P. v. McCloud




Filed 6/22/11 P. v. McCloud CA1/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. RICKY JAY McCLOUD, JR., Defendant and Appellant.

A127462 (Solano County Super. Ct. No. VCR190701)

I. INTRODUCTION
Ricky Jay McCloud, Jr., was sentenced to a prison term of 32 years and four months to life following trial on charges that took two juries to fully resolve. A first jury found him guilty of robbery (Pen. Code, § 211, subd. (a); count 1) and assault with a firearm (id., § 245, subd. (a)(2); count 2), but could not reach a verdict on enhancements of intentional discharge of a firearm and intentional discharge causing great bodily injury (id., § 12022.53, subds. (c) & (d)). A second jury found the enhancements true.
McCloud raises no issue as to the substantive counts but seeks reversal of the enhancement (carrying an indeterminate term of 25 years to life) for claimed evidentiary error in admitting parts of a post-arrest interview without admitting other parts of it under Evidence Code section 356.^[1] We reject his claim and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The evidentiary issue was addressed entirely in the first trial. We confine ourselves to the testimony from the second trial, the basis for the enhancement verdict, also focusing on the sole disputed issue of whether McCloud fired a revolver intentionally or accidentally.
The offenses occurred in Vallejo on Good Friday, April 6, 2007, at a Wells Fargo Bank branch in the Glen Cove Safeway. The victims were tellers Maryann Salanga and Abraham Arriola. While both testified in the first trial, only Arriola testified in the second. The jury also had time-stamped bank security video images that had been taken at a rate of one every two to four seconds but, after Arriola triggered a silent alarm, with greater frequency and quality.
The tellers sat on swivel chairs at adjacent teller windows that day¾Salanga to Arriola’s right. Shortly after noon, as Arriola helped a customer, he heard a male voice from his right demand something to the effect, “Give me all your money.” He turned to see a man in a gray hoodie (McCloud) with a gun pointed at Salanga’s head. Seeing that McCloud was not looking his way, Arriola reached under the counter and triggered a silent alarm, then instinctively spun to his left and tried to duck into an office area just beyond a door 18 inches away. He did not make it. He heard a gunshot behind him in less than a second. He was shot through the right side of his hip, sending him to the floor with no control of his lower body. He heard customers screaming but no more shots, and pulled himself along the floor, by his arms, to greater safety, not seeing McCloud further. A month of hospitalization plus weeks more of progression to a wheelchair and then crutches eventually enabled him to walk again, but with constant pain from permanent nerve damage and the need for a catheter to urinate.
Detective Matthew Mustard of the Vallejo Police Department testified about the ensuing investigation, tracking of GPS transmissions from a packet of bait money, and cell phone records, that led to McCloud’s arrest two months later in Atlanta, Georgia. What concerns us here is an interview Mustard and a fellow detective had with McCloud in Atlanta. The interview was digitally recorded in audio form (the audio), and the court used a 66-page certified transcription (the transcript) in ruling on McCloud’s trial efforts, under section 356, to have the audio admitted and played for the jury. An apology letter that McCloud wrote to the shooting victim toward the end of the interview was admitted in evidence, but not the audio or the transcript, although Mustard and McCloud each testified extensively about portions of the interview. On McCloud’s motion, we have augmented the record with the transcript.
Mustard and McCloud each testified about the video images as the jury viewed them. The images span 19 seconds between McCloud first appearing and his fleeing after the robbery. In temporal order, he is first at Salanga’s teller window with the gun cocked, pointed at her, and his finger inside the guard on the trigger. After the silent alarm is tripped, McCloud turns to his right and trains the gun on Arriola, while leaning into the counter. Then the gun has just fired, the gun blurred from the recoil and Salanga seen covering her ears with her hands. McCloud then stumbles back and leaps over the counter (to get cash from Salanga’s draw), and vaults back over the counter to leave.
Mustard’s account of the interview was that he first laid out the physical evidence they had against McCloud, including video images, GPS tracking, and cell phone records. McCloud began by asking how much time he was facing. He admitted planning and then robbing the bank. He was apologetic, upset, emotional, and cried during the interview. He admitted everything except meaning to pull the trigger, which he denied. He would not identify the get-away driver for the robbery but admitted being driven there. McCloud said he entered the store, and went briefly into a bathroom where he took steps to disguise himself, spun the cylinder of the revolver several times, cocked and uncocked the hammer, and then left the bathroom with the revolver cocked, but not planning to shoot it. He told Arriola to give him all the money. The gun fired, but he did not know until afterward that anyone had been shot.
Mustard explained the differences between a single-action and a double-action revolver. With the double-action, pulling the trigger rotates the cylinder as it and draws the hammer back and, at the end of the travel, lets it fall forward to fire the round. With the single-action, pulling the trigger rotates the cylinder but does not draw the hammer back; the hammer must first be pulled back (cocked) into position to fire. The revolver used by McCloud was unrecovered. McCloud said he threw it into Mare Island Straits, but police did not find it. Either type of action, however, would fire if¾as McCloud conceded and a video image showed¾the hammer was already cocked.
Given the emotion of the interview, and wanting to allow McCloud a chance to write out what happened, Mustard asked McCloud if he wanted to write an letter of apology to the victim. McCloud said he did, and Mustard left him alone with a pen and paper for 10 or 15 minutes to do so, without suggesting what he should or should not write. Aside from perhaps having McCloud date the letter afterward, Mustard did not ask for anything more.
Because McCloud claimed he did not intend to fire the gun, trial examination focused on some discrepant language in the apology letter. As read into the record by McCloud, it stated (italics added): “ ‘To whom this may concern. I, Ricky McCloud, Junior, sincerely apologize for the incident which happened at the Wells Fargo bank on Good Friday. The gun I had was more of a hairpin-type trigger-type gun, and my intentions was to scare you by firing the weapon, not shoot you. I apologize to you and your family and also the company. I was very scared and nervous and didn’t know what to do [. . .] I never done this before. I hope you accept my apology from the bottom of my heart. I am sorry. I know I can’t take away the pain and suffering that your family endured, but I hope it may mean a little bit of something to you. I’m sorry. Ricky Jay McCloud.’ ” (Italics added.)
McCloud’s testimony was much the same as Mustard’s as to the interview and, more directly, what he did that day at the bank. He conceded prior thefts but said he had never used a gun before and had only bought the revolver “on the street from somebody” about two weeks earlier. He knew it was loaded and meant to use it in the robbery, but never intended to fire it or hurt anyone, and had never fired a gun before. He spun the cylinder in the bathroom by pulling back on the hammer and, to keep it from firing, slowly releasing it with his thumb each time he pulled the trigger. Then he left the bathroom with the gun cocked. He admitted deliberately aiming at each teller, having his finger on the trigger, and pulling the trigger, but said he pulled it out of reaction, fear, nervousness, and surprise, not on purpose. He said he did not think he shot anyone and never checked to see if Arriola was hurt. Deciding “to do what I came to do,” he jumped the counter and took the money from Salanga’s open cash drawer.
As for the inconsistent wording of the apology letter, McCloud said he wrote it with an apology in mind and did not mean to say he purposely fired the gun. “[T]his is how it came out, though.”
III. DISCUSSION
A. Legal Standards
Section 356 (see fn. 1, ante) is known as California’s “statutory version of the common law rule of completeness.” (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) “ ‘ “In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . .” [Citations.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 959.) The rule is limited by its purpose so that, for example, statements bearing on matters other than those at issue in the admitted portion “may be excluded.” (People v. Samuels (2005) 36 Cal.4th 96, 130.) Section 356 “ ‘permits introduction of statements “on the ‘same subject’ ” or which are necessary for the understanding of the statements already introduced’ ” (People v. Harrison (2005) 35 Cal.4th 208, 239), “to place the original excerpts in context. [Citations.] It follows that if excerpts of a recorded conversation are admitted in a form¾such as participant testimony or written transcripts¾that creates a misleading impression, the recording itself may be proffered as necessary to correct that misimpression.” (People v. Pride (1992) 3 Cal.4th 195, 235.) A court may also exclude, under section 352, matters of relatively low probative value that risk undue time consumption or confusion of the issues. (People v. Zapien, supra, 4 Cal.4th at pp. 960-961.) We review a ruling under section 356 for abuse of discretion (People v. Williams (2006) 40 Cal.4th 287, 319), as we do a ruling under section 352 (People v. Coddington (2000) 23 Cal.4th 529, 619).
B. Discussions and rulings
Round one. The issue first arose after Mustard’s testimony in the first trial, when defense counsel Joseph Camarata announced, “I would like to play the video based on Detective Mustard’s testimony,” clarifying that he meant the “audio” version. Prosecutor Jack Allen countered with discussion about hearsay and prior inconsistent statements, adding that the audio was “an hour long,” and the court noted that the audio had not yet been heard. Camarata then urged, “I think that, to put everything in context, based on what [Mustard] told this jury and based on the letter that he asked him to write during the interview, they have a right to see that.” Camarata mentioned the common law “rule of completeness,” but this drew a further hearsay objection from Allen, and more discussion of prior inconsistent statements.
The court, agreeing that it had not yet heard inconsistent statements, said: “[B]ut there is an argument that if you introduce part of a statement, part of a letter or part of a document, then the entire document should come in [¶] . . . [¶] because it leaves, in the minds of the jury, that certain things are being plucked out and you, in your presentation, referred to parts of it, and Mr. Camarata, on cross-examination, referred to parts of it. It just seems to me that it ought to be—if it’s relevant . . . —it ought to come in.” When Allen urged that only “minor details” from the interview remained unexplored, the court said, “Unless I review the statement, I don’t know that to be the case.” Noting that no one had provided a “marked . . . copy of the transcript” to read overnight, the court ended by saying, “Okay. So I will take a look at that.”
We agree with McCloud that Camarata adequately raised the issue by referring to the “rule of completeness.” While not citing section 356 itself, Camarata fairly informed the court of the issue, and the court understood it. (People v. Partida (2005) 37 Cal.4th 428, 437.) No ruling or conceivable error appears at that point, however, for the court only deferred ruling until it could read the transcript overnight. (Cf. People v. Williams (1988) 44 Cal.3d 883, 912-913.)
Round two. The court said the next morning, as to playing the audio, that it had reviewed the 66-page transcript several times and did not see anything that “contradicted” Mustard’s testimony, obviously alluding to the hearsay question. Camarata then said that another point of conflict was McCloud’s apology¾that Mustard suggested he might have been upset because “he got caught,” whereas Mustard and McCloud each spoke to that subject in the interview. Camarata said: “And I think that in order for the rest of the statements that he testified to, that he did remember, to be taken in context, the rest of the statements should be played for the jury.” The remark did not distinctly flag section 356, as opposed to the inconsistent-statement issue, and it appears that the court and both counsel construed it in the latter sense. Allen said, “my objection remains,” and noted that 18 or so pages at the end of the interview was about “a homicide investigation apparently involving the defendant’s cousin,” rather than this case. Camarata responded, “Sure. We don’t need to get into that.” The court, agreeing that “the last 18 pages are totally irrelevant,” added: “[T]he first 22 pages contain essentially nothing. It was the officer¾officers trying to convince Mr. McCloud that he should come clean and make some statement.” Camarata again said, “Sure.“
The court then ruled: “There are a few statements which the officer has already testified to, and¾so my view of it is that it does not contain any relevant information. I’m not going to allow it in, but I reserve further ruling should the defendant testify and it becomes apparent that there is a need for certain other testimony to come in. But essentially it’s absolutely consistent with what the officer testified to, in my view. And it’s time-wasteful to play this entire tape when most of it doesn’t even apply to the facts of our case. I would say at least two-thirds of it . . . . And a great portion of . . . the remaining one-third, is talking about after-the-fact circumstances, where he went, what he did, how he fled from the jurisdiction, how he disposed of money and the transponder, et cetera.” Without raising any section 356 issue, Camarata agreed with the hearsay rationale of the ruling at that point: “[T]hat’s fine. And if that’s the Court’s ruling, that if he testifies, I believe it would come in as a prior consistent statement . . . .” When the court clarified that there would first have to be some “conflict in the testimony” or attempt to impeach McCloud “on those specific facts,” Camarata again agreed, saying “Right.” The court then added: “But, again, I’m not going to let you just play the whole tape. You may read from the transcripts, should those very minor issues become relevant.” Camarata agreed, “That’s fine,” saying he anticipated that relevance would arise once Allen’s examination of McCloud challenged “what his intentions were.”
What we gather from that round of discussion is that defense counsel agreed with the ruling, without ever explicitly raising section 356 as a distinct issue. Defense counsel also seemed to accept the limitation of reading from the transcript as needed, rather than playing the audio, but in any event absolutely agreed that two-thirds of the interview was irrelevant to the issues. (We note that this was at the first trial, when the substantive counts, not just the intentional nature of the shooting for the enhancement, were at issue.) The court also reserved ruling on how much of the interview could be read, depending on how the testimony developed.
Round three. Final discussion came later that day, after McCloud’s testimony. Camarata asked, “based on Mr. McCloud’s testimony and the questions asked, to play the video [sic] of the statement that he gave to Detective Mustard,” and the matter was once more taken up, as before, outside the jury’s presence. The court began: “As I indicated earlier today, I have reviewed the transcript of the taped statement. Most of it is irrelevant to our proceedings. There are a few matters in there that were testified to by Officer Mustard and by Mr. McCloud that may be consistent. It sounds like¾as I recall, they would be consistent with both of their testimonies, essentially, so I’m not going to let you play the whole tape. There may be portions that you feel are relevant that you want to have read into the record, which I may allow you to do if you point them out to me.” Camarata then identified a statement by Mustard at page 37 of the transcript where he told McCloud that, if he wanted to write an apology letter, Mustard would make sure the victim got it. Camarata urged: “He wants to write this letter to apologize and make sure he gets it. I think that’s relevant.“ The court said “Okay.”
Camarata then said: “I haven’t had a chance to go through this, because I wasn‘t expecting to pick out individual¾because I still think that takes everything out of context. I think the jury has a right to hear the whole statement, since he’s testified and since Detective Mustard has testified about it.” The court reiterated that large portions at the start and end of the interview were irrelevant, with just “a few matters of controversy” to be found in the remaining 10 or 15 pages, and said: “If you want to have the statement read by the officer on page 37, you may read that into the record, starting with line five . . . .’ ”
Explaining again that he would have to go through the transcript to identify relevant and admissible parts, Camarata proposed instead: “[W]hat I can do is, if we started it . . . where Mr. McCloud asks how much time does this thing carry, and go until we get to the unrelated investigation[,] I can stop the tape there.” The court replied: “No. Under [section] 352, it’s just time-wasteful, because most of it is irrelevant. And most of it is the officer framing questions. There’s very little that your client says, very little.” Camarata retorted: “Well, I don’t think it’s irrelevant in that we heard Detective Mustard yesterday tell us that he didn‘t think that Mr. McCloud was being apologetic; that he thought that he was upset because of the time that it carries. I think that this goes to his mental state at the time he made the statement.” The court repeated: “If you can point out those portions that you feel are relevant, I will allow you to read those into the record.”
Camarata then shifted his reasoning, saying: “The problem is, with the transcript, we can’t hear the tone of his voice. The things that I’m talking about¾his emotional state is conveyed by what he says and how he says it. We can’t read that in. I can’t reenact that.” The court responded initially: “Well, if you think that makes a difference, I will listen to the tape to see whether or not there’s anything on the tape that would convey emotion. But it’s already in the record that he was upset; that he was crying during the course of the interviews. [¶] . . . [¶] I don’t know what else you want from the tape.” Camarata explained, “Well, I want the jury to actually hear it, because we got something different from Detective Mustard when he testified.” The court repeated: “I will listen to it. Tell the jury it will be another half hour. I will listen to it right now.”
Then an objection by Allen caused the court to reconsider and ultimately reject listening to the tape. Allen urged that the only inconsistency was in the wording of the apology letter, which was already in evidence. The court reasoned: “Yes. And it’s also irrelevant whether or not he was sorry. Now that I’ve listened to what Mr. Allen had to say, I’ve re-thought my position on listening to it. The fact that he’s sorry that he did what he did is not a relevant factor in this case. He may be sorry, and he has expressed that several times, but that fact and how emotional he was about it has nothing to do with whether or not he did or did not do the act or did or did not do it intentionally. It’s as simple as that.” The court summarized: “So, my ruling stands. I’m not going to let you play the tape. [¶] And, again, if you point out something in the transcript that you feel is relevant, besides the one portion that you have pointed out to me, I will consider allowing that portion to be read into the record. But you haven’t pointed out anything else to me.”
Camarata announced that he was satisfied that the one designated part of the transcript was covered in testimony. Both sides rested. We see no place in the transcript of the second trial where the issue was revisited, nor any agreement that the rulings from the first trial controlled in the second.
C. Analysis
McCloud’s appellate arguments are clearly based on section 356, but otherwise vague. Rather than distinguishing between the audio and transcript forms of his Atlanta interview, he refers generically to his “statement” or “statements,” leaving us to wonder what it is, precisely, that he thinks had to be placed before the jury. Trial counsel argued at several points that the audio form was needed, especially in round three of the rulings, where he stressed a need to have the emotional context of the interview conveyed. His argument on appeal, however, does not advance that theory or dispute the trial court’s view that his emotions at the interview were simply not relevant to the issues of what he had done or whether he acted intentionally two months earlier. Absent appeal briefing on those points, we assume that he means that the audio itself did not have to be admitted to suffice under section 356.
Just as vague, but more baffling, is that McCloud rests his argument solely on citations to testimony from the first trial, whereas it is the verdict in the second trial (the enhancement) he seeks to overturn. This is troubling in that, as our summary of the rulings shows, trial counsel’s main concern in the first trial was that Detective Mustard had questioned the reason for McCloud’s crying, suggesting that it was as much due to being caught as with remorse over what he had done. This was why counsel wanted the jury to hear McCloud’s emotion in the audio, and urged that it would be prior consistent “testimony” on that point. We have combed through Mustard’s testimony in the second trial and see no such questioning of the reason for McCloud being upset. The difference may well be why Camarata, who strove to have the audio played in the first trial, made no such effort in the second trial.
This latter observation also segues us into the People’s claim that McCloud forfeited any complaint about section 356 error, principally by never identifying for the court what portions of the interview he wanted placed before the jury (besides the one part on page 37 that he ultimately declined to use). We accept that argument. McCloud implicitly concedes here, as he expressly did below, that only the middle third or so of the interview was potentially relevant. It follows that, by not identifying below what he wanted admitted, given the court’s willingness to allow relevant parts to be used, he cannot assert this issue as a basis for reversing the judgment. (§ 354, subds. (a) & (b).)^[2]
Alternatively, these same circumstances show a lack of error. As our Supreme Court said on analogous facts in a case overlooked by the parties: “At trial, defendant sought to introduce the entire tape of the conversation, which covered areas outside of Detective Daley’s testimony. The prosecution objected on hearsay grounds, and the trial court sustained the prosecution’s objection. In addition, the trial court stated the tape was too long and would confuse the jury. The trial court informed defendant that she was free to seek admission of those portions of the tape that were purportedly relevant. The record indicates defendant failed to do so. There was no error.” (People v. Samuels, supra, 36 Cal.4th at p. 130.)
Another reason to find forfeiture is that there was no motion to introduce the interview in the second trial. Fundamentally, of course, an appellate court ordinarily does not consider issues that were not raised at trial (People v. Stowell (2003) 31 Cal.4th 1107, 1114), and there were two trials here, with no apparent stipulation that evidentiary rulings from the first trial would be binding in the second. Even with such a stipulation, the ruling at the end of the first trial was not to exclude the interview, but to consider any parts that the defense identified as relevant. Further action was therefore required in the second trial, in either event, to preserve the issue for appeal. The issue is forfeited.
Alternatively, the argument fails on the merits. McCloud seeks reversal of the enhancement verdict in the second trial, but by citing only testimony from the first trial, which was not read into evidence in the second or otherwise made known to the jury, he fails to demonstrate error. Specifically, he fails to show that testimonial references to the interview in the second trial were rendered misleading by not having other parts of the interview admitted, much less that it was misleading on the pivotal question of whether he shot the revolver intentionally or accidentally.
Doing some of that work ourselves, moreover, shows no merit to complaints about what was not admitted in that regard. McCloud cites parts of the interview where he said he was not planning on shooting, was not planning on “shooting nobody,” did not know anyone had been hurt until he learned of it afterward, and that the gun went off. But in fact, McCloud testified that, in the interview, “I said I didn’t mean to shoot nobody or hurt nobody. I believe I said that.” Mustard confirmed, on cross-examination by defense counsel (over a continuing hearsay objection by the prosecutor): “A That is true, he did say that. [¶] Q That he wasn’t planning on shooting, right‌ [¶] A Correct. [¶] Q And he also says he wasn’t planning on shooting nobody, right‌ [¶] A That’s true.” Mustard added, as to whether McCloud said in the interview that he did not try to shoot: “A (Referring to document.) He does say that. [¶] Q Okay. And so what he tells you is he didn’t try to shoot, right‌ [¶] A He does say that, yes. [¶] Q You ask him a follow-up question. You want to know, ‘You didn’t try to, right‌‘ And he says ‘No’‌ [¶] A Correct.” Mustard was then further examined, regarding the inconsistent wording in the apology letter: “Q He actually tells you¾he gives you these statements about that he didn’t¾he didn’t intend to shoot, didn’t try to shoot before he actually writes what we’ve talked about is the apology letter, People’s 26, right‌ [¶] A That is true.” As for McCloud knowing at the time that anyone was hurt, we have this: “Q And he told you that when he left the store, he didn’t know at that moment as he was leaving that anyone had even been actually hit by the shot, true‌ [¶] A He did say that.” Still later in his testimony is this: “Q Sir, Mr. McCloud told you that when he left the store, he did not know anyone had been shot, right‌ [¶] A That’s true.”
The quoted testimony shows that those complained-of parts of the interview were in fact in evidence, and this surely explains why defense counsel never sought further admission of the interview in the second trial. There was no need, given the freedom he enjoyed to explore the interview in examining witnesses.


IV. DISPOSITION
The judgment is affirmed.




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Haerle, J.


We concur:


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Kline, P.J.


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Richman, J.

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