(Contra Costa County Super. Ct. No. 50815274)
The opinion of the court was delivered by: Ruvolo, P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a jury trial, appellant was convicted of second degree murder (Pen. Code, § 187)*fn1 with a deadly weapon enhancement (§ 12022, subd. (b)(1)) and two counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). After waiving his right to a jury, the court found appellant had suffered one serious felony prior (§ 667, subd. (a)(1)), one prison prior (§ 667.5, subd. (a)), and two strike priors (§§ 667, subd. (b)-(i), 1170.12). The court imposed a sentence of 45 years to life in state prison.
On appeal, appellant claims: (1) the trial court failed to conduct an inquiry sufficient to remove a juror who might have been prejudicially biased against him; (2) the trial court erred in admitting hearsay statements made at the scene of the crime identifying him as the person who stabbed the victim; and (3) the trial court erred by permitting a police officer to offer opinion testimony as to whether or not he believed several witnesses were being truthful during their police interviews. We reject appellant's first two contentions, but agree with appellant that it was improper for the police officer to offer his personal opinion regarding the credibility of several interviewees. However, we find this error harmless. Consequently, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
On July 8, 2008 at 4:35 p.m., police officers responded to the report of an assault in Richmond, California. When police officers arrived, they found a large crowd of people and the victim, 29-year-old Antonio Green, lying in front of his residence at 1515 Maine Avenue. The victim was lying in a large amount of blood and was found to have two stab wounds, one to the chest and the other to the ribcage. An autopsy revealed that the victim was stabbed with a knife with a blade length from three and one-half inches to seven inches. The victim's heart was penetrated. There were no defensive injuries which, according to the doctor who performed the autopsy, indicated "that the decedent was unaware that he was going to be stabbed at that time, and probably didn't have enough time to react to it."
The victim was stabbed at a party at 250 Marina Way, an address down the street from where the victim was discovered by police. All of the witnesses at trial who were guests at the party agreed that appellant was also in attendance. Everyone had been drinking heavily all day. Several witnesses testified that appellant had been arguing with the victim before the stabbing, although they disagreed as to the seriousness of the argument. There was no eyewitness who testified as to the exact manner in which the stabbing occurred. However, several witnesses who denied seeing the stabbing itself testified that they heard a woman exclaim that appellant had stabbed the victim.
One witness told police who arrived at the scene that although she never saw the stabbing, she saw appellant holding a kitchen knife with a blade approximately five inches long.*fn2 She then saw appellant chase the victim, who was bleeding, out the back door of the residence down the street towards the victim's residence. A blood trail was located from where the stabbing occurred at 250 Marina Way to where the victim collapsed in front of his residence.
Immediately after the stabbing, appellant threatened two of the women, Renee Hart and Carol Baker, not to say anything to anyone about what had happened. He reportedly said something to the effect, "If you all say anything, I'm gonna fuck you all up too." The next day, appellant boarded a bus to Louisiana with a layover in Dallas, Texas. Law enforcement agents in Dallas were contacted, and appellant was detained at the bus station. Appellant's girlfriend was with appellant when he was arrested in Dallas. Richmond police detectives went to Dallas to interview appellant. After appellant was admonished, he denied knowing the victim or being at the party in Richmond when the victim was stabbed. Appellant was transported back to Richmond to stand trial for murder.
At the conclusion of the evidence, the court instructed the jury on first and second degree murder. The jury was also instructed on voluntary and involuntary manslaughter, reasonable and unreasonable self-defense, heat of passion, and the legal effect of voluntary intoxication. In closing argument, the prosecutor conceded that "it might be difficult for you folks to find the defendant guilty of first-degree murder . . . because of the alcohol involved and the lack of specific details about exactly what transpired." However, the prosecutor urged the jury to return a verdict of second degree murder. Appellant's attorney argued that the evidence was legally insufficient to establish the identity of the perpetrator. However, he argued that if the jurors found appellant was the perpetrator, the evidence presented by various witnesses at the party describing the interaction between appellant and the victim over the course of the day supported the conclusion that the killing occurred in the heat of passion or in self-defense.
As already noted, the jury convicted appellant of second degree murder. He was sentenced to 45 ...