, so the prior consistent statement by Malik was admissible because it preceded the inconsistent statements. As to section 352, the court ruled the prior consistent statement “provided a certain balance to evaluation of Malik’s testimony.”

No abuse of discretion appears. While Malik did not testify specifically that defendant shot Burns, his testimony did generally implicate defendant. In addition to his testimony about the phone call, Malik testified about defendant’s threats against Burns prior to the shooting and that defendant had a gun. He further testified defendant asked for and was given Malik’s hoodie, defendant told him he stumbled on rocks just before the shooting, and that he told detectives he saw defendant running from the shooting. Malik had related contradictory versions about the events surrounding the shooting, particularly as to the phone call he made to defendant immediately before and what phones were used. The defense extensively cross-examined him about his various statements and argued Malik was committing perjury at trial. The defense presented evidence that Malik admitted he had lied to the police about defendant’s involvement to save himself. Further, there was evidence about Malik’s plea agreement and the defense argued Malik’s latest version of events “fulfills his contract with the District Attorney’s office.”

“Evidence Code section 1236 authorizes the admission of hearsay if the statement is consistent with a witness’s trial testimony and is offered in compliance with Evidence Code section 791.” (People v. Bolin (1998) 18 Cal.4th 297, 320-321.) Evidence Code section 791 provides: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”

The trial court appears to have admitted Malik’s statement under subdivision (a) of Evidence Code section 791 to rehabilitate him after the extensive cross-examination with prior inconsistent statements. Although reliance on subdivision (a) does not appear to be warranted, the evidence was clearly admissible under subdivision (b) of section 791. A prior consistent statement is admissible to rebut a claim that the witness’s testimony is a fabrication to come within the terms of his plea bargain. (People v. Gurule (2002) 28 Cal.4th 557, 621; People v. Hillhouse (2002) 27 Cal.4th 469, 491.) Where defense counsel argues a witness’s entire testimony is unreliable, based on cross-examination of prior inconsistent statements, a prior consistent statement is admissible to rehabilitate a witness. (People v. Brents (2012) 53 Cal.4th 599, 616.) “Evidence Code section 791 permits the admission of a prior consistent statement when there is a charge that the testimony given is fabricated or biased, not just when a particular statement at trial is challenged.” (People v. Kennedy (2005) 36 Cal.4th 595, 614.)

Andre’s testimony of Malik’s statement the day after the shooting that his brother, defendant, shot Burns, was admissible.

III

Cumulative Error

Defendant contends the cumulative evidentiary errors resulted in a denial of due process. We have found no error in excluding evidence of statements of Burns and Sheila that they saw Pryor that night or in excluding cumulative evidence of Pryor’s anger at Burns and motive to harm him from Pryor’s statement to the police. We have found the error in excluding evidence of Pryor’s false alibi as hearsay harmless. Because there are not multiple errors to cumulate, we reject defendant’s cumulative error argument. (See People v. Duff (2014) 58 Cal.4th 527, 562 [“nothing to cumulate”].)

IV

Remand for Senate Bill No. 620

Defendant contends that remand is appropriate in light of Senate Bill No. 620, which gives trial courts discretion to strike firearm enhancements. The trial court imposed a 25-year-to-life firearm enhancement under Penal Code section 12022.53, subdivision (d). The People concede remand is appropriate. We agree with the parties.

On January 1, 2018, Senate Bill No. 620 went into effect. (Stats. 2017, ch. 682, §§ 1-2.) Senate Bill No. 620 amended Penal Code section 12022.53, removing the bar on striking a firearm enhancement and granting the trial court discretion pursuant to Penal Code section 1385 to strike or dismiss an enhancement. “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Pen. Code, §12022.53, subd. (h).)

The amendment to Penal Code section 12022.53, potentially providing for lesser punishment, is retroactive to cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 747-748; People v. Francis (1969) 71 Cal.2d 66, 75-76.) In People v. Woods (2018) 19 Cal.App.5th 1080, at page 1091, this court explained: “ecause there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply.” (Accord People v. Robbins (2018) 19 Cal.App.5th 660, 679.) The People concede that this is not a case where remand is unnecessary because the trial court indicated it would not have exercised discretion to lessen defendant's sentence. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) The record is silent on this point and the defense admitted the 50-year to life sentence was “the only sentence available to the Court.”

[b]DISPOSITION

The matter is remanded to allow the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h) to strike the firearm enhancement, and if appropriate following the exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Murray, J.