(Super. Ct. No. 08F07078)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant, acquitted of murder, appeals from a conviction for voluntary manslaughter of Robert Haynes, with personal use of a firearm and criminal street gang enhancements. (Pen. Code, §§ 192, subd. (a), 12022.5, subd. (a)(1), 186.22, subd. (b)(1).) Defendant's principal contention is that his trial counsel rendered ineffective assistance of counsel, resulting in the introduction of otherwise inadmissible polygraph evidence (Evid. Code, § 351.1)*fn1 of witnesses who identified defendant as the perpetrator, inadmissible opinion evidence concerning the credibility of those witnesses and evidence that defendant refused to take a polygraph. We agree and reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Welfare and Institutions Code section 707, subd. (d)(2), the prosecution charged defendant (age 15 at the time of the offense) with the murder (Pen. Code, § 187) of Robert Haynes on August 22, 2008, personal discharge of a firearm (Pen. Code, § 12022.53, subds. (b)-(e)(1)), personal use of the firearm (Pen. Code, §§ 1203.06, subd. (a)(1)), 12022.5, subd. (a)(1)), and commission of the offense for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).*fn2
The murder occurred during a shootout at a residential party involving two rival Sacramento criminal street gangs, the Guttah Boyz*fn3 (a subset of G-Mobb from the Meadowood area) and the Fourth Avenue Bloods (FAB) (a subset of the Oak Park Bloods). Defendant is a member of the Guttah Boyz.
More than 50 people attended the house party in the Meadowview area of Sacramento.*fn4 Defendant was in the backyard with others when rival gang members from FAB -- likely armed and looking for trouble, according to the prosecution's gang expert -- announced their presence inside the house.
The people in the yard, some of whom were Guttah Boyz, moved toward the open sliding glass door of the house. Guns were fired on both sides. The prosecution contended that defendant fired a gun into the house and that he fired the first shots. Haynes, a FAB member, was in the living room when shot. Other people were injured but are not the subject of this prosecution.
No physical evidence tied defendant to the shooting. The prosecution's case was based primarily on the testimony of three eyewitnesses, Jasmine B., Larry H., and Earnest B. Much of the polygraph evidence involves the latter two.
The defense presented testimony and statements from other partygoers who identified Earnest and Guttah Boyz member Desmond O., not defendant, as shooters. Other defense witnesses indicated that FAB members had guns, including the victim, and that FAB members shot first from their position in the living room. Typical of many gang-related cases, witness accounts varied and witnesses made inconsistent statements.
The Prosecution's Case-in-Chief
The Testimony of Jasmine B. and Her Prior Statement
Partygoer Jasmine B. testified that before FAB arrived, she overheard defendant in the living room say to someone, "I got this banga," and she saw a gun in his waistband. She understood the word "banga" to mean a gun.
When FAB announced their presence, a friend pulled Jasmine into the kitchen. Shots were fired. Jasmine did not see anyone shooting, but it sounded to her as if shots were being fired from the middle of the living room and from another area, as if "they was [sic] shooting at each other."
Later in the trial, the defense impeached Jasmine's trial testimony with a statement she made to a detective on the day of the shooting, in which she said she saw defendant at the party, but did not see a gun in his possession. A stipulation was later read to the jury in which the parties agreed that on August 23, 2008, Jasmine told police that she did not see anyone with a gun or hear about anyone having a gun, but in her August 25, 2008 police interview, she said defendant had a gun.
The Testimony of Larry H. and His Refusal to Take a Polygraph Examination
Prosecution witness Larry H. was on probation and testified under a grant of transactional immunity. He had been a member of Guttah Boyz, but by the time of trial he had been labeled a snitch and consequently, was no longer a member.
Before the shooting, Larry was in the backyard along with approximately 15 people, including Earnest and defense witness, John Smith. Upon hearing that FAB members were inside, Larry moved toward the open sliding door, heard gunshots, looked and saw defendant standing next to him, about six feet away, shooting a gun into the house. It was too dark to see the gun, but Larry saw the flashes as the gun was fired. Gunshots were also fired from inside the house, but Larry testified he could not tell who shot first. Larry and others, including defendant, hopped over the backyard fence into a neighbor's yard. Larry testified on recross-examination that while they were in the neighbor's yard, he saw defendant reload the gun -- a point Larry said he had not mentioned before because no one had asked him. And, for the first time, Larry indicated the gun defendant had was a revolver.
Larry left the scene before police arrived because he was on probation. He was stopped by the police at the end of the street in a car with Desmond and other partygoers.
Larry testified that the police interviewed him for about eight hours. At first, he lied and said he did not know who shot the gun. He was worried about being a snitch. He testified he eventually named defendant because the police started talking about conspiracy, and he was afraid he might get in trouble for something he did not do, and "I thought if I said a name they would leave me alone and release me and stuff." When asked why he gave defendant's name, Larry said, "Because he did it." On cross-examination, Larry testified he felt pressured by the police, but he knew all along who fired the gun and was lying when he told police he did not know.
On cross-examination, defense counsel asked Larry about polygraph testing. This was the first mention of a polygraph examination, and the trial court had not been informed prior to trial of counsel's intent to allow the jury to hear polygraph evidence.
The following colloquy occurred between Larry and defendant's counsel regarding the polygraph:
"Q. Did he [the detective] say that you could be charged as an accessory to murder?
"Q. Then eventually you give a name, right?
"Q. And before you gave a name they said, 'We could give you a polygraph test, a lie detector test and all that'?
"Q. And then you give 'em a name, right?
"Q. And then they say, 'Okay, . . . you don't have to take the test now.'
"Q. And you said you didn't want to take the test. You didn't want to take the test to prove you were telling the truth.
"A. If I -- 'cause they w[ere] asking me -- I asked them, 'Like what questions you going to ask me?' [¶] And they was like, 'The questions like: Do you know who shot him and stuff?' [¶] Then if I were to take the test, I would have been lying then.
"Q. I thought you said you were telling the truth.
"A. What you mean telling the truth?
"Q. I thought you said when you gave a name you were telling the truth.
"A. I said I gave them a name afterwards. After I told them like I don't want to -- like after, like, I told them I don't want to take the test.
"Q. So if you say you were telling the truth about seeing [defendant] shoot, why wouldn't you just take the test?
"A. Because at first I told them the name, they was like, 'You want to take a polygraph?' [¶] I'm like, 'No.' [¶] That's before I wasn't even saying nothing, but I didn't tell them the name. Then I just gave them the name, and I didn't have to take it. I was in a polygraph room when I told them the name before I took the test. I didn't take it.
"Q. You never did take the test?
"Q. After you said [defendant] was the shooter, they gave you the option of taking the test to prove you were telling the truth.
"A. Yeah, but still I didn't -- I didn't want to take the test. I told them the name already.
"Q. You didn't want to show them that you were telling the truth and agree to take the lie detector?
"THE WITNESS: I don't want -- they was like, 'You want to take it?' They were like, 'You want to take a polygraph test?' before I got to the room. [¶] I'm like, 'No, I'm not taking it.' [¶] They got me to the room over there, they like, 'You want to take the test?' [¶] I'm like, 'No.' [¶] And they was just talking to me and stuff, and I just told them the name. They never -- after I told them the name, bro, they didn't ask me do I want to take it again. They just take me back to the other room and start talking to me, and I told them I refused to talk to them.
"Q. My question is this. You told the detectives over and over and over again that you didn't see -- that you didn't know who the shooter was.
"Q. And then after hours, you finally say, '[Defendant] shot,' right?
"A. After they got me to the room in front of the equipment and stuff to take a polygraph test.
"Q. And after you told them [defendant] shot, they said -- they gave you the option of taking the lie detector test.
"A. They gave me the option before I told them the name.
"A. No, they didn't say afterwards.
"Q. You don't remember the following questions and answers.
"'We can do this polygraph if you want?'
"This is after you said [defendant] shot. 'We can do the polygraph if you want.'
"'I don't want to do it. I don't trust machines.'
"You don't remember saying that?
"A. No, I don't remember that."
The Testimony of Earnest B. and His Polygraph Examination
Earnest B. denied gang ties and said he got along with both Guttah Boyz and FAB.
Earnest testified he brought an inoperable .44-Magnum revolver to the party, but gave it to his friend Jashawn approximately 20 to 30 minutes before the shooting. Jashawn later told Earnest he put it in a barbecue pit at the house next door (where police found it after the shooting).
Earnest testified he was in the backyard with other people, heard gunshots coming from inside the house, did not see any guns, and did not see defendant shoot a gun. He denied telling police that he saw defendant holding a chrome revolver before the shooting or later seeing defendant shoot that gun. He testified he did not know whether defendant was inside or outside of the house when the shooting started. He also testified that it sounded like all the shots were fired from inside the house.
Without objection, but with a stipulation as to authenticity, the prosecution introduced recordings (and provided transcripts) of Detective Hanspeter Merten interrogating Earnest. Earnest initially told Merten he did not know who fired a gun. He was inside dancing when a number of males came in from the kitchen and started firing guns. Earnest denied having or shooting a gun. During the interrogation, Merten asked Earnest whether he would take a polygraph test and Earnest said he would. Merten at that point suspended his interrogation and turned Earnest over to Detective Mark Tyndale. Over defendant's section 352*fn5 objection, Detective Merten testified he did not believe Earnest had been honest with him prior to the polygraph. Defense counsel did not request a limiting instruction concerning Detective Merten's opinion.
Without objection, the prosecution then played for the jury a video recording (and provided a transcript) of Detective Tyndale administering a polygraph examination to Earnest and Tyndale's subsequent interrogation of Earnest. The defense stipulated to authenticity, but not specifically to introducing the polygraph evidence contained in the recording.
Earnest at first said he did not know who fired a gun. Tyndale explained the physiology measured by the machine and told Earnest the machine indicated Ernest was lying, maybe because he was leaving out information or maybe because he was the shooter.
Tyndale brought up defendant's nickname, "Dick."*fn6 That name had not been mentioned by Earnest or by Merten and Tyndale up until that point.
"[TYNDALE]: . . . Does anybody ever call you Dick?
"[TYNDALE]: No. Was there anybody in the backyard with you? Anybody by the name of Dick?
"[EARNEST]: I don't know but maybe. [¶] . . . [¶]
"[TYNDALE]: Why do you think you're having a problem with this test?
"[EARNEST]: I don't know. I'm just scared.
"[TYNDALE]: But see the problem is[,] is that you're not being completely honest. And I don't know what it is you're not being completely honest about. But until you're completely honest, you're not going to pass the test. And that's how it works. And I need you to be completely honest with me on this. And once you are, I'm going to have a test that you'll be able to pass."
Tyndale went on to emphasize, "You're failing the lie detector test . . . ." He said that other people were saying Earnest shot first. Earnest denied shooting a gun and denied seeing the shooter. Tyndale said, "See here's the thing with the test, it's not a big secret. You can't fool yourself. You know that's your body reacting. The reason your body reacts is because you know you're not telling the truth. You know when you're telling the truth, your body doesn't react to it. . . . [T]hey've brought people down here from jail who've already been booked on murder. And I do the test. And they pass it. And I go out and tell the detectives, you've got the wrong guy. But I can't tell them that with you. You're not passing the test." Tyndale told Earnest he intended to tell the other detectives that "Earnest isn't passing the test."
Earnest wanted to take the test again, but Tyndale said the results would be the same as long as Earnest did not tell the truth. Tyndale said, "you have to be 100 percent completely honest. And when you are 100 percent completely honest, you're gonna pass. Everybody does." Earnest said he was not sure who fired the gun. Tyndale said Earnest must know, because it was someone right next to him, trying to get into the house.
Tyndale then told Earnest, "We're not going to tell anybody what we talked about. This is private. I'm not going to tell you what the other people have told me that have come in here or the other people that come after you. I'm not going to tell him but I need you to tell me who it was that fired that shot. And when you do, you'll be able to pass this test."
Earnest responded by asking if the police had interviewed "Dick." The detective said not yet and asked if Dick was the one who fired the gun. Earnest said it was either Dick or someone with him. Earnest did not know Dick's real first name, but knew his last name is Barksdale. Earnest said, "I think he fired the gun."
After Earnest incriminated defendant, Detective Tyndale stopped the interview. He told Earnest he was not going to run any more tests because Earnest had named the person that someone else had already named as the shooter, and since Earnest had become emotional, it was "not the best time to give him another test." Tyndale asked Earnest if he would be willing to come back later if the detectives wanted him, but that he was going to tell the detectives that he thought Earnest was now being honest. Thereafter, Tyndale told Detective Merten that Earnest had "seen more while he was at the party" and that he now wanted to be "more honest." Merten resumed his interrogation of Earnest.
Earnest told Merten that before the shooting he saw defendant sitting in the backyard holding a chrome revolver in his lap. When someone came out and said, "They're here," Earnest, defendant, and others ran toward the house. At the sliding glass door, Earnest was right behind defendant and saw defendant fire the first gunshot, into the house. Earnest "took off" after defendant fired the first shot. While he was running, he heard at least three ...