(Super. Ct. No. 05F09779)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 David Earl Gray stabbed Hai "Tommy" Dinh to death with a pair of scissors in the early morning of November 6, 2005, outside the Royal 8 Inn on Stockton Boulevard. Following a trial for first degree murder where defendant represented himself claiming self-defense, a jury found him guilty of second degree murder. The court sentenced him to 51 years to life in prison, after a finding he had two prior robbery convictions that qualified as strikes and serious felonies.
Defendant appeals, raising 14 contentions relating to the evidence, instructions, alleged prosecutorial and judicial misconduct, and sentencing. Finding some of these contentions forfeited and the others lacking merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2005, Sandy "Mom" Green was living in room 23 of the Royal 8 Inn with her husband, Audie Hogue. Their room was "like a revolving door" with "people going in and out . . . every day." Dinh was one of Green's frequent guests, whom she had known for a few years. He was a small-time rock cocaine dealer who often sold drugs in and around room 23. He was also "very small" and "[a]nnoying," and he would frequently get beaten up by other drug dealers.
Defendant, whom Green had known for about six months, was another frequent guest. He would talk to Green about his problems and occasionally they would do drugs. Dinh never sold drugs to defendant, but sometimes Dinh would give them to defendant for free.
Around November 3, 2005, Dinh asked defendant "to come with him and watch his back" while Dinh sold drugs. Defendant responded, "[O]kay, man, but I want you to pay me. Pay me my money. You are going to pay me my money?" Dinh agreed, and the two left Green's room together. Green thought this arrangement was "so weird" because defendant did not really like Dinh and they did not spend time together. When the two returned to Green's room, defendant told Dinh, " 'I want my money.' "
Over the next few days, defendant went to Green's room looking for Dinh. When Green initially told defendant Dinh was not there, defendant responded angrily, "I want my money" or "I am going to kill him." Defendant repeated this threat on multiple occasions.
Early in the morning on November 6, 2005, defendant went to Green's room a few minutes after Dinh had left. Inside the room were Green, Hogue, Dessie Rhodes (Smith) and Charles "Champ" Gooden. Defendant asked Green for a butcher knife, and when she said she did not have one, defendant grabbed a pair of scissors and left.
Green looked out the door and saw defendant holding the scissors over Dinh's head saying, " 'I told you I was going to kill you.' " Green closed the door.
Green's neighbors, including Shannon Carter and James Wells, Jr., woke up and looked outside. Carter saw defendant sitting on top of Dinh stabbing him "too many" times to count. Defendant ignored Carter's pleas to stop and instead kept repeating, "Die, motherfucker. Die." Wells saw Dinh, who was then face down on the ground, being stabbed by defendant from the back of Dinh's head, down his neck, and across his shoulders. Dinh was trying to escape.
When Green took another look outside, defendant was stabbing Dinh on his back and legs. Green went outside and pleaded, "[P]lease don't kill him." Defendant responded, " 'Ma, go back in the room and close the door.' " Green complied, but she continued to watch defendant "constantly stabbing [Dinh]" for three to five more minutes.
Wells went outside with a baseball bat and told defendant, " 'Stop it.' " Defendant ignored him. Dinh pleaded, " 'Please help me, Jimbo. Please help me.' " Defendant stabbed Dinh some more, "all up around his head and . . . his eyes," while saying, " 'Die, die.' " Wells banged his bat on the ground, trying to stop the attack. Defendant responded, " 'You're next, Jimmy.' "
About five minutes after Wells went outside, Green's husband, Hogue, also stepped outside with a baseball bat. When Hogue approached defendant, defendant told him, "[G]o back in the house if [you] d[o]n't want none of the same thing [I] [ha]d given [Dinh]." Hogue turned around and went back inside room 23.
Wells called 911 and told the dispatcher defendant was stabbing Dinh. As Wells described it, defendant was also "literally tr[ying] to tear [Dinh's] head clear off his body . . . twisting his head . . . back and forth . . . ."
While Wells was still on the phone with the dispatcher, he heard police sirens. Just then, defendant stood up, appeared to brush dirt off himself, threw his coat on the ground near a dumpster, and started walking to the front of the motel. Police arrived at 4:51 a.m. and saw defendant with blood on his clothes, hands, and face, walking very calmly through the parking lot. Police asked defendant, " 'Are you hurt? Is that your blood?' " Defendant responded, " [N]o. It's that other guy[']s.'" Defendant appeared to be under the influence of a stimulant, and he admitted that he had used crack.
Police found Dinh's body in front of room 23. He was dead. A pair of scissors was on top of his chest. Near Dinh's head was a closed fingernail knife used for cleaning one's nails.
Two hours after Dinh died, defendant was interviewed on videotape by police and gave various versions of what happened. These versions included that "[Dinh] is fucking devil" and defendant "just killed him"; defendant killed Dinh because Dinh had previously stabbed him in the back and neck, and later Dinh tried to swing at him and pulled something out of his pocket, but defendant "beat him to the draw"; and defendant did not know if Dinh had a weapon and did not care whether he did.
An autopsy showed Dinh had been stabbed 49 times on his head, chest, arm, back, and eyes. He died from a stab wound to his torso combined with blunt force trauma to the head.
Defendant admitted he had pled no contest to misdemeanor grand theft person in 1995, misdemeanor corporal injury on a spouse or cohabitant in 1997, two felony robberies in 1998, and misdemeanor corporal injury on a spouse or cohabitant in 2003.
Defendant called 30 witnesses and testified on his own behalf. He claimed he had been attacked a few days or weeks before the stabbing, possibly by Dinh, and also that he killed Dinh in self-defense.
On October 25, 2005, about two weeks before Dinh's death, defendant was assaulted on his back and neck. At that time, he told a 911 dispatcher that he was attacked by three "dudes" who he described as black, white, and Hispanic.*fn1 The police officer who responded to defendant's 911 call observed a puncture wound on the back of defendant's neck and another in the middle of defendant's back.
According to Dessie Rhodes, just before the stabbing, Dinh and defendant were both in room 23. Dinh asked Rhodes for some money, but before she could give it to him, Dinh left the room. When she looked outside, she saw defendant "stabbing [Dinh] to death." She called 911.
According to Charles Gooden, defendant asked Dinh to come outside. Dinh went, but Dinh acted like, "why you want to talk to me?" Defendant left the room before Dinh did. Gooden closed the door. Forty-five seconds later, Gooden heard a loud bang followed by a holler. When he opened the door, he saw defendant and Dinh tussling, which he described as wresting or moving around together. Dinh ended up on the ground. Gooden saw scissors in defendant's hands and "blood everywhere." Dinh did not pull out any weapons and was trying to block the assault. About 10 minutes later, defendant walked away from Dinh. Thereafter, Gooden did not see anybody except police approach Dinh's body.
According to defendant, as to the attack on October 25, 2005, he believed Dinh was in the vicinity when he was stabbed. On October 28 into the morning of October 29, 2005, he saw Dinh again and Dinh began swinging something at him from 10 to 15 feet away because Dinh's acquaintances ordered him to do so. Defendant knew Dinh to be someone who carried weapons and "react[ed] very harshly toward people."
Around 1:00 a.m. or 2:00 a.m. on November 6, 2005, defendant saw Dinh at a liquor store. They briefly spoke without any problem. But a few minutes later while defendant was walking through a field, he heard gunshots and saw bullets hitting the ground near him. He saw Dinh in the vicinity, who was the only one around.
Defendant eventually went to room 23. Dinh was already inside, and upon seeing defendant, Dinh grabbed a gun and knife. Defendant grabbed a pair of scissors. Defendant left the room, and Dinh followed. The two faced each other, and defendant asked Dinh what was happening, but Dinh did not respond. Dinh then fired a gun at defendant and attacked him with a fingernail knife in the chest. Defendant hit Dinh, and Dinh fell to the ground. Dinh told defendant, "I will kill you," and defendant responded, "[N]o . . . you die." Dinh continued moving, so defendant "protect[ed] [him]self" by hitting Dinh with the scissors.
The Court Did Not Prejudicially Err In Its Handling Of Defendant's
Impeachment Evidence And Its Instructions On Impeachment
Defendant contends the court erred when it "impugned [his] credibility by admonishing the jury he had been 'impeached' by prior conduct involving moral turpitude and by refusing to permit [him] to rehabilitate his credibility." As we explain, the court erred in allowing the prosecutor to introduce evidence of defendant's prior misdemeanor convictions but properly refused to allow defendant to testify about the facts of his prior felony and misdemeanor convictions and properly instructed the jury. As we further explain, the error in admitting the evidence of defendant's prior misdemeanor convictions was harmless beyond a reasonable doubt.
Factual And Procedural Background
The prosecutor began his cross-examination of defendant by asking him about his convictions for misdemeanor grand theft person in 1995, misdemeanor corporal injury on a spouse or cohabitant in 1997, two felony robberies in 1998, and misdemeanor corporal injury on a spouse or cohabitant in 2003. Defendant admitted he pled no contest to these crimes, but he repeatedly testified he would not admit he had been convicted of those crimes. At one point when the prosecutor asked if defendant had seen his rap sheet, defendant said, "anything can be doctored in this court . . . ." When the prosecutor asked if defendant's rap sheet had been doctored, defendant responded, "I didn't say that. I said anything can be." Defendant and the prosecutor then went back and forth again as to whether defendant's no contest pleas meant he had been convicted of these offenses, with defendant refusing to admit that they did.
At the end of the questioning about defendant's prior convictions, the court told the jury the following: "What I will do before we go on, ladies and gentleman, is give you an admonition that the [d]efendant has been impeached with prior conduct going to moral turpitude. You must use that solely for the purposes of veracity or truthfulness. [¶] You will get a jury instruction in that regard. That is something you may consider as to truthfulness."
The next morning the court told the jury the following: "[B]oth sides have agreed that I could take judicial notice of Penal Code section 1016," and both sides said they agreed. The court continued, "A no contest plea is treated as a guilty plea for both a felony and a misdemeanor. The only difference is that in terms of a misdemeanor, that plea cannot be used against you in a civil suit." Defendant then started reading from Penal Code section 1016.5 regarding inadequate immigration advisements as a basis to vacate the plea. The prosecutor objected, but defendant continued that "[w]hat I'm trying to state is . . . if I knowingly or intelligently did not plead no contest to have it used against me, it's supposed to be stated in the court on the record." Defendant then began arguing with the court about whether his plea of no contest could be treated as a guilty plea.
During redirect examination, defendant testified that in 1998 he was sent to prison after he pled no contest to a felony, which he understood to mean, "I'm not guilty of the crime. I'm not innocent of the crime." The only reason he took the plea bargain was because his attorney told him he would "not [be] considered to be convicted of a crime." Defendant admitted he was incarcerated in 2003 for a misdemeanor based on a domestic dispute with his ex-wife, but he claimed his ex-wife lied to the officer when she told the officer defendant hit her. As to "the charge in 1998," defendant disputed he matched the physical description of the suspect. The prosecutor objected and the court told defendant they were "not going to get into the facts and circumstances of those cases" because "[t]hey are simply offered for the fact that you were convicted of them." The court directed defendant to "move [on] to another area."
Defendant then testified about his view of the meaning of moral turpitude. The prosecutor objected, and the court ordered defendant to "move on," but he would not. The court then told the jury, "I'm just going to have to again admonish you that I told you the limited purpose that these were received for was to determine credibility, if you choose to do so. We're not going to get into these cases. They're offered -- the convictions are offered legally and appropriately."
Defendant then continued, over the prosecutor's objections and the court's admonitions, that he was not allowed to impeach another witness with five convictions for rape, which qualified as crimes of moral turpitude. The court told the jury, "I'm sorry. I can only do so much here."
Defendant then went back to the topic of his prior convictions and testified that nobody proved him guilty beyond a reasonable doubt, and that he was not advised by the court that his no contest plea could be used in "any further court proceedings."
At the end of trial, the court instructed pursuant to CALCRIM No. 226 that in evaluating a witness's credibility, it "may consider" whether "the witness [has] been convicted of a felony."
The court also instructed pursuant to CALCRIM No. 316 as follows:
"If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness' testimony.
"The fact of a conviction does not necessarily destroy or impair a witness' credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.
"[If] [y]ou find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness' testimony.
"The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness' credibility.
"It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
The Trial Court Did Not Err In Prohibiting Defendant From Introducing Evidence
That He Did Not Commit The Prior Misdemeanors And Felonies
Defendant contends the court erred in refusing to allow him to present evidence he did not actually commit the alleged prior felony and misdemeanor acts. We begin with the misdemeanor acts.
"[I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence. . . ." (People v. Wheeler (1992) 4 Cal.4th 284, 295.) It is the misdemeanor conduct that is admissible; "a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a witness committed misconduct bearing on credibility." (Id. at p. 297.)
The People acknowledge Wheeler's holding that misdemeanor convictions themselves are inadmissible hearsay, but contend its holding no longer applies because in 1996, the Legislature enacted Evidence Code section 452.5. That code section provides, "An official record of conviction certified in accordance with subdivision (a) of [Evidence Code] Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record." Evidence Code section 452.5 is inapplicable here because it applies to the admission of "[a]n official record of conviction" and that is not what was offered. Here, the prosecutor only asked about the fact of the misdemeanor convictions. He offered no official record.
Therefore, based on Wheeler, the trial court erred in allowing the prosecutor to question defendant about his misdemeanor convictions because his testimony about those convictions was inadmissible hearsay. The only facts that would have been admissible were those related to the underlying misdemeanor conduct. Since the prosecutor did not present any proper impeachment evidence with regard to the misdemeanors, the court was correct (albeit for a wrong reason) in prohibiting defendant from rebutting the prosecutor's evidence by introducing evidence about his misdemeanor conduct.
We turn then to the felonies. The general rule is that if a criminal defendant testifies on his own behalf, he is "subject to impeachment by proof of any prior felony convictions." (People v. McClellan (1969) 71 Cal.2d 793, 809.) However, a defendant opens the door to the facts of the felony conviction if a defendant seeks to " 'mislead a jury or minimize the facts of the earlier conviction.' " (People v. Shea (1995) 39 Cal.App.4th 1257, 1267-1268 [where the defendant pled to rape, but he would not acknowledge he had actually raped the victim, the prosecutor was permitted to call the rape victim to testify that the defendant had raped her].) Shea's holding, however, does not stand for the proposition a defendant is permitted to call into question the veracity of his prior felony conviction (here, defendant's felony no contest plea) to undermine the conviction's impeachment value by introducing facts to undermine that felony plea, at least where, as here, defendant's only claims as to why those convictions were invalid were inadequate advisements as to the collateral consequences of the plea.
Defendant here admitted he had pled no contest to two felony robberies, and this testimony was sufficient to provide impeachment evidence. Defendant cites to Rusheen v. Drews (2002) 99 Cal.App.4th 279, 284 for the proposition that, "The plea is not conclusive evidence; it is merely evidence against the party and the party may contest the truth of the matters admitted by his plea and explain why he entered the plea." Rusheen was a civil case for fraud against a car thief, where the trial court erroneously excluded evidence of the thief's prior no contest plea to felony grand theft of the same automobile, which the plaintiff wanted to use as a party admission. (Rusheen, at p. 281.) The appellate court ruled, "[a] defendant's plea of nolo contendere to an offense punishable as a felony, regardless of whether it is ultimately so punished, is admissible as a party admission in a civil action based upon or growing out of the act upon which the criminal prosecution is based," and "the trial court abused its discretion in excluding evidence of the plea under Evidence Code section 352." (Rusheen, at p. 281.) Defendant does not explain why this applies to a criminal case where the prior conviction is offered for its impeachment value and not as a party admission in a civil action.
On this record, defendant has provided no cogent basis for challenging the validity of his prior felony convictions for impeachment purposes, and the court did not err in refusing to allow him to do so.
The Instructions As A Whole Correctly Advised The Jury
How To Evaluate Impeachment Evidence
Defendant contends the court erred in instructing the jury, "the [d]efendant has been impeached with prior conduct going to moral turpitude. You must use that solely for the purposes of veracity or truthfulness. [¶] You will get a jury instruction in that regard. That is something you may consider as to truthfulness." (Italics added.)
"We determine the correctness of jury instructions ' " 'from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' " ' " (People v. Rogers (2009) 46 Cal.4th 1136, 1177.) As we will explain, the entire charge of the court regarding impeachment was not error because the jury would have understood that charge to require the jury to determine whether defendant had been impeached and to determine the weight, if any, to give that impeachment evidence.
It is true the court was factually and legally incorrect in initially orally declaring that defendant "has been impeached" with "prior conduct" going to moral turpitude and the jury "must" use that solely for the purposes of veracity or truthfulness. Factually, the court was incorrect because the prosecutor presented no evidence of defendant's conduct (as opposed to the convictions) to impeach defendant. Legally, the court was incorrect because whether a witness has been impeached is a question of fact for the jury to decide (People v. Maxwell (1979) 94 Cal.App.3d 562, 576-577) and "the court may not . . . otherwise 'usurp the jury's exclusive function as the arbiter of questions of fact and the credibility of witnesses' " (People v. Melton (1988) 44 Cal.3d 713, 735). However, that same initial instruction went on to tell the jury, "[y]ou will get a jury instruction in that regard. That is something you may consider as to truthfulness." Thus, the jury knew the initial oral instruction it had just received was not the last word on the impeachment evidence.
The later oral and written instructions correctly explained how the jury could use the impeachment evidence. Specifically, the court instructed pursuant to CALCRIM No. 226 that in evaluating a witness's credibility, it "may consider" whether "the witness [has] been convicted of a felony." The court also instructed the jury pursuant to CALCRIM No. 316. That instruction told the jury the following: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness' testimony." "The fact of a conviction does not necessarily destroy or impair a witness' credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." "[If] [y]ou find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness' testimony." "The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness' credibility." And "[i]t is up to you to decide the weight of that fact and whether that fact makes the witness less believable." Correct versions of CALCRIM No. 226 and CALCRIM No. 316 were provided to the jury in written form as well, and thus were available to the jury to resolve any confusion on how to use the impeachment evidence caused by the incorrect initial oral advisement.
In sum, we hold that the entire charge of the court related to impeachment correctly advised the jury that it was to determine whether defendant had been impeached and what weight, if any, to give that impeachment evidence.
We have concluded the court erred in allowing in evidence of defendant's prior misdemeanor convictions for impeachment. Thus, the jury should not have heard that defendant was convicted of misdemeanor grand theft person in 1995, misdemeanor corporal injury on a spouse or cohabitant in 1997, and misdemeanor corporal injury on a spouse or cohabitant in 2003. Defendant contends his federal constitutional rights were violated by this error, and therefore, any prejudice from the court's error relating to the impeachment evidence must be judged under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]. Chapman holds that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Ibid.) Even applying this heightened federal standard of review, we hold the error here was harmless beyond a reasonable doubt.
Leaving aside the misdemeanor impeachment evidence, defendant's credibility was irreparably damaged by his own inconsistent and illogical version of events in what was a futile attempt to establish self-defense.
We start with defendant's confession given two hours after he killed Dinh, in which defendant gave three inconsistent versions of what happened. One version was the "real truth" was "that fucking man [Dinh] is fucking devil" and "I just killed him." The second version was that he killed Dinh because Dinh had previously stabbed him in the back and neck. When he encountered Dinh at the motel, Dinh tried to swing and pulled something out of his pocket, but he "beat him to the draw" and stabbed Dinh with scissors and also choked him until he thought Dinh was dead. And the third version (all in the same confession) was he did not know if Dinh had a weapon and did not care whether he did, and it was actually a "Mexican girl" and "Black guy" who tried to stab him in the past and he did not know if Dinh was involved. When he first attacked Dinh, defendant hit him "so hard that [Dinh] hit the ground" and defendant "still tried to hit him." Dinh "already knew" it was coming because as soon as Dinh stepped outside, defendant said to him, "It's time, You ready?"
At trial when the prosecutor presented these three inconsistent and incriminating versions of events that defendant himself gave to the detective only two hours after he killed Dinh, defendant had no credible or consistent explanation for them. At various points in his trial testimony, defendant claimed he "ha[d] no recollection of his videotape at all," the videotape was altered to produce sounds of his voice when he really was not talking, he could not hear himself confessing to a crime on the videotape, and there were exculpatory statements he made on the videotape that were not recorded or transcribed.
Moreover, defendant's trial testimony asserting self-defense was at odds with the physical evidence and the various other theories of the killing he had given in his confession, adding to his confusing and contradictory claim of self-defense. At trial, defendant testified for the first time that Dinh fired a gun at him and attacked him with a fingernail knife before he attacked Dinh with the scissors. As to the knife, defendant testified Dinh stabbed him in the chest with it. However, defendant had no fresh or bleeding wounds on him when police inspected him after he had killed Dinh. And as to the gun, no such weapon was found after Dinh died.*fn2
In light of defendant's improbable testimony that he attacked Dinh in self-defense, the jury, it appears, was focused on the degree of murder. On the first day of deliberations, the jury asked questions about defendant's "blood analysis," "[s]pecific[al]ly how the law views the actions of a person who is under the influence of drugs" and "how the law views the actions of a person who is mentally ill." The court referred the jury to CALCRIM No. 625 on voluntary intoxication's effect on specific intent and also instructed that the issue of defendant's mental illness (sanity) was not before the jury. On the second day of deliberations, it appeared the jury had settled on a verdict of either first or second degree murder, as the jury asked whether willful, deliberate, and premeditated action can "take place during the event of the crime?" The jury ultimately chose a verdict of second degree murder. Given the jury's earlier questions, the reduced verdict was likely attributable to the jury's doubt over defendant's ability to premeditate and deliberate given his intoxication.
This logical inference and the evidence we have just recounted that established at most a flimsy self-defense claim lead us to conclude the error in allowing the prosecutor to introduce defendant's prior misdemeanor convictions was harmless beyond a reasonable doubt.
Defendant Forfeited His Contention Of Five
Specific Incidents Of Alleged Judicial Misconduct
Defendant contends the court committed five incidents of judicial misconduct by declaring in the presence of the jury that defendant's testimony was false and misleading. As we explain, defendant forfeited his contention by failing to timely object.
The Five Incidents Of Alleged Misconduct
The first incident occurred in the afternoon on Monday, June 4, 2007, right after the testimony of one of the police officers. The incident was as follows:
"THE COURT: You may call your next witness.
"[DEFENDANT]: Dr. Super I have been unable to contact, and since I was unable to interview Patrice Williams per court order --
"THE COURT: You know what, wait a second. That is not true, and I am not going to allow you to mislead this jury and state that you were not allowed to interview a witness per court order. That is --
"[Defendant] speaking simultaneously.
"THE COURT: Mr. Gray, you are not going to mislead the jury and make that statement in front of this jury. That is not true. [ ] Now, you have a witness that you subpoenaed this morning, which has been ordered to reappear. That's --
"[DEFENDANT]: Patrice Williams (sic) --
"THE COURT: Do you want her to ...