P. v. Williams











Filed 11/8/10 p. v. Williams CA 2/1







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. FRANK WILLIAMS, Defendant and Appellant.

B213029 (Los Angeles County Super. Ct. No. BA260644)

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge. Reversed.
Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Joseph P. Lee and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Frank Williams appeals from the judgment entered following a jury trial in which he was convicted of two counts of first degree murder; two counts of willful, deliberate, and premeditated attempted murder; mayhem; and shooting at an occupied motor vehicle, with special circumstance, gang, great bodily injury, and personal firearm-use findings. Defendant raises numerous claims of error, including several contentions regarding the trial court’s admission of evidence discovered late in the trial that a defense alibi witness was arrested in possession of one of two guns used in the charged offenses. We conclude that the trial court should have excluded this evidence under Evidence Code section 352 and that its admission was prejudicial. Accordingly, we reverse.
BACKGROUND
On the night of January 31, 2004, siblings Jason and Shulma Ramos were killed and Jose Alvarado Velasquez and Walter Hernandez were wounded by gunfire. (Unless otherwise specified, all date references pertain to 2004.) At the first trial of defendant and then codefendant Leon Brown, the jury convicted Brown of two counts of special circumstance first degree murder and five other offenses, but could not reach a verdict on any of the six charges against defendant. This appeal concerns the convictions reached at defendant’s retrial.
About 11:00 p.m. on the night of January 31, a group of 12 friends and acquaintances aged 15 to approximately 23 (including the Ramos siblings, Velasquez, and Hernandez) arrived at a mansion at the northwest corner of Arlington Avenue and Adams Boulevard in Los Angeles to attend a party that had been advertised on fliers distributed at several high schools and other locations. The group arrived in three cars that they parked along the north side of Adams, in front of an apartment building that was located just west of the mansion. Most members of the group remained in the cars as Anjanneth Franco and a girl identified only as Carla approached or entered a pedestrian gate in the fence enclosing the grounds of the mansion. The gate was near the corner of the mansion grounds closest to the apartment building. Franco testified that she spoke to a tall man with facial hair and long braided hair who said he was acting as security for the party. She asked if they could attend the party, and the man said they were welcome to attend. She did not see a gun in the man’s possession. She identified defendant at trial as the man to whom she had spoken. She previously had identified defendant at the first trial and from photographs, but about an hour after the shooting, she could not identify anyone in a field show-up of about 20 young African-American men that included defendant. Franco testified at defendant’s retrial that in the photographic array the police showed her defendant did not have braided hair, but when police showed her the six-pack, she stated, “The hair is exactly the same.” Franco and Carla returned to the cars and told the other members of their group that they should go into the party. Most members of the group began walking toward the pedestrian gate leading into the mansion grounds.
As the group neared the gate, Brown drew a “normal-looking” chrome semiautomatic handgun and asked the group where they were from, why they were there, and why they were looking at him as if they were “‘going to do something.’” He told them to “‘get the fuck out of here’” and threatened to “‘dump on’” them. Several members of the group told Brown that everything was “‘cool’” or “okay” and said that their group would leave immediately.
Everyone in the group turned around and walked toward their cars. Brown followed them, approached Miguel Meza, pointed the gun at him, and attempted to rob him of a jersey he was wearing. Cesar Maldonado testified that while Brown was attempting to take Meza’s jersey, there was a “small” Black man with braided hair standing on the grass by the sidewalk near the pedestrian gate into the mansion grounds, but Maldonado could not identify defendant as that man. As Meza was taking off the jersey, Brown suddenly turned and ran or walked toward Velasquez’s car and began firing at it. Witnesses estimated they heard between 10 and 30 shots. Franco testified she ducked down, but did not stop watching Brown until the car she was in drove away. Hernandez testified that Brown began shooting from a location in front of Velasquez’s car, then moved along the length of the car, judging by the sound of the shots. When the shooting stopped, Hernandez looked out the back of the car he was in and saw Brown get into the driver’s seat of a silver Explorer parked in front of the mansion. No one else got into the Explorer, which quickly drove away. Meza got into Sandoval’s car, and Velasquez and Sandoval started their cars and drove quickly away. Maldonado had already driven away before the shooting began, but he heard some shots. Franco never saw defendant after the initial encounter when she asked about attending the party, and none of the other four members of her group who testified at trial saw defendant at all. Neither Franco nor any of the four other members of her group who testified at trial saw a second person shooting.
After driving about eight blocks, all three cars pulled over. Velasquez and all three of his passengers had been shot. Jason Ramos, who had been in the backseat on the passenger side of the car, was dead. Shulma Ramos, who was the front seat passenger, was alive but mortally wounded. Hernandez, who had been in the backseat on the driver’s side of the car, suffered a through-and-through shot to his hand. Velasquez had six gunshot wounds, including several to his legs and one that shattered his jaw.
The police found 28 casings on the sidewalk and grass in front of the apartment building; one casing on the sidewalk crossing the apartment building driveway, which bordered the mansion grounds; another casing on that driveway very near the sidewalk; and one on the curb in front of the steps leading up to the pedestrian gate. Twenty-seven were nine-millimeter casings, all of which had been ejected from a single gun. Four were .380-caliber casings, all of which had been ejected from a single gun. There was also shattered glass along the curb and parking strip in front of the apartment building, about 40 to 45 feet away from the pedestrian gate into the mansion grounds. Some casings were west of the glass, others directly or nearly directly toward the apartment building from the glass, and others slightly east of the glass, toward the apartment building driveway. Unfortunately, the prosecution did not introduce any evidence distinguishing between the location of the .380-caliber casings and the nine-millimeter casings.
Examination of Velasquez’s car revealed 30 bullet trajectories, all of which were consistent with shooting from outside the car, on its passenger side or through the back. Twenty-six of the trajectories were definitely from shots fired from outside the car. The police also recovered several bullets and bullet fragments from Velasquez’s car. One bullet was a .380-caliber automatic round; 15 were nine-millimeter rounds fired by the same gun that ejected the nine-millimeter casings found in front of the apartment building. To the extent a determination could be made upon the bullets and fragments obtained from the coroner’s office, the firearms examiner testified that they were nine-millimeter and fired by the same gun that ejected the nine-millimeter casings found in front of the apartment building.
The firearms examiner testified in the prosecution’s case-in-chief that he never received any guns to test fire, but there were several makes of guns in each of the two pertinent calibers that could produce the rifling characteristics he observed on the expended bullets. A Tec-9 was one of about six different nine-millimeter guns that could have fired the nine-millimeter bullets and that typically comes with a magazine large enough to hold at least 27 rounds, but other guns could be modified to use large-capacity magazines. A magazine that large would be about one foot long and make the gun potentially difficult and uncomfortable to conceal under clothing. Photographs of a .380-caliber, part-chrome, semi-automatic handgun and a Tec-9 were admitted in evidence for demonstrative purposes. Los Angeles Police Department (LAPD) Detective Jeff Nolte testified in the prosecution’s case-in-chief that throughout the entire investigation, the police never found either of the guns used in the charged crimes.
LAPD Officer Cedric Washington heard a police radio broadcast regarding the shootings and arrived at the mansion about 11:20 p.m. on January 31. A number of people, including defendant, remained on the grounds of the mansion, but others were leaving via Adams. Washington detained defendant, who was wearing red shoes, blue jeans, a white shirt, and a black jacket. Defendant’s hair was in a bushy ponytail. Washington patted down defendant and did not find any weapons. Defendant was taken to jail that night; the defense introduced a printout of his booking photograph and descriptive information from that arrest. Defendant was wearing a white shirt and a black jacket in the booking photograph, and he did not appear to have braids. Washington testified that the photograph accurately reflected defendant’s appearance at the time Washington detained him on January 31. The descriptive information indicated defendant is five feet six inches tall and weighed 130 pounds. The police found no weapons or clothing at the mansion.
The only evidence introduced at trial identifying defendant as a participant in the charged crimes was a statement given to police by Chris Smith-Scruggs after he was detained following a traffic stop on the night of February 9. Gang Officers Ryan Hicks and Carlos Ortega stopped a car in which Smith-Scruggs was a backseat passenger. Ortega recognized the driver and one other passenger as members of the Black P. Stones (BPS) gang. The officers found rock cocaine on the dashboard. All four occupants of the car were taken to the police station and interviewed individually. The driver of the car ultimately admitted owning the cocaine, but he was the last of the group to be interviewed. Hicks was aware that Smith-Scruggs had been at the January 31 party at the mansion, so when he interviewed Smith-Scruggs, Hicks said he knew who had committed the homicide but just wanted to confirm it. Hicks said he knew that “Frank” was there. Hicks testified he did not threaten to charge Smith-Scruggs with any crime or make any threats or promises, but Smith-Scruggs was still a suspect regarding the cocaine found in the car when Hicks interviewed him, and Hicks did not “give him any information about which direction [the police] were going” with respect to the cocaine they had found. Smith-Scruggs looked around, closed the door to the interview room, and told Hicks that he did not see the shooting, but heard the shots, then moved to a different position where “he saw Frank and he saw the other person involved, arms extended, both with pistols in hand, with smoke coming out of the barrels.” Smith-Scruggs said he was willing to talk to detectives, so Hicks called Nolte.
Nolte surreptitiously tape-recorded his interview with Smith-Scruggs and the tape was played at trial. Smith-Scruggs told Nolte that he arrived at the party at the mansion on January 31 about 9:30 p.m. Soon after he arrived, there was a shooting that he heard involved 18th Street gang members. No one was hurt and the party resumed. About 45 minutes or an hour later, there was a second shooting and Smith-Scruggs “grabbed [his] girl” and ran out the back door, then around the house. Smith-Scruggs initially said he saw four people: Nutcase (Leon Brown), Infant Geek (not identified), and two other people whose names he did not know. They were moving around on the sidewalk near the steps and shooting toward the west. Smith-Scruggs thought they were shooting at a car because of the sound, but he could not see the car because bushes blocked his view. Then Smith-Scruggs and his girlfriend ran back around the house and went through the “back gate” after someone rammed a car through it. Nolte asked Smith-Scruggs if there was anyone else shooting, and Smith-Scruggs said, “[T]hat’s it. Just really Nutcase and Infant Geek from what I know, but there was two other people that I saw that was standing with them, but I don’t know them like that. I don’t know their names.” A little later, after Nolte again asked who else was shooting, Smith-Scruggs said, “Frank. I seen his little body.” Asked to describe Frank’s build, Smith-Scruggs said, “Little—frail little body.” He told Nolte that Frank was wearing a red and brown button-up shirt, “red baggies,” “red Nike Dunks with the red laces up,” a gold chain, and braids. He said he had known Frank since about the fifth grade. Smith-Scruggs selected photos of Nutcase and Frank (defendant) in two six-packs of photographs. Nolte did not have Smith-Scruggs circle or otherwise mark the photographs he selected. Smith-Scruggs said that he had seen defendant’s gun earlier that night when defendant held it up in the air and was “jumping up and down.” It was an “automatic” handgun with “little holes in the front like where you can turn it on at.” After attempting to both describe defendant’s gun and remember the name of the gun, Smith-Scruggs said it “looked like a . . . Tec-9,” then mentioned a “Goldeneye” game and “007.” Smith-Scruggs stated that Nutcase, Infant Geek, and defendant were all Black P. Stone gang members from “the Jungle.”
At trial, Smith-Scruggs testified that defendant was not even at the January 31 party at the mansion. Smith-Scruggs heard gunshots and saw people running into the house. Someone told him that some 18th Street gang members “came up and tried to shoot the party.” The party continued, then there was a second shooting. Smith-Scruggs did not see who was shooting or see anyone with a gun. After the second shooting, someone shouted that the police were there, and Smith-Scruggs ran out the back door of the house and through the side gate with his girlfriend. They got away, but Smith-Scruggs was questioned by the police that night. When Smith-Scruggs was arrested 10 days later, the police found some crack cocaine in his pocket. The police officers told him he would go to prison for five or 10 years for distribution or sales, but they would let him go if he gave them information about what happened at the party at the mansion. One of the officers told him the names of four people they were “trying to identify.” An officer also suggested Smith-Scruggs might have been the shooter and they said they could charge him with murder. Smith-Scruggs was 16 years old, alone, and frightened. He had been at the police station for almost four hours before the detectives began talking to him, which was the portion reflected on the recording. Until the preliminary hearing, he was unaware the detectives had recorded the interview. The recording did not include his prior conversation with other officers where they threatened to charge him unless he provided information. Smith-Scruggs told the detectives what he had heard about the shooting “on the street” and from his brother so that they would let him go and not charge him. The detectives told Smith-Scruggs that they wanted him to identify defendant and they had a photograph of defendant that was already circled and had defendant’s name and birth date on it sitting on the table during the interview. Smith-Scruggs told the officers the gun was an Uzi, but the officers said it was probably a Tec-9.
At the preliminary hearing, Smith-Scruggs marked a diagram of the mansion and its surroundings, showing the locations where he saw defendant, Brown, Infant Geek, and the two unidentified men with guns, along with Smith-Scruggs’s location when he saw them. Smith-Scruggs thus indicated that defendant, Brown, and Infant Geek were inside the grounds of the mansion and the two unidentified gunmen were on the sidewalk just outside the pedestrian gate. Smith-Scruggs placed defendant near the front fence, almost straight toward Adams Boulevard from the mansion’s front door and a distance east of the pedestrian gate. He placed Brown inside the fence along the side of the grounds facing the apartment building, but some distance back from the sidewalk, and he placed Infant Geek a little east of the pedestrian gate and slightly back from the fence line. Smith-Scruggs indicated that he was in front of the house, near its southeastern corner, where a sidewalk intersected a driveway into the property from Adams. After Smith-Scruggs denied at trial that he had ever marked the diagram, his preliminary hearing testimony about marking the diagram was read aloud at trial and the diagram was introduced as a prosecution exhibit. On cross-examination at trial, Smith-Scruggs marked “SS” on the same exhibit to indicate the location of the back door through which he fled at the time of the second shootings.
The prosecution called Yuseff Sinclair, who, according to the prosecutor’s offer of proof, had told the police that before the shooting, he saw defendant with a Tec-9 at the party. The court-appointed counsel for Sinclair determined that Sinclair had no Fifth Amendment privilege not to testify, ordered Sinclair to testify, and permitted the prosecutor to call Sinclair as a witness before the jury, over objection by the defense. Sinclair refused to answer any questions and simply repeated, “Contempt of court.” The court found Sinclair in contempt and gave the jury a limiting instruction prohibiting it from inferring that defendant had anything to do with Sinclair’s refusal to testify, restricting its consideration of Sinclair’s refusal to testify to the evaluation of expert testimony regarding gangs and prohibiting the jury from considering “anything that has just transpired with regard to Mr. Sinclair for any other purpose in this case.”
Officers Washington and Andre Rainey testified as prosecution gang experts regarding the BPS gang, which has one clique in Baldwin Village called the Jungle Stones and another clique located in an area that included the mansion. The Rolling 20’s gang claimed as its territory the neighborhood immediately east of the mansion’s location. In 2004, the BPS and Rolling 20’s gangs got along with one another. Defendant was an active BPS Jungle Stones member, as was Brown. Defendant and Brown were known to hang out with one another. The BPS gang and the 18th Street gang were enemies in 2004.
In early 2004, the primary activities of the BPS gang were robberies, residential burglaries, murders, attempted murders, assaults with deadly weapons, and narcotics sales. At that time, there were about 700 members of the BPS gang. Although it is common for gang members to brag about the crimes they have committed, and common for gang members to act in concert to commit a crime, members do not “always know what crime the others are committing.” Rainey testified that no gang member wants to be known as a snitch because he or she would, at a minimum, be ostracized and might even be killed or place their relatives at risk of being killed.
In response to the prosecutor’s hypothetical mirroring of the testimony of prosecution witnesses and asking Rainey to assume that other members of the first shooter’s gang joined and also fired shots, Rainey opined that other members of the gang who heard the shooting and joined in without knowing anything about the robbery would be acting to benefit their gang. Joining in would enhance the gang’s reputation and its ability to intimidate both its rivals and the public by showing that the gang was active and violent and would shoot anyone, any time, even without provocation. The large number of witnesses would strengthen that effect. On cross-examination, Rainey testified that not all the gang members would necessarily join in the shooting because some are not capable of shooting someone.
Defense witnesses Ezekiel Phillips, Laquita Gill, Joel Nwankwo, Lajuan Major, Micshela Windom, and Orisha Moorehead attended the party. All of them except Moorehead saw defendant there. Phillips and defendant went to the party together. Major and Moorehead testified that defendant was not the security guard for the party. Nwankwo testified that the security guard was “a big dude in front,” whereas defendant was “kind of small to play security.” Gill testified that the security guards were a man and a woman, who stood outside the front door and charged admission. Defendant was inside by the staircase, dancing. Gill, Nwankwo, Phillips, and Windom all testified that defendant primarily danced and spoke with Windom.
Gill testified that the party was for her brother Jarrod’s birthday, and she helped to put on the party. Jarrod was not a member of the BPS gang at the time of the party, but he later joined the gang. Gill had escorted two women who were fighting outside the front door, and she was standing on the front steps when she saw flickering lights on the sidewalk in front of the adjacent apartment building and heard a sound she thought was gunfire. She ran back inside the house and looked around for her family members. At that time, she saw defendant inside the house, crouched down like everyone else.
Phillips testified that he and defendant were near one another throughout the party. They were inside the house when Phillips heard gunshots. Phillips dropped to the floor and defendant was on the floor right next to him. Major testified that she was also inside when she heard gunshots and also dove to the floor. She looked around and saw defendant getting up and leaving. Windom was also inside and also dropped to the floor when she heard gunshots. When she got up, she looked around and saw defendant in the room. Nwankwo testified that he left the party before the shooting. He walked east on Adams to a bus stop to wait for his mother, who was going to pick him up. About 10 minutes after he left, he heard gunshots and dropped to the ground, facing away from the mansion. He did not see who was shooting, but defendant was inside the party when Nwankwo left, and he did not see defendant outside.
Phillips, Gill, Nwankwo, Major, Windom, and Moorehead testified they did not see defendant with a gun or see him or anyone else wave a gun around during the party. Gill, Phillips, Nwankwo, and Windom testified there was not another shooting that night, but Major testified that she heard other people at the party say that the 18th Street gang had come by and fired shots.
Phillips and Gill testified that defendant was wearing red shoes, blue jeans, and a white T-shirt at the party. Windom remembered that defendant was wearing a white T-shirt. Nwankwo remembered that defendant was wearing “nice red Pumas” because Nwankwo loved shoes. Shoes were his “thing,” and he really liked defendant’s shoes. Major and Windom remembered seeing Phillips at the party.
Moorehead testified that Smith-Scruggs arrived about 30 minutes before the shootings. He was angry and drunk, reeked of alcohol and marijuana, and continued to drink and smoke marijuana at the party. When they heard the shots, Moorehead, her brother, Smith-Scruggs, and another person ran out the back of the mansion and along a path leading to the side gate that had to be broken open, then across Arlington, and to the Gill’s house. They did not run to the front of the mansion “[b]ecause that’s where the gunshots were coming from.” Smith-Scruggs was with Moorehead the entire time they were fleeing, but he left soon after they reached Gill’s house. Moorehead broke up with Smith-Scruggs sometime after the party when she found out he was a snitch.
Phillips denied that he was a BPS gang member and that he had ever admitted being a BPS member. He hung around with a lot of gang members in his community. He testified that the police had often stopped him and filled out information cards on him “just for walking down the streets with people that I’ve grown up in the neighborhood with or just walking down the street.” On one occasion, the police threatened to take Phillips’s minibike unless he gave them information. Phillips admitted that he had a sustained juvenile petition for “driving a stolen car.” Phillips was with defendant in a car when the police stopped the car, dragged defendant out through a window, and arrested defendant for murder. The police had stopped defendant and Phillips in a car on a prior occasion, as well. Defendant was Phillips’s friend, and they saw each other a couple of times each week.
Phillips testified that sometime after defendant’s arrest, Washington and Rainey took Phillips to the police station for questioning. They asked him if defendant committed the crimes. He told them defendant did not, and one of them said, “Don’t fucking lie to me,” then began interrogating him, cursing him, and threatening to “make this thing hard for” him and to jail him. Phillips repeatedly told them that defendant was with him at the time of the shootings and did not do anything. The officers repeatedly said Phillips was lying. They looked through his phone, then took him home. Phillips had had more than four contacts with Washington and Rainey, and the officers were always rude and disrespectful. They would pull him over and “mess with” him. They called him “Bumpy Face” because he had acne and ignored his requests to call him by his name instead. Phillips had made complaints about police harassment.
Phillips agreed that BPS gang members “stick together” and would not testify against one another. He knew Brown “[j]ust in passing,” and did not see Brown at the party.
Dr. Scott Fraser testified for the defense as an expert on eyewitness identification. He testified that no one can reliably identify another person at a distance greater than 15 meters because the image size is too small to detect critical facial features. Other factors affecting the reliability of identifications are lighting, exposure time, degree of attention, familiarity or unfamiliarity, the presence of very distinctive features, and the consumption of alcohol.
Defense investigator Rhasaan Wilson testified in rebuttal that Moorehead gave her differing accounts of where she was standing when she heard the shots. Windom did not mention standing next to defendant on the dance floor when she heard shots. Major did not say she saw Windom or Phillips near defendant. Gill did not say she saw Phillips. Nwankwo did not tell Wilson he heard gunshots, but did say he heard sirens. He did not mention Windom. Phillips did not tell Wilson that he had told the police that he was with defendant on the dance floor. But Phillips, Major, and Gill all said that they saw defendant inside the mansion when they heard shots outside.
Nolte testified in rebuttal that two weeks earlier he learned that Phillips had a 2004 juvenile arrest for possession of a firearm. This information caused him to follow-up. He found out that the gun was still in the custody of the sheriff’s department and was a .380-caliber semiautomatic. He had it tested.
The firearms examiner testified that testing on the .380-caliber semiautomatic gun revealed that it had ejected the four .380-caliber casings found at the crime scene.
Sheriff’s Sergeant Russell Wilson testified in rebuttal that on February 16 he was on patrol in West Hollywood when he and his partner stopped a car. Wilson saw a handgun under Phillips’s thigh. He ordered Phillips to put his hands on the ceiling of the car. Phillips put the gun into his jacket pocket, then put his hands on the ceiling.
LAPD Officer Richard Campos testified in rebuttal that Phillips had admitted his membership in the BPS gang during numerous contacts Campos had with him between 2003 through 2006.
Rainey testified in rebuttal that Phillips had admitted being a BPS gang member in Rainey’s presence. Rainey had questioned Phillips about the events at the mansion, and Phillips had not admitted being there or said anything about what happened. Rainey opined that if, two weeks after the crimes, a BPS member possessed one of the weapons used in the crimes, it would indicate that the BPS member was an active member of the gang because the gang would let only a trusted member have possession of the weapon. But Rainey admitted that gangs keep their guns at safe houses, any member of the gang could retrieve a gun from a safe house, and possession of a gun does not establish that the possessor knew what it had been used for previously.
The jury convicted defendant of the first degree murder of Jason and Shulma Ramos; the willful, deliberate, and premeditated attempted murder of Jose Velasquez and Walter Hernandez; mayhem; and shooting at an occupied motor vehicle. The jury found as special circumstances that defendant committed multiple murders and defendant committed both murders while he was an active participant in a criminal street gang and the murders were carried out to further the activities of the gang (Pen. Code, § 190.2, subd. (a)(3), (22)). The jury further found all of the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). It further found that, in the commission of every offense, defendant personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun (Pen. Code, § 12022.53, subds. (b), (c), and (d)). It also found that, in the commission of every offense, a principal personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun (Pen. Code, § 12022.53, subds. (b), (c), (d), and (e)(1)). In addition, the jury found that defendant personally inflicted great bodily injury in the commission of the attempted murder and shooting at an occupied vehicle counts (Pen. Code, § 12022.7, subd. (a)).
For the two murder counts, the court sentenced defendant to consecutive terms of life in prison without possibility of parole, plus 25 years to life (Pen. Code, § 12022.53, subd. (d)), plus 10 years (Pen. Code, § 186.22, subd. (b)(1)(C)). For the two attempted murder counts, the court sentenced defendant to consecutive terms of 15 years to life, plus 25 years to life (Pen. Code, § 12022.53, subd. (d)). The court stayed the terms for the mayhem and shooting at an occupied vehicle convictions.
DISCUSSION
At the end of the day during which Phillips testified, Detective Nolte informed the court in chambers, outside the presence of defense counsel, that on that day he had noticed on Phillips’s rap sheet a February 16 arrest involving a handgun by the sheriff’s department, obtained the arrest report from the West Hollywood sheriff’s station, and discovered that a .380-caliber semiautomatic chrome handgun seized from Phillips was still in the possession of the sheriff’s department. The LAPD had obtained the gun, test-fired it, and found that the casings appeared to match photographs of the .380-caliber casings recovered in front of the apartment building. The court agreed to permit the recovered .380-caliber casings from the crime scene to be removed from court and for comparison. Although the court recognized that “[t]his is as blockbuster potential material as you can get in the middle of a trial,” the prosecutor and Nolte convinced the court to delay informing defense counsel and seal the reporter’s transcript of the in camera hearing. Two additional brief ex parte, in camera hearings were conducted the next day regarding release of the casings and progress on the ballistics testing. The following trial day, the court unsealed the reporter’s transcripts of the hearings from which defense counsel was excluded and ordered those transcripts and the report of the ballistics testing on the .380-caliber gun to be provided to defense counsel. The prosecutor provided defense counsel with a copy of the February 16 arrest report regarding Phillips. Later the same day, defense counsel moved to exclude all evidence regarding Phillips’s possession of the gun.
Defense counsel later discovered that Phillips had obtained a juvenile court order sealing all of his records. Defense counsel provided the trial court with a copy of the order, but it is not part of the appellate record. The trial court examined the order and stated that it pertained to “an exhaustive list. I think there are 18 listed, what they characterize as incident numbers with arresting agencies, including the West Hollywood sheriff, and including that date of the 16th of February 2004 with various violations. And those apparently are the violations which gave rise in this case.” The court also stated, “[T]he first part of the order seals all records, papers, and exhibits in [Phillips’s] case in the custody of the juvenile court. Then it goes on, and there is a different phrase: [¶] ‘And other records relating to the case in the custody of such other agencies and officials named herein.’”
The admissibility of the evidence regarding Phillips’s possession of the .380-caliber handgun was addressed in three hearings outside the presence of the jury. For brevity, we collectively summarize the defense arguments and the court’s rulings over the course of all three hearings regarding admission of the gun evidence.
The prosecutor’s theory of admissibility was as follows: “[W]e are offering Mr. Phillips’ possession of one of the murder weapons to show his bias and his alliance to a deep extent with this gang.” The prosecutor later elaborated, “So I think that certainly this is very relevant and probative evidence especially given the veracity, I would say, of Mr. Phillips’ testimony and his attitude toward the police, his insistence that, that he had been basically wrongly lumped in with gang members and wrongfully accused himself and browbeaten in some way in this case. [¶] So I think it’s very material to show his bias and explain who he is as a witness.”
Defense counsel objected to the admission of evidence regarding Phillips’s possession of the gun on numerous grounds: delayed disclosure of information to which the prosecution had had access for four years; unfairness stemming from the defense’s inability to obtain the same juvenile “rap sheet” showing arrests and police contacts (as opposed to convictions) that the prosecution had; relevance, in that it was impeachment on a collateral matter because the gun in issue was used by Brown; relevance, in that the arrest did not result in a sustained petition; undue prejudice and undue consumption of time under Evidence Code section 352; the prosecution’s failure to ask Phillips about the gun when he testified; and a violation of both the juvenile court order sealing all records in the custody of the sheriff’s department regarding the arrest and Welfare and Institutions Code section 781. Defense counsel also argued that if he had known about the arrest, he would not have called Phillips as a witness.
The trial court repeatedly denied the defense’s motions to exclude the evidence and for mistrial. The court explained, “Simple rap sheet information is not the type of information that is relevant in the overwhelming majority of cases. And quite frankly, it didn’t really become relevant until Mr. Phillips testified. [¶] And I certainly find that L.A.P.D., L.A.S.D., and the district attorney’s office were not on notice as to the connection between Mr. Phillips and this case [sic] until Detective Nolte had a hunch.” “So he followed up on it as a hunch. And in no way, shape, or form was law enforcement sandbagging.” “The People became aware of this information during the course of the trial. They became aware of it because of the testimony of Mr. Phillips and because of the conscientiousness of Detective Nolte.” “The fact that if, if [defense counsel] had known that there were this issue, he would not have called Mr. Phillips or he would have taken a different strategy. It’s certainly an argument to be made by [defense counsel]. But that doesn’t end the discussion. [¶] It is a reality of trials that witnesses sometimes do and say things that give rise to impeachment, and this is one of those situations.” The court also noted that because it had ordered Phillips to remain on call, the defense could call him in surrebuttal.
The court rejected the defense argument that introducing the information would violate the juvenile court’s order sealing Phillips’s records and Welfare and Institutions Code section 781: “I am of the opinion that, under the facts and circumstances presented here, that [defendant] does not have any so-called standing to object to the receipt into evidence of testimony by the deputy sheriff who may have encountered Mr. Phillips, and may have seen Mr. Phillips with a weapon, and may have recovered and retrieved that weapon and booked that weapon, and subsequently was contacted by Detective Nolte. [¶] This is derivative type evidence that I do not think is called for or contemplated as a personal matter on behalf of a juvenile or the juvenile’s family to seal juvenile records and records of other agencies pursuant to the provisions of Welfare and Institutions Code sections 389 and 781. [¶] There will be no mention made of juvenile records or of records of law enforcement. There will be testimony by the law enforcement officer about what he saw or heard, what he did, and whether he is able to recognize the weapon in question, and the People can establish a chain of custody. [¶] There is a critical distinction between the position of Mr. Phillips and his right to rely upon expungement, on the one hand, and the effort on the part of [defendant] to preclude mention of this information, on the other hand. That is not the purpose of this legislation. It is not the purpose of a fair and just proceeding and a truth-finding proceeding. It does not implicate the privacy interests of Mr. Phillips.”
The court also rejected defendant’s relevance and Evidence Code section 352 objections: “The issue in this case is the overall state of the evidence. Mr. Phillips has, in no uncertain terms, placed himself at the center of a credibility contest here. Mr. Phillips is one of, if not the most, compelling alibi witnesses for [defendant]. In no uncertain terms, throughout the entirety of Mr. Phillips’ testimony, Mr. Phillips denied knowing Mr. Brown, indicated that he knew [defendant] for a lengthy period of time through the community, denied his own involvement with Black P-Stones, and for hours has got himself staring at [defendant]. [¶] Mr. Phillips’ credibility is dramatically at issue here. And the simple fact that a matter of a couple of weeks after the alleged murders and attempted murders in this case, Mr. Phillips happens to have a weapon which, according to the People’s ballistics personnel, is a match to one of the guns used in the slaughter on Adams, is something this jury should have to decide how this relates to the credibility of Mr. Phillips. [¶] . . . I do not see this as collateral impeachment. I see it as significant, direct impeachment of a critical alibi witness, and it is certainly relevant under Evidence Code section 350. [¶] Under Evidence Code section 352, the prejudicial impact of that testimony does not substantially outweigh its probative value. [¶] Is it prejudicial‌ You bet. But most evidence that a particular side wants admitted in a given case is prejudicial because it serves the interest of that side, and it does not serve the interest of the other side. [¶] Prejudice has a certain meaning. It means that it is distracting. It is inflammatory. I don’t see it, in view of the specific factual posture of this case.”
The trial court granted a continuance of nine days before the prosecutor introduced any of the evidence regarding the gun, appointed a ballistics expert for the defense, and directed the gun and casings to be made available for testing by the defense.
Defendant raises three contentions regarding this evidence, including the one we address herein: the evidence should have been excluded as unduly prejudicial under Evidence Code section 352. We agree and find the error prejudicial.
Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) But relevant evidence should be excluded if the trial court, in its discretion, determines that its probative value is substantially outweighed by the probability that its admission will either be unduly time consuming or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. (Evid. Code, § 352.) The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but is instead a tendency to prejudge a person or cause on the basis of extraneous factors, a tendency to evoke an emotional bias against the defendant without regard to the relevance of the evidence to material issues, or a likelihood that the evidence will “be used in some manner unrelated to the issue on which it was admissible.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1016; People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Zapien (1993) 4 Cal.4th 929, 958.)
The trial court did not admit the evidence regarding Phillips’s possession of the .380-caliber gun used in the charged offenses as substantive evidence of defendant’s guilt. The evidence instead was admitted solely for the purpose of “impeachment of a critical alibi witness.” The probative value of the gun evidence was thus limited to Phillips’s lack of credibility by disproving his denial that he was a BPS gang member and showing his bias toward defendant because he was a fellow BPS gang member.
With respect to these purposes, the gun evidence was cumulative. The prosecution was able to prove Phillips’s membership in the BPS gang through the testimony of Rainey and Campos that Phillips had admitted to them that he belonged to the BPS gang. To show Phillips’s bias, the prosecution had the testimony of Phillips himself that he and defendant were friends who spent time together multiple days per week, and that BPS gang members stick together and do not testify against one another. It also had Rainey’s testimony that gang members do not want to “snitch” on other gang members because doing so places them and their family members in jeopardy. In addition, the prosecution attacked Phillips’s credibility based upon his admission on direct examination that he had a sustained juvenile petition for driving a stolen car. It also had Rainey’s testimony that he questioned Phillips about the charged crimes, and Phillips had not said anything about what happened or admitted being present. This tended to contradict both Phillips’s alibi testimony and his testimony that he told LAPD officers who questioned him about the crimes that defendant was with him and did not do anything. The prosecution thus had quite a lot of evidence to impeach Phillips by showing that he was a BPS gang member and casting doubt upon his credibility by showing grounds for bias, disproving matters to which he testified, and showing his prior misconduct reflecting a character for dishonesty. The trial court was aware that the prosecutor was going to introduce such evidence because the prosecutor explained her rebuttal case to the court before it ruled upon the first of the defense’s three attempts to exclude the gun evidence. Although the gun evidence was unique because it related to recovery of one of the guns used in the charged offenses, it was cumulative for the limited purpose for which the trial court agreed to admit it.
Against the limited probative value of the gun evidence, defendant’s Evidence Code section 352 objection required the trial court to balance several risks created by admission of the evidence. The most important of these risks was that of undue prejudice. Phillips’s possession of one of the guns used in the charged crimes posed a very high risk of undue prejudice given its nature and the timing and circumstances of its admission. The jury had previously heard Nolte testify that the police never recovered either of the guns used in the charged crimes. Similarly, the firearms examiner testified that he never received any guns to test-fire in this case. Suddenly, after the defense had rested, the prosecution introduced “blockbuster” evidence that one of the guns had been found in the possession of defendant’s friend and alibi witness, Phillips. The jury was never instructed that it could consider evidence of Phillips’s possession of this gun only for the purpose of impeaching Phillips’s testimony. Under the circumstances, the jury could readily infer that Phillips’s possession of one of the murder weapons so soon after the crimes tended to connect defendant to the charged crimes. Because no evidence had been introduced implicating Phillips in the commission of the charged crimes and nothing showed the existence of any close relationship between Phillips and Brown—who was supposed to have used the .380-caliber gun—Phillips’s possession of the gun gave rise to an inference that he obtained it from his good friend and frequent companion, defendant. This necessarily linked defendant to the commission of the charged crimes.
In the unusual circumstances of this case, another aspect of prejudice deserved consideration by the trial court: the timing and means of discovery. Records of Phillips’s arrest had been sealed, were unavailable to the defense, and should have been unavailable to Detective Nolte and the prosecutor. Welfare and Institutions Code section 781, subdivision (a) provides that if the juvenile court orders the sealing of “records relating to the case in the custody of the other agencies and officials as are named in the order,” “[e]ach such agency and official shall seal the records in its custody as directed by the order,” and thereafter “the records shall not be open to inspection” except as set forth in subdivisions (b) and (c), which are inapplicable here. Records sealed under Welfare and Institutions Code section 781 are not subject to discretionary examination or disclosure under the provisions of other Welfare and Institutions Code provisions, such as sections 827 and 827.9, and 828. (In re James H. (2007) 154 Cal.App.4th 1078, 1084; Welf. & Inst. Code, §§ 827.9, subds. (b), (c) & (e), 828.)
Thus, no one should have had access to the police report regarding Phillips’s arrest, and Phillips was statutorily entitled to tell anyone who asked that the arrest had never occurred. (Welf. & Inst. Code, § 781, subd. (a).) Even if defense counsel or his investigator had asked Phillips about other arrests before deciding whether to have him testify, he was entitled to deny that he had been arrested on February 16. The defense thus had no means to find out about Phillips’s arrest, unless defendant knew about it or Phillips voluntarily told the defense about it. Apparently, neither of these avenues led the defense to discover the arrest or its significance. As defense counsel told the court, had he known of Phillips’s arrest with one of the murder weapons, he would not have called Phillips as a witness. Phillips had not been called at the first trial, and was not essential to the alibi defense, as there were four other alibi witnesses. Admission in rebuttal of the “blockbuster” evidence of the belated recovery of one of the murder weapons more than four years after the crimes—evidence developed by obtaining an arrest report that the sheriff’s department should not have disclosed—was thus highly questionable and posed a substantial danger of unfair and undue prejudice.
In addition, admission of the gun evidence posed a risk of confusing or misleading the jury because the jury was not told that it was to consider this “blockbuster” evidence only for impeachment of Phillips’s testimony, and the evidence had a tendency to link defendant to the commission of the crimes.
Balancing the probative value of the gun evidence against the risks posed by its admission, we conclude the trial court abused its discretion by admitting it. Reversal is required only if it is reasonably probable defendant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson (1956) 46 Cal.2d 818, 836.) Where there is “‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result,’” the error is prejudicial. (People v. Mower (2002) 28 Cal.4th 457, 484, quoting Watson, supra, 46 Cal.2d at p. 837.)
If it were certain that the jury considered the gun evidence only with respect to Phillips’s credibility, we would likely conclude its admission was not prejudicial. Yet Phillips was just one of five alibi witnesses, and his friendship with defendant gave rise to an inference of bias even apart from the issue of gang membership. And the testimony of Rainey and Campos that Phillips was an admitted BPS gang member established both an additional ground for bias and that Phillips lied when he denied being a gang member.
But there is no basis for concluding that the jury considered the gun evidence only with respect to Phillips’s credibility, and did not consider the gun evidence as linking defendant to the charged crimes. The jury was not instructed to consider this evidence only for its relevance to Phillips’s credibility, although the Attorney General repeatedly argues that it was. CALJIC No. 2.09 was included in the jury instructions, but it did not mention the gun evidence or its limited purpose. It instead stated, “Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted, you were instructed that it could not be considered by you for any purpose, other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose, except the limited purpose for which it was admitted.” This instruction apparently pertained to Sinclair’s refusal to testify, as to which the trial court had given a specific limiting instruction concerning Sinclair’s refusal to testify as soon as he left the witness stand. No specific limiting instruction was given regarding the gun evidence at the time it was introduced, and application of CALJIC No. 2.09 expressly requires such an instruction “[a]t the time this evidence was admitted.” Thus, the jury had no way of knowing that it was not allowed to consider the gun evidence for its obvious crime-solving implications of linking defendant to the charged crimes. Part of the “blockbuster” effect of the gun evidence was that after the jury had repeatedly heard that neither gun had been found, one of them was found through Nolte’s investigation of defendant’s friend, who had testified that they were together when the crimes were committed. Nolte’s solution of one of the remaining mysteries regarding the crimes was not only quite dramatic, but tended to link back to defendant, providing additional, but improperly considered, circumstantial evidence that implicated defendant in the charged offenses. In the absence of a limiting instruction, it was probable that the jury did not limit its consideration of the gun evidence to its impeachment purpose.
This was not a case where there was overwhelming or even extremely strong evidence of defendant’s guilt. Instead, he was tied to the crime only through (1) Franco’s identification of him as the security guard she encountered outside the mansion, from which it could be inferred that the alibi witnesses who testified that defendant was inside the mansion at the time of the shooting were lying, and (2) Smith-Scruggs’s statement to police saying defendant was one of five shooters he saw as he fled the mansion after hearing shots. Franco’s identification testimony was subject to doubt for several reasons. First, she failed to identify defendant in a lineup at the mansion about an hour after the crimes. In addition, Franco’s description of the security guard as tall and having long braided hair did not match defendant. Washington, who detained defendant at the mansion, testified defendant was wearing his hair in a bushy ponytail that night. Defendant did not have long braided hair in the booking photograph taken a short time after his arrest that night. The descriptive information accompanying the booking photograph indicates defendant is 5 feet 6 inches tall, which is consistent with Nwankwo’s testimony that defendant is “kind of small” and Smith-Scruggs’s references to defendant as “little.”
The accuracy of Smith-Scruggs’s statement was also subject to considerable doubt, apart from Smith-Scruggs’s testimony at trial that he made up his statement about defendant to escape drug charges. Moorehead testified that when she and Smith-Scruggs heard shots and fled, they did not go to the front of the house, where the sound of shots was coming from, but out the back door and directly to the side gate on Arlington. This made more sense than Smith-Scruggs’s statement that they ran out the back of the house, around to the front, then back to the gate on Arlington. A review of the numerous diagrams of the grounds introduced as exhibits shows that a driveway or path leads from the back door directly to the side gate on Arlington.
Smith-Scruggs initially told Nolte he saw four men shooting and named Nutcase (Brown), Infant Geek, and two men he did not know. Nolte asked Smith-Scruggs if there was anyone else shooting, and Smith-Scruggs said, “[T]hat’s it. Just really Nutcase and Infant Geek from what I know, but there was two other people that I saw that was standing with them, but I don’t know them like that. I don’t know their names.” Only after Nolte asked him again “who else” was shooting did Smith-Scruggs mention defendant.
Smith-Scruggs told Nolte that defendant was wearing a red and brown button-up shirt and baggy red trousers, and that he had his hair in braids. When Washington detained defendant shortly after the crimes, defendant had a bushy ponytail and was wearing red shoes, blue jeans, a white shirt, and a black jacket, which was consistent with the testimony of Phillips, Gill, and Windom and the absence of any discarded clothing at the mansion.
Smith-Scruggs’s statement regarding the gunmen was inconsistent with the physical evidence and the accounts of the eyewitnesses and surviving victims. He told Nolte there were five shooters and marked the positions of defendant and four other people on a diagram at the preliminary hearing. On this diagram Smith-Scruggs placed Brown, defendant, and Infant Geek within the mansion grounds and two unknown gunmen on the sidewalk in front of the steps leading up to the pedestrian gate. Smith-Scruggs placed defendant just inside the front fence, roughly straight out from the front door of the mansion, not near the pedestrian gate. Smith-Scruggs placed Brown inside the fence along the side of the grounds facing the apartment building, but some distance back from the sidewalk. Franco, Hernandez, Velasquez, and Sandoval testified that Brown was on the sidewalk or parking strip near Velasquez’s car—which was parked in front of the apartment building—when he began shooting at Velasquez’s car. Hernandez testified that Brown walked east, toward the mansion, as he continued to shoot. This testimony regarding the shooter’s position was consistent with the physical evidence. The police found casings ejected by two guns, and all but three of the casings were on the grass and sidewalk in front of the apartment building. If there were two gunmen at the steps to the pedestrian gate, as Smith-Scruggs indicated, and they were firing semiautomatic or automatic guns, it is improbable that just three of such casings would remain somewhat near their firing position, while 28 would end up 40 feet or so to the west, in front of the apartment building next door. According to Smith-Scruggs, defendant was even farther to the east of where the casings were found, firing a Tec-9. No casings were found inside the mansion grounds or outside the grounds near the position from which defendant was purportedly firing.
In addition, none of the victims observed a second gunman. Although two guns were necessarily used, it is possible that both were used by a single person.
Finally, we note that the jury in the first trial, which did not hear the erroneously admitted evidence linking Phillips to one of the murder weapons, was unable to reach a verdict on any of the charges against defendant, but convicted Brown on all charges. (People v. Brooks (1979) 88 Cal.App.3d 180, 188 [court considered jury’s failure to reach verdict in first trial in assessing prejudice resulting from erroneous admission of new evidence in second trial].) In this trial, the jury deliberated for 19 hours and 45 minutes over five days, then returned its verdicts 15 minutes into its sixth day of deliberations. During its deliberations, the jury asked that Franco’s testimony about defendant’s attire be read, but Franco did not describe defendant’s clothing. (People v. Woodard (1979) 23 Cal.3d 329, 341 [six hours of deliberation and request for reading of trial testimony was factor tending to show defendant’s guilt “was far from open and shut,” and evidentiary errors were thus prejudicial], superseded by statute on another ground as recognized by People v. Castro (1985) 38 Cal.3d 301, 307–311.)
Given all of these factors, we cannot conclude that the admission of evidence regarding Phillips’s possession of the .380-caliber gun used in the charged offenses was harmless. There was substantial reason to doubt both Smith-Scruggs’s statement regarding defendant’s identity as one of the gunmen and Franco’s identification of defendant as someone she had seen outside the mansion. Admitting the “blockbuster” evidence tying defendant’s friend Phillips to one of the murder weapons without an instruction limiting its consideration to impeachment served as a much-needed additional link between defendant and the charged offenses, even though the .380-caliber gun was not the one defendant purportedly used. Since the vast majority of casings were nine-millimeter and all of the witness and victim testimony indicated that Brown fired at least 10 shots, possibly many m