P. v. Rodriguez

Filed 11/14/08 P. v. Rodriguez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEALS from judgments of the Superior Court of Los Angeles County. Shari K. Silver, Judge. Affirmed.

Leslie Conrad for Defendant and Appellant Dean Cairo Rodriguez.

David E. Kenner for Defendant and Appellant Rudy Limon.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

In a murder-for-hire scheme, appellant Rudy Limon (Limon) paid appellant Dean Cairo Rodriguez (Rodriguez) $10,000 in cash to kill Sergio Reyes (Sergio). Limon was angry with Sergio, who was formerly his best friend, because soon after Limon and his former wife Celina Reyes (Celina) dissolved their marriage, Sergio secretly began seeing Celina and then married her. In April 2003, Rodriguez shot Sergio, but Sergio survived. In December 2003, Rodriguez murdered Sergio by approaching him as he sat in his Silverado truck (Silverado) and shooting him in the shoulder and through the head.

THE JUDGMENTS

In a jury trial, appellants were convicted of first degree murder and attempted murder with findings of deliberation and premeditation. (Pen. Code, 187, subd. (a), 664, 187, subd. (a).)[1] The jury found true special circumstances of intentional murder for financial gain and by means of lying in wait, or aiding and abetting such conduct. ( 190.2, subds. (a)(1) & (a)(15).) As to Rodriguez, the jury made findings of the personal discharge of a firearm proximately causing injury or death. ( 12022.53, subd. (d).)

Limon was sentenced to terms of life without the possibility of parole (LWOPP) and a consecutive term of life.

Rodriguez was sentenced to an LWOPP term, plus a term of 25 years to life for the discharge of a firearm. Consecutive to that term, the trial court imposed a life term, plus a term of 25 years to life for the discharge of a firearm.

The appeals are from the judgments.

THE CONTENTIONS

Limon contends that: (1) the trial court erred when it denied his motion to sever; (2) the guns and silencer evidence was inadmissible; (3) the trial court improperly excluded third-party culpability evidence; (4) unverified statements made by the accomplices were improperly admitted into evidence; (5) the trial court abused its discretion by admitting Anna Reyess (Anna) testimony that in September 2003 Limon laughed when Anna confronted him about shooting her brother; (6) the trial court erred by failing to declare a mistrial when the detective blurted out prejudicial information in the jurys presence; and, (7) the prosecutor committed misconduct.

Rodriguez contends that: (1) the guns, silencer, and ammunition evidence was inadmissible; (2) the prosecutor committed misconduct; (3) the trial court committed misconduct; and, (4) there is cumulative error.

Appellants request to join in any contention raised by the coappellant that will benefit him. This court has granted the requests.

The judgments are affirmed.

FACTS

At trial, Rodriguez proceeded in propria persona (in pro. per.); Limon was represented by trial counsel.

I. The Prosecutions Case-in-chief

A. The Conspiracy

The trial evidence established that in February 2002 Limon and Celina dissolved their marriage. Soon thereafter, Sergio secretly began dating Celina, and in September 2002, he married her. That ended Limons friendship with Sergio. Celina had Sergios baby in March 2003. Limons brother Gibby was in prison and was a friend of Rodriguez. In about February 2003, Limon met Rodriguez at a San Fernando Valley Jack-in-the-Box restaurant. They were not previously acquainted. Limon was driving his yellow Hummer, and Rodriguez drove up in a silver Nissan 350Z with his girlfriend, Lorena Luna (Luna). Luna saw Limon give Rodriguez an envelope containing a photograph of a man Rodriguez later identified as Sergio and $10,000 in cash.

B. The April 2003 and December 2003 Shootings

In April 2003, Sergio was parked in Canoga Park waiting to attend an Alcoholics Anonymous meeting. Rodriguez and a companion, Little Rudy Gomez,[2]shot at Sergio through the Silverados window. They wounded him twice, but he survived. After Limon heard that Sergio was recovering, Limon directed Rodriguez to complete the job. Limon was concerned that suspicion for the shooting might focus on his brother Gibby. So Limon paid Rodriguez a $2,000 or $4,000 cash bonus to shoot Sergio before Gibby was paroled in February 2004.

Thereafter, Rodriguez had some difficulty finding Sergio. But in October 2003, Sergio and Celina had separated, and Rodriguez obtained information that Sergio was living with his mother at her Sepulveda townhouse. On December 13, 2003, Rodriguez, again accompanied by Little Rudy Gomez, put the townhouse under surveillance. At approximately 8:00 a.m. that morning, Sergio drove his Silverado to the drive-through line of the McDonalds restaurant two doors south of his mothers townhouse. Rodriguez approached the Silverado alone on foot. He broke the Silverados window with a center punch and fatally shot Sergio.

C. The Trial Testimony

At trial, Rodriguez was tied to the Canoga Park shooting by forensic evidence. A ballistics expert testified that a bullet fragment and two expended shell casings recovered at the shooting scene had been discharged through a Ruger barrel. That Ruger barrel was found with an arsenal of firearms in a storage locker rented by Rodriguez. There were three eyewitnesses to the McDonalds shooting. One eyewitness tentatively identified Rodriguez as Sergios assailant. The eyewitnesses physical descriptions of the assailant were consistent with Rodriguezs physical description. Grainy photographs from the McDonalds surveillance cameras showed the murder and its antecedents. Sergios assailant roughly matched Rodriguezs physical appearance and the clothing he was wearing that morning. The photographs demonstrated that the assailant may have arrived at the murder scene in a Nissan Pathfinder.

Rodriguezs almost constant companion, his girlfriend Luna, testified that in February 2003, she was present and just out of view when Limon met and gave Rodriguez the $10,000 in cash. She testified to subsequently overhearing parts of appellants conversations planning or concerning Sergios prospective death. She testified that when the shooting and murder had occurred, Rodriguez and Little Rudy Gomez were out together. On the occasion of the April 2003 Canoga Park shooting, she saw Little Rudy Gomez with a revolver. She provided a description of the clothing that Rodriguez was wearing when he left her prior to the murder. In the McDonalds surveillance photographs, she identified the Nissan Pathfinder sports utility vehicle (SUV) as that Rodriguez had given her to drive. She also identified Rodriguez in one photograph.

Nicholas Davies (Davies), a cohort who participated in motorcycle thefts with Rodriguez in 2003, testified to statements that Rodriguez had made to him concerning the murder-for-hire scheme. Also, on several occasions, Davies had unwittingly found himself accompanying Rodriguez while Rodriguez was attempting to locate Sergio. Rodriguez had let slip that a man named Rudy was his employer in the murder-for-hire scheme and that the primary motive for the killing was a dispute over a woman.

Luna and Davies testified to Rodriguezs surveillance of Sergios Sepulveda townhouse and to various preparation activities that Rodriguez had engaged in prior to the murder. Rodriguez had confessed to Luna and Davies that he had committed the Canoga Park shooting and the murder. He described in detail how he had committed the shootings. His descriptions were consistent with the forensic evidence obtained at the crime scenes.

Celina testified that when Limon discovered she had been secretly seeing Sergio, Limon had made an angry telephone call to her. Sergios sister, Anna, a long-time friend of Limons, testified to certain September 2003 statements Limon had made to her. During the conversation, Limon had acknowledged that he was unhappy with Sergio as Limon had treated Sergio as a brother and now Sergio was talking shabout him and talking about Limons business. Also, Sergio had taken up with Celina. And, Limon had heard that Sergio had hit Celina while she was pregnant. After listening to Limons complaints, Anna confronted Limon about whether he had shot Sergio. She testified that in response Limon had laughed and said, Why would you think that?

II. The Defense

A. Rodriguezs Defense

In defense, Rodriguez testified and denied a murder-for-hire scheme and the shooting and murder. He claimed alibi. He said that during the Canoga Park shooting he was working at a Nissan dealership as a mechanic and probably had been working. He claimed that at about 8:00 or 8:15 a.m. on the morning of December 13, 2003, he was in Sunland having breakfast with Shawnda Barton (Barton). He had bicycled there after meeting a former girlfriend Diane Contreras. He suggested that Davies and another friend of his, Victor Pena (Pena), had planted the firearms in his rented storage locker and that the Nissan Pathfinder observed in the McDonalds surveillance photographs was not the SUV that belonged to Luna. He asserted that Davies or the detective had provided Luna with the facts underlying the shootings so that she could falsely testify he had committed the shooting and murder.

Rodriguez disputed Lunas claim that he was driving a 350Z in February 2003. He claimed that he did not steal that 350Z until late June 2003.

Barton, Eddie Gomez, and Shawn Brown corroborated Rodriguezs alibi in part. Through cross-examination and his brother Frank Salazars (Salazar) testimony, Rodriguez attempted to impeach elements of Lunas and Daviess trial testimony.[3]

Rodriguez had an identifications expert testify generally to the accuracy and the reliability of eyewitness identifications.

B. Limons Defense

Limon declined to testify.

He called his present wife, Mihaela Fornade-Limon, and an employee in his construction business to testify to incidents tending to show that he lacked a motive for murder.

Linda Larsen (Larsen), Limons defense investigator, testified that she had spoken to Rodriguez at the jail. She examined a May 2003 photograph that Luna had produced for the trial depicting the silver 2003 Nissan 350Z that Rodriguez had been driving. The 350Z bore paper plates indicating that it was originally purchased new at Universal Nissan. Rodriguez told Larsen that after he stole the 350Z, he had observed papers in its glove box indicating that the owners first name was Efren. To corroborate the date of the theft, Larsen obtained Universal Nissans computer data for all conforming sales in 2003 and found one purchaser who had the first name Efren. Through a finance company and Department of Motor Vehicles data, Larsen had located the stolen 350Zs owner, Efren Martinez (Martinez), and the theft report.

Martinez testified that his silver 2003 Nissan 350Z, purchased in February 2003, was stolen between July 11 and July 14, 2003, from the street in front of his girlfriends apartment.

DISCUSSION

I. Limons Motion to Sever

Prior to trial, Limon moved for a severance on Aranda-Bruton grounds. (People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).) On appeal, he claims that the trial courts ruling on the motion constituted an abuse of discretion and denied him due process.

The contention is flawed.[4]

A. Background

Appellants made pretrial motions to sever, which the trial court denied. The trial court ruled that certain portions of Lunas testimony regarding the statements made by Rodriguez and Limon were admissible because the Aranda-Bruton rule does not apply to a codefendants extrajudicial statement made in furtherance of a conspiracy. (See Evid. Code,  1223; People v. Sanders (1995) 11 Cal.4th 475, 516.) Other statements made by Rodriguez to Luna or to Davies were admitted as they were not facially incriminating. The prosecutor voluntarily withdrew another set of Rodriguezs statements after the prosecutor or the trial court concluded that the statements implicated Limon.

As it turned out, during trial, Rodriguez decided to testify.

After Rodriguezs testimony, there was no longer a confrontation issue. In rebuttal, Davies testified to the remainder of the extrajudicial statements that Rodriguez had made to him concerning the shooting and the murder.

B. The Relevant Legal Principles

In Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment right of confrontation when statements of a nontestifying codefendant incriminating the defendant are introduced at their joint trial, even if the jury is instructed to consider the statements only as against the codefendant. (Bruton, supra, 391 U.S. at pp. 135136.) However, the high court has since held that the Confrontation Clause is not violated by the admission of a nontestifying codefendants [statements] with a proper limiting instruction when . . . the [statements are] redacted to eliminate not only the defendants name, but any reference to his or her existence. (Richardson v. Marsh (1987) 481 U.S. 200, 211.)

The court in People v. Fletcher (1996) 13 Cal.4th 451 (Fletcher) explained the following. [W]hen two defendants are jointly tried and the jury is instructed to consider the testimony of a witness against only one of the defendants, the witness is ordinarily not considered to be a witness against the other defendant within the meaning of the confrontation clause. (Richardson v. Marsh, supra, 481 U.S. [at p.] 206.) This is because courts generally assume that jurors follow their instructions. (Ibid.) The court explained that its decision in [Bruton], supra, 391 U.S. 123, represented a narrow exception to this principle that applied when the facially incriminating confession of a nontestifying codefendant is introduced at [a] joint trial. (Richardson v. Marsh, supra, 481 U.S. [at p.] 207, italics added.)

The court concluded that [the confession in Richardson v. Marsh] fell outside the narrow exception we have created because, unlike the confession at issue in Bruton v. United States, supra, 391 U.S. 123, it was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendants own testimony). (Richardson v. Marsh, supra, 481 U.S. [at p.] 208.) (Fletcher, supra, 13 Cal.4th at p. 463.)

The Fletcher court indicated that in Richardson v. Marsh, the court had refused to extend the Bruton rule to confessions that were not facially incriminating. (Fletcher, supra, 13 Cal.4th at pp. 463468.)

C. The Analysis

1. The Aranda-Bruton Issue

Limon argues that the trial court improperly denied his motion to sever pursuant to the Aranda-Bruton rule. However, we do not need to reach the issue. At trial, Rodriguez testified. After his testimony, there was no longer any issue of a denial of confrontation under the federal Constitution. (Nelson v. ONeil (1971) 402 U.S. 622, 629630.) Any error in the ruling on the motion to sever was cured by Rodriguezs testimony. (People v. Hoyos (2007) 41 Cal.4th 872, 895, 896, fn. omitted.) Also, there was no gross unfairness at trial based on the failure to sever. (Id. at p. 896 & fn. 11.)

Limon argues that even though Rodriguez testified, he was denied due process. We assume that by this claim Limon is asserting protection under California law that is not coextensive with his federal constitutional protection. The claim is meritless. The Truth-in-Evidence provision of Proposition 8 (Cal. Const., art. I, 28, subd. (d)) abrogated the decision in Aranda so that now California law is coextensive with protections afforded a defendant under the federal Confrontation Clause. (Fletcher, supra, 13 Cal.4th at p. 465.)

2. The Limiting Instruction

As framed, this court cannot discern Limons further complaint about the trial courts limiting instruction.

Luna testified that after the Canoga Park shooting, Rodriguez had his brother Salazar drive her and Rodriguez past the crime scene. Rodriguez told her that Sergio had been taken care of. Soon thereafter, Rodriguez told her about the events of the Canoga Park shooting. Rodriguez said that Little Rudy Gomez had shot at Sergio six times. But Rodriguez could see that Sergio was still moving. So Rodriguez grabbed his gun and shot at Sergio twice more.

Trial counsel interrupted and asked the trial court to instruct the jury that it should consider the above admission only as to Rodriguez, and not as to Limon.

The trial court informed the jury that trial counsel was asking it to remind the jurors that certain evidence is coming in as to one defendant and not to the other. It said: I didnt think that I needed to tell you that if there is a description about something that . . . Rodriguez said, that I needed to admonish you that its only [admissible] as to . . . Rodriguez. I didnt want to insult your intelligence. So hes asked me to do this, and Im doing it. So, obviously, sometimes evidence is coming out as to both defendants, sometimes its coming out as to only one. I think all of you can figure it out. If you cant figure it out, please raise your hand. I hope I didnt insult you. Is there anybody here that did not understand what I just said? Please raise your hand. [No juror raised a hand.] Thank you.

Insofar as Limon is complaining about the efficacy of the limiting instruction, any error is forfeited. The trial court gave the limiting instruction, as requested. If Limon was dissatisfied with its content, it was encumbent upon him to ask for a more complete instruction. In any event, any error under the federal Confrontation Clause was cured when Rodriguez testified and was cross-examined. (Nelson v. O'Neil, supra, 402 U.S. at p. 629; People v. Hoyos, supra, 41 Cal.4th at p. 896.) No limiting instruction was requested on hearsay grounds. (People v. Smith (2007) 40 Cal.4th 483, 516 [pursuant to Evid. Code, 355, there is no general duty to give a limiting instruction where evidence is admitted for a limited purpose]; see People v. Boyd (1990) 222 Cal.App.3d 541, 559560.)

If Limons complaint is one of judicial misconduct, there is no pattern of discourteousness to support such a claim. (People v. Sturm (2006) 37 Cal.4th 1218, 1233 (Sturm).) Also, Limon never objected on this ground and thus has forfeited the claim. (Id. at p. 1237.)[5]

II. The Use of Lunas and Daviess Statements Incriminating Limon

Limon contends that he should be granted a new trial because unverified statements by. . . Rodriguezs accomplices were used to convict . . . Limon.

Limon argues that the trial court improperly admitted Lunas and Daviess testimony at trial despite the witnesses acknowledgements that they were involved in Rodriguezs criminal activities. Limon refers to a proposition that co-conspirators statements should not be allowed in as evidence against another conspirator unless they are independently verified and argues that since Luna and Davies were co-conspirators with Rodriguez . . . their statements must be verified by someone other than another co-conspirator.

The contention lacks merit.

A. Background

After the prosecutor rested her case-in-chief, Limon made a motion for an acquittal pursuant to section 1118.1. Limon complained that the evidence was insufficient to support his conviction as at the very least, Luna was an accomplice and either Davies or Luna was committing perjury. He argued that Daviess and Lunas trial testimony was flimsy and incredible, and accomplice testimony must be corroborated. Limon urged that neither Annas nor Celinas trial testimony provided corroboration.

The prosecutor responded that at best, the evidence was conflicting as to whether Luna was an accomplice. The prosecutor acknowledged that Davies had testified that he had the impression from an extrajudicial statement that Luna had made that Luna was manning a police scanner during the Canoga Park shooting. However, there was no evidence that Luna was an accomplice to the murder. The prosecutor urged that the trial evidence was sufficient to permit the jury to determine guilt.

The trial court denied the motion.

B. The Relevant Legal Principles

The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) . . .  The question is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination. [Citation.] . . .  The question is one of law, subject to independent review. [Citation.] (People v. Stevens (2007) 41 Cal.4th 182, 200.) Section 1111 provides, as follows: A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant. . . . (See People v. Hayes [(1999)] 21 Cal.4th [1211,] 1270.) When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice. If the evidence establishes as a matter of law that the witness was an accomplice, the court must so instruct the jury, but whether a witness is an accomplice is a question of fact for the jury in all cases unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citation.] (Id. at pp. 12701271.) (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)

Evidence of corroboration is sufficient if it connects the defendant with the crime, even though it is slight and would be entitled to little consideration when standing by itself. [Citation.] The required corroboration must come from a source other than another accomplice. [Citation.] (People v. Price (1991) 1 Cal.4th 324, 443444.) The evidence [of corroboration] is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 370; see also People v. Avila (2006) 38 Cal.4th 491, 562563.)

C. The Analysis

1. The Contention has been Forfeited

At the outset, there are forfeitures as Limon entered no objection to the use in evidence of any unverified statements that Luna and Davies testified to during trial. At trial, Limon did not claim that Davies was an accomplice, nor was that a trial issue. Nor has Limon set out record references in briefing to assist this court in locating the evidence he deems pertinent to his contention. (Mendoza, supra, 183 Cal.App.3d at p. 398.)

2. The Sufficiency of the Evidence

As to the merits, the court in People v. McGavock (1999) 69 Cal.App.4th 332, 335, explains: Section 1111 dates back at least to section 375 of the Criminal Procedure Act of 1851, which enacted the first paragraph of what is now section 1111. (Stats. 1851, ch. 29, 315, pp. 252-253.) The statute is designed to prevent lay jurors from arriving at a verdict of conviction as to a defendant, based solely upon evidence which is possibly tainted by an accomplices desire to secure leniency through implicating others. (See People v. Coffey (1911) 161 Cal. 433, 437438; cf. People v. Guiuan (1998) 18 Cal.4th 558, 565.)

Furthermore, while accomplice testimony must be corroborated to support a conviction ( 1111), the corroboration requirement relates to the sufficiency, not [the] admissibility, of evidence. (People v. Riel (2000) 22 Cal.4th 1153, 1190.) Limons contention on appeal is a claim of evidentiary error, not a claim of insufficient evidence to support the judgment. Accordingly, it fails.

Moreover, we note that the trial court charged the jury with all the necessary instructions as to how it was to consider accomplice testimony and informed the jury that Luna was potentially an accomplice. Even if we were to construe Limons contention to be a challenge to the sufficiency of the evidence, he would not prevail. And, even if we were to assume that Luna and Davies were both accomplices, the evidence apart from their testimony is sufficient to support the judgments.

Daviess testimony about Rodriguezs claims about Limons motives for murder was corroborated by Celinas and Annas testimony establishing that Limon had the same motives for killing Sergio. The ballistics evidence collected by the police at the crime scenes and during the autopsy and the Ruger gun barrel found in Rodriguezs rented Sylmar storage locker connected Rodriguez to the shootings. Also, some of the ammunition in the rented storage locker was of the same type as that used during the shootings, although it was not of the same brand. Rodriguez acknowledged during his testimony that the storage locker belonged to him.

Daviess and Lunas claims about Rodriguezs statements describing the shooting and murder generally conformed to the crime scene forensic evidence and to that obtained during the autopsy. Sergios mother described her Sepulveda townhouse and the location where Sergio had parked his Silverado in the alley behind the townhouse. Her testimony conformed to Lunas and Daviess claims about Rodriguezs surveillance of the townhouse. Photographs taken by the McDonalds videosurveillance cameras depicted the Nissan Pathfinder Luna drove, which had several unique characteristics, and one eyewitness tentatively identified Rodriguez as the assailant in Sergios December 13, 2003, murder.

The above evidence constitutes sufficient corroboration of any accomplice testimony.

3. Verifying the Conspiracy

Insofar as Limon is asserting that there was no independent proof of a conspiracy apart from purported hearsay declarations by the conspirators, this claim also lacks merit. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1134 [prima facie showing may consist of circumstantial evidence or any competent evidence tending to show the existence of a conspiracy]; People v. Hardy (1992) 2 Cal.4th 86, 139.) The independent proof required to establish a conspiracy may consist of uncorroborated accomplice testimony. (People v. Rodrigues, supra, at p. 1134.) However, [t]he testimony of an accomplice is sufficient to establish the fact or existence of a conspiracy (the corpus delicti); his or her testimony needs corroboration only as to the defendants connection with it. [Citations.] And, it is settled that only slight corroborative evidence is necessary to connect a defendant with the alleged conspiracy. [Citations.] (People v. Cooks (1983) 141 Cal.App.3d 224, 312; accord, People v. Price, supra, 1 Cal.4th at p. 444.)

During trial, there was no claim that Davies was an accomplice, and Davies corroborated Lunas claims regarding Limons identity as Rodriguezs employer in the murder-for-hire scheme. Furthermore, Rodriguezs trial testimony corroborated Lunas testimony that Limon was involved in a conspiracy with Rodriguez. Rodriguez testified that in February 2003, he met Limon alone near his place of business and that in November 2003, Limon gave him $2,000 in cash purportedly for motorcycle parts.

This evidence constitutes independent proof of the conspiracy and Limons identity as a conspirator. It serves as a proper foundation for the use of the extrajudicial statements made by Limon and Rodriguez in furtherance of the conspiracy.[6]

III. The Guns, Silencers, and Ammunition Evidence

Rodriguez and Limon contend that Rodriguezs possession before and at the time of his arrest of an arsenal of firearms and weaponry-related items, including ammunition, was irrelevant.

Rodriguez further asserts that the evidence, even if marginally probative, should have been excluded pursuant to Evidence Code section 352 as the firearm and related instrumentality evidence was likely to evoke an emotional response in the jury. Also, the use of the evidence invited the improper consideration of bad character evidence, which was irrelevant to the trial issues. Rodriguez asserts that such evidence was so inflammatory that its use denied him a fair trial and improperly lightened the prosecutions burden of proof.

The contentions are meritless.

A. Background

On April 1, 2004, the police arrested Rodriguez and Luna. Subsequent to the arrest, the police searched a rented storage locker belonging to Rodriguez.

In the rented storage locker, inside a red nylon lunchbox, Los Angeles Police Detective David Holmes found a fully loaded nine-millimeter Glock 17 pistol with a threaded barrel. The ballistics expert and the detective testified that if a silencer was screwed into its threaded barrel, the Glock 17 firearm would be classified as an assault weapon. There was a black box in the storage locker that contained two barrels for handguns: one nine-millimeter stainless steel Ruger barrel (item No. 40) and a black nine-millimeter Lugar barrel (item No. 38). In the black box were various types of ammunition, 104 rounds in all: approximately 40 nine-millimeter rounds, 96 .40‑caliber rounds, 7.62 rounds for an assault rifle, shotgun shells, and .357-caliber ammunition.

Detective Holmes examined the storage facilitys records. Each renter was assigned an individual access code that had to be used at the front gate in order to gain access to the facility. The facilitys computer records disclosed that on December 13, 2003, Rodriguezs access code was used at 9:03 a.m. to enter the facility. Five minutes later, at 9:08 a.m., the code was used to exit the facility.

After the Canoga Park shooting, at the crime scene, the police officers recovered one spent bullet on the Silverados passenger floorboard. They found two nine-millimeter PMP- and PMC-brand expended casings in the parking lot where the shooting had occurred. A detective removed four copper jackets and two lead core bullet fragments from the Silverados drivers door (item No. 6).

Because only two spent casings were recovered, and there were at least six impact points on the Silverados door, the detective later began to suspect two guns had been used to commit the Canoga Park shooting. One of these firearms was potentially a revolver.

A ballistics expert testified that bullet fragments recovered after the Canoga Park shooting, as well as two nine-millimeter spent casings found there on the ground, had been discharged from the Ruger barrel.

At the murder scene, Detective Holmes had discovered a .40-caliber Smith & Wesson, RP‑brand, expended casing on the passenger floor of Sergios Silverado. Two bullet fragments were found behind the drivers seat, one a jacket and the other a lead core.

The ammunition found in Rodriguezs storage locker was of the same type, but not of the same brand, as the expended casings found at the crime scenes.

The ballistics expert said that the evidence from the shootings was inconsistent with the use of the Glock 17 and the other two recovered barrels, apart from the Ruger barrel. She said that one of the bullets recovered from Sergios shoulder during the autopsy, item No. 16, could have been discharged from a .38, a .357 magnum, or a nine-millimeter firearm, such as, but not limited to, a Smith & Wesson, Coonan Arms, Ruger, Taurus, Llama, Sportsarms, or Century Arms firearm.[7]

During her trial testimony, Luna identified the Glock 17 handgun and the other weaponry and related items in Rodriguezs storage locker. She said that the weapons and other items belonged to Rodriguez and that she had previously seen Rodriguez with a silencer attached to the end of the barrel of the Glock 17 handgun. She explained that the Lugar barrel was the stock barrel for the Glock 17 handgun.

Before at least one of the shootings, Luna had seen Rodriguez at his friend Penas residence in possession of two silencers. She said that when Rodriguez discovered the initial shooting had failed, he had talked about entering the hospital where Sergio was recovering to shoot him again.[8] Using Lunas credit card on a Florida website, Rodriguez had purchased two threaded barrels that accommodated flashers and silencers.

Luna testified that she had seen Little Rudy Gomez in possession of a .357 revolver immediately after the April 1, 2003, shooting. She asserted that she had seen Little Rudy Gomez with Rodriguez on December 13, 2003, when Rodriguez returned home at about 9:30 a.m. following the murder. Luna said that on April 1, 2003, Rodriguez owned a nine-millimeter Smith & Wesson, the nine-millimeter Glock 17, a .40‑caliber handgun, a shotgun, and a rifle. On the night before the December 13, 2003, murder, Rodriguez had told her that he was taking the Dirty Girl, his nine-millimeter Smith & Wesson handgun, to do homework, which she knew meant that he intended to find and shoot Sergio.

After the murder and after Rodriguez was arrested on February 4, 2004, on an unrelated matter Rodriguez telephoned Luna. He directed her to give to a man named Chico all the firearms and related weaponry items that he had at his residence: the nine-millimeter Smith & Wesson, i.e., the Dirty Girl, his .40‑caliber handgun, his rifle, a bulletproof vest, a silencer, a police scanner, and walkie-talkies. She complied with his request.

Luna had seen Rodriguez over 40 times with silencers, and he had a book on how to make silencers.

Davies testified that in 2003, he was aware that Rodriguez had purchased and had in his possession a threaded gun barrel that matched to a Ruger P series nine-millimeter [handgun]. Davies had seen Rodriguez in possession of a .40‑caliber Smith & Wesson Sigma, a nine-millimeter Glock 17 handgun, an AK-type SKS rifle, a Mossberg or Remington 12-millimeter shotgun, a chrome .357. and a .380. He had accompanied Rodriguez when he possessed silencers. He saw Rodriguez test-firing a freeze plug silencer with a Maglite flashlight that Rodriguez had attached to his Ruger P series handgun. Davies had observed Rodriguez discharging his SKS AK47-type rifle with a silencer attached and had seen Rodriguezs book on silencers.

Davies claimed that Rodriguez had told him that he had used a .380 or a nine-millimeter weapon to commit the Canoga Park shooting and that he had used a .40-caliber handgun to commit Sergios murder. Davies testified that Rodriguez always had guns around, some with threaded barrels.

After the murder, Davies terminated his relationship with Rodriguez. As there was a reward posted concerning the murder, Davies was afraid that Rodriguez would clean house and kill everyone who could tie him to the murder.

B. The Relevant Legal Authority

When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendants possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons. (People v. Cox (2003) 30 Cal.4th 916, 956; People v. Riser (1956) 47 Cal.2d 566, 577.) (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.)

However, the above rule is not unqualified. Instances of a defendants conduct are inadmissible to prove a defendants conduct on a specific occasion except where they are relevant to some fact in issue other than the defendants disposition and their probative value outweighs any prejudicial value. (Evid. Code, 352, 1101.) (People v. Gunder (2007) 151 Cal.App.4th 412, 416.) The possession of a firearm prior to the commission of the offense, however, may be probative of the defendants actual possession of a firearm during the offense or to the issue of planning. (Id. at p. 417; People v. Cox, supra, 30 Cal.4th at p. 956.) For example, where no murder weapon is recovered by the authorities, and the weapon in the defendants possession is a potential murder weapon, the weapon is admissible as circumstantial evidence the defendant committed the charged offense. (Ibid.; People v. Carpenter (1992) 21 Cal.4th 1016, 1052.) Weapons that are not the actual murder weapon also may be admitted into evidence when they are otherwise relevant to the crimes commission. (People v. Cox, supra, at p. 956, citing People v. Neely (1993) 6 Cal.4th 877, 896; People v. Lane (1961) 56 Cal.2d 773, 784 [weapons not used to commit the murder may have been used to further the criminal plan, e.g., in People v.Lane, to commit the related robberies].)

Where the possession of the firearms has probative value, the extent to which the evidence demonstrates criminal propensity is simply a factor to consider in assessing the prejudice from its admission; it is not a basis for exclusion. (People v. Gunder, supra, 151 Cal.App.4th at p. 417.) The question is whether the possession of the weapons or weaponry has relevance to the issues in the case. On the prejudice side of the scale, we are concerned only with the possibility of an emotional response to the proposed evidence that would evoke the jurys bias against defendant as an individual unrelated to his guilt or innocence. (People v. Wright (1985) 39 Cal.3d 576, 585.) (People v. Gunder, supra, 151 Cal.App.4th at p. 417.)

This court reviews a trial courts ruling as to the admissibility of evidence for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121, 1123.)

C. The Analysis

1. The Contention is Forfeited

Rodriguez filed two motions, one to exclude guns and ammunition or related items, and the other to exclude all testimony and evidence of silencers. Limons trial counsel did not expressly join in his motions, but commented on the implications of the applicable legal decisions during the motion to exclude the silencer evidence. The trial courts ruling on the motion concerning the silencers was expressly tentative. The parties did not raise the issue again at trial, and consequently, forfeited any issue concerning the admissibility of the silencers for an appeal. (People v. Holloway (2004) 33 Cal.4th 96, 133 [tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself]; People v. Morris (1991) 53 Cal.3d 152, 189190 [explaining the same rule].)

With respect to the motion to exclude the evidence of guns and ammunition, the trial court heard that motion along with a number of other motions that Rodriguez had filed on the eve of trial. There was no discussion of the issue. The trial court opened the hearing on the motion by commenting that the guns and ammunition evidence was not character evidence. Then, Limons trial counsel interrupted the trial court to request that he be excused momentarily while Rodriguez argued the motion. Instead, the trial court ordered a recess. When it resumed proceedings, it attended to other, unrelated matters apart from Rodriguezs numerous eve-of-trial motions.

The trial court then returned to Rodriguezs eve-of-trial motions. It made no further comment on nor did it make a ruling on Rodriguezs motion to exclude the guns and ammunition. Limons counsel never expressly joined in this latter motion, and neither party objected to the use of the evidence during trial. As the failure to rule on the issue was apparently inadvertent, it was encumbent upon Rodriguez to make an appropriate effort to obtain a further hearing or a ruling on the motion, which he did not do. As Rodriguez did not mention the issue again, the issue was not preserved for an appeal. (See People v. Braxton (2004) 34 Cal.4th 798, 813814 [if a point is not pressed and is forgotten, a party may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place]; People v. Morris, supra, 53 Cal.3d at pp. 189190.)

2. The Merits

Apart from forfeiture, only the barrel of one firearm used during the Canoga Park shooting was recovered, and it was impossible to tell from the ballistics evidence whether two or more firearms were used during that shooting. The murder weapon was never recovered, and the fatal bullets recovered at the murder scene were in no condition to be tested to determine what kind of a firearm or firearms had been used during the murder. Rodriguez may well have used more than one firearm during these shootings, and Little Rudy Gomez was no doubt armed during the shooting and the murder.

Davies testified that prior to the murder, he had seen defendant test-firing a Ruger P series nine-millimeter handgun with a threaded barrel and a silencer. Lunas testimony that the Lugar barrel was the stock barrel for the Glock 17 handgun and the presence of the additional unthreaded Ruger barrel suggests that Rodriguez was in the habit of replacing the barrels on his firearms with threaded barrels to accommodate silencers. Davies and Luna had seen Rodriguez in possession of other firearms that were possibly those used during the shootings: several nine-millimeter firearms, a .357, a .380, and a .40-caliber handgun.

Davies reported that prior to the murder, Rodriguez had test-fired his assault rifle with a silencer. Consequently, that instrumentality was relevant on the issue of preparation for the murder. Rodriguez may well have believed that he might have needed to use a rifle to shoot Sergio as Sergio had been hard to find and apparently when out in the open, was always with friends, who were armed.

Given the trial evidence, we conclude that all the firearms and the weaponry-related items, with the exception of perhaps the shotgun and the shotgun shells and the testimony about the Glock 17 being an assault weapon, were relevant as potential instrumentalities of the shootings. The firearms, silencers, and ammunition were also relevant to issues of premeditation, preparation, planning, and lying-in-wait.

Lunas testimony about the weapons and weaponry she gave to Chico was relevant to consciousness of guilt.

The trial court had ample discretion, despite an Evidence Code section 352 objection, to rule that the highly-probative firearms-related evidence was admissible. (See People v. Steele (2002) 27 Cal.4th 1230, 1246.)

The failure to exclude the three items of inadmissible evidence does not require a reversal. Given the strength of the proof of guilt and considering most of the firearms and weaponry was properly admitted, this additional evidence would not have evoked an additional emotional reaction from the jury. No prejudice flowed from the use of the inadmissible evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The evidentiary error here did not deprive appellants of a fair trial, particularly considering that the improperly-admitted evidence was inconsequential in light of the overwhelming evidence of guilt. (People v. Steele, supra, 27 Cal.4th at p. 1246.) The prosecution properly fulfilled its obligation to prove each fact necessary to a verdict of guilt beyond a reasonable doubt. (See Patterson v. New York (1977) 432 U.S. 197, 206211 [due process is not violated by New Yorks statutory provision that a defendant has the burden of proving by a preponderance of the evidence the affirmative defense of extreme emotional disturbance].)

IV. The Third Party Culpability Evidence

Citing Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes), Limon contends that the trial court improperly excluded third-party culpability evidence that was relevant to his defense. He also complains that he was hindered in cross-examining Davies about Jason Hogans profession in order to connect Hogan and Pena. to the drug deals they were engaged in and to establish Hogans and Penas relationship to Jesse Ruiz (Ruiz) and Greg Macias.[9]

We disagree.

A. Background

In defense, Limon moved to admit certain third-party culpability evidence. He urged that Luna, Detective Holmes, Celina, Anna, and other witnesses would testify that Sergio was a drug dealer with enemies, and that other men, apart from Limon, had a motive to kill Sergio. During trial, Limon claimed that such evidence was relevant and thus admissible and was not unduly prejudicial. At trial, Limons trial counsel set out the defense theory that in 2003, Sergio had recently been released after serving an 11-year prison term for murder. Trial counsel claimed that previously, Sergio had been a drug dealer with an established territory. Initially, upon his release, Sergio was law abiding. But then Sergio attempted to reestablish his drug clientele and territory, which would have impinged on Ruizs drug business, as Ruiz now controlled that territory.

The trial court asked counsel for specific instances of conduct by the persons involved that would support his theory. Limons trial counsel engaged in a seemingly irrelevant, convoluted, and protracted explanation about Celina having lied at trial about Ruiz knowing Sergio. Trial counsel asserted that he could impeach Celinas claim. The trial court told trial counsel that general evidence there is competition among drug dealers over territory is too speculative to be admissible as third-party culpability evidence. It ruled the proffered evidence was inadmissible.

B. The Relevant Legal Principles

In Holmes, supra, 547 U.S. at pages 324 to 325, the court said: [S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Crane v. Kentucky, 476 U.S. 683, 689690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); (citations omitted). This latitude, however, has limits. Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane, supra, at p. 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); (citations omitted). This right is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve. Scheffer, supra, at p. 308, 118 S.Ct.1261, 140 L.Ed.2d 413 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)).

The rule in California with respect to the admissibility of third-party culpability evidence was recently summarized in People v. Page (2008) 44 Cal.4th 1, as follows: Third-party culpability evidence is admissible if it is capable of raising a reasonable doubt of defendants guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third partys 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 defendants 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; . . . .) (People v. Page, supra, at p. 38.)

C. The Analysis

At trial, Limon established nothing more than that witnesses could testify that Sergio wanted to reassert his right to conduct his drug trafficking in his former territory, and accordingly, there was an inference that Ruiz, the drug dealer who had taken over Sergios former drug territory, had a motive for the murder. It is settled that such evidence is too speculative to establish potential third-party culpability. Limon failed to provide in his proffer any evidence that raised a reasonable doubt linking Ruiz or any other drug dealer to Sergios death. (People v. Sandoval (1992) 4 Cal.4th 155, 176 [evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime]; People v. Edelbacher (1989) 47 Cal.3d 983, 10171018 [that the deceaseds gang or drug associates had merely a possible or potential motive to kill him fails to constitute admissible third-party culpability evidence].)

In Holmes, supra, 547 U.S. 319, the United States Supreme court held that a federal constitutional violation arose from a judicially-established South Carolina rule of evidence that precluded a defendant from introducing third party culpability evidence where there was strong evidence of a defendants guilt. (Holmes, supra, 547 U.S. at p. 331.) That court observed, as follows: The point is that, by evaluating the strength of only one partys evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is arbitrary in the sense that it does not rationally serve the end that the Gregory rule [(State v. Gregory (1941) 198 S.C. 98)], and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendants right to have a meaningful opportunity to present a complete defense. [Citations.] (Holmes, supra, 547 U.S. at p. 331.)

Limon argues that the trial court in this instance made the same error that the trial court made in Holmes: it rested its decision on exclusion on the strength of the prosecutions case and failed to consider the strength of the proffered defense evidence.

We disagree. The trial courts comments demonstrate that it complied with the requirements of the pertinent decisions by determining the relevancy of evidence in light of the evidence as a whole and that it excluded only speculative evidence of third-party culpability. The trial courts ruling complied with the well-established rule that [w]hile the Constitution . . . 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 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. . . .  [T]he Constitution permits judges to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues. [Citations.] (Holmes, supra, 547 U.S. at pp. 326327.)

Limon makes the constitutional claim that he was effectively precluded from cross-examining witnesses to establish that many people wanted to kill Sergio, and that he was prevented from introducing evidence demonstrating that someone else, apart from Limon, had killed Sergio or hired Rodriguez to murder him. The complaint that the trial court was unduly restrictive in limiting the introduction of defense evidence is meritless. Because the proffered evidence had so little probative value, the exclusion of this evidence did not amount to a violation of Limons state or federal constitutional rights to cross-examine or to present a defense. (See Crane v. Kentucky, supra, 476 U.S. at pp. 690691; People v. Jenkins (2000) 22 Cal.4th 900, 1014‑1015.)

V. Anna s Testimony

Limon contends that the trial court improperly failed to exclude part of Annas testimony as it was unduly prejudicial pursuant to Evidence Code section 352.

The contention is not persuasive.

A. Background

After jury selection commenced, Sergios sister Anna belatedly disclosed to the prosecution that she had an incriminating conversation with Limon in September 2003. Limon filed a written motion to exclude Annas testimony about Limons statements to her. He argued that Annas testimony was inadmissible in part because it failed to constitute an admission and, it was more prejudicial than probative and was cumulative.

Anna had been present with her daughter when L