APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlett, Judge. Affirmed as modified. (Super. Ct. No. 05F02470).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendants Joshua Daniel Tuggles and Tyrone Duwane Mollett of first degree murder (Pen. Code, § 187, subd. (a)),*fn2 found true the allegation that Tuggles committed the offense with a firearm (§ 12022, subd. (a)(1)), and that Mollett personally discharged a firearm resulting in the death of a nonaccomplice (§ 12022.53, subd. (d)). On appeal, defendants contend that the trial court erred by (1) failing to caution the jury about inferring consciousness of guilt from defendants‟ flight from the scene of the murder, (2) denying their joint motion for a new trial based on juror misconduct, and (3) denying their motions for access to jurors‟ telephone numbers and addresses.
Tuggles separately argues that (1) the trial court erred in allowing the hearsay statement of a witness who testified about hearing in the neighborhood that Tuggles "wanted to shoot up the block there on Charbono,"*fn3 (2) CALCRIM Nos. 318 and 335, when read together, gave the jury the mistaken impression that an accomplice‟s testimony could be corroborated by the same accomplice‟s prior out-of-court statements, (3) the cumulative effect of the prejudice from the errors he asserts requires reversal of his conviction, and (4) the fee for preparation of his probation report must be stricken due to his inability to pay.
Mollett separately argues that (1) the trial court erred in restricting cross-examination of Eugene Shands, who drove the defendants to the location of the murder and testified as a witness for the prosecution, (2) the fees for preparation of his probation report and his appointed attorney must be stricken because they were not actually imposed by the trial court.
In the published portion of the opinion, we explain why we shall affirm the murder convictions and firearm enhancement allegations. In the unpublished portion, we shall strike the fees for Mollett‟s probation report preparation and his appointed counsel. However, we will not disturb the probation report preparation fee imposed on Tuggles.
FACTUAL AND PROCEDURAL HISTORY
In June 2005, the Sacramento County District Attorney filed a consolidated complaint, later deemed an information, that charged Mollett, Tuggles, Shands, Jon Paul Mitchell, and Daniel Joseph Neves with murder (§ 187, subd. (a)). The information further alleged that all of the defendants were principals in the murder and committed the offense with a firearm (§ 12022, subd. (a)(1)). Mollett was charged with personal use of a firearm resulting in the death of a nonaccomplice (§ 12022.53, subd. (d)).
In December 2005, Shands pled no contest to voluntary manslaughter and admitted the firearm allegation. In exchange for testifying against the remaining defendants, Shands hoped to receive a four-year prison sentence.
Evidence adduced during the jury trial established that Adrian Romero, Steven Olivas, and Tuggles had been good friends until June 2004. They would sometimes hang out together at Olivas‟s house on Charbono Way. Tuggles lived with his family in a house located on Aramon Drive, which was about a block away from Olivas‟s residence. Daniel Neves lived next door to Tuggles. Neves shared his home with Mollett, Michael Nagy, Sara Cashmark, and her infant, Isaac.
Romero and Olivas became estranged from Tuggles after he backed down from a fight. Rather than fighting, Tuggles fell to the ground after being hit once. Tuggles stayed on the ground, having injured his leg while falling. Romero called Tuggles a "bitch," and the crowd that had gathered to watch the fight dispersed disappointedly. Afterward, Romero and Olivas stopped talking to Tuggles. Cassandra Bake stopped dating Tuggles.
People in the neighborhood soon started calling Tuggles a "bitch" because he "didn‟t do what he said he was going to do." Tuggles stopped hanging out on Charbono Way. Instead, he would drive by Olivas‟s house and "stare hard at them."
Beginning in November 2004, tensions developed and escalated between the Charbono and Aramon groups as they would slowly drive by each other‟s houses. The occupants of the cars would stare or yell at the people on the street, who responded in kind.
On December 10, 2004, Romero and his friend, Jerrel, argued with Tuggles‟s sister, Ashley, in front of Neves‟s home. Jerrel pushed Ashley to the ground. Cashmark had just gotten her infant to sleep and told them to quiet down. Romero ran up to her window and the two began a vulgar argument. Nagy came outside and started beating up Jerrel.
When Tuggles came home, he became upset upon learning that his sister had been pushed down. He paced back and forth. Two witnesses testified that Tuggles did nothing more, but another testified that Tuggles chased after Jerrel with a gun.
At about 1:30 a.m. on December, 13, 2004, Romero and Jerrel returned to Neves‟s home --- this time with Olivas. Romero wanted to talk about rumors that the two groups planned to "shoot up" each other‟s homes. A guest at Neves‟s home answered the door and invited them inside. Romero and Jerrel attempted to enter, but Cashmark told them to leave. Romero pulled a knife from his pocket and said they were there for some "clear up." Nagy and others pushed Romero and Jerrel outside. In the dark, there was much commotion. Olivas saw someone with a gun. Olivas urged Romero and Jerrel to leave. While they were walking away, someone fired about 10 gunshots into the air. Cashmark called the police, reporting that the shots were fired by Romero‟s group. The police found six expended 9-millimeter shells and one 9-millimeter bullet nearby.
In January or February 2005, Bake was at Neves‟s home when Tuggles "dedicated" a rap song with the lyrics "get our Glocks and blow your block away" to the group that hung out on Charbono Way. Bake further testified that Tuggles said that "on a Friday or Saturday night that they were going to go over there and just start shooting down the street" because that was when Romero and his friends usually spent time outside. Olivas testified that he had "heard in the neighborhood that [Tuggles] had said how he wanted to shoot up the block there on Charbono." Bake also heard Tuggles twice say that before he died, Romero would be dead.
Bake had several times seen Tuggles with a sawed-off shotgun he called his Elmer Fudd. Tuggles had sawed off the barrel with a hacksaw. He also modified the stock and added a pistol grip. Tuggles would sleep with the gun next to him.
In early March 2005, Tuggles drove by Olivas‟s house with Mollett and Neves. Olivas and his friends were playing basketball in the driveway when Mollett and Neves exited the car. Mollett and Neves challenged them to fight, but were told, "[O]ur beef is not with you, it‟s with [Tuggles], the driver." Mollett, Neves, and Tuggles eventually drove away without a fight.
In March 2005, Shands was having relationship difficulties with his girlfriend and had been staying at Neves‟s home. On March 20, 2005, Shands, Mollett, Neves, Nagy, and Cashmark were socializing, drinking, smoking marijuana, and using methamphetamine. Shands was high, which was not unusual. He had begun using cocaine daily in 1985, but switched to methamphetamine around 2001. Shands used methamphetamine on a nearly daily basis. That evening, he was under the influence of alcohol, marijuana, and methamphetamine.
Around 4:00 p.m., Olivas and Romero walked to the nearby Eco Liquor store. As they entered, they encountered Nagy, who had gone to the store to buy diapers for Cashmark. Romero attempted to talk to Nagy about rumors that Nagy wanted to shoot up the Charbono group. Nagy brushed him off, saying, "[N]o, not right now. I don‟t want to talk to you."
When Nagy returned home without diapers, Cashmark instructed him to go back and get them. Nagy said that some people had tried to jump him and he did not want to go back. Cashmark told Nagy to take someone with him to the store, and fight if necessary, but to come back with diapers.
Olivas and Romero spent the evening drinking beer with their friend, Regina Zamarron. Around midnight, Zamarron drove them back to the store to buy more alcohol. Olivas waited outside. Shands drove up in his Ford Bronco with Nagy, Neves, Mollett, and Tuggles. Tuggles waited outside while the rest of them entered the store. Olivas asked Tuggles, "What‟s going on?" Tuggles giggled a bit and responded, "I don‟t know."
Romero and Zamarron came out of the store and ran into the others. Romero wanted to fight, but the others declined. Olivas wanted to leave and avoid trouble. The two groups argued and called each other names. Zamarron saw one of the men from the Ford Bronco holding a knife at his side. Not wanting her friends to get hurt, Zamarron stepped in the middle and tried to stop them from fighting. When a police car drove by, everyone got into their cars to leave. Before leaving, Romero told Mollett, "I hope you don‟t think that I got punked." As they drove off, someone from Zamarron‟s car yelled, "[W]e are going to see you guys later." Everyone in the Bronco was "all fired up to fight."
When the Bronco returned to Neves‟s home, Nagy went to his room to relax by watching movies with Cashmark. Soon afterward, Jon Paul Mitchell and Tyler Ollum arrived.
When Zamarron‟s car drove by Neves‟s home twice within 20 minutes of the liquor store encounter, Mollett angrily exclaimed, "[W]e need to take care of this." Mollett talked with Neves, Mitchell, Ollum, Tuggles, and Shands about going to Olivas‟s house and "doing something." Nagy got out his rifle, but then decided not to get caught up in the drama after he talked to Cashmark and Shands. Mollett called Nagy a punk and a bitch.
Tuggles went home to get his shotgun. Tuggles walked around holding his gun, saying they needed to "do something" to "get these punks." Shands told him they should solve the problem without guns. If there was going to be a fight he was willing to drive them to Charbono Way, but would not join in the fight.
Mollett wanted to go to Charbono Way to fight. Neves, Mitchell, and Tuggles decided to accompany him to make sure that the fight would be fair. Tuggles handed Mollett his shotgun. Mollett called Nagy a punk and said he would go over there "to blast them" himself.
Mollett, Mitchell, and Neves started walking toward Charbono. Shands did not see anyone take a weapon along. About five minutes later, Shands drove around the corner to make sure that Neves was okay. Neves was his co-worker and needed to drive a second truck to work the next morning. Tuggles accompanied Shands in the Bronco. Shands did not see Tuggles bring a weapon.
As Shands drove around the corner, he saw Romero and Zamarron. Zamarron asked what was going on, and Shands replied that there might be a fight. When Shands caught up with Mollett, Mitchell, and Neves, he told them "there is only two guys, and he is with his girlfriend, let‟s go home." Mollett, Mitchell, and Neves got into the backseat of the Bronco. Mollett told Shands to drive by Olivas‟s house, and Shands complied.
Romero and Zamarron were standing in the street near Olivas‟s house. Olivas was making himself something to eat inside the house. Romero called Olivas by cell phone to tell him to come outside.
Meanwhile, Mollett told Shands to let him out of the vehicle so that he could fight Romero. Tuggles and Shands got out and pulled their seats forward to let Mollett, Mitchell, and Neves out of the Bronco. Tuggles and Shands got back in.
Mollett argued with Romero for 10 to 15 seconds before Tuggles got back out of the Bronco. Tuggles pulled his shotgun out of his pants, ran up to Mollett, and handed him the gun. Tuggles returned to the Bronco. Shands attempted to leave.
Zamarron told them to leave, but Mollett moved toward Romero with the shotgun. No one said anything. Romero picked up Zamarron from behind and moved her toward the back of Olivas‟s driveway. Romero was still holding Zamarron when Mollett fired. Zamarron fell to the ground uninjured. Then she heard two or three more shots being fired. Upon opening her eyes, she saw Romero lying on his back. He was bleeding and non-responsive. Romero died of a shotgun wound in his chest.
Shands was having trouble starting the Bronco while Mitchell and Neves were getting in. Tuggles told Shands to wait for Mollett. Mollett returned to the Bronco and jumped in just as Shands started to drive off. Mollett threw the shotgun on the floorboard, and Shands saw that it was Tuggles‟s gun.
Shands drove a short distance in a panic, stopped, and ordered everyone out of the car. Mollett, Mitchell, and Neves got out. Mollett took the shotgun with him. Shands drove a little farther before parking on the side of the road. Shands and Tuggles got out of the car and started to walk. After a few minutes, Tuggles called his mother. Shands asked Tuggles why he had brought a gun into his car. Tuggles replied that he did not know why and apologized.
Tuggles‟s mother picked them up and dropped off Shands at his house. She took Tuggles to his grandmother‟s house, where he stayed until the next day.
Shortly after Tuggles‟s mother dropped Shands off, he phoned Neves. Mollett got on the line and told Shands, "[Y]ou need to keep your fucking mouth shut." In the morning, however, Shands went to the police department and gave a statement in hopes of exonerating himself. Instead, he was arrested for murder.
A neighbor called the police immediately after the shooting. When the police arrived, the neighbor discovered a gun clip lying on the ground near where the Bronco had been parked. The police found pieces of shotgun wadding and an expended 12-gauge shell on the driveway of Olivas‟s house. A hole in the fence near the driveway and the wound in Romero‟s chest were both caused by shotgun blasts. Based on the size of the wound, Romero was probably shot from a distance of seven and half feet. The shotgun was never recovered.
In the attic of Tuggles‟s home, the police found a duffle bag containing a simulated handgun as well as a rifle butt and other firearm parts. The duffle bag also contained a bong with Tuggles‟s fingerprints on it. In Tuggles‟s closet, the police found a live shotgun round under a pile of clothes.
The jury convicted Tuggles and Mollett of first degree murder and found the allegations of firearm use to be true. Neves and Mitchell were acquitted.
On May 12, 2006, Tuggles filed a motion requesting jurors‟ addresses and telephone numbers. The trial court found that Tuggles had shown good cause to interview jurors. The court sent jurors a letter informing them of a hearing to address the release of their contact information. The letter gave jurors the options to consent or object to the disclosure of their contact information.
On June 8, 2006, the trial court noted that it had received declarations from many of the jurors. The court stated that it would send a second letter that more completely explained jurors‟ options for responding to the request for their information. Juror 7, who was present in court that day, consented to being contacted.
On August 17, 2006, Mollett‟s counsel stated that Jurors 5 and 9 had already been interviewed. The trial court denied the release of contact information for Jurors 1, 2, 4, 8, 10, 11, and 12, as well as Alternate Jurors 1, 4, and 6 --- all of whom had responded by mail to object to the disclosure. Alternate Juror 2 initially objected, but later agreed to allow his phone number to be given to defense counsel. Juror 3 appeared in person to object to the release of his information, and the court ordered his contact information to remain sealed. The trial court presumed that non-responsive jurors and alternates did not object to the disclosure of their contact information, and released their information to counsel.
On September 15, 2006, the trial court allowed counsel access to Juror 6‟s contact information.
On September 20, 2006, Mollett filed a motion for disclosure of jurors‟ phone numbers and addresses that was similar to Tuggles‟s earlier motion. On September 22, 2006, the trial court heard the motion and ruled that it had no discretion to release the information of jurors who had objected. Thus, the trial court ordered no additional release of juror contact information.
On October 18, 2006, Mollett filed a motion for new trial based on juror misconduct. On October 27, 2006, Tuggles orally joined in the motion. The prosecution opposed the motion. The trial court heard and denied the motion.
On November 17, 2006, the trial court sentenced Tuggles to prison for 25 years to life, and ordered him to pay, among other fines and fees, $702 for preparation of his probation report. The court sentenced Mollett to prison for 50 years to life. The abstract of judgment lists, among other fines and fees that Mollett was ordered to pay $702 for preparation of his probation report and $2,440 for appointed counsel.
I. Tuggles's Hearsay Challenge
Tuggles contends that the trial court erred in admitting a hearsay statement made prior to the murder to the effect that Tuggles "wanted to shoot up the block there on Charbono."*fn4 He argues that the erroneous admission of this statement rendered trial unfair because it allowed the jury to find premeditation on the basis of nonadmissible evidence. We disagree.
The prosecution called Olivas as its second witness at trial. Olivas‟s testimony provided extensive evidence in support of the murder charge, but not an eye-witness account of the actual shooting. Olivas was inside his house at the moment Romero was shot on the driveway.
Tuggles sought to show that he neither brought a shotgun to Charbono Way nor handed one to Mollett immediately before the murder. To this end, Tuggles‟s counsel cross-examined Olivas, pursuing a line of questioning to show that Tuggles had a reputation for nonaggression:
"Q: [by Tuggles‟s counsel] Okay. So you guys thought he had a [reputation] of just talking [a] lot?
"A: [by Olivas] Maybe, yeah.
"Q: And just wouldn‟t back it up?
"Q: Could basically talk the talk but couldn‟t walk the walk?
On redirect, the prosecutor followed up on the issue of Tuggles‟s reputation immediately after an unreported sidebar conference was held. The transcript shows the following occurred:
"[The prosecutor]: Your Honor, can we approach just briefly?
"THE COURT: Yes. "(Whereupon off-the-record discuss[ion] took place.)
"[¶] . . . [¶] "Q: [The prosecutor]: Mr. Olivas, with respect to [Tuggles] and his reputation in the neighborhood -- only if you know -- had you ever heard in the neighborhood that [Tuggles] had said how he wanted to shoot up the block there on Charbono?
"A [by Olivas] Yeah. I heard something like that because of Breece and Vlade.
"THE COURT REPORTER: Who?
"THE WITNESS: Vlade. Vladimir who lives with Breece, too.
"Q: Without going into too much detail, . . . you had heard through the grapevine on the street that [Tuggles] wanted to shoot up the block?
Defendant challenges Olivas‟s answers to the prosecutor‟s questions about Tuggles‟s reputation as improperly admitted hearsay.
The Attorney General urges us to hold that Tuggles forfeited the issue by failing to object. The record shows that defense counsel did not object after the statements now challenged as hearsay. Even so, the issue was preserved for review.
Counsel may object to the admission of evidence in an unreported sidebar conference. (People v. Pinholster (1992) 1 Cal.4th 865, 937.) When the trial court later memorializes the timeliness of the objection "for the record," the issue is preserved for review. (Ibid.) The purpose of the forfeiture rule is to encourage counsel to object and thereby give the trial court an opportunity to consider the objection. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124-1125.)
Here, the record indicates that the sidebar conference immediately preceding the prosecution‟s questioning of Olivas about Tuggles‟s reputation involved an objection by defense counsel. The trial court later noted the objection lodged by Tuggles‟s counsel to the prosecution‟s line of questioning:
"THE COURT: We‟re out of the presence of the jury. [¶] I do want to register for the record [Tuggles‟s counsel‟s] objection to [the prosecutor] asking the witness about whether Olivas had heard on the street about [Tuggles] shooting up the neighborhood. [¶] My ruling was that [Tuggles‟s counsel] had examined the witness regarding [defendant] Tuggles‟[s] character in that particular regard and that [the prosecutor‟s] question was proper cross*fn5 of that. [¶] Anything more for the record?
"[Tuggles‟s counsel]: No, your Honor.
"[The prosecutor]: Your Honor, briefly, could I just indicate before asking the question we had approached, and I requested and I also felt that [Tuggles‟s counsel] didn‟t just ask what his view of [defendant] Tuggles was but also what the view of the street was and his [reputation].
"[Tuggles‟s counsel]: My objection obviously was, I asked him if he thought the term bitch and walk the walk, talk the talk, et cetera."
Having objected during the sidebar conference, Tuggles preserved the evidentiary challenge for review. (People v. Pinholster, supra, 1 Cal.4th at p. 937.) While it is true, as the Attorney General points out, that defense counsel could have objected immediately after the questioning, such objection would have been futile in light of the trial court‟s ruling at the sidebar conference. Defense counsel is not required to make a futile objection to preserve an issue for appeal. (People v. Hill (1998) 17 Cal.4th 800, 820.) Accordingly, we proceed to consider the issue on the merits.
Hearsay "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Unless the statement falls within an exception to the rule, hearsay is inadmissible. (Evid. Code, § 1200, subd. (b).)
In addition to the prohibition on hearsay, the Evidence Code also renders inadmissible "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)" when the evidence is "offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) In criminal cases, the prosecution is prohibited from introducing evidence of a defendant's bad character or reputation in order to prove he or she acted in conformity with that character in committing the charged offense. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
By contrast, a defendant may introduce "evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation" in order to "prove his conduct in conformity with such character or trait of character." (Evid. Code, § 1102, subd. (a).) However, "[w]hen a criminal defendant presents opinion or reputation evidence on his own behalf the prosecutor may present like evidence to rebut the defendant's evidence and show a likelihood of guilt. (Evid. Code, § 1102, subd. (b).)" (People v. Hempstead (1983) 148 Cal.App.3d 949, 953.)
A defendant who elicits character or reputation testimony opens the door to the prosecution‟s introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense. "When a defendant elects to initiate inquiry into his own character, presumably to establish that one with his lofty traits would be unlikely to commit the offense charged, an anomalous rule comes into effect. Opinion based upon hearsay is permitted. (Evid. Code, § 1324; People v. Cobb (1955) 45 Cal.2d 158.) But the price a defendant must pay for attempting to prove his good name is to throw open a vast subject which the law has kept closed to shield him. (Evid. Code, §§ 1101, 1102.) The prosecution may pursue the inquiry with cross-examination as to the contents and extent of the hearsay upon which the opinion was based, and may disclose rumors, talk, and reports circulating in the community." (People v. Eli (1967) 66 Cal.2d 63, 78.)
The prosecutor‟s scope of inquiry into a defendant‟s reputation is not unlimited. The prosecution "must not be permitted to take random shots at a reputation imprudently exposed, or to ask groundless questions "to waft an unwarranted innuendo into the jury box . . . .‟" (People v. Eli, supra, 66 Cal.2d at p. 79, quoting Michelson v. United States (1948) 335 U.S. 469, 479 [69 S.Ct. 213, 93 L.Ed. 168].) A good faith belief by the prosecution that the acts or statements asked about ...