Filed 9/28/17 P. v. Walker CA1/3

Received for posting 9/29/17

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

A jury convicted defendant Johnathan Walker of first-degree murder of Michael Ross (Pen. Code, § 187 [1]). The jury also found true an allegation that defendant personally used a firearm during the commission of the murder (§ 12022.53, subd. (d)). At a bifurcated proceeding, the trial court found true an allegation that defendant suffered one prior serious and strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subds. (a)-(d)). The court sentenced defendant to an aggregate term of 80 years to life in state prison, consisting of 25 years to life for first-degree murder (doubled to 50 years to life under the Three Strikes law), plus consecutive sentences of 25 years to life for the firearm-use sentence enhancement and five years for the prior serious conviction. On appeal defendant asserts as errors the denial of his motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) (Batson/Wheeler) challenging the prosecutor’s exercise of a peremptory challenge against a prospective African-American juror, and the admission of certain evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Solano County District Attorney filed an information charging defendant with first-degree murder, with a related allegation that he personally used a firearm in the commission of the murder of Michael Ross on June 23, 2011. The following evidence was presented during a jury trial held approximately two years later in October 2013.

A. Prosecution’s Case

On June 23, 2011, at 4:10 p.m., Vallejo Police Detective Mark Nicol responded to shots fired in the parking lot at an apartment complex in Vallejo. Arriving at the scene, Detective Nicol found the victim lying on the ground in a parking stall. The victim was pronounced dead at the scene. The parties stipulated the cause of death was multiple gunshot wounds to the victim’s body. At trial the prosecution presented several witnesses who were present at the shooting: Charles Ambeau (the victim’s cousin), Courtney Ross (the victim’s sister), Charles G., and LaToia Lemar.

On the day of the shooting, after celebrating the victim’s birthday elsewhere, Charles Ambeau and the victim drove to the apartment complex in the victim’s car. After the car was parked, both men exited the car. Ambeau, who was standing near where the victim parked his car, saw a man approaching from his right. Ambeau then heard the victim yell, “Oh shit, grab my gun.”[2] Ambeau turned and saw an armed man running toward them. The armed man was wearing a hat, a short-sleeved shirt, “sagging pants, and he did not have any tattoos on his arms. . . .” ^[3] Ambeau saw the gunman for “not even a second” and did not get a good look at his face. As Ambeau ran, he fell to the ground and heard several gunshots. He looked up from the ground and saw the side of the gunman’s face for less than one second before the gunman ran away.

At trial Ambeau testified that when he saw the gunman he immediately knew it was defendant, whom he knew by his childhood nickname John-John. Ambeau had previously seen defendant once or twice in person and had seen pictures of defendant on the internet and social networking sites. Ambeau was also aware defendant and the victim had fought each other approximately a year before the shooting, but he did not see the fight. Before he spoke to the police, Ambeau heard the victim’s sister tell the police the gunman was John-John. When interviewed by the police, Ambeau lied and said he did not know and could not identify the gunman. The police showed Ambeau several photographs and he identified defendant and one other man as possibly looking like the gunman. Ambeau explained he had lied to the police because he did not want to get involved in the incident. The police knew Ambeau had lied about the identity of the shooter because Ambeau told his father what transpired when the victim was shot and his father told the police what Ambeau said.

Courtney Ross and her friend Lance were in the vicinity of the apartment complex, when she observed the victim drive his car toward the carport area of the complex. Ross observed the victim park his car and, from a distance of at least 45 feet, she saw a man approach with his arm extended. Ross did not get a clear look at the man’s face. She was not wearing her glasses, which made things “clearer,” so the man was “just a figure” to her. She did see the side profile of the man, and John-John was the first name that popped into her head. She asked Lance, “Is that John-John?” Lance said, “No,” “That’s not John-John.” Ross thought the man was John-John by his walking style, even though defendant was much bigger, and had put on more weight, than she recalled when she saw him five years earlier. Ross observed the man, with his right arm extended, standing near the victim’s car. She did not see a gun in the man’s hand or notice any tattoos on his arms. Then she heard seven or eight gunshots, but she did not see the man when she heard the gunshots or after he fired the gun. Ross screamed when she heard the gunshots and ran from the parking lot into her mother’s apartment. She phoned her mother and said, “Michael’s been shot.”[4] The police arrived several minutes after the gunshots were fired and Ross spoke with them. Later at the police department, officers showed Ross a series of photographs. She identified defendant as the man she observed with his arm extended in the parking lot. Ross was 100 percent certain that defendant was the person she had seen.

Charles G. was at the apartment complex when he saw a man, walking quickly, aiming a “clip gun” at the victim’s car. Charles G. did not get a good look at the gunman and could not identify him. He described the gunman as 19-20 years old and approximately 5’10” tall. The gunman was walking bent over, and held his belt buckle with his hand, because his pants were “sagging.” Charles G. then heard four gunshots. The gunman ran away in the same direction from which he had approached.

LaToia Lemar was sitting on the carport wall at the apartment complex as the victim parked his car in the carport. Two occupants got out of the car. Neither person who got out of the car had a gun. She then saw a man, armed with a handgun, running towards the victim’s parked car. The gunman was “scrunched down, like trying to be sneaky,” as he approached the victim’s car. Lemar heard gunshots; “[t]he first shots rang out. There was pop, pop, and then it stopped, and then it was like two or three more shots after that.” Lemar was certain that all the gunshots came from the same person because there was nobody else there that could have had a gun. After hearing the first gunshots, Lemar looked away and “everyone started yelling, ‘Get down, get, down.’ ” Lemar did not see the victim get shot. Immediately after the gunshots ended, Lemar heard the passenger who got out of the car earlier yell, “ He got shot. He got shot.’ ” She also heard the gunman say something to the victim like, “Told you I’d get you,” or “I got you,” or “That’s what you get.” Lemar was not able to identify defendant as the gunman. However, she described the gunman as an African-American man in his late teens, early 20s and he was wearing a hat and a short-sleeved white T-shirt. She did not recall any scars or marks on the gunman’s arms.

Vincent Ramirez, a delivery truck driver, also testified on behalf of the prosecution. He was sitting outside his truck, which was parked outside of the apartment complex on the day of shooting. Ramirez did not observe any construction crews in the area. At some point, he saw a tannish gold Honda pull up and park in the red zone near his truck. He heard a car door open and close. Ramirez then saw an African-American man, in his late teens or early 20’s, cross the street and jog toward the apartment complex. The man was holding up his blue jeans pants. Approximately five seconds later Ramirez heard several gunshots. After the third or fourth gunshot, the driver of the Honda, an African-American woman, made a u-turn and parked behind Ramirez’s truck. Ramirez then saw the same man he had previously seen now jogging at a faster pace while holding up his pants. The man jumped into the passenger seat of the Honda and then the woman behind the wheel drove away. Ramirez used his tablet to record the Honda’s license plate number. He was certain he saw the numbers “802,” and he recorded more than “802,” but was unable to record the entire license plate number.[5] Within an hour of the shooting, Ramirez spoke with the police and gave them the license plate number that he had recorded on his tablet and a description of the clothing worn by the man he had seen. Approximately three weeks later, the police showed Ramirez a car, which he identified by make and license plate number, as the car he had seen on the day of the shooting.

Defendant’s former girlfriend Tiffini Alexander testified under a grant of use immunity. On the day of the shooting she owned and was driving the Honda that was seen by Ramirez. She had driven defendant to the apartment complex because he said he wanted to buy some marijuana there. Once at the apartment complex, Alexander heard a loud noise that sounded like construction equipment – drilling “and like someone was banging a hammer . . . .” As defendant left the car and walked normally across the street and into the apartment complex, Alexander continued to hear the ongoing construction noise. Approximately five minutes later defendant returned to the car, walking normally. He got into the car and he was not out of breath. He showed her some marijuana when he got into the car. Alexander drove defendant to his friend’s house.

Later that evening Alexander attended a party where she spoke with her friend S.L. S.L. said “some stuff that she had heard that was going on.” While still at the party, Alexander received a telephone call from defendant. She denied defendant told her he had “served” the victim or had killed anyone. Rather, Alexander testified that defendant said that “other people” were saying he had “shot the boy,” and “it happened out of [her] car.” ^[6] He was concerned about going to jail based on false accusations. He told her not to drive her car because they “needed to clear it up first.” Alexander honored defendant’s request and did not drive her car. Alexander left the party, met defendant, and they spent two days at the home of Alexander’s aunt. During their time together, defendant told Alexander he injured his leg when he jumped off a balcony at the apartment complex trying to avoid some unnamed guys who were about to jump him. The injury left a scar on defendant’s leg.

Alexander was extensively examined regarding the inconsistencies between her trial testimony and her earlier statements to the police and at the preliminary hearing. Alexander explained she had given inconsistent statements because several weeks after the shooting, she was arrested by the police. She was taken to the police department where she was questioned by City of Vallejo Detective John Garcia and Police Officer Mathew Mustard. The police had not told her why she had been arrested. She was read her Miranda rights and agreed to talk to the police officers about the shooting. The police officers informed Alexander they had spoken to her friend S.L. and S.L. told the police about a conversation between S.L. and Alexander, during which Alexander said defendant had admitted he shot the victim.^[7] When asked to explain why she had agreed that she told S.L. about defendant’s admission, Alexander stated the police coerced her by telling her she could be charged with murder, or as an accessory to murder, because she had given defendant a ride in her car. The officers also told Alexander she would lose her children if she did not cooperate, and, her children did not need their mother to go to prison. “[T]hey kind of had me believing that that was true, so I agreed to it.” At trial Alexander admitted she also told the police, during the interview, that defendant described how he shot the victim in the head and in the leg because “that’s when they were saying they were going to take my kids and stuff.” However, she was telling the truth when she told the police about defendant’s explanation of how he sustained an injury to his leg when he was forced to jump off a balcony to avoid being jumped by “some guys” in the apartment complex. Alexander could not recall if she told the police that defendant said he got his leg injury during a fight with the victim. [8] Jurors were then shown a two-hour redacted videotape of Alexander’s interview with the police, and given a 218-page redacted transcript to aid them in viewing the tape. ^[9] On cross-examination, Alexander acknowledged her testimony at trial was contrary to her earlier statements because she did not “honestly . . . believe” defendant had shot the victim. On the day of the shooting Alexander never saw defendant in possession of a gun. When he walked toward the apartment complex he was walking normally and not like someone who was going to shoot someone, and when he returned to the car he was walking normally and did not act like someone who had actually shot someone.

City of Vallejo Police Officer Mustard testified concerning his interview of Alexander. [10] He testified that during the interview with Alexander, he asked her about her children because he wanted her to understand the issues she was facing “when it [came] to jeopardy.” He admitted he told her she had “a lot to lose,” and she had to make a choice between her loyalty to her children and her loyalty to defendant.

Thaddeus Brewer, the victim’s stepfather, testified concerning two incidents that occurred before the shooting. One incident occurred at the apartment complex approximately a year to a year and a half before the victim was shot. On this particular afternoon the victim was acting very nervous and afraid. That evening “most likely after 9:00 [p.m.],” the victim went to the parking lot of the apartment complex. Brewer followed and saw the victim running after a man. The victim and the man started to fist fight, throwing punches at each other. It looked like the victim was “winning” the fight, causing Brewer to intervene and separate the two men. Brewer did not recall or notice any injuries sustained by the man who fought with the victim. Brewer did not get a good enough look at the man who fought with the victim to recognize the man if he saw him again.

Brewer also testified about a second incident that occurred after the first incident. The second incident occurred approximately two to three months before the victim was shot. In this second incident, Brewer was assaulted by a man as he (Brewer) stepped out the door of his workplace. Brewer did not recognize his assailant. Brewer heard his assailant say, “What’s up now, . . .? Do you remember that night? Do you remember me and Michael?” Hearing the assailant’s words, Brewer recognized the man as the person who had earlier fought with the victim at the time when all three men were present. Brewer secured, from his workplace, a printout of a video of the altercation to learn the name of his assailant. Brewer showed the printout of the video to the victim. The victim told Brewer the name of Brewer’s assailant.

B. Defense Case

Defendant called as a witness Robert Shomer, a forensic or experimental psychologist, who was qualified as an expert in memory perception and eyewitness identification. According to Shomer, eyewitness identifications were approximately 50 percent accurate, and could be impacted by various factors including the presence of a weapon, the distance and prospective at which the eyewitness viewed the perpetrator, the eyewitness’s receipt of information from others, and whether and when the eyewitness had previously seen the perpetrator. Shomer further testified that the accuracy of an eyewitness identification was not necessarily supported by the eyewitness’s certainty of identification or a prompt report of the identification.

DISCUSSION

I. Denial of Defendant’s Batson/Wheeler Motion

A. Relevant Facts

Before jury selection began, approximately 80 jurors were asked to complete written questionnaires consisting of 77 questions. During voir dire, prospective juror D.R., described as an African-American woman, was the only African-American juror in a group of 10 jurors initially seated in the jury box. In her juror questionnaire, D.R. stated she was currently working as a registered nurse at a CDCR [California Department of Corrections and Rehabilitation] facility, with management or supervisory responsibilities. Both counsel questioned D.R. about some of her written responses regarding her ability to serve fairly as a juror in a criminal case, her feelings about the criminal justice system, her one positive experience and one negative experience with law enforcement, and her knowledge of potential witnesses.

The prosecutor used a peremptory challenge to excuse D.R. and defendant made a Batson/Wheeler motion to set aside the prosecutor’s challenge. In support of the Batson/Wheeler challenge, defense counsel argued that D.R. “had a lot of life experience, and she had some pretty good insight into the burden of proof. The People have her responses to [the prosecutor’s] questions. I didn’t see anything wrong, favoring one side or the other. She emphasized her ability to assess the credibility. . . .” Defense counsel added D.R. had “a positive experience with law enforcement and things of that nature as well. So I thought she was kind of good for both sides. And so that just leaves the only thing left being race, unfortunately.”

The prosecutor argued defense counsel had failed to establish a prima facie case under Batson/Wheeler. Expanding on his position, the prosecutor explained his reasons for excusing D.R., starting “with her profession. She works in the prison as an R.N. and she regularly has contact with prisoners. . . . I’m concerned about that, because th[e] nature of that relationship being an R.N., who is taking care of people who are in the prison system, that she would be more sympathetic to those individuals. Here, we have an individual who potentially faces the possibility of going to state prison. So under no circumstances would I ever want an R.N., who is working at CDC[R] to be sitting on a case like this or any criminal case, for that matter.” The prosecutor was also concerned about D.R.’s written responses to several questions, which he believed called into question her ability to sit as a juror in a criminal case and apply the reasonable doubt standard, further noting that her responses during voir dire had not dispelled his concerns.

The court denied the Batson/Wheeler motion, explaining: “Based on the responses and the Court’s observation, I did find a prima facie basis for the motion. However, upon hearing the reasons and then examining it, in comparison with the questionnaire, there does appear to be a nonracial reason for various reasons for excusing [D.R.] from a prosecutor’s prospective.”

B. Analysis

The applicable legal principles in evaluating a Batson/Wheeler motion are well settled. “First, the Batson/Wheeler movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. . . . [¶] Second, if the court finds the movant meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenges. . . . [¶] Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. [Citation.]” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez); see Foster v. Chatman (2016) 578 U.S. __, __ [195 L.Ed.2d 1, 7, 136 S. Ct. 1737]; People v. Winbush (2017) 2 Cal.5th 402, 433 (Winbush); People v. Mai (2013) 57 Cal.4th 986, 1048 (Mai).)

We “review the trial court’s denial of a Batson/Wheeler motion deferentially, considering only whether substantial evidence supports its conclusions. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.) “Where it is unclear whether the trial court applied the correct standard, we review the record independently to ‘apply the [correct] standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. [Citations.]” (People v. Bell (2007) 40 Cal.4th 582, 597, disapproved on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Defendant urges us to review the trial record under the de novo standard. We decline to do so where, as here, the record shows the “trial court met its obligations to make ‘ “a sincere and reasoned attempt to evaluate the prosecutor’s explanation” ’ and ‘clearly express its findings.’ [Citation.]” (Gutierrez, supra, 2 Cal.5th at p. 1175.) In all events, even if de novo review is appropriate, we would conclude the prosecutor’s reasons for excusing D.R. were race-neutral, and not shown to be pretextual. To fully evaluate defendant’s contentions on appeal, we find it appropriate to address both the second and third stages of the Batson/Wheeler analysis.

At the second stage of the Batson/Wheeler analysis, we evaluate whether the prosecutor “has offered a neutral basis – one not based on race, ethnicity, or similar grounds – for subjecting particular prospective jurors to peremptory challenge.” (Gutierrez, supra, 2 Cal.5th at p. 1158.) “[W]e are mindful that ‘ “nless a discriminatory intent is inherent in the prosecutor’s explanation,” ’ the reason will be deemed neutral. [Citation.]” (Ibid.) Our review of the record here reflects the prosecutor’s stated reasons for excusing D.R. were race-neutral: D.R.’s occupation as a registered nurse at a CDCR facility; her stated belief that the criminal justice system could be “very” unfair at times; her hope that “[u]all the facts possible are revealed” as she knew, from working at the CDCR, that the “Innocent Project” had successfully set free some inmates who were wrongly convicted; she had opinions or feelings that might make it “not impossible, but perhaps challenging depending on the facts provided,” to judge if someone is guilty or not guilty; she had an unpleasant experience with law enforcement; and she personally knew one potential witness and heard of another potential witness. (See, e.g., J.E.B. v. Alabama ex. rel. T.B. (1994) 511 U.S. 127, 142, fn. 14 [peremptory challenge may be based on prospective juror’s occupation]; Gutierrez, supra, 2 Cal.5th at p. 1171 [“a peremptory challenge may be based on a broad range of factors indicative of juror partiality, even those which are ‘ “apparently trivial” ’ or ‘ “highly speculative” ’ ”]; People v. Montes (2014) 58 Cal.4th 809, 855 [peremptory challenge may be based on prospective juror’s negative experience with law enforcement]; People v. Calvin (2008) 159 Cal.App.4th 1377, 1386 (Calvin) [peremptory challenge may be based on prospective juror’s “skepticism about the fairness of the criminal justice system”].)[11]

Having determined the prosecutor’s reasons for excusing D.R. were race-neutral, we move to the third stage of the analysis of the Batson/Wheeler motion, namely, whether defendant has demonstrated “purposeful discrimination. [Citation.] In order to prevail [at this third stage,] the movant must show it was ‘ “more likely than not that the challenge was improperly motivated.” ’ [(Mai, supra, 57 Cal.4th at p. 1059.)] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] [And,] . . . the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ‘ “among other factors, . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.” ’ [Citation.]” (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.) As we now discuss, we conclude defendant has not shown the prosecutor’s reasons for excusing D.R. were pretextual.

1. Prosecutor’s reliance on D.R.’s profession as a registered nurse in a
CDCR facility

Defendant challenges the prosecutor’s reliance on D.R.’s profession as a registered nurse in a CDCR facility. In support of his contention, he asserts that (1) the prosecutor accepted Juror No. 6, a non-African American man, who indicated he was currently employed on a full-time basis as “Xray Tech” “contractor” in a local jail, and he was “[c]urrently – Xray Tech/Pt Care Specialist;” and (2) there were only “minor factors” otherwise distinguishing D.R. from Juror No. 6. We find the argument unavailing. The prosecutor excused D.R., explaining that her work put her in contact with state prisoners on a regular basis that might make her more sympathetic to a defendant who potentially faced the possibility of going to state prison. The prosecutor’s expressed reservation about having a person who worked in a state prison facility serving as a juror “also had ‘ “ ‘some basis in accepted trial strategy’ ” ’ [citation] insofar as it stemmed from a concern about the general attitudes and philosophies persons [working in a state prison facility in regular contact with prisoners] might harbor.” (Mai, supra, 57 Cal.4th at pp. 1047, 1053 [court upheld prosecutor’s peremptory challenge excusing juror who worked as social worker where prosecutor expressed, “I generally try not to have social workers. I generally use a peremptory on social workers unless there is a reason not to”].) Additionally, our review of the questionnaires evidences substantive differences between D.R. and Juror No. 6 that distinguish the two jurors. First, unlike D.R., Juror No. 6 stated he thought the criminal justice system was fair and he believed “in general [the criminal justice system] works well.” Second, Juror No. 6’s work in a local jail, as explained in his questionnaire, reflected that his work was both quantitatively (spent less time with prisoners) and qualitatively (performing X-rays) distinct from the work being performed by D.R. in a CDCR facility. Accordingly, we find the record does not demonstrate the prosecutor’s reason for excusing D.R. on the basis of her work in a CDCR facility was pretextual.

2. Prosecutor’s reliance on D.R.’s Written Response to Question No. 25

Defendant challenges, on several grounds, the prosecutor’s reliance on D.R.’s written response to Question No. 25. [12] According to defendant, the prosecutor misstated D.R.’s response to the question by representing to the trial court that D.R. was the only juror who wrote the criminal justice system was “very” unfair without noting she had clarified her written response by adding the words “at times.” In addition, defendant argues the prosecutor accepted Juror No. 10 and Alternate Juror B, who gave responses that were more negative than D.R. regarding the fairness of the criminal justice system. Again, we disagree. The record shows the prosecutor referred in his argument to the court the exact language used by D.R. in her written response to Question No. 25. Moreover, a comparison of the jurors’ written responses does not demonstrate that the prosecutor’s reliance on D.R.’s written response to Question No. 25 was racially motivated where, as here, the questionnaires indicate there were substantive differences distinguishing D.R. from Juror No. 10 and Alternate Juror B. For example, unlike D.R., Juror No. 10 believed the criminal justice system made it too hard for prosecutors to convict people accused of crimes and he would favor the side that had law enforcement witnesses because “most law enforcement officers are trustworthy.” In addition, unlike D.R., Alternate Juror B indicated he had no experience which might affect his ability or cause him any concern about his ability to serve fairly as a juror in a murder case and he had no opinions or feelings which made it difficult or impossible for him to find someone guilty or not guilty of a crime. Accordingly, we find the record does not demonstrate the prosecutor’s reason for excusing D.R. on the basis of her written response to Question No. 25 was pretextual.

3. Prosecutor’s reliance on D.R.’s written response to Question No. 40

Defendant challenges the prosecutor’s reliance on D.R.’s description of an unpleasant experience with law enforcement in her written response to Question No. 40.[13] He argues the prosecutor accepted several non-African American jurors (Juror No. 6, Juror No. 9, Juror No. 10, Alternate Juror A, Alternate Juror B), who also described an unpleasant experience with law enforcement. We have already referenced the differences distinguishing D.R. from Juror No. 6, Juror No. 10, and Alternate Juror B. In addition, our review of the questionnaires indicates there were substantive differences distinguishing D.R. from Juror No. 9 and Alternate Juror A. Juror No. 9 affirmatively indicated the criminal justice system was fair and she believed the criminal justice system made it too hard for prosecutors to convict people accused of crimes “because there sometimes [is] crucial evidence that for whatever reason can’t be used in court.” Likewise, Alternate Juror A indicated he believed the criminal justice system was fair and the criminal justice system made it too hard for prosecutors to convict people accused of crimes.[14] Accordingly, we find the record does not demonstrate the prosecutor’s reason for excusing D.R. on the basis of her unpleasant experience with law enforcement was pretextual.

4. Prosecutor’s reliance on D.R.’s written responses to Question No. 57 and
Question No. 63

Defendant challenges the prosecutor’s reliance on D.R.’s written responses to Question No. 57[15] and Question No. 63[16]. He contends neither D.R.’s written responses nor her voir dire responses support the prosecutor’s inference that D.R. actually meant she wanted the case proved “beyond all reasonable doubt.” Defendant also argues the trial court properly rejected the prosecutor’s reliance on D.R.’s mention of the Innocence Project as a basis to excuse her as a juror.^[17] We find these arguments unavailing. While it is true D.R. never “referenced reasonable doubt” in her written responses, she “singled herself out with a cryptic answer that called into question her ability to fulfill her obligations as a juror.” (United States v. White (7th Cir. 2005) 416 F.3d 634, 641.) We find it “understandable that the [prosecutor] might have been concerned whether a juror who [gave those responses] would be able to apply [the reasonable doubt] standard,” and not unreasonable “for the [prosecutor] to be anxious about someone who volunteers that her attitudes and preconceptions might affect her performance in the jury room.” (Ibid.; see Id. at pp. 640-641 [court upheld peremptory challenge to the only prospective juror who responded to a question as to whether she had any “preconceptions or attitudes” about jury duty, the American legal system, the courts, its officers, and attorneys that would affect her ability to serve as juror, with more than a simple “no,” and, wrote that “ ‘she was a very conservative person, and that she tended not to see things in great perceptions’ ”].) Nor do we see anything suspect in the prosecutor’s reliance on D.R.’s reference to the Innocence Project in her written response to Question No. 57. The prosecutor explained that his concern arose from D.R.’s reference to the Innocence Project accompanied by her expression of “hope” that “all the facts would be revealed” at trial. Based on D.R.’s written statements, in context, the prosecutor could reasonably be concerned that D.R. might not follow the reasonable doubt standard, despite her statements during voir dire that she would not hold the prosecutor to a higher standard than proof beyond a reasonable doubt. (See People v. Manibusan (2013) 58 Cal.4th 40, 84 [prospective juror “after indicating on her questionnaire that she would consider the death penalty, she explained that the ‘death penalty must really be warranted,’ and that she held this view because she had ‘heard instances on television where [the] death penalty was warranted but later found out [the defendant] was innocent due to certain evidence not looked into.’ (Original underscoring.) The prosecution could have been concerned about [the answer] notwithstanding the prospective juror’s subsequent acknowledgement during voir dire that she would follow the reasonable doubt standard and would not require anything greater of the prosecution”].) Accordingly, we find the record does not demonstrate the prosecutor’s reasons for excusing D.R. on the basis of her written responses to Question No. 57 and Question No. 63 were pretextual.

5. Prosecutor’s reliance on D.R.’s written response to Question No. 77

Defendant challenges the prosecutor’s reliance on D.R.’s written response to Question No. 77 as to her personal knowledge of one prospective witness (L.B.) and what she had heard about another prospective witness (C.T.).[18] He contends the prosecutor mischaracterized or took out of context D.R.’s written response to Question No. 77. He also contends the trial court rejected the prosecutor’s reliance on D.R.’s written response regarding C.T. as a valid race-neutral reason to excuse D.R.[19] However, the record shows the prosecutor neither mischaracterized nor took out of context D.R.’s written response to Question No. 77. Nor do we find the trial court’s comments regarding the prosecutor’s explanation for excusing D.R. based on her knowledge about C.T. reflected an express or implied finding of pretext as defendant suggests. Accordingly, we find the record does not demonstrate the prosecutor’s reason for excusing D.R. on the ground she personally knew one prospective witness and she heard of another prospective witness was pretextual.

Finally, in evaluating defendant’s Batson/Wheeler challenge, we must “also consider comparisons” between D.R. and prospective jurors “of other races who were allowed to serve. [Citation.] ‘The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor. [Citations.]’ [Citation.] ‘If a prosecutor’s proffered reason for striking [an African-American] panelist applies just as well to an otherwise-similar [non-African American] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at [the] third step.’ [Citation.] ‘At the same time, “we are mindful that comparative juror analysis on a cold appellate record has inherent limitations.” [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. “Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” [Citation.]’ [Citation.]” (Winbush, supra, 2 Cal.5th at p. 442.) Thus, “a defendant must engage in a careful side-by-side comparative analysis to demonstrate that the dismissed and retained jurors were ‘similarly situated.’ [Citation]” (Calvin, supra, 159 Cal.App.4th at p. 1389, fn. 4.) In this case, defendant does not give us a side-by-side comparison analysis between D.R. and all the seated jurors. Instead, he argues that some of the prosecutor’s reasons for excusing D.R. were racially motivated because certain non-African-American jurors (Juror No. 6, Juror No. 9, Juror No. 10, Alternate Juror A and Alternate Juror B), who expressed similar views on some questions, were not excused. (Winbush, supra, 2 Cal.5th at p. 443.) Thus, we limit our focus to the questionnaire responses of those jurors who have been identified by defendant in his claim of disparate treatment. (Id. at pp. 442-443.)

We have reviewed the record and conducted the required comparative analysis, and find defendant has not demonstrated discriminatory pretext on the part of the prosecutor. A comparison of the questionnaires indicates that unlike D.R.’s written answers to Question No. 57, Question No. 63, and Question No. 77, as discussed above, the seated jurors in question (Juror No. 6, Juror No. 9, Juror No. 10, Alternate Juror A and Alternate Juror B), responded they had no experience which might affect their ability or cause them to have any concern about their ability to serve fairly as a juror in a murder case, they had no opinions or feelings which made it difficult or impossible for them to find someone guilty or not guilty of a crime, and they had no knowledge of any prospective witnesses.

In sum, we conclude the record supports the trial court’s denial of defendant’s Batson/Wheeler motion. Defendant has not shown the prosecutor’s stated reasons for excusing D.R. were pretextual.

II. Admission of Tiffini Alexander’s Statement Made to the Police

Defendant argues the trial court erred by admitting Tiffini Alexander’s statement made to the police (the statement) because it was the product of coercive police interrogation. He properly concedes his counsel’s failure to challenge the admission of the statement forfeited any appellate argument that the evidence should have been excluded as coerced. (People v. Quiroz (2013) 215 Cal.App.4th 65, 78 (Quiroz).) Nevertheless, he argues his claim of error (admission of the statement) may properly be raised on direct appeal because his counsel’s conduct constituted ineffective assistance. According to defendant, there was no tactical reason for his counsel’s conduct because had counsel made a request to exclude the statement, the court would have been required to grant the request. He further contends his counsel’s conduct was prejudicial because the admission of his purported confession made to Alexander was the prosecution’s strongest piece of evidence. We conclude defendant’s claim of ineffective assistance of counsel cannot be resolved on direct appeal.

To prevail on a claim of ineffective assistance, the defendant must prove more than counsel’s failure to undertake a particular strategy or investigation. Rather, he “must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) In meeting this standard, defendant must overcome “a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance; that is, . . . defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 689.) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 57 Cal.4th at p. 1009; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).)

Here, the record indicates that prior to trial defense counsel was aware of the circumstances of Alexander’s arrest and the techniques used by the police to elicit her statement. However, the record does not indicate, and therefore, we cannot discern why counsel chose not to seek to exclude the statement. “The decisions which counsel must make in the courtroom will necessarily depend in part upon what he then knows about the case, . . . [and] [t]here may be considerations not shown by the record, which could never be communicated to the reviewing court as a basis for [counsel’s] decision. Thus, [our] ability to understand why counsel did as he did cannot be a basis for inferring that [he] was wrong.” (People v. Garrison (1966) 246 Cal.App.2d 343, 351; see People v. Riel (2000) 22 Cal.4th 1153, 1197 (Riel) [“competent counsel may often choose to forego even a valid objection”].)

We see no merit to defendant’s claim that we can address his claim of ineffective assistance on direct appeal because his counsel could have had no tactical reason for failing to seek to exclude Alexander’s statement.[20] His contention is premised on the supposition that the trial court would have been required to grant a request to exclude the statement because the transcript of Alexander’s statement established she was coerced by the police officer’s threats that she would “lose her children” if she did not answer his questions. However, “n evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.]” ([i]Williams, supra, 49 Cal.4th at p. 436.) In addition to considering “ ‘ “the crucial element of police coercion,” ’ ” a motion to exclude would require the court to also consider other factors, including “ ‘ “the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ [Citation.]” (Ibid.) Consequently, the question of coercion, which “turns on the intensely factual inquiry into the totality of circumstances, . . . is an especially poor candidate for first-time consideration on appeal.” (Quiroz, supra, 215 Cal.App.4th at p. 78.) Moreover, our Supreme Court has advised us that “an appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence.” (Mendoza Tello, supra, 15 Cal.4th at p. 267.) Because no objection was made to the admissibility of Alexander’s statement, we are not confident that all the relevant facts were developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence in the trial court. ^[21]

We therefore find defendant’s appellate contention may be asserted, if at all, in a habeas corpus petition. (See In re Seaton (2004) 34 Cal.4th 193, 200; Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) “In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. [Citations.] For example, counsel may explain why certain defenses were or were not presented. Having afforded the trial attorney an opportunity to explain, courts are in a position to intelligently evaluate whether counsel’s acts or omissions were within the range of reasonable competence.” (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

III. Admission of Evidence of Thaddeus Brewer’s Testimony

A. Relevant Facts

Thaddeus Brewer testified regarding two incidents of assault, both of which occurred before the victim was shot. The first incident involved defendant and the victim. The second occurred after the first incident and involved defendant and Brewer.

On direct examination, Brewer was asked if he recognized defendant as the person who fought with the victim in the first incident. He responded that when the incident occurred he did not know the man who fought with the victim but he saw the man later. He was then asked if he saw the man in court. Brewer replied he learned the man’s identity “through another incident.” At that point, the prosecutor asked to approach the bench and the court had the jury leave the courtroom.

The court held an evidentiary hearing outside the presence of the jury to ensure that Brewer’s identification of the defendant was not based on hearsay. Counsel were allowed to question Brewer regarding the basis for his identification of defendant. In response to questions related to how he was able to identify defendant, Brewer testified he had contact with “someone here in court today” at his workplace. When asked if the man at his workplace was the person who fought with the victim in the first incident, he stated, “Well, that turned out to be the case, yes.” Brewer then identified defendant as the person who assaulted him at his workplace. In addition, he testified that the person who assaulted him at his workplace was the “person who got into it with” the victim. Brewer stated he did not “personally” know the man who fought with the victim. Brewer gave inconsistent answers regarding the basis of his identification when questioned by defense counsel. The court asked defense counsel to rephrase the questions because it was not clear, from defense counsel’s questions, whether defense counsel was “talking about name versus facial recognition, and that’s the issue.” In response to follow-up questions, Brewer confirmed that on the night of the altercation between the victim and a man, it was 11:00 p.m. and dark at the time. However, when Brewer was assaulted at his workplace, he saw that man but did not “know” the man had fought with the victim. Brewer testified that based on his observations at the time he was assaulted, he recognized the man who assaulted him as the same person who fought with the victim. The court then asked Brewer to simply state how he recognized defendant as the same person who had fought with the victim. Brewer responded that when he came out of the store the assailant hit him in the jaw and said, “What’s up now . . .? Do you remember me and Michael? Do you remember?” Brewer “recognized” defendant on hearing those statements. In addition, Brewer’s workplace had a video camera that captured the assault, and defendant’s picture was recorded on the video of the fight between Brewer and defendant. Both counsel indicated they had no further questions for the witness. The jury was recalled to the court room.

With the jury present, the prosecutor continued his examination of Brewer. Brewer testified that approximately three or four months after the altercation between the victim and a man, Brewer had an altercation with the same man just after he came outside of his workplace. He did not recognize the man. However, when he observed the altercation on a video taken at his workplace, Brewer testified he had previously seen the man at the apartment complex fighting with the victim. The court overruled defense counsel’s objection on the grounds that the question “calls for hearsay, lacks foundation.” Defense counsel also questioned Brewer concerning his altercation with the defendant. Brewer testified he watched a little bit of the store video of the altercation. He also showed a copy of the video to the victim as he wanted to make sure “that’s who that was.” The victim told Brewer his assailant’s “name.” Brewer never reported his assault to the police as his boss said he was going to call the police.

In response to further questions by the prosecutor, Brewer confirmed the man who had fought with the victim “was the same person” that Brewer later had an altercation with at his workplace. Brewer identified in court defendant as the person he had the altercation with at his workplace. In response to further questions by defense counsel, Brewer also acknowledged he had only seen the man the victim fought with when he (Brewer) separated them and he did not get a good enough look at the man to recognize him “at that time.” In response to further questions by the prosecutor, Brewer, however, confirmed he was 100 percent sure that defendant, whom he had identified in court, was the same person who assaulted him and fought with the victim. The court overruled defense counsel’s objection that the question “calls for hearsay” and “lacks foundation,” commenting that defense counsel could further question the witness about the issue.

Defense counsel again questioned Brewer about his ability to recall the incident between the victim and the man. Brewer explained his assailant’s statement, referencing an earlier altercation with the victim, drew Brewer’s memory “to that” earlier “night.” Brewer recalled the earlier altercation because it was the only incident at which all three men were present. When questioned about his reason for taking a copy of the workplace video to the victim and asking him “who that person was?,” Brewer replied, “For his name.” Defense counsel later asked, “Did you recognize the person out in front of your work – regardless of what was said, did you recognize the person’s face, body parts, facial features, anything from the person your son fought with that night at the apartment complex? Brewer replied that if he discounted what the assailant said, Brewer “didn’t recognize him. [¶] . . . [¶] If he hadn’t said that. I wouldn’t have” recognized him. Defense counsel moved “to strike,” and the court denied the request without comment.

B. Analysis

Defendant argues the trial court committed prejudicial error by admitting Brewer’s testimony concerning the circumstances under which he was able to identify defendant. According to defendant, Brewer’s identification was based on something other than his own personal knowledge, as required under Evidence Code sections 702, subdivision (a), and 803, and therefore, his identification testimony should have been excluded because it was based on, and tainted by, hearsay. In support of this argument, defendant relies on People v. Valencia (2006) 146 Cal.App.4th 92 (Valencia), in which the trial court permitted a witness to testify that a certain minor (L.) had told the witness that defendant had touched another minor (D.) (Id. at p. 102). The appellate court found the admission of L.’s hearsay statement, as testified to by the witness, should have been excluded because the prosecutor could not establish L. had the requisite personal knowledge concerning defendant’s conduct towards D. (Id. at pp. 103, 104.) As we now explain, we conclude defendant’s argument is unavailing.

Contrary to defendant’s contention, Brewer’s identification of defendant as the person who had earlier fought with the victim was not based solely on the victim naming defendant as Brewer’s assailant. Brewer made it quite clear his identification of defendant as the person who had earlier fought with the victim was based on his (Brewer’s) assailant’s statement mentioning the earlier altercation between the assailant and the victim, which Brewer had witnessed. Brewer further testified he showed the victim the video printout, and the victim gave Brewer the name of his assailant. Thus, unlike the hearsay declarant in Valencia, had defense counsel made a specific objection on the ground defendant now asserts on appeal, the prosecutor would have been able to establish Brewer’s personal knowledge by producing the printout of the video showing the altercation between Brewer and defendant.[22] Accordingly, we reject defendant’s argument that Brewer’s testimony should have been suppressed because its only foundation was the victim’s hearsay and not Brewer’s personal knowledge, as well as the related argument that the admission of Brewer’s testimony was a violation of defendant’s constitutional confrontation rights because he was not able to confront the victim, the source of the identification. (See People v. Redd (2010) 48 Cal.4th 691, 730-731, fn. 19 [where appellate court found no error in the trial court’s overruling of defendant’s actual objection to testimony on the ground of lack of foundation, defendant could not argue that admitting the evidence also violated his constitutional confrontation rights, which was not asserted in the trial court, because the lack of an adequate foundation presented legal issues different from those underlying an objection that the admission of testimony would violate the confrontation clause; “[t]herefore, defendant’s new objection on appeal is not merely a constitutional ‘gloss’ upon an objection raised [in the trial court], and is forfeited”].)

In all events, even assuming the trial court erred by failing to strike Brewer’s testimony, we conclude the error was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) It is well settled that in evaluating whether an error is harmless “in a particular case depends upon a host of factors, . . . [including] the importance of the witness’[s] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, . . . and, of course, the overall strength of the prosecution’s case.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) Here, the jury was informed of the circumstances under which Brewer was able to recognize his assailant as the man who had fought with the victim, and Brewer’s testimony of a fist fight between the victim and defendant was somewhat corroborated by Ambeau’s testimony that approximately a year before the shooting he heard that defendant and the victim had been in a fight. Moreover, Brewer’s testimony was weak evidence of motive as compared to defendant’s admission to Alexander concerning the altercation between the victim and defendant, which left defendant with a scarred leg after he was forced to jump off a balcony to avoid being jumped by the victim “and some dudes” at the apartment complex. The jury also heard evidence of two witnesses, who knew and identified defendant as the shooter, and defendant’s admission to Alexander that he had shot the victim. Under these circumstances, we conclude there is no “reasonable probability” (Watson, supra, at p. 836) or even a “reasonable possibility” (Chapman, supra, at p. 24) that defendant would have secured a more favorable result had Brewer’s testimony been stricken.

IV. Admission of Evidence of Text Messages As Adoptive Admissions

Defendant argues the trial court committed prejudicial error by admitting evidence of two text messages under the hearsay exception for adoptive admissions. (Evid. Code, § 1221.) We conclude there was no error, and, in all events, the purported error was harmless under any standard of review. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)

A. Relevant Facts

Before trial, the prosecutor moved in limine to admit evidence of several text messages. At issue on this appeal is a text message sent on the afternoon following the shooting at 1:30 p.m. from an unknown person to a cellphone that defendant accessed on the day of the shooting, and the response to the text message. The text message that was sent to the cellphone (the sent text message) was: “Dollar be easy . . . they got that bitch lisince plate number boy be on yo toes brody.” The response at 1:45 p.m. was “Were u here dat?” Over a defense objection, the court ruled the text messages would be admitted, explaining: “I think if [the sent text message] didn’t have the reference to ‘that bitch license plate,’ I might feel differently, but I do think it sufficiently ties the event. It’s within a day of the event. The number associated with the defendant made a specific reference to a female and license plate number. We heard from Mr. Ramirez that he provided that information to the police department, and we know there’s lots of discussion and rumors. That’s already been established as well. And then the response from the phone number at least associated with the defendant. Clearly, [defense counsel] can argue this. It is a weakness in the People’s case as to actually whose phone it could have been. It sounds like the defendant had access to it for good portions of time, but it might not have been exclusive. But the response was very pointed, [‘Were u here dat?’] That could be interpreted as an unusual response from somebody not associated with the case. [¶] So I will permit these two texts.”

B. Analysis

We agree with defendant that the text messages “constituted hearsay” because the prosecution offered them as “out-of-court” statements incriminating defendant in the shooting. (Evid. Code, § 1200.) The prosecution sought their admission as an exception to the hearsay rule under the adopted admission rule in Evidence Code section 1221. “Under this provision, ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (Riel, supra, 22 Cal.4th at p. 1189.) “ ‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.’ [Citation.]” (Id. at pp. 1189-1190.) “ ‘[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and “[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto. . . .” [Citation.] We review the trial court’s conclusions regarding foundational facts for substantial evidence. [Citation.]’ [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266, 1297 (Chism).)

Defendant argues the sent text message and response were erroneously admitted under Evidence Code section 1221 because there was no evidence from which the jury could find by a preponderance of the evidence that defendant was the person who received the sent text message and responded to it. According to defendant, the evidence linking him to the cell phone used to receive and respond to the sent text message was highly speculative. Thus, a reasonable juror could not find, by a preponderance of the evidence, that the recipient was defendant, and not the owner of the cellphone. We disagree. The evidence establishing who had access to the cellphone was not speculative because the jury was required to draw inferences from the established facts to determine that defendant received and responded to the sent text message. (See People v. Jones (2017) 3 Cal.5th 583, 610 [“[t]he meaning of the conversation was not speculative merely because inferences were required to find that it showed consciousness of guilt”].) The record reveals that when the prosecution sought the admission of the text messages, the court had admitted the following testimony: Ramirez had testified he gave the police the Honda’s license plate number recorded on his tablet, and Alexander had testified she was the driver of the Honda seen by Ramirez, during the evening following the shooting, she had received a text message from the cellphone in question in which defendant told her, “Don’t drive dat car,” although defendant did not have a cellphone, someone “that he used to always be with” had a cellphone that defendant used, she had contacted defendant by calling the cellphone number on more than one occasion, and she had told the police they could contact defendant by calling the cellphone number that Alexander used to contact defendant. We therefore conclude that in light of the specific detail of the sent text message and the warning to the prospective recipient, coupled with the testimony of Ramirez and Alexander, the trial court did not err in finding that the jury could reasonably infer defendant was the recipient of the sent text message and warning and had responded to it.

In all events, even assuming the text messages were admitted in error, defendant has failed to demonstrate prejudice arising from the admission of the evidence. As noted, the sent text message was cumulative of Ramirez’s testimony that he had given the police the license plate number of the Honda that was driven by an African-American woman before and after the shooting, and Alexander’s testimony that on the day of shooting she had been driving the Honda seen by Ramirez and after the shooting defendant told her not to drive her car. In support of his claim of prejudicial error, defendant asserts the prosecutor exploited the erroneous admission of the text message evidence by arguing in his closing that the text message response was an incriminating statement by defendant. However, the trial court instructed the jury that “[n]othing that the attorneys say is evidence,” and “the attorneys discuss the case, but their remarks are not evidence.” The jury was further instructed it could consider defendant’s alleged out-of-court statements only if it found defendant made the statements. The jury was further advised that some of the instructions might not apply, “depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” Thus, the instructions informed the jury that if it found defendant had not received and replied to the sent text message, the jury was not to consider that evidence in reaching its verdict. We presume the jurors followed the court’s instructions. (People v. Guiton (1993) 4 Cal.4th 1116, 1127 (Guiton).) Therefore, assuming the evidence was insufficient to establish the predicate facts that defendant read the sender’s text message, understood its contents, and had responded to the sent message, as defendant now argues, “a reasonable jury would have accorded no weight to the evidence.” (Chism, supra, 58 Cal.4th at p. 1299, citing to Guiton, supra, at p. 1127 [“n analyzing the prejudicial effect of error, . . . an appellate court does not [i]assume an unreasonable jury”].)

We therefore conclude any purported error in the admission of the text messages was harmless as it is neither reasonably probable (Watson, supra, 46 Cal.2d at p. 846) nor reasonably possible (Chapman, supra, 386 U.S. at p. 24) that an outcome more favorable to defendant would have resulted had the evidence not been admitted. Additionally, even if the admission of the text messages “ran afoul of defendant[’s] right to confrontation,” as he suggests, such a violation is subject to federal harmless error analysis under Chapman, supra, at p. 24. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395.) Applying that standard of review, we conclude any purported error in the admission of the text messages was harmless beyond a reasonable doubt as “a rational jury would have reached the same verdict absent the error.” (People v. Livingston (2012) 53 Cal.4th 1145, 1159.) [23]

DISPOSITION

The judgment is affirmed.

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Jenkins, J.

We concur:

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Pollak, Acting P. J.

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Siggins, J.