Petition for certiorari filed at, 07/24/2014
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Superior Court of Los Angeles County, No. NA043605, Richard R. Romero, Judge.
Mark D. Lenenberg, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Chin, J., with Cantil-Sakauye, C. J., Baxter, Werdegar, Corrigan, JJ., concurring. Concurring and dissenting opinion by Kennard, J. Concurring and dissenting opinion by Liu, J.
[324 P.3d 195] [171 Cal.Rptr.3d 361]
A jury convicted defendant Calvin Dion Chism of the first degree murder (Pen. Code, § 187, subd. (a) (count one))  and attempted robbery (§ § 211, 664 (count two)) of Richard Moon, and the second degree robbery of [324 P.3d 196] Jung Ja Chung (§ 211 [171 Cal.Rptr.3d 362] (count three)).  The jury found true the special circumstance allegation that the murder was committed during the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). It also found true allegations that a principal in counts one and two was armed with a firearm (former § 12022, subd. (a)(1)), and that defendant personally used a firearm in the commission of all three counts (§ 12022.5, former subd. (a)(1), now subd. (a)). The trial court found true the allegation that defendant had suffered one prior serious or violent juvenile adjudication within the meaning of the " Three Strikes" law (§ § 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The jury was unable to reach a penalty verdict, and the trial court declared a mistrial. Another jury was impaneled. After a retrial of the penalty phase trial, the second jury returned a verdict of death as to count one.
The trial court denied defendant's motion for new trial (§ 1181) and his motion to modify the penalty verdict (§ 190.4, subd. (e)). With regard to count one, the trial court sentenced defendant to death plus a consecutive upper term of 10 years for the personal use of a firearm enhancement. The court sentenced defendant to an upper term of six years on count two, plus a consecutive term of five years for the personal use of a firearm enhancement, but the court stayed this 11-year sentence pursuant to section 654. The court then imposed a consecutive upper term of five years on count three, doubled to 10 years under the Three Strikes law, plus a 10-year consecutive sentence for the personal use of a firearm enhancement. Defendant was awarded 643 days of presentence custody credits. This appeal is automatic.
We conclude defendant is entitled to 96 days of conduct credit (§ 2933.1, subd. (c)), and order the clerk of the superior court to modify the abstract of judgment to reflect those 96 days of conduct credit. The judgment, including the death sentence, is otherwise affirmed.
A. Guilt Phase
1. Prosecution Evidence
a. Riteway Robbery
On May 18, 1997, defendant entered the Riteway Market (Riteway or market) in Compton alone and asked the lone clerk, Jung Ja Chung, for hair gel. Chung sad she did not have any, and defendant left. Defendant quickly returned with codefendant Johnson and three accomplices. One accomplice approached Chung, pointed his gun at her, and demanded money. Defendant went behind the counter and told Chung to open the cash register. Defendant took cash from the register and a nine-millimeter Glock handgun (the Glock) that the owner kept under the counter. The other robbers took various items. Defendant pointed the Glock at Chung as he followed his accomplices out of the store.
At trial, defendant's California Youth Authority (CYA) parole officer, Kenneth Lipkin, viewed the Riteway surveillance videotape of the robbery and recognized defendant as the person who first entered the market and later pointed the Glock at Chung as he left. Lipkin recognized defendant's voice on the tape saying, " We're in the house. They don't have a video," " There's a Glock," and " 187." Lipkin noted [171 Cal.Rptr.3d 363] that defendant's " 187" comment was a reference to the Penal Code section that defines murder.
b. Eddie's Liquor Store
The Murder and Attempted Robbery
On June 12, 1997,  Edward Snow owned Eddie's Liquor (Eddie's or liquor store), which was located at the intersection of East Artesia Boulevard and Butler Avenue in Long Beach. Richard Moon was employed at Eddie's as a clerk.
[324 P.3d 197] Codefendant Johnson's sister Marcia  was acquainted with defendant and Taylor.  Around 9:00 a.m. on June 12, defendant, Johnson, Taylor, and Marcia met at Marcia's home in Compton. Defendant wore black jeans and a black T-shirt with the word " Air" and a white Nike logo printed across the front (Nike Air T-shirt). Defendant had a Glock handgun in his waistband, the same gun Marcia had seen him carrying " all the time" during the previous month. Defendant told them about his plan to rob Eddie's and assigned each person a task. He instructed Marcia to enter Eddie's to determine the location of any surveillance video cameras and the number of clerks. Defendant appointed Taylor to be the driver, and directed Johnson to go into the store with defendant. No one objected to defendant's plan.
Approximately 15 minutes later, the group left Marcia's house in a light gray Plymouth Voyager van Taylor had borrowed from his girlfriend, Zonita Wallace.  Defendant had the Glock tucked in his waistband when he entered the van. Around 2:00 p.m., Taylor parked a couple of blocks away from Eddie's. Marcia exited, walked to the liquor store and went inside. She saw a camera, and she saw a clerk standing behind the counter. Marcia purchased candy, returned to the van, and told defendant what she had seen. Defendant and Johnson then walked towards the liquor store. Defendant had a bulge in his waistband. Within a minute or two, there were one or two gunshots, and defendant and Johnson then ran from the liquor store to the van. Taylor drove the group to a house in Long Beach to meet Iris Johnston. The drive took 20 to 30 minutes. The group stayed at the house for about 10 minutes. They then left with Johnston and a friend and drove to defendant's residence.
Steven Miller had been sitting on a bus bench across the street from Eddie's on June 12 when he saw two African-American men enter the liquor store.  Shortly thereafter, Miller heard a popping sound [171 Cal.Rptr.3d 364] he thought was a gunshot. He then saw the same men run from the store. They ran north on Butler Avenue approximately two blocks and turned right onto East Marker Lane. Miller immediately ran into Eddie's and saw Moon under the counter on his back, unconscious and bleeding. Miller telephoned the police. He described the two African-American males as 17 to 18 years old, five feet and seven or eight inches tall, with short " Afro style" hair and " thin builds." Miller added that one wore dark jeans and a black shirt with white stripes on the front.
Stephanie Johnson heard gunshots as she drove near the intersection of Artesia Boulevard and Butler Avenue between 2:00 and 3:00 p.m. on June 12. She then saw two men running from the direction of the liquor store. One was dark skinned, slim, and of medium height. He was wearing dark khaki pants and a black shirt with a white shirt underneath, and his hair was curly on top and shaved around the bottom. Stephanie could not describe the second person or recall his clothing.
During the afternoon of June 12, Peter Motta was driving on East Marker Lane when he saw a light-colored Plymouth Voyager, the same make and model as Wallace's, parked near the intersection of East Marker Lane and Butler Avenue. Two African-Americans were inside, one in the driver's seat, the other in the passenger seat. Two [324 P.3d 198] men ran very fast from Butler Avenue towards the van and then " disappear[ed]." Motta noticed one was African-American, thin, and slightly taller than average.
Events Immediately Following the Crimes at Eddie's
Long Beach Police Officers Rudy Romero and Stacey Holdredge arrived at Eddie's at 2:08 p.m. While Romero spoke with Miller outside, Holdredge went inside and found Moon lying on the floor behind the counter, bleeding and unconscious. Moon died before the paramedics arrived.
Iris Johnston was acquainted with defendant, Johnson, Taylor, and Marcia. The group met Johnston at the Long Beach home of one of her friends between 1:00 and 1:30 p.m. the day Moon was killed. Johnston testified they arrived in a van similar in make and model to Wallace's van. After about 10 minutes, Johnston and the group left in that van and drove to defendant's
residence. Along the way, Johnston saw helicopters overhead and asked what happened. Someone said, " There must have been a robbery." Defendant said " I" or " we" " know [who] did it." Inside defendant's residence, they watched the news on television. They then walked to a store. Defendant appeared nervous when they saw a police car. Later, while defendant, Marcia, and Johnston were on a three-way telephone call, defendant told Johnston he wanted to talk privately with Marcia. That evening, Johnston wrote and hand delivered a letter to defendant in which she accused him and the others of having committed " that little robbery in Long Beach."
Police recovered a bullet from the floor near Moon's hip and a spent nine-millimeter cartridge casing on the floor near the liquor shelves. There was an indentation in the ice cream machine in the store, which was consistent with the type of mark caused by a bullet ricocheting off a hard item. The owner of Eddie's testified there was no indentation on the ice cream machine prior to June 12, and nothing was missing from the cash register. Police retrieved a videotape from a videocassette recorder (VCR) inside the liquor store (videotape or liquor store videotape or surveillance videotape).
[171 Cal.Rptr.3d 365] Los Angeles County deputy medical examiner Stephen Scholtz performed an autopsy on Moon's body and determined the cause of death was a gunshot to Moon's back. The bullet had exited through Moon's chest. Moon's right knee was scuffed, and his scalp was bruised. Scholtz examined Moon's shirt visually and microscopically but observed no residue or soot. Scholtz examined Moon's entire body but found no stippling, which is the marking of skin by powered particles discharged from a firearm.
Search of Defendant's Residence
On June 19, one week after Moon was murdered, defendant's parole officer and Compton police searched defendant's residence. They found a loaded Glock handgun on his bedroom closet shelf, a black T-shirt with " Air" and a white Nike symbol printed across the front, and a letter Johnston had written to defendant dated June 12. Defendant was arrested the same day.
Search of Johnston's Residence
On August 20, police searched Johnston's home and recovered a letter defendant had written to her that was postmarked August 11.
Riteway's owner identified the loaded Glock handgun found in defendant's bedroom closet as the gun that had been kept under the counter at Riteway. He testified that the Glock had been under the counter on the day of the Riteway robbery.
Robert Hawkins, a Los Angeles County Sheriff's Department crime laboratory firearm examiner, examined and test fired the Glock, and he examined the bullet and cartridge casing recovered from the floor at Eddie's. Hawkins testified the bullet could have been fired from the Glock, but he could not be certain because there were not enough markings on it. Based on markings on the cartridge casing, Hawkins concluded the casing had been fired from the Glock. Hawkins [324 P.3d 199] examined photographs taken of Eddie's ice cream machine, and concluded the indentation on its outer metal surface could have been caused by a bullet strike. Hawkins used a chemical process on Moon's shirt that revealed two gunpowder particles, each of which was within three and a half inches of the center of the entry hole on the back of the shirt. Based on those measurements, Hawkins concluded the gun was approximately four to five feet from Moon when it was fired.
Physical Appearance of Defendant and Johnson
On June 12, defendant, an African-American, was five feet nine inches tall and weighed 152 pounds. On June 20, Johnson, an African-American, was six feet tall and weighed 150 pounds.
2. Defense Evidence
Defense investigator Daniel Mendoza testified that there was a doorway but no door between defendant's bedroom and an adjacent spare bedroom that could be accessed through the back door of the house.
Michael Cayton, a Long Beach Harbor Patrol officer, testified as a witness for Johnson. Between 12:00 and 3:00 p.m. on June 12, Cayton was off duty and driving near Eddie's when he noticed three " suspicious" men standing near a parking lot. Cayton noticed the men were dark skinned, in their early 20's, and between five feet nine inches and six feet one inch in height. One walked toward Eddie's, one followed, and one stayed outside looking around. Two of the men entered the liquor store. Cayton could not identify or exclude defendant, Johnson, or Taylor as any of the three men he saw that day.
[171 Cal.Rptr.3d 366] B. Penalty Phase
1. Prosecution Evidence
At the penalty phase retrial before a new jury, the prosecutor presented evidence similar to that presented during the guilt phase, evidence of prior crimes committed by defendant, and victim impact testimony.
On December 9, 1993, Cheryl Quadrelli-Jones, an assistant principal at Anaheim's Gilbert West High School, saw defendant leave the school and cross the street towards a pedestrian passthrough that led to a nearby neighborhood. Approximately 100 feet from defendant, a male appeared from another passthrough. Defendant extended his arm and fired a gun at that individual. As Quadrelli-Jones yelled to students to get down, defendant and the male he had shot at left the area.
On January 31, 1994, defendant and two male companions approached Bradley Turner in a parking lot at Cypress's Arnold Park. Defendant held a gun to Turner's head. One companion demanded Turner's wallet and then searched for it in Turner's car. Not finding the wallet, he said to the others, " Just kill the mother fucker right now." Defendant and Turner then struggled, and defendant shot Turner in the leg. Rhonda Griffin, who was nearby, saw defendant fleeing and tried to chase him. She was within an arm's length of defendant when he pressed a gun against her temple and said, " Do you want some of this, you fucking bitch?" A car filled with several other people drove up, and defendant jumped in. Defendant was subsequently arrested. On July 25, 1994, defendant admitted allegations in a juvenile petition that he committed the attempted second degree robbery of Turner and assaulted Turner with a semiautomatic firearm.
The victim impact evidence included testimony from family members and friends regarding victim Moon's personality, his joy of life, and the effect his death had on those close to him. It also included a photo board with several photographs of Moon with members of his family. We provide a detailed summary of this testimony and physical evidence in conjunction with our discussion of defendant's contention that the trial court erred by admitting much of the victim impact testimony.
2. Defense Evidence
Defendant's mother and father were 13 and 15 years old, respectively, when defendant was born. Defendant's mother had six [324 P.3d 200] children with five different men. She was a drug abuser, and she lost custody of defendant when he was seven years old. Until then, defendant had been a " happy" child.
Defendant then lived with his paternal grandmother. When defendant was 10 years old, his father was killed, and defendant had to identify the body. After that, defendant began having behavioral problems. His paternal grandmother gave custody of defendant to his maternal grandmother, who took defendant to therapy sessions at a church once a week for about a year. Defendant graduated from high school in 1996 during his CYA commitment.
Arthur Gray, a senior pastor at Abundant Joy Christian Fellowship in Inglewood, knew defendant in his early childhood. Defendant had attended church and participated in many church activities, including the choir. Defendant was always pleasant, courteous, and friendly.
Chaplain Robert Curry met defendant at the Paso Robles CYA facility in about 1995. Defendant always was willing to work, even without compensation. He sang in the choir, preached, acted as a peer counselor, and inspired others. Defendant [171 Cal.Rptr.3d 367] helped to reduce racial tensions within his unit.
Deandre Brown testified that, while defendant was a ward at the Paso Robles CYA, he inspired Brown to believe in God and in himself. Defendant encouraged Brown to attend high school classes.
Lorraine Wahlberb, a volunteer at the Paso Robles CYA, met defendant in 1996. She was involved in many activities with defendant. He spoke during church services and participated in church activities. Defendant often preached at classes offered at the institution and positively influenced others.
In 1997, Lawrence Mills met defendant while teaching him at the Chino CYA. In 1998, defendant was returned to CYA upon violation of his parole for his involvement in the instant crimes. Mills testified that defendant earned a training certificate in operating a forklift and another certificate in warehousing.
Defendant testified about his mother losing custody of him, his father's death, and having to identify his father's body. He added that, while living with his paternal grandmother, he twice was sexually assaulted by a neighbor, whom he did not identify. At age 11, defendant started to use drugs and alcohol. Later, he became interested in religion. While at various CYA facilities, defendant became religious and experienced a spiritual awakening.
Defendant denied any involvement in the instant crimes. He said his grandmothers had taught him the difference between right and wrong, and he told the jury, " A lot of the crimes and stuff, I'm pretty much guilty of ..., a murderer, I'm not. I value the human life too much for me to kill a man over a dollar." Addressing the victim's wife, defendant said " every time I see you,
hearing the spark that your daughter said that you had in your eyes, I got to go to ... my cell, every night and think about how your life was before Mr. Moon died. And if I was to say anything, it wouldn't be sorry. It would be I wish I could change the hands of time. I wish I could bring him back. But I can't."
A. Jury Selection Issues
1. Group Death-qualification Voir Dire
Defendant contends the trial court erred in failing to conduct the death-qualifying portion of voir dire of potential jurors individually and in sequestration as required by Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]. He asserts violations of his federal constitutional rights to due process under the Fifth and Fourteenth Amendments, to a trial by an impartial jury under the Sixth Amendment, and to reliable guilt and penalty verdicts under the Eighth Amendment.
We have noted that Hovey held " prospective jurors in capital cases should be sequestered and questioned individually regarding their views on the death penalty. In 1990, the voters adopted Proposition 115, which as relevant here, abrogated Hovey by adding to the Code of Civil Procedure a provision stating that 'where practicable, [voir dire shall] occur in the presence of the other [prospective] jurors in all criminal [324 P.3d 201] cases, including death penalty cases.' (Code Civ. Proc., § 223.)" ( People v. Tafoya (2007) 42 Cal.4th 147, 167 [64 Cal.Rptr.3d 163, 164 P.3d 590].) We have consistently held individual voir dire is not constitutionally required following passage of Proposition 115. (See, e.g., People v. Thomas (2012) 53 Cal.4th 771, 789 [137 Cal.Rptr.3d 533, 269 P.3d 1109]; People v. Brasure (2008) 42 Cal.4th 1037, 1050-1051 [71 Cal.Rptr.3d 675, 175 P.3d 632].) We decline defendant's request to reconsider our prior holdings.
[171 Cal.Rptr.3d 368] 2. Constitutionality of Death-qualification Voir Dire
Defendant contends his death judgment must be reversed because the death-qualification portion of jury selection is unconstitutional. The high court and this court have rejected this contention. ( Lockhart v. McCree (1986) 476 U.S. 162, 176-177 [90 L.Ed.2d 137, 106 S.Ct. 1758]; People v. Lenart (2004) 32 Cal.4th 1107, 1120 [12 Cal.Rptr.3d 592, 88 P.3d 498].) Defendant offers no persuasive reason to reconsider the issue as to our state Constitution, and we decline to do so.
B. Guilt Phase Issues
1. Steven Miller's Statements
Defendant contends the trial court erred in admitting the portion of Officer Romero's testimony that related the statements Steven Miller made outside of Eddie's shortly after the murder. Defendant claims admission of Miller's statements violated his Sixth Amendment right to confrontation.
a. Factual and Procedural Background
Over a defense hearsay objection, Officer Romero testified as follows regarding his encounter with Miller outside Eddie's.
Officer Romero arrived at Eddie's within seven minutes of the 911 radio broadcast. Miller was the first person he contacted. Miller appeared to be " very nervous," " unsettled," and " very uneasy and shaken up" throughout the encounter. Miller said, " I think he's dead." Miller told Officer Romero the following. Miller had been sitting on a bus bench across the street from the liquor store when he saw two African-American males go inside. Shortly afterward, Miller heard a popping sound he recognized as a gunshot. Miller then saw the same men run from Eddie's, head north on Butler Avenue, and turn right onto East Marker Lane. Miller immediately ran into Eddie's, looked behind the counter, and saw the clerk on his back, unconscious and bleeding. Miller called the police. In addition, Miller told Officer Romero both males appeared to be 17 or 18 years old, five feet and seven or eight inches tall, with short " Afro style" hair and " thin builds." One wore dark jeans and a black shirt with white stripes on the front. The second wore long dark shorts.
Romero radioed for police assistance. Meanwhile, Officer Holdredge, Romero's partner, had entered Eddie's to check on the clerk. After finding him on the floor, Holdredge called for paramedics and additional police assistance.
Before the prosecution called Miller to the stand, counsel for Miller informed the court that Miller was in custody awaiting trial in an unrelated Three Strikes case and that Miller intended to invoke his Fifth Amendment right against self-incrimination if called to testify. During a hearing on the matter, the parties indicated they were unaware of any information that would suggest Miller would incriminate himself if he testified in this case. Based on representations by counsel that they would not try to impeach Miller based on his prior criminal record, the trial court ruled Miller did not have a right to assert the Fifth Amendment privilege, and advised Miller of this ruling.
However, when the prosecution called Miller as a witness, Miller refused to answer any questions. The court found Miller in contempt and unavailable to testify.
Evidence Code section 1200, subdivision (a), provides that " '[h]earsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to [171 Cal.Rptr.3d 369] prove the truth of the matter stated." Hearsay evidence is not admissible " [e]xcept as provided by law." ( Id., subd. (b).) Miller's statements [324 P.3d 202] were hearsay because they were made out of court and were offered for the truth of what he had told Officer Romero. Evidence Code section 1240 provides that " [e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶ ] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶ ] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Defendant concedes Miller's statements qualified for admission under this exception to the hearsay rule, but relying on the high court's decision in Crawford v. Washington (2004) 541 U.S. 36, 68 [158 L.Ed.2d 177, 124 S.Ct. 1354] ( Crawford ), he contends the statements were not admissible under the confrontation clause of the Sixth Amendment.
Crawford held the confrontation clause " prohibits 'admission of testimonial statements of ... witness[es] who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' ( Crawford, [541 U.S.] at pp. 53-54, italics added.)" ( People v. Romero (2008) 44 Cal.4th 386, 421 [79 Cal.Rptr.3d 334, 187 P.3d 56] ( Romero ).)  Thereafter, as we noted in Romero, in Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224, 126 S.Ct. 2266], the high court explained that " '[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' " ( Romero, supra, 44 Cal.4th at p. 421.) After Crawford, the high court has emphasized that " 'not all those
questioned by the police are witnesses' for purposes of the Sixth Amendment and not all ' " interrogations by law enforcement officers" [citation], are subject to the Confrontation Clause.' ([ Michigan v. ] Bryant [(2011) 562] U.S. ___, ___ [179 L.Ed.2d 93, 131 S.Ct. [1143,] 1153], quoting Crawford, supra, 541 U.S. at p. 53.)" ( People v. Blacksher (2011) 52 Cal.4th 769, 811 [130 Cal.Rptr.3d 191, 259 P.3d 370] ( Blacksher )).
Based on the reasoning in Bryant, in Blacksher we identified six factors to consider in determining whether statements made in the course of police questioning were for the " 'primary purpose of creating an out-of-court substitute for trial testimony' that implicates the confrontation clause." ( Blacksher, supra, 52 Cal.4th at p. 813.) These are (1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that [171 Cal.Rptr.3d 370] reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained. ( Id. at pp. 814-815.)
Applying Crawford to defendant's case, we conclude that Miller's statements to Officer Romero were nontestimonial and that their admission did not violate defendant's Sixth Amendment right to confrontation. Officer Romero was the first officer to arrive at the scene, and Miller was the first person he contacted. Miller appeared to be very [324 P.3d 203] nervous and " shaken up." The circumstances of the encounter, which took place outside a store where a shooting had recently occurred, reveal that Miller and Officer Romero spoke to each other in order to deal with an ongoing emergency. It was objectively reasonable for Officer Romero to believe the suspects, one of whom presumably was still armed with a gun, remained at large and posed an immediate threat to officers responding to the shooting and the public. We are convinced that Miller's additional statements concerning his observations and descriptions of the suspects were made for the primary purpose of meeting an ongoing emergency and not to produce evidence for use at a later trial. (See Romero, supra, 44 Cal.4th at p. 422 [statements made by an agitated victim of an ax attack were provided to police for the purpose of addressing an emergency situation and determining whether the attacker remained at large and presented a threat to others].)
2. Evidence That Wallace Was Fearful of Testifying
Defendant contends the trial court erroneously admitted evidence that three years prior to trial, either Johnson or his cousin accused Zonita Wallace of talking with police, contending it was irrelevant. Defendant also claims the evidence was unduly prejudicial under Evidence Code section 352, because the jury could infer his consciousness of guilt based on evidence of his association with Johnson and Johnson's connection to the accusation. 
a. Factual and Procedural Background
Wallace testified she dated Taylor in 1996 and 1997 and was acquainted with [171 Cal.Rptr.3d 371] defendant and Johnson. On the day Moon was murdered, Wallace owned a gray Plymouth Voyager van that had two front doors and one sliding side door. Wallace had loaned the van to Taylor in June 1997 but did not recall the date.
Wallace further testified that she drove her van with Compton Police Detective Catherine Chavers on June 19 after her interview with Sergeant Frederick Reynolds but did not recall that she and Chavers drove to a gas station. Wallace denied that while at the gas station with Chavers, she met someone whom she identified as Johnson. She also denied that something occurred at the gas station that caused her to be afraid.
Over a hearsay objection by Johnson's counsel, Sergeant Reynolds testified that during the June 19 interview, Wallace said she had loaned Taylor the van the week before. Reynolds testified that after the interview, he drove to a gas station where he saw Chavers with Wallace, and that Wallace appeared to be frightened. Without explaining why, Wallace said she would not go to court because she was afraid. The trial court ruled Reynolds's testimony was admissible to explain Wallace's failure to recall driving with Chavers to the
gas station, to explain Wallace's denials that she had identified Johnson and become frightened by something that occurred at the gas station, and to demonstrate Johnson's consciousness of guilt.
The prosecutor then made an offer of proof that Detective Chavers would testify she [324 P.3d 204] rode with Wallace to a gas station in Compton on June 19, that Wallace identified Johnson and his cousin Michael as the two males inside a vehicle parked at that location, that Wallace talked with the two males while Chavers waited in the van, that Chavers overheard one of the males accuse Wallace of having spoken with the police, and that Wallace denied the accusation but thereafter appeared to be " frightened."
The prosecutor argued evidence of the accusation was admissible to show Wallace was fearful of testifying and to demonstrate Johnson's consciousness of guilt. Counsel for Johnson argued that the evidence should be excluded because Wallace was not asked on direct examination whether she was afraid to testify. Also, the evidence assertedly was unduly prejudicial because there was no showing that Johnson made the accusation. Defendant's counsel did not join in these objections.
The trial court overruled Johnson's objections and admitted evidence of the accusation on the grounds asserted by the prosecutor. Thereafter, Detective Chavers testified consistent with the prosecution's offer of proof that Wallace identified Johnson and his cousin at the gas station, that one of the males said, " [Wallace] had spoken to the police," and that Wallace then appeared to be frightened.
Preliminarily, the People argue defendant forfeited this issue because he did not join in Johnson's objections. " A litigant need not object, however, if doing so would be futile." ( People v. Wilson (2008) 44 Cal.4th 758, 793 [80 Cal.Rptr.3d 211, 187 P.3d 1041].) Here, because defendant had no reasonable basis to present additional information that might have altered the trial court's ruling or to object that the ruling would have caused him unique prejudice, he could have reasonably believed making his own motion would have been futile. We consider this contention on its merits and find no error.
We review a trial court's rulings on the admission and exclusion of evidence for abuse of discretion. ( People [171 Cal.Rptr.3d 372] v. Guerra (2006) 37 Cal.4th 1067');"> 37 Cal.4th 1067, 1113 [40 Cal.Rptr.3d 118, 129 P.3d 321] ( Guerra ).) " Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible." ( People v. Burgener (2003) 29 Cal.4th 833, 869 [129 Cal.Rptr.2d 747, 62 P.3d 1] ( Burgener ); see
generally Evid. Code, § 780.) Evidence of any explanation of the basis for such fear is likewise relevant to the jury's assessment of the witness's credibility and admissible for that nonhearsay purpose, but not for the truth of any matters asserted. ( Burgener, at p. 869.)
Evidence that Johnson or his companion accused Wallace of speaking with the police was relevant because the jury reasonably could infer that the accusation was made to persuade Wallace not to cooperate with police or testify at a trial involving the liquor store incident. The jury also reasonably could infer that the accusation frightened Wallace and affected her testimony. Here, where Wallace " professed inability to remember her previous statements [and gave] equivocal responses to many of the prosecutor's questions, ... the trial court did not abuse its discretion in determining that evidence of her fear in testifying was relevant to the jury's assessment of her credibility." ( People v. Valdez (2012) 55 Cal.4th 82, 137 [144 Cal.Rptr.3d 865, 281 P.3d 924].)
Defendant's claim to the contrary, the accusation was admissible although it occurred more than three years before Wallace testified. Wallace's testimony was riddled with claimed memory failures and evasive and inconsistent responses, many of which related to events that occurred the day the accusation was made. Wallace's professed inability to remember her prior statements and her equivocal responses could be explained by her fear of retaliation for testifying and that fear could have reasonably originated from the accusation Detective Chavers overheard.
We conclude the accusation was admissible against defendant notwithstanding the lack of evidence linking the statement to him. " For such evidence to be admissible, there is no requirement to show threats [324 P.3d 205] against the witness were made by the defendant personally or the witness's fear of retaliation is 'directly linked' to the defendant." ( Guerra, supra, 37 Cal.4th at p. 1142.) Because " [i]t is not necessarily the source of the threat--but its existence--that is relevant to the witness's credibility" ( Burgener, supra, 29 Cal.4th at p. 870), the evidence similarly was not excludable on the ground that Chavers was unable to discern whether Johnson or his cousin made the accusation.
Citing Evidence Code section 352, defendant next contends admission of evidence of the accusation to show Johnson's consciousness of guilt was unduly prejudicial to him because the testimony implied his consciousness of guilt although no evidence connected him to the accusation. Defendant, however, did not object to the evidence on this specific ground at trial, did not join in Johnson's objection on this ground, and did not request a limiting instruction on the ground that the evidence was admissible as to Johnson but
not him. The issue is therefore forfeited. (See Evid. Code, § § 353, subd. (a) [an objection to the assertedly erroneous admission of evidence must be timely and specific], 355 [when evidence is admissible for one purpose and inadmissible for another, " the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly" ].) Because such a specific objection could have prevented the asserted prejudice and nothing suggests it [171 Cal.Rptr.3d 373] would have been futile for defendant to object on this specific ground in the trial court, this claim is forfeited on appeal. ( People v. Duran (1976) 16 Cal.3d 282, 289 [127 Cal.Rptr. 618, 545 P.2d 1322]; People v. Wilson, supra, 44 Cal.4th at p. 793.)
Even if this claim were preserved, it has no merit. Neither the evidence nor the prosecutor suggested the accusation was evidence of defendant's consciousness of guilt. Defendant's speculation that the jury might have connected the evidence to him does not establish that the trial court abused its discretion in admitting evidence of the accusation.
3. Marcia Johnson's Statements to Detective Edwards
Defendant contends the trial court erroneously permitted Detective Paul Edwards to testify that during his interview with Marcia, Marcia said that the night before the murder, defendant had told her he had been to the liquor store before and saw only one clerk inside, an old man. This claim is without merit.
a. Factual and Procedural Background
On direct examination, Marcia testified that when she met with defendant, Johnson, and Taylor at her home the morning of the murder, defendant told the group about his plans to rob Eddie's. He said he wanted Marcia to go inside, look for cameras, and determine how many clerks were working. Defendant said Taylor would drive, and Johnson would enter the liquor store with defendant. Only defendant spoke, and no one objected. Marcia testified she had not been to the liquor store or heard of it before that morning.
During cross-examination, defendant's counsel asked about specific discrepancies in Marcia's statements to Detective Edwards regarding the planning of the robbery. Marcia testified she initially told Edwards that she, Johnson and Taylor " scoped out" the liquor store on the morning of the crimes. Asked whether she had mentioned to Edwards that defendant was involved, Marcia admitted she did not include defendant in that version of the events. Counsel asked whether Edwards told Marcia he did not believe her, and had suggested the planning had occurred the night before. Marcia testified Edwards did so, and that she then told Edwards the group met the
night before but had not discussed a plan to rob the liquor store at that time. Counsel then asked whether she recalled telling Edwards that during the night meeting, defendant " came to me and told me that he needed me to do something and he needed me to go to the store and go buy, go check out and see how many people [were] in there and to buy something. He said he needed the money. He was going to rob a liquor store." Marcia [324 P.3d 206] then testified she recalled telling Edwards this, but testified the conversation did not relate to any plans to rob Eddie's.
Thereafter, Detective Edwards testified that when he interviewed Marcia, she initially told him that on the morning of the crimes, she, Taylor, and Johnson drove to the liquor store in a brown Cutlass. After Edwards said he did not believe her, Marcia told Edwards defendant accompanied them to the store and that they drove there in Wallace's van. After Edwards said he believed the planning had occurred the night before, Marcia agreed and told Edwards the foursome met at her house the night before. She added that defendant said he had been to the store on a prior occasion and saw only one clerk, an old man, inside.
Defendant's counsel objected that Marcia's statement that defendant had said he had previously been to the store was inadmissible hearsay, but the trial court ruled [171 Cal.Rptr.3d 374] the statement was admissible to impeach Marcia's testimony and for its truth under the prior inconsistent statements exception to the hearsay rule. The court reasoned the statement was inconsistent with Marcia's direct testimony because Marcia did not mention it when the prosecutor asked about the statements defendant had made when he discussed his plans to rob the liquor store. The court then informed the parties that, although it had excused Marcia from giving further testimony, it would permit counsel to recall her to give her an opportunity to explain or deny the statement, as required under Evidence Code section 770. Marcia was not recalled to testify.
" A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770." ( People v. Johnson (1992) 3 Cal.4th 1183, 1219 [14 Cal.Rptr.2d 702, 842 P.2d 1].)  Defendant contends Marcia's statement to Detective Edwards
regarding what defendant told her about his prior visit to the liquor store was not admissible as a prior inconsistent statement because the prosecutor did not question Marcia specifically regarding whether defendant had previously been there. We need not decide the correctness of the trial court's ruling as to whether this particular statement of Marcia's was inconsistent with her trial testimony on that point. Marcia impliedly acknowledged to Edwards that she had heard of the liquor store the night before the murder when she told Edwards the group met that night and defendant told them he had gone to the store on a prior occasion and observed the lone clerk. On direct examination, however, Marcia denied she had " ever heard of Eddie's Liquor Store before [the morning of the crimes]." In effect, Marcia's prior statement to Edwards was inconsistent with that testimony as to when she first heard of Eddie's and therefore was admissible under Evidence Code section 1235.  (See People v. Cowan (2010) 50 Cal.4th 401, 462 [113 Cal.Rptr.3d 850, 236 P.3d 1074] [test for whether a witness's prior statement is inconsistent with prior testimony is whether the statement is inconsistent in effect rather than an express contradiction of terms].) Accordingly, we conclude the trial court did not abuse its [324 P.3d 207] discretion in admitting Marcia's statements to Detective Edwards. 
[171 Cal.Rptr.3d 375] 4. Adoptive Admission
Defendant contends testimony regarding a letter Iris Johnston wrote to defendant was erroneously admitted under the hearsay exception for adoptive admissions. (Evid. Code, § 1221.) Defendant also claims the Compton Police Department violated his due process rights and right to present a defense by failing to preserve his letter to Johnston in violation of Calif ...