The opinion
Filed 11/30/23 P. v. Tellechea CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080090
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD277475)
MATTHEW RYAN TELLECHEA et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County,
Michael S. Groch, Judge. Michael’s judgment is affirmed; Matthew’s
judgment is affirmed as modified.
Jeanine G. Strong, for Defendant and Appellant Matthew Ryan
Tellechea.
Patrick M. Ford, for Defendant and Appellant Michael Saul Tellechea.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C, Ragland, Assistant Attorney General,
A. Natasha Cortina, Christine L. Bergman, and Lynne G. McGinnis, Deputy
Attorneys General for Plaintiff and Respondent.
1
Defendants Matthew Ryan Tellechea (Matthew) and Michael Saul
Tellechea (Michael) appeal judgments after their jury convictions of various
criminal offenses, including arson, assault, receiving a stolen vehicle, and
attempted extortion. Michael was also convicted of attempted murder,
among other offenses. Michael was sentenced to a term of 56 years, eight
months. Matthew was sentenced to a term of 10 years, eight months.
Michael and Matthew appealed their judgments.
In his appeal, Michael contends: (1) the trial court erred by finding the
attorney-client privilege did not apply to preclude the testimony of Andrea B.
regarding his communications with her; (2) the prosecution committed
outrageous governmental conduct by pressuring Andrea to reveal his
communications with her that were protected by the attorney-client privilege;
(3) the court erred by excluding evidence that certain witnesses received
immunity for their testimony and modifying a jury instruction to omit a grant
of immunity as a factor that the jurors could consider in weighing the
credibility of a witness; (4) the court erred by excluding evidence regarding an
affair that Andrea had with another person; (5) the prosecution committed
prejudicial error during its opening statement by showing a slide that
displayed the words “felons in possession” adjacent to the defendants’
photographs and presenting an exhibit at trial (exh. 36) that displayed the
defendants’ photographs adjacent to two screen shots from a surveillance
video recording showing two individuals fleeing from a burning vehicle; (6)
the prosecution committed error under Brady v. Maryland (1963) 373 U.S. 83
(Brady) by not disclosing to him the entire video recording of the shooting
incident; and (7) cumulative errors denied him his right to a fair trial. He
also joins in Matthew’s contentions on appeal.
2
In his appeal, Matthew contends: (1) the trial court erred by finding the
attorney-client privilege did not apply to preclude the testimony of Andrea
regarding his communications with her; (2) the court erred by denying his
motion to sever his trial from Michael’s trial or, alternatively, have separate
juries for their joint trial; (3) the court erred by excluding evidence that
certain witnesses received immunity for their testimony and modifying a jury
instruction to omit a grant of immunity as a factor that the jurors could
consider in weighing the credibility of a witness; (4) the court erred by
excluding evidence regarding an affair that Andrea had with another person;
(5) the prosecution committed prejudicial error by presenting an exhibit at
trial (exh. 36) that displayed the defendants’ photographs adjacent to a
screen shot from a video recording of the shooting incident showing two
individuals fleeing from a burning vehicle; (6) substantial evidence does not
support his conviction of receiving a stolen vehicle; (7) the court erred by
allowing his niece to read an irrelevant and inflammatory letter at his
sentencing hearing; (8) cumulative errors denied him his right to a fair trial;
and (9) the court erred in imposing certain assessments and fines. He also
joins in Michael’s contentions on appeal.
As explained below, we conclude that the trial court erred by excluding
evidence that certain witnesses received immunity for their testimony and
modifying a jury instruction to omit a grant of immunity as a factor that the
jurors could consider in weighing the credibility of a witness, but
nevertheless conclude that those errors were harmless. We also conclude
that the court erred by imposing on Matthew incorrect assessments and fines
and therefore modify his judgment accordingly. We reject the remaining
contentions made by Michael and Matthew. Therefore, we affirm Michael’s
judgment and affirm, as modified, Matthew’s judgment.
3
FACTUAL AND PROCEDURAL BACKGROUND
Laura C. In 2013 or 2014, Matthew met Laura C. in Ocean Beach,
where they both lived. Matthew later introduced her to Michael, his identical
twin brother, and he became romantically involved with her. After her
relationship with Michael ended, Laura remained friends with both of them.
In 2017, her father died in an airplane accident and she thereafter received
about $2 million from a wrongful death action. Laura gave her friends
expensive gifts and bought Harley Davidson motorcycles, clothes, and
furniture for Michael and Matthew. She also paid their rent.
On December 1, 2017, Matthew accompanied Laura to a car dealership
where she bought two Range Rover vehicles, placing a white one in her name
and a blue one in Matthew’s name. When her vehicle needed repairs, Laura
took it back to the dealership and left it there. A few days later, either
Michael or Matthew went to the dealership and picked up Laura’s vehicle
without her permission. The dealership’s finance manager who had sold the
two vehicles to Laura did not know whether she had given Michael or
Matthew permission to pick up her vehicle.
Also in December 2017, Laura, who was on parole, was arrested at
Michael’s and Matthew’s home for not checking in with her parole officer.
Her arrest at their home angered them, causing their relationship with her to
deteriorate. Thereafter, they stole a $5,000 annuity check that she had
received. Later that month, Michael, Matthew, and Laura drove to Las
Vegas and stayed at an expensive hotel. Michael and Matthew were verbally
and physically abusive to Laura, called her names, threatened to kill her
boyfriend and dog, smashed glasses and dishes and threw them at her, and
dragged her over the broken glass. They demanded money from her and told
her that when they received the money they deserved, “it would all be over.”
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They also placed her cell phone, keys, identification, and cash in the hotel
safe and refused to give her the combination. When Laura was standing near
the hotel room’s balcony, Michael hit her in the face, held her over the railing,
and told her that he would “fucking kill” her.
After they checked out of the hotel, Michael and Matthew forced Laura
to withdraw a total of $100,000 from three bank branches. When they left
Laura alone for a while, she had a friend pick her up.
On or about December 15, Matthew texted Laura and insisted that she
pay for his dental work. She agreed to do so provided that he return her
white Range Rover to her. After initially claiming that Michael took her car,
Matthew promised, “I’ll get it to you. We good?” Laura then paid $58,000 for
his dental work. However, when she went to pick up her vehicle, Michael
blamed Laura for a burst blood vessel in his eye and asked her for more
money.
On January 6, 2018, Laura received a call from Robert B., an
acquaintance of Michael’s and Matthew’s, during which he purported to agree
to a previous request she made to kill the brothers for a price. Michael and
Matthew made a video recording of Robert’s call to Laura and thereafter sent
her the recording, along with messages threatening to disclose the recording
if she did not pay them money and do as they asked her. In particular,
Matthew presumably sent Laura a text message, stating: “Now hit-for-hire is
an ugly crime. [Robert] said on the audio, Laura I can take care of your
problem and off the Tellechea brothers. [¶] Pay HUD his money and Mikey
and I our[s]. You owe me any ways. LOL. You’re truly the dumbest bitch in
5
America.”1 That text message also threatened that Matthew and Michael
would “call their home boys at the MC [apparently referring to their
motorcycle club]” if Laura did not pay them more money. They also rejected
her requests that they return her Range Rover and other personal property to
her, and Matthew also demanded more money from her.
Also, on January 29, Michael and Matthew drove their motorcycles
onto the front lawn of Laura’s home and threw a softball-sized rock through
one of its windows, leaving shards of glass on the floor.2 On February 13,
Matthew sent Laura a text message, calling her a “pig” and stating, “Don’t
throw rocks at glass houses. LOL.” Laura later testified that the brothers’
text messages to her were frightening, demanding, relentless, and vile.
On April 2, Laura left another of her vehicles, a Chevy Silverado truck,
parked outside of an auto repair shop in the evening so that it could be
repaired there in the morning. At about 4:00 a.m. on April 3, persons near
the repair shop reported hearing sounds like explosions and saw smoke
coming out of its garage. Investigating, a neighbor saw that the Silverado
was on fire. The exterior of the repair shop was also burned. A neighbor’s
surveillance camera recorded two unidentified persons running away from
the Silverado. Investigators determined that the fire was deliberately set by
a person pouring a flammable liquid over the truck’s exterior and lighting it.
Later that day (on April 3), Michael sent Matthew a link to a news
article about the fire. Matthew replied, “[T]he news, that is pretty funny.”
1 Based on that text message’s use of the phrase “Mikey and I,” the jury
could reasonably have inferred, and we also therefore infer, that it was
Matthew, and not Michael, who sent that text message to Laura.
2 Because their DNA is identical, it was impossible from the DNA found
on the rock to determine whether it was Michael or Matthew who had thrown
the rock.
6
Michael texted him back, “I drove by the mess and wow, it is a mess.” The
brothers also took videos of themselves at the scene of the truck fire.
At about 1:40 a.m. on June 21, the brothers went into the backyard of
Laura’s home. One held a handgun, while the other held a large rifle. They
fired two shots, and Laura called the police.
Robert B. Robert B. met Michael and Matthew a few years earlier
when they were all in custody in the county jail. After their release, Robert
reconnected with the brothers in the Ocean Beach area where they all lived,
and they maintained contact. The brothers told Robert that Laura was in jail
and had inherited $2 million and asked him to look after her so that she
stayed away from her ex-boyfriend and did not resume using drugs. Robert
became acquainted with Laura and, after her relationship with the brothers
worsened, she asked Robert to obtain a firearm for her so she could protect
herself from them. Instead, Robert told Matthew about her request. On
January 7, 2018, the brothers drove to the home where Robert was staying
and told him they were taking him for a drive. Feeling threatened, Robert
complied, but brought a knife along with him. On the drive, the brothers
showed Robert videos of their trip with Laura to Las Vegas. The brothers
insisted that Robert call Laura and told him what to tell her. Feeling
threatened, Robert complied and called Laura, which call the brothers
recorded (as discussed above). Immediately prior to the call, the brothers
recorded the following preface by Michael: “This is ah, me and my brother,
I’m, I’m Michael Tellechea and my brother Matthew. Tellechea calling this
Laura [C.] that’s supposed to be um, be putting a, whatever on us. A kill on
us, so we’re gonna see what she says before we can um, do what, what we
gotta do. So I, this is us listening to her.” Their recording (referred to by the
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parties as the “hit video”) of Robert’s call to Laura included the following
conversation:
“[Laura:] Hello.
“[Robert:] Hello, hey. [¶] . . . My homeboy’s coming
through, anyway, check this out. I got what you need.
“[Laura:] Oh, you what?
“[Robert:] I got what you need.
“[Laura:] Oh cool. Uh, well um, I am busy right now. I
can’t, I, I, ‘cause I cannot um, join you or do anything.
“[Robert:] Okay well, check, check this out. I can get your
problem solved. And have both Tellecheas whacked.
“[Laura:] You’re what?
“[Robert:] Have it done. Your problem gettin’ rid of.
“[Laura:] Okay, right on.
“[Robert:] Ah do you, do you want to do this?
“[Laura:] What?
“[Robert:] Do you want to do this? Or, ya know what I
mean? It’ll cost a little cash.
“[Laura:] I can’t. . . .
“[Robert:] It’ll cost a little cash.
“[Laura:] I can’t right now.
“[Robert:] Excuse me? You can’t talk?
“[Laura:] I cannot right now.
“[Robert:] Okay, when can, can we talk? I’ll call you back.
“[Laura:] Um, yeah. . . .
“[Robert:] I’ll just call you back. Bye.
“[Laura:] Bye.”
Shortly after the call, Robert told the brothers that he would “smoke the
fucking bitch.” Michael replied: “No, no. Call her. I want her on video. This
8
isn’t going to the cops, this is going right to my MC [apparently referring to
his motorcycle club] right now, dog.” Robert then tried to call Laura again,
but his call went to her voicemail.
Shortly after Robert made the call, Michael told Robert that he wanted
to fight him and Matthew suggested they get out of the car to fight. Michael
got into the backseat where Robert was sitting and struck him. Michael then
placed his fist on Robert’s throat, choking him. When Robert asked whether
he was serious, Michael replied that he was going to “merk” (presumably
meaning murder) him. Frightened, Robert stabbed Michael in the stomach
with the knife he brought. In turn, Michael and Matthew stabbed Robert in
his leg and hands. Bleeding, Michael told Matthew to shoot Robert.
However, Robert convinced Matthew to take Michael and him to the hospital.
The three men agreed to explain to others that Robert’s and Michael’s
injuries were caused by unknown men who approached and stabbed them at
a bonfire.
On January 9, Robert wrote a letter describing the incident and his fear
of retaliation by the brothers. His letter warned that if anything happened to
him, the brothers were responsible for it. After the incident, Michael and
Matthew drove by Robert’s home almost daily, making loud noises with their
motorcycles.
On or about April 3, Robert learned that Laura’s truck had been set on
fire and expressed his belief to Marc P., his roommate, that Michael and
Matthew had caused the fire and that he (Robert) would be their next victim.
At about 1:00 a.m. on April 5, Robert saw a ball of light outside his home,
asked Marc for help, and ran outside to see his Ford F-150 pickup truck on
fire. Robert and Marc saw a white SUV driving away from the scene. Unable
9
to put out the fire with a garden hose, Robert jumped into the truck while a
neighbor helped push it out of the driveway.3
Marc P. As the white SUV fled the scene, Marc got in his black
Cadillac and followed the SUV as it headed toward Michael’s and Matthew’s
home. Marc then saw the SUV parked on the right side of an alley with its
front passenger’s door open. He stopped his Cadillac behind the SUV and
turned off his car’s ignition. Four or five shots were then fired at Marc’s
passenger’s window. Marc drove away, ramming the SUV twice to make
room in the alley to do so.
Nicholas N. and Michael E., nearby residents, heard the Cadillac and
white SUV crash, tires screeching, and gunshots. Nicholas N. saw a man,
whom he recognized as either Michael or Matthew, standing in the alley and
holding a silver revolver. Michael E. called 911 to report the incident. A
third neighbor saw two men, dressed in black, leave Michael’s and Matthew’s
yard, walk down the alley, and then return to their yard.
Responding to the 911 call, a police officer saw the white SUV backing
up in the alley. The officer detained Michael, its driver. Another officer
detained Matthew, who was standing nearby. One particle of gunshot
residue was found on Michael’s right hand, while none was found on
Matthew’s hands.4 Officers found Robert’s abandoned Cadillac one block
from the scene. Its right front passenger’s window was shattered, its
3 Arson investigators later found that Robert’s truck had been set on fire
using three gasoline-soaked towels. They also found a dog bed near the rear
tire that smelled of gasoline and had the DNA of either Michael or Matthew
on it.
4 The presence of gunshot residue means that the person discharged a
firearm, was near a firearm, or touched a surface with gunshot residue on it.
10
passenger’s door had bullet damage, and its front end was damaged. A bullet
had also damaged the steering wheel.
Jeshua R. In March or early April of 2018, Jeshua R., who lived across
the street from Michael and Matthew, spoke to one of them regarding their
noisy Subaru that they let idle several times a day. Their response was that
the car’s idling was going to be Jeshua’s problem and not theirs. On May 5,
the brothers threw four or five bags of trash from the alley into Jeshua’s yard,
crushing his vegetable garden. Later that day, he asked the brothers to not
do that again, explaining he was not responsible for the trash bags. They
called him a “punk” and a “pussy.” When he asked them how they would like
it if he had thrown trash in their yard, Michael or Matthew replied, “I’ll light
you up.” The other brother picked up a softball-sized rock and stated, “ ‘I’ve
done time. I’ll cave your fucking skull in. I’ll take this rock here and end
you.’ ” Afraid for his safety, Jeshua called the police and later purchased a
home surveillance system for protection against the brothers.
Darryl D. On May 22, 2018, Darryl D. and his business partner were
visiting San Diego from out of state. That evening, they went to a restaurant
and then Darryl left to find a place to buy cigarettes. As he stepped into a
crosswalk, a black Range Rover, occupied by Michael and Matthew, drove
through it without slowing down. Darryl held out his arms with his palms
up. In response, the driver displayed an obscene gesture. As Darryl walked
back toward the restaurant, the driver parked the Range Rover, got out,
chased Darryl, and spit on him. Darryl went back inside the restaurant.
Later, Darryl left the restaurant again and went to a Rite Aid store,
planning to buy a bottle of water there. However, the brothers were inside
the store and saw Darryl. Approaching customers in the cashier’s line,
Matthew aggressively stated: “You guys are spectators. Did you see what he
11
did?” Michael then began beating Darryl, who fell to the ground. During a
pause in the beating, Matthew told Michael: “ ‘Hit him again. Hit him
harder.’ ” A customer asked Michael to stop hitting Darryl and asked him
why he would do that. Michael stated something to the effect: “ ‘Did you see
what he did to me?’ ” His answer made no sense to the customer because
Darryl had done nothing that would have caused a fight. Darryl was knocked
unconscious and could not remember being beaten. He suffered severe pain,
a laceration above his eyelid, cracked teeth, facial disfigurement, and other
injuries.
Andrea B. In 2015, Andrea was a deputy alternate public defender and
represented Michael in a criminal case in which Matthew was a codefendant.
The brothers were acquitted on the charges against them. Afterward,
Michael moved to Michigan to start a new life. Andrea kept in contact with
him and gave him her personal cell phone number. In January 2017, Michael
returned to San Diego and he and Andrea began an intimate relationship.
In November 2017, Andrea and Michael signed a lease for an Ocean
Beach apartment in which he and his brother would live. Michael had told
Andrea about Laura and claimed he needed to move because she had been
arrested at his old home where he was trying to start a bicycle business.
Andrea had a family and her own home and never spent a night at the
apartment.
In December, after the brothers’ trip with Laura to Las Vegas, Michael
showed Andrea a video of Laura and their hotel room. He told Andrea he had
become angry at Laura for partying, grabbed Laura by the throat, and
planned to push her off the balcony. He stated he made the video that
showed Laura looking happy to prove he was not attempting to extort her.
12
He also told Andrea about Laura’s inheritance and his taking her to bank
branches in Las Vegas.
On January 7, 2018, Andrea visited Michael in the hospital after
Robert stabbed him. Michael told her that Robert stabbed him because
Laura hired him to do so. He showed Andrea the hit video of Robert’s phone
call with Laura. He told Andrea he lied to police that he was stabbed while
in a fight with a couple of Hispanic men because he did not want to be labeled
as a snitch. Michael also told her that he had the white Range Rover as a
“trophy” because Laura owed it to him for the stabbing. When Andrea asked
Michael about Laura’s annuity check that she saw on the floor of his room, he
stated he obtained it from Laura’s mailbox. Michael also told Andrea that he
and Matthew went to Laura’s home, threw rocks through her windows,
hitting her piano, and laughed about how large the rocks were.
At about 6:30 a.m. on April 3, Michael texted Andrea telling her that he
set a truck on fire and stating, “ ‘Hey, please watch the news. Channel 7. It’s
coming up in Point Loma. There was a car fire. Please watch. It’s amazing.
It’s coming up next.’ ” Matthew sent her a video of Michael and himself at
the scene of the truck fire. The video showed both brothers laughing as fire
truck lights flashed in the background. A couple of days later, the brothers
drove Andrea by the charred auto repair shop and Michael stated, “ ‘That’s
where we lit the truck on fire.’ ” Michael told her about the truck fire and the
shooting involving Robert and Marc, stating that the brothers went by a
“meth house” and lit Robert’s truck on fire. Michael stated that the people
from the house were upset and chased him and he fired shots. Michael
played video of the incident taken by their home surveillance camera, but she
did not save a copy of the video.
13
On April 30, Michael called Andrea and told her he had just beaten up
someone at a Rite Aid store. He stated the man’s face was busted and his
hands hurt from hitting the man’s face. She refused Michael’s request to give
him a ride home.
Andrea’s relationship with Michael began to deteriorate in January
2018 after he accused her of being intimate with Matthew and then smashed
her bicycle with a sledge hammer, stating he would do the same thing to her
children’s heads. Shortly thereafter, Michael ordered Andrea to purchase
ammunition for him at a gun store. When she refused, Michael grabbed her
by the throat and pushed her into the gutter. In the following days, he sent
her text messages calling her derogatory names and threatening to tell her
husband and work supervisor about their relationship. At the end of
January, Michael demanded that Andrea buy him a gun, but she declined at
first. She knew he was a convicted felon and was prohibited from possessing
firearms. However, on February 4, after Michael had repeatedly made that
demand, Andrea accompanied him to a sporting goods store and purchased a
dark silver .357 revolver for him. She later regretted her decision and asked
that he return the gun to her. Making a gun-firing motion with his hand,
Michael replied: “ ‘This is what I have on you.’ ” Thereafter, Michael
continued to ask Andrea for favors and threatened her. In particular,
Michael had her rent a storage unit for him and attempted to have her
provide him with an alibi for the shooting incident.
In early June, Andrea went on a road trip with Michael in an attempt
to help their relationship. During the trip, Michael screamed at her and
placed his hands over her mouth and throat. That night, Michael texted her,
apologizing for his actions.
14
On June 29, after Michael and Matthew had been arrested, police
found guns, rifles, ammunition, and magazines in the storage unit that
Andrea rented with Michael. When police found the revolver that Andrea
bought for Michael, she was also arrested. On August 7, Andrea (then
represented by counsel) had a “free talk” with law enforcement and
representatives of the San Diego County District Attorney’s Office. On
August 23, she had a second free talk and agreed to plead guilty to one felony
count in exchange for testifying at Michael’s and Matthew’s trial and, if her
testimony was truthful, the District Attorney’s Office would not oppose a
grant of probation to her.5 There was no agreement regarding the substance
of her testimony.6
5 However, if her testimony was not truthful, she would receive a
sentence of four years in prison.
6 On October 4, 2022, Michael filed a request that we take judicial notice
of certain court records from the criminal case against Andrea, reflecting
actions taken after the judgment was entered against him. In particular, he
requests that we take judicial notice of: (1) a minute order, dated October 13,
2020, issued at a hearing in Andrea’s criminal case, reflecting the parties’
stipulation that documents lodged by defense counsel were to be destroyed
after that hearing; (2) a Penal Code section 1203.4 petition filed by Andrea on
February 4, 2022, requesting that her guilty plea and October 12, 2018 felony
conviction be set aside and the complaint against her be dismissed in the
interest of justice; and (3) an order for dismissal, dated February 4, 2022,
which order granted Andrea’s petition, set aside and vacated her guilty plea
and felony conviction, and dismissed the complaint against her. On
October 21, 2022, we issued an order stating that we would consider
Michael’s request for judicial notice concurrently with his appeal.
On October 16, 2023, Michael filed another request for judicial notice,
seeking judicial notice of excerpts from the reporter’s transcript from an
unidentified criminal trial involving different criminal charges, which trial
occurred after the judgment was entered in this case. He argues that those
excerpts are relevant to our consideration of his Brady contention in this
15
Nicholas E. Nicholas E. was Matthew’s jail cellmate and agreed to
testify at the brothers’ trial. He and Matthew discussed the crimes the
brothers committed between January and May of 2018. Matthew told him
about Laura, her inheritance, their trip to Las Vegas, and making her
withdraw money from several banks. Matthew described how he and
Michael had placed their hands on Laura and held her off the balcony.
Matthew also described how he set multiple vehicles on fire, placing gasoline
on them, lighting them with a torch, and recording one of the incidents.
Matthew also discussed Michael’s relationship with Andrea and how she
bought guns for them because their criminal records prohibited them from
doing so. Matthew also described how Michael shot at Marc with a revolver
while he recorded him and claimed Michael shot at Marc because he crashed
into their Range Rover.
Matthew described in detail the Darryl D. incident to Nicholas E. He
stated he and Michael were driving by a Rite Aid store when Darryl walked
appeal. On October 20, the People filed their opposition, arguing that the
excerpts from that subsequent trial are irrelevant to our consideration of his
Brady contention. On October 26, we issued an order stating that we would
consider Michael’s second request for judicial notice concurrently with his
appeal.
Because, as Michael concedes, all of the documents and excerpts from
the reporter’s transcript submitted with his two requests for judicial notice
reflect actions, discussions, or testimony that occurred after the instant
judgment was entered against him, we now deny his October 4, 2022 and
October 16, 2023 requests for judicial notice. Michael does not show that any
exceptional circumstances exist that would justify our divergence from the
general rule that reviewing courts will not take judicial notice of facts not
presented to the trial court. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a);
Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 625; Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [absent
exceptional circumstances, reviewing courts generally do not take judicial
notice of facts or evidence not presented to the trial court].)
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in front of their car and cursed at them. Later, inside the store, they saw
Darryl again, exchanged words, and a fight occurred. Michael punched
Darryl, who fell to the floor, and Michael hit him one more time. Matthew
asked Nicholas E. to testify at their trial and state that he had witnessed the
incident and that Darryl was responsible for the altercation. Matthew drew a
map of the store for him and gave him a written script for what to say.
Matthew promised to pay him $10,000 for his testimony.
However, after Nicholas E. was released from custody in November
2018, he declined to comply with Matthew’s request. Matthew then
contacted his mother and another inmate to persuade Nicholas E. to comply.
Matthew also wrote a letter to Nicholas E., ordering him to “do what you and
I agreed to do” and suggesting harm would come his way if he did not.
Nicholas E. instead gave the map, script, and letter to law enforcement.
Amended information. On October 26, 2021, a second amended
information was filed, charging both Michael and Matthew with the following
offenses: (1) vandalism of property worth less than $400 (count 1; Pen. Code,
§ 594, subds. (a), (b)(2)(A))7; (2) arson of a structure (count 2; § 451, subd. (c));
(3) arson of property (counts 3 & 4; § 451, subd. (d)); (4) making a criminal
threat (count 6; § 422)); (5) assault by means of force likely to produce great
bodily injury (count 7; § 245, subd. (a)(4)); (5) possession of a firearm by a
felon (count 8; § 29800, subd. (a)(1)); (6) drawing or exhibiting a firearm
(count 9; § 417, subd. (a)(2)); (7) receiving stolen property (count 11; § 496,
subd. (a)); (8) receiving a stolen vehicle (count 12; § 496d)); and (9) attempted
7 All further statutory references are to the Penal Code unless otherwise
specified.
17
extortion (count 13; § 524)).8 The second amended information charged
Michael (but not Matthew) with the additional offenses of: (1) attempted
murder (count 5; §§ 664, 187, subd. (a)); (2) possession of a firearm by a felon
(counts 10 & 14; § 29800, subd. (a)(1)); (3) possession of ammunition by a
prohibited person (count 15; § 30305, subd. (a)(1)); (4) battery of a current or
former significant other (count 16; § 243, subd. (e)(1)); (5) making a criminal
threat (count 17; § 422)); and (6) infliction of corporal injury on a current or
former spouse or roommate (count 18; § 273.5, subd. (a)).
The second amended information further alleged that: (1) in
committing count 2, Michael and Matthew used a device designed to
accelerate the fire (§ 451.1); (2) in committing count 4, Michael was armed
with a firearm and Matthew was vicariously armed with a firearm (§ 12022,
subd. (a)(1)); (3) in committing count 5, Michael intentionally and personally
discharged a firearm (§ 12022.53, subds. (b), (c)); (4) in committing count 7,
Michael personally inflicted great bodily injury on the victim (§§ 1192.7,
subd. (c)(8), 12022.7, subd. (a)); and (5) Michael had one prior serious felony
conviction (§ 667) and one prior strike conviction (§§ 667, subds. (b)-(i),
1170.12).
Trial. At Michael’s and Matthew’s joint jury trial, Michael presented
the defense testimony of an accident reconstruction expert witness to the
effect that Marc had intentionally struck the Range Rover, thereby
supporting an argument that the shooting may have been in self-defense.
The jury found Michael guilty on 15 counts and not guilty on two
counts (i.e., counts 8 & 9), and additionally found true the allegations related
to counts 2, 4, and 5. The jury found Matthew guilty on counts 1, 2, 4, 6, 7,
8 Before the jury began its deliberations, the trial court granted the
defense motion to dismiss, and dismissed, count 3.
18
12, and 13, and additionally found true the allegations related to counts 2
and 4. After Michael waived a jury trial on the prior conviction allegations,
the trial court conducted a bench trial on, and found true, those allegations.
Sentencing. On January 24, 2022, the court sentenced Michael to a
prison term of 56 years and eight months. The court sentenced Matthew to a
prison term of 10 years and eight months. Michael and Matthew filed notices
of appeal challenging their judgments.
DISCUSSION
I
Trial Court Did Not Err by Finding Andrea B.’s Testimony
Was Not Precluded by the Attorney-Client Privilege
Michael and Matthew contend that the trial court erred by finding the
attorney-client privilege did not apply to preclude Andrea B. from testifying
regarding their communications with her.
A
Michael and Matthew filed a joint pretrial motion seeking to exclude
from evidence their conversations with Andrea based on the attorney-client
privilege. Their motion summarized statements they had made to her
between January 2017 and June 2018 and argued those statements were
made in the course of their attorney-client relationship with her. They
argued that after Michael moved to Michigan following his 2015 acquittal,
Andrea offered to help him with anything he needed and thereafter obtained
records for him, which she sent to the probation department, helping him
terminate his probation. She contacted Michael using her personal email
address and asked him to call her at her alternate public defender phone
number. After his arrest, Michael told his mother that Andrea was still his
attorney. During the investigation of the shooting, Michael referred to
Andrea as his attorney and told investigators that it was her decision
19
whether he would allow them to swab his hands for evidence. Also, during
her interview with investigators, Andrea stated that Michael might believe
that she was his attorney. She admitted that she had used legal databases to
gather information for Michael and Matthew, including an inmate locator
tool and PACER. She gathered legal documents and research for them and
regularly checked whether certain individuals were government informants.
Their motion also stated that Andrea had represented Michael in
several traffic cases and Matthew in one traffic case, advised them regarding
a potential libel action against a newspaper, and offered to help them
regarding a rent dispute. She helped them in their dispute with Laura by
contacting law enforcement, filing a request for a restraining order, informing
Michael regarding what crimes Laura may have committed, and, at his
request, calling Laura’s former counsel. In addition, they argued that the
prosecutors had engaged in outrageous government conduct in violation of
their Fifth and Sixth Amendment rights by questioning her regarding their
statements while knowing there was an attorney-client privilege, which
violation required dismissal of all of the charges against them.
In support of their motion, Michael and Matthew submitted various
exhibits, including a letter and documentation regarding Matthew’s plea in
an April 2018 traffic matter and declarations by Michael and Matthew. Their
declarations stated that Andrea had advised them on legal issues and
searched government databases on their behalf and that they would not have
made statements in confidence to her unless she was acting as their attorney.
In opposing their motion, the prosecution noted that Andrea had
represented Michael and another attorney had represented Matthew at their
2015 criminal trial involving charges for kidnapping for ransom, torture, and
other offenses. After they were both acquitted, Michael moved to Michigan,
20
but returned to San Diego in January 2017. Thereafter, Andrea helped
Michael by giving him money, co-signing a lease, renting a storage unit with
him, cleaning their home, and taking care of their dog. She asked Michael to
call her on her personal cellphone and not at her privileged work phone line.
The prosecution asserted that Michael and Matthew never spoke of Andrea
as being their attorney. Instead, Michael asked her to find out which
attorney would be representing him and talk to that attorney. She agreed to
do so as a friend.
The prosecution stated that Andrea had helped Michael and Matthew
with traffic matters, looked up witnesses for Michael, filed a police report
using her personal address and phone number, and, after Michael threatened
her, obtained restraining orders for Michael and herself against Laura. She
also had purchased guns, ammunition, and motorcycle parts for Michael.
However, the prosecution argued that Andrea had initially helped Michael
and Matthew only as a friend and thereafter because she was afraid of them.
It argued that she had not helped the brothers in her capacity as their
attorney. It argued that even if there had been an attorney-client
relationship with the brothers, some of their communications with her would
be admissible under the crime-fraud exception.
Following arguments by the parties, the trial court denied Michael’s
and Matthew’s motion to exclude their statements to Andrea. Citing People
v. Gionis (1995) 9 Cal.4th 1196 (Gionis), the court noted that a person’s
communications with an attorney, even if involving a legal matter, are
generally not protected by the attorney-client privilege if the communications
have no relation to a professional relationship between that person and the
attorney. Under Evidence Code section 952, the court noted that the
attorney-client privilege applies only if a person seeks advice from an
21
attorney in his professional capacity. The court found that Michael and
Matthew had not met their burden to show that their statements to Andrea
were made in the course of an attorney-client relationship within the
meaning of Evidence Code sections 951 and 952. In so finding, the court
considered, inter alia, Andrea’s unequivocal belief that she expressed during
her free talks with the prosecution that there was no attorney-client privilege
that precluded her disclosure of the brothers’ statements to her. The court
also considered threats made by Michael to disclose Andrea’s actions to her
alternate public defender office, which threats may show his tacit
acknowledgement that her actions were improper and could get her fired, and
therefore could be construed as contradicting his claim that he was
legitimately consulting her for a professional legal opinion. Based on its
finding that Andrea did not have an attorney-client relationship with Michael
or Matthew, the court concluded that the attorney-client privilege did not
apply to preclude her testimony regarding statements that they made to her
and therefore her testimony regarding their statements would be admissible
at trial.
B
“The attorney-client privilege, set forth at Evidence Code section 954,
confers a privilege on the client ‘to refuse to disclose, and to prevent another
from disclosing, a confidential communication between client and lawyer. . . .’
The privilege ‘has been a hallmark of Anglo-American jurisprudence for
almost 400 years.’ [Citation.] Its fundamental purpose ‘is to safeguard the
confidential relationship between clients and their attorneys so as to promote
full and open discussion of the facts and tactics surrounding individual legal
matters.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,
732 (Costco). “The party claiming the privilege has the burden of establishing
22
the preliminary facts necessary to support its exercise, i.e., a communication
made in the course of an attorney-client relationship. [Citations.] Once that
party establishes facts necessary to support a prima facie claim of privilege,
the communication is presumed to have been made in confidence and the
opponent of the claim of privilege has the burden of proof to establish the
communication was not confidential or that the privilege does not for other
reasons apply. [Citations.]” (Id. at p. 733.)
As Costco stated, the client holds the privilege to prevent the disclosure
of confidential communications between the client and his or her attorney.
(Costco, supra, 9 Cal.4th at p. 732; Evid. Code, § 954.) Although the client
holds the attorney-client privilege, the client’s attorney has a duty to claim
that privilege on his or her behalf. (Evid. Code, §§ 954, 955.) Evidence Code
section 951 defines a “ ‘client’ ” as “a person who . . . consults a lawyer for the
purpose of retaining the lawyer or securing legal service or advice from him
in his professional capacity . . . .” (Italics added.) Evidence Code section 952
provides that the phrase “ ‘confidential communication between client and
lawyer’ ” means “information transmitted between a client and his or her
lawyer in the course of that relationship and in confidence by a means which,
so far as the client is aware, discloses the information to no third persons . . .
and includes a legal opinion formed and the advice given by the lawyer in the
course of that relationship.” (Italics added.) “[T]he attorney-client privilege
does not require that the attorney actually be retained. ‘[W]here a person
seeks the assistance of an attorney with a view to employing him
professionally, any information acquired by the attorney is privileged
whether or not actual employment results.’ [Citations.]” (Gionis, supra, 9
Cal.4th at p. 1208.) Importantly, “no attorney-client relationship arises for
purposes of the privilege if a person consults an attorney for nonlegal services
23
or advice in the attorney’s capacity as a friend rather than in his or her
professional capacity as an attorney. [Citation.]” (Kerner v. Superior Court
(2012) 206 Cal.App.4th 84, 117 (Kerner).)
“On appeal, the scope of judicial review is limited. ‘When the facts, or
reasonable inferences from the facts, shown in support of or in opposition to
the claim of privilege are in conflict, the determination of whether the
evidence supports one conclusion or the other is for the trial court, and a
reviewing court may not disturb such finding if there is any substantial
evidence to support it [citations].’ [Citation.]” (Gionis, supra, 9 Cal.4th at
p. 1208.)
C
Michael and Matthew contend that the trial court erred by concluding
the attorney-client privilege did not apply to preclude Andrea from testifying
regarding their statements to her. In particular, they argue that substantial
evidence does not support the court’s finding of fact that they did not have an
attorney-client relationship with her at the time they made those statements
to her. We disagree.
Based on our review of the record, we conclude there is substantial
evidence to support the trial court’s finding that Andrea did not have an
attorney-client relationship with either Michael or Matthew from 2016
through 2018 and therefore the attorney-client privilege did not apply to
preclude her testimony regarding their statements to her during that period.
In particular, there is substantial evidence to support the court’s implied
finding that Michael’s and Matthew’s statements were not made to Andrea
for the purpose of retaining her as their lawyer or securing legal service or
advice from her in her professional capacity or otherwise in the course of an
attorney-client relationship within the meaning of Evidence Code section 954,
24
but instead their statements were made to her in the course of some other
relationship (e.g., friendship or personal) and/or for other purposes (e.g., their
coercion of her to take actions on their behalf). (Costco, supra, 9 Cal.4th at
p. 733; cf. Gionis, supra, 9 Cal.4th at p. 1212; Kerner, supra, 206 Cal.App.4th
at p. 117.) As she informed investigators during her free talks, Andrea
represented Michael in his 2015 criminal case during which their
relationship was entirely professional. Thereafter, Michael moved to
Michigan. In December 2016, Michael called Andrea at her office and they
discussed personal, and not legal, matters. After a few calls, Andrea gave
him her personal cellphone number for him to make calls. In January 2017,
Michael returned to San Diego and soon thereafter they began a romantic
relationship.
Michael began to request that Andrea assist Matthew and him by
performing various tasks for them. First, he asked her to find out whether
one of Matthew’s fight victims, known as “Bones,” was on probation or parole.
Without using any of her work resources, Andrea created a PACER account,
but did not find out any useful information from it. Michael also complained
to Andrea that Laura came to his house in order to avoid probation or parole
and, as a result, she ruined his bicycle business. Andrea helped Michael find
another apartment and placed her name on the lease. Also, when Matthew
had a warrant for his arrest, Andrea told him to contact the public defender’s
office to get it recalled.
Andrea performed many personal favors for the brothers, including
giving Michael money to start another bicycle business and giving him
between $1,500 and $2,000 to buy a Subaru, which she placed in her name
and for which she paid the insurance. She bought motorcycle parts for
Michael and paid his gas and electric bills.
25
However, as Andrea told investigators, the reasons for her assistance to
Michael and Matthew transitioned from friendship and romance to, instead,
fear of retaliation by them. In January 2018, after Michael was stabbed by
Robert, Michael told her to buy him ammunition. When she refused, Michael
grabbed her by the hair and pushed her onto the street. Later, outside
Andrea’s home, Michael called her and began smashing her bicycle. He told
her that “if you hear what I’m doing now, that’s gonna be your head because
you’re not helping me” and that he “was gonna go through [her] children’s
heads.”
At Michael’s request, Andrea (presumably as a named lessee and
without identifying herself as an attorney) called Laura’s parole officer after
Michael told her that Laura had broken into his home and thrown trash in
his yard. Andrea later requested a restraining order against Laura to make
Michael believe that her efforts to help him were more genuine. Threatening
to go to Andrea’s work office and harm her children, Michael demanded that
she give him phone numbers for her work supervisor or her husband. Afraid
because of his threats, Andrea instead created a Google voice account and
told him it was her husband’s number.
After Michael used the gun Andrea purchased for him in the shooting
incident, he ordered her to rent a storage unit and threatened that, if she did
not do so, she would get in trouble if the police came to his home. She
complied and rented a storage unit in her name. Also, at Michael’s request,
Andrea reviewed the public Facebook page of a man with whom he was
having issues. When he asked her to do something about the “hit video,”
Andrea told him that he needed to contact the police.
We conclude that the evidence discussed above, along with the other
evidence submitted to the court in support of or in opposition to Michael’s and
26
Matthew’s motion, constitutes substantial evidence to support the court’s
finding that Andrea did not have an attorney-client relationship with either
Michael or Matthew during the January 2017 through June 2018 period. To
the extent Michael and Matthew cite evidence and inferences therefrom that
would have supported a contrary finding, they misconstrue and/or misapply
the substantial evidence standard of review. As discussed above, when the
evidence, or reasonable inferences from the evidence, shown in support of or
in opposition to a claim of attorney-client privilege are in conflict, the
determination of whether the evidence supports one finding or the other is for
the trial court, and a reviewing court may not disturb its finding if there is
any substantial evidence to support it. (Gionis, supra, 9 Cal.4th at p. 1208.)
Substantial evidence is not synonymous with any evidence or a mere
scintilla of evidence, but is only evidence that is of ponderable legal
significance, reasonable in nature, credible, and of solid value.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005–1006.) The testimony of
a single credible witness may constitute substantial evidence. (In re
Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix).) In applying the substantial
evidence standard of review, we accept all evidence, and all reasonable
inferences therefrom, to support the trial court’s finding and do not
determine whether there is substantial evidence to support a contrary
finding. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581–582
(Schmidt).) In deciding a pretrial motion, like at a bench trial, the trial court
is the sole judge of witness credibility and may disregard the testimony,
contradicted or uncontradicted, of any witness if there is any rational ground
for doing so. (Id. at p. 582; People v. Young (2005) 34 Cal.4th 1149, 1181
(Young).)
27
Here, Michael and Matthew cite evidence and inferences therefrom
that arguably would support a contrary finding that they had an attorney-
client relationship with Andrea. In particular, they cite, among other things,
evidence showing that Andrea used her work computers to check for
outstanding warrants, viewed videos of the attempted murder of Marc and
other incidents, and advised them on eviction procedures and libel law.
However, the court could reasonably have inferred that those actions by
Andrea arose strictly out of her friendship with them and/or romantic
relationship with Michael and not out of an attorney-client relationship.
Also, the court could infer that many of her later actions were coerced by
them through acts of violence or threats of violence or other retribution,
causing her to be fearful for herself or others if she did not comply with their
requests, which inference supports its finding. To the extent Matthew notes
that Andrea represented him in traffic and misdemeanor cases, the court
could reasonably infer that those isolated and relatively minor acts were
unrelated to the charged offenses in this case, did not result in any general or
continuing attorney-client relationship between Andrea and him, and/or were
coerced by violence or threats of violence, which inferences support its finding
that the attorney-client privilege did not apply to preclude the admission of
his statements to her. Furthermore, although Michael told his mother in a
July 2018 recorded jail phone call that he always considered Andrea to be his
attorney, that statement alone (whether deemed self-serving or not) does not
refute the trial court’s finding, based on all of the other evidence, that she
was not, in fact, in an attorney-client relationship with him during the
relevant period. In sum, because there is substantial evidence to support the
trial court’s finding that Andrea had no attorney-client relationship with
either Michael or Matthew, the court properly denied their pretrial motion to
28
exclude their communications with her based on an attorney-client
privilege.9 (Evid. Code, § 952; Gionis, supra, 9 Cal.4th at p. 1208; Kerner,
supra, 206 Cal.App.4th at p. 117.)
II
No Outrageous Governmental Conduct
Michael contends, and Matthew joins in his contention, that because he
had an attorney-client relationship with Andrea, the prosecutor and his
investigators committed outrageous governmental conduct by questioning
Andrea during her free talks about his communications with her. However,
because the premise of his contention is faulty, we reject his contention.
A
A criminal defendant’s constitutional due process rights may be
violated if the government “help[s] instigate or orchestrate a breach of the
[attorney-client] privilege.” (People v. Navarro (2006) 138 Cal.App.4th 146,
159 (Navarro).) To prove such a violation, a defendant must show: “(1) the
government objectively knew a lawyer-client relationship existed between the
defendant and its informant; (2) the government deliberately intruded into
that relationship; and (3) the defendant was prejudiced as a result.” (Id. at
p. 160.)
B
Here, Michael’s claim of outrageous governmental conduct was
properly rejected by the trial court because it found that he did not have an
attorney-client relationship with Andrea when he made the purported
9 Contrary to Michael’s and Matthew’s apparent assertion, the trial court
did not rely on any purported “bragging exception” to the attorney-client
privilege in denying their motion. Rather, it denied their motion based on
the absence of an attorney-client relationship at the time their
communications to Andrea were made.
29
privileged communications to her and, as we concluded above, substantial
evidence supports that finding. Therefore, Michael failed to prove any of the
three requirements for outrageous governmental conduct. (Navarro, supra,
138 Cal.App.4th at p. 160.)
III
Denial of Matthew’s Motion to Sever Trial
Matthew contends that the trial court erred by denying his motion to
sever his trial from Michael’s trial or, alternatively, have separate juries for
their joint trial. We disagree.
A
Matthew filed a pretrial motion requesting that the court sever his trial
from Michael’s trial, arguing that Michael might testify at a joint trial and
implicate him, the prosecution’s case against Michael was stronger than
against him, and there was a possibility that he and Michael could pursue
adverse trial strategies. Matthew alternatively requested that the court
empanel separate juries for Michael and him if there were a joint trial.
Matthew argued that a limiting instruction would be inadequate to protect
him from the potential prejudicial effect of a joint trial.
The prosecutor opposed the motion and argued that because the
attempted murder of Marc and many other events involved both Michael and
Matthew and the same witnesses, a joint trial was appropriate even though
some of the charged offenses involved only Michael.
The court denied Matthew’s motion, stating that although his right to a
fair trial was of paramount importance, it was confident that the jurors at a
joint trial would follow its instructions. It noted that most the charged
offenses, and the evidence to prove those offenses, involved both defendants.
The court concluded that the underlying conduct of the charged offenses
30
against Michael only was not so prejudicial as to preclude the jury from
properly considering the evidence on Matthew’s charged offenses. The court
further concluded that separate juries at the joint trial was unnecessary
because it would repeatedly admonish the jury when evidence was admissible
against only one of the defendants.
B
Section 1098 provides:
“When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must
be tried jointly, unless the court order[s] separate trials. In
ordering separate trials, the court in its discretion may
order a separate trial as to one or more defendants, and a
joint trial as to the others, or may order any number of the
defendants to be tried at one trial, and any number of the
others at different trials, or may order a separate trial for
each defendant . . . .”
Section 1098 expresses the Legislature’s preference for joint trials by
providing that two or more defendants jointly charged with crimes must be
tried together unless the court orders separate trials. (People v. Anderson
(2018) 5 Cal.5th 372, 386 (Anderson).) For example, joint trials may be often
preferable when the defendants’ conduct arises out of a single chain of events.
(People v. Silveria and Travis (2020) 10 Cal.5th 195, 242.) “Joint trials
promote efficiency and help avoid inconsistent verdicts.” (People v. Sanchez
(2016) 63 Cal.4th 411, 464 (Sanchez).) Nevertheless, a trial court “has
discretion to order separate trials if there is an incriminating confession,
prejudicial association, likely confusion due to evidence on multiple counts,
conflicting defenses, or the possibility that a codefendant might provide
exonerating testimony at a separate trial. [Citation.] Prejudicial association
might exist ‘if the characteristics or culpability of one or more defendants [is]
such that the jury will find the remaining defendants guilty simply because
31
of their association with a reprehensible person, rather than assessing each
defendant’s individual guilt of the crimes at issue.’ [Citation.]” (Ibid.)
Alternatively stated, a trial court generally should grant a motion to sever if
charges against a codefendant are highly inflammatory or if a relatively weak
case against the defendant is joined with a strong case against a codefendant,
which likely would have a spillover effect in the jury’s determination of the
defendant’s guilt. (People v. Cummings (1993) 4 Cal.4th 1233, 1283; People v.
Soper (2009) 45 Cal.4th 759, 774–775; People v. Mendoza (2000) 24 Cal.4th
130, 161.)
On appeal, we review a trial court’s decision whether to sever a trial of
multiple defendants for abuse of discretion based on the facts as of the time of
its ruling. (Anderson, supra, 5 Cal.5th at pp. 386–387.) If we conclude the
trial court properly denied a motion to sever a trial, we may reverse a
judgment only if we conclude the joint trial caused gross unfairness that
denied due process to the defendant. (Id. at p. 387.)
C
Based on our review of the record as of the time the trial court
considered Matthew’s motion to sever his trial from Michael’s trial, we
conclude the court did not abuse its discretion by denying his severance
motion. Although the trial court had discretion to sever Matthew’s trial, the
court could reasonably conclude that he had not shown the existence of any
circumstances warranting severance of his trial. As discussed above, a trial
court has discretion to order separate trials if there is an incriminating
confession, prejudicial association, likely confusion due to evidence on
multiple counts, conflicting defenses, or the possibility that a codefendant
might provide exonerating testimony at a separate trial. (Sanchez, supra, 63
Cal.4th at pp. 463–464.) First, although Michael made many confessions or
32
other statements that incriminated Matthew (e.g., Michael’s communications
with Andrea regarding many of the incidents), the court could reasonably
conclude that Matthew had not shown that those incriminating confessions or
statements would be inadmissible against him in a separate trial. Rather,
the court presumably concluded that those confessions or other statements
were admissible against Matthew because they were against Michael’s penal
interest. (Evid. Code, § 1230.) To the extent Matthew argues Michael’s
confessions or other statements to Andrea would have been excluded based
on his attorney-client relationship with her, we rejected his argument above
that he had an attorney-client relationship with Andrea and therefore the
attorney-client privilege would not have precluded the admission of
statements made by either Michael or Matthew to her at a separate trial for
Matthew.
Second, the court could reasonably conclude that Matthew did not show
that he would be unfairly prejudiced by his association with Michael at a
joint trial. Here, as reflected in the factual and procedural background
section above, most of the offenses and related incidents in this case involved
both Michael and Matthew. For example, based on the information’s
allegations and evidence submitted in support of or opposition to the parties’
pretrial motions, the court could reasonably conclude that evidence would be
presented at trial showing that Michael and Matthew threw a rock through
Laura’s window, set fires to the auto repair shop and Robert’s truck, received
the stolen $5,000 check from Laura’s mailbox, received Laura’s stolen Range
Rover, attempted to extort property from Laura, threatened Jeshua, and
assaulted Darryl. Given the multitude of common crimes, events, and
victims, the court could reasonably conclude a joint trial was appropriate for
Michael and Matthew and, contrary to Matthew’s assertion, that there was
33
minimal, if any, possibility of a spillover or prejudicial effect against him for
those offenses that were charged against only Michael. Contrary to
Matthew’s apparent assertion, separate trials are not required whenever a
codefendant’s bad acts are admissible. (People v. Mackey (2015) 233
Cal.App.4th 32, 102 (Mackey).) In particular, although only Michael was
charged with the attempted murder of Marc, Matthew’s conduct before and
after Michael’s gunshots in the alley would nevertheless have been
admissible against Matthew in a separate trial. As the evidence admitted at
their joint trial showed, both Michael and Matthew were involved in setting
Robert’s truck on fire and then fleeing in the white Range Rover, which Marc
pursued and followed into the alley. After Michael then fired shots at Marc,
both Michael and Matthew fled together and were later detained by police.
Therefore, even had they been separately tried, the jury presumably would
have learned about the shooting incident. Likewise, while only Michael
physically assaulted Laura, evidence of his conduct could have been admitted
against Matthew at a separate trial to explain the pattern of, and context for,
Michael’s and Matthew’s offenses and other misconduct against Laura. (Cf.
People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1175 [upholding of denial of
severance motion where codefendant’s conduct would likely have been
admitted at defendant’s separate trial to show motive and context for
defendant’s actions].)
Finally, Matthew’s motion did not appear to argue, and the court could
reasonably conclude Matthew had not shown, that he and Michael would
present conflicting defenses at trial or that Michael would have provided
testimony exonerating him if his trial were severed from Michael’s trial.
(Sanchez, supra, 63 Cal.4th at pp. 463–464.) Accordingly, we conclude that
34
the court did not abuse its discretion by denying Matthew’s motion to sever
his trial from Michael’s trial. (Anderson, supra, 5 Cal.5th at pp. 386–387.)
Furthermore, we conclude that Matthew has not carried his burden on
appeal to show the joint trial caused him gross unfairness that denied him
his right to due process. (Anderson, supra, 5 Cal.5th at p. 387.) Based on our
review of the record, there was ample independent evidence to support
Matthew’s convictions, including, among other things, Matthew’s admissions
to Nicholas E., his own text messages, and the testimony of victims of his
crimes. Also, the court admonished the jury that when evidence was
admitted against only one defendant, it must consider that evidence against
only that defendant. Therefore, when certain exhibits were admitted against
only Michael, we presume the jury followed that admonition and did not
consider them in deciding Matthew’s guilt. (People v. Alfaro (2007) 41
Cal.4th 1277, 1326 [reviewing court presumed that jurors followed trial
court’s limiting instructions].) Also, the court gave limiting instructions
when two prosecution witnesses testified regarding only Michael and again in
its jury instructions on conclusion of the trial. We conclude that those
limiting instructions were sufficient to cure any risk of prejudice to Matthew
from evidence admitted at the joint trial regarding only Michael. (Cf. People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Also, because the jury
acquitted Matthew on three counts (counts 8 [possession of a firearm by a
felon], 9 [brandishing a firearm at Laura], and 11 [receiving stolen property]),
we conclude the jury’s verdicts show it carefully differentiated among the
charges and between Michael and Matthew. (Cf. Mackey, supra, 233
Cal.App.4th at p. 105.) Therefore, we conclude that there is no reasonable
probability that Matthew would have obtained a more favorable result at a
separate trial and he was not denied his right to due process or a fair trial.
35
Accordingly, we conclude that the trial court did not abuse its discretion by
denying Matthew’s severance motion (or by denying his mistrial motion
based on its denial of his motion) and, in any event, Matthew has not carried
his burden on appeal to show the joint trial resulted in gross unfairness
which denied him his right to due process or a fair trial.10 (Anderson, supra,
5 Cal.5th at p. 387; People v. Homick (2012) 55 Cal.4th 816, 848.)
IV
Trial Court’s Errors in Excluding Evidence and Improperly Instructing
on Grants of Immunity to Witnesses Were Harmless
Michael and Matthew contend that the trial court prejudicially erred by
excluding evidence that certain witnesses were granted immunity for their
testimony and modifying a jury instruction to omit a grant of immunity as a
factor that the jurors could consider in weighing the credibility of a witness.
The People concede that the court erred as they contend, but argue those
errors were harmless and do not require reversal of their judgments.
A
At trial, outside the presence of the jury, three prosecution witnesses
(i.e., Laura, Marc, and Robert) invoked their Fifth Amendment privilege
against self-incrimination. The court granted each of the three witnesses
immunity regarding their testimony and ordered them to testify. The court
then ordered the parties to not make any reference to the witnesses’
invocation of their Fifth Amendment privilege or its grants of immunity in
questioning them.
10 To the extent Matthew alternatively contends that the trial court
abused its discretion by not granting his request for separate juries at his
joint trial, we conclude he has waived or forfeited that contention because his
appellant’s opening brief does not set forth any substantive legal analysis
showing the court so abused its discretion. (Magic Kitchen LLC v. Good
Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1161.)
36
Outside of the jury’s presence, the court discussed the proposed jury
instructions. In discussing CALCRIM No. 226, Michael’s counsel noted that
the proposed version included whether “the witness [was] promised immunity
or leniency in exchange for his or her testimony,” among the various factors
that the jurors could consider in deciding a witness’s credibility, but that the
court had precluded him from questioning the prosecution’s witnesses
regarding the court’s grants of immunity to them. Because he was precluded
from questioning them regarding grants of immunity, he argued the proposed
instruction would suggest to the jurors that the prosecution’s witnesses had
testified without any grants of immunity. The court inquired whether
counsel wanted the words “immunity or” deleted from the proposed
instruction. Matthew’s counsel stated it was his preference that the
instruction be modified to inform the jury that the witnesses were, in fact,
granted immunity for their testimony, which instruction would be
appropriate so long as defense counsel did not mention those witnesses’
invocations of their Fifth Amendment privilege. However, the court rejected
his suggested modification and instead deleted the words “immunity or” from
its instruction with CALCRIM No. 226.11
11 On conclusion of the trial, the court instructed the jury, among other
things, with its modified version of CALCRIM No. 226 in pertinent part as
follows: “You alone, must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate, use your
common sense and experience. You must judge the testimony of each witness
by the same standards, setting aside any bias or prejudice you may have. [¶]
You may believe all, part, or none of any witness’s testimony. Consider the
testimony of each witness and decide how much of it you believe. [¶] In
evaluating a witness’s testimony, you may consider anything that reasonably
tends to prove or disprove the truth or accuracy of that testimony. Among
the factors you may consider are: [¶] . . . [¶] [ ] Was the witness’s testimony
influenced by a factor such as bias or prejudice, a personal relationship with
37
B
Evidence Code section 913, subdivision (a) provides, among other
things, that neither the trial court nor counsel may comment on a witness’s
exercise of his or her privilege not to testify and a jury may not draw any
inference therefrom as to the credibility of a witness. Pursuant to that
statute, our Supreme Court held that a defendant does not have a right to
compel a witness to exercise his or her Fifth Amendment privilege in the
presence of the jury. (People v. Mincey (1992) 2 Cal.4th 408, 441.) It has also
held that a trial court does not have a duty to instruct a jury that a witness
has exercised that privilege.
Although a witness’s exercise of his or her Fifth Amendment privilege
to not testify may not be disclosed to the jury by the court or counsel, a trial
court’s grants of immunity to witnesses in order to obtain their testimony
may be disclosed to the jury and “considered as evidence of interest or bias in
assessing the credibility of prosecution witnesses.” (People v. Price (1991) 1
Cal.4th 324, 446 (Price).) In particular, on counsel’s request, jury
instructions on considerations regarding the credibility of witnesses should
include the fact that a witness has been granted immunity from prosecution.
(People v. Hampton (1999) 73 Cal.App.4th 710, 721 (Hampton); People v.
Echevarria (1992) 11 Cal.App.4th 444, 450 (Echevarria); but see People v.
Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19 [although jury was informed
of witness’s immunity agreement, jury instruction adequately addressed that
someone involved in the case, or a personal interest in how the case is
decided? [¶] . . . [¶] [ ] Did the witness admit to being untruthful? [¶] [ ] Has
the witness been convicted of a felony? [¶] Has the witness engaged in other
conduct that reflects on his or her believability? [¶] [ ] Was the witness
promised leniency in exchange for his or her testimony?”
38
factor by instructing jurors to consider witness’s “bias, interest, or other
motive”]; People v. Johnsen (2021) 10 Cal.5th 1116, 1158 [same].)
C
Michael and Matthew contend, and the People concede, that the trial
court erred by initially precluding them from questioning Laura, Marc, and
Robert during their trial testimony regarding their grants of immunity and
later instructing the jury with a modified version of CALCRIM No. 226 that
deleted the words “immunity or” in its listing of factors the jury could
consider in evaluating a witness’s credibility. We agree that the court so
erred. Although the court correctly precluded counsel from referring to those
witnesses’ exercise of their Fifth Amendment privilege against self-
incrimination (Evid. Code, § 913, subd. (a)), the court erred by precluding
counsel from questioning those witnesses regarding its grants of immunity to
them in order to obtain their trial testimony. (Price, supra, 1 Cal.4th at
p. 446.) The court further erred by instructing the jury with a modified
version of CALCRIM No. 226 that omitted its grants of immunity to those
witnesses as a factor the jury could consider in evaluating their credibility.
(Hampton, supra, 73 Cal.App.4th at p. 721; Echevarria, supra, 11
Cal.App.4th at p. 450.)
D
Although the trial court erred as discussed above, contrary to Michael’s
and Matthew’s assertion that its errors were prejudicial, we conclude that the
errors were harmless under the applicable standards of review for prejudicial
error. Regarding the court’s error in excluding evidence on its grants of
immunity to the three prosecution witnesses, we apply the standard of
prejudice for nonstructural state law error as set forth in People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). (Cal. Const., art. VI, § 13 [reversal
39
permitted only if error resulted in miscarriage of justice]; Evid. Code, § 354
[erroneous exclusion of evidence is not reversible error unless it resulted in
miscarriage of justice]; People v. Gonzalez (2018) 5 Cal.5th 186, 195; People v.
Anzalone (2013) 56 Cal.4th 545, 554–556 [procedural errors generally
constitute mere trial error and not structural error].) Under that standard,
we will affirm a judgment unless the appellant shows there is a reasonable
probability that he or she would have obtained a more favorable result at
trial in the absence of the error. (Ibid.; People v. Sivongxxay (2017) 3 Cal.5th
151, 178; People v. Hernandez (2011) 51 Cal.4th 733, 746.) Similarly,
reversal is generally not permitted for a nonstructural state law instructional
error that did not result in a miscarriage of justice for which we apply the
Watson standard of prejudice. (Cal. Const., art. VI, § 13; cf. People v.
Breverman (1998) 19 Cal.4th 142, 165, 178 [failure to instruct sua sponte in
noncapital case on lesser included offenses was nonstructural error subject to
Watson standard for prejudicial error].) We reject Michael’s and Matthew’s
conclusory assertion that the court’s errors constituted federal constitutional,
and not state law, errors for which the standard for prejudice under
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) would apply.
As the People argue, the trial court’s errors were harmless because the
three prosecution witnesses were subject to impeachment of their credibility
even in the absence of evidence regarding their grants of immunity. In
particular, Laura admitted she may have engaged in criminal conduct, but
was never charged. She also admitted she had been convicted of a felony
involving moral turpitude and testified that she tried to evade law
enforcement because she was on parole. Likewise, Robert admitted he may
have engaged in criminal conduct, but was never charged. He also admitted
he had been convicted of a felony involving moral turpitude. He also
40
admitted that the prosecution had paid his rent and airfare from
November 1, 2020 through September 1, 2021. Finally, Marc testified that
the police had come to his home several times because he was using and
selling drugs. He also admitted he had been convicted of a felony involving
moral turpitude. Furthermore, as the People note, there was ample evidence
to corroborate the testimony of the three prosecution witnesses (e.g., text
messages sent by Michael and Matthew to Laura, their text messages and
videos sent to each other, the “hit video,” their communications with Andrea,
forensic evidence tying them to the offenses, and Matthew’s jail statements to
Nicholas E.). Therefore, we conclude that the ample evidence impeaching
each of the three witnesses’ credibility and corroborating their testimony
shows that it is not reasonably probable Michael or Matthew would have
obtained more favorable verdicts even if the court had admitted evidence and
allowed questioning on their grants of immunity. (Watson, supra, 46 Cal.2d
at p. 836.)
Regarding the court’s instructional error in deleting the words
“immunity or” from CALCRIM No. 226, we note that its modified instruction
still included as factors in evaluating a witness’s credibility whether the
witness was influenced by bias and whether the witness had been convicted
of a felony. In addition, the court instructed with CALCRIM No. 316, which
allowed the jury to consider a witness’s felony convictions in deciding the
believability of his or her testimony. Because the jury was adequately
instructed on bias and felony convictions in evaluating a witness’s credibility
and because, as discussed above, there was ample evidence corroborating the
testimony of the three witnesses, we conclude that it is not reasonably
probable Michael or Matthew would have obtained more favorable verdicts
41
had the court included the words “immunity or” in its instruction with
CALCRIM No. 226. (Watson, supra, 46 Cal.2d at p. 836.)
V
Exclusion of Evidence on Andrea B.’s Other Relationship
Michael and Matthew contend that the court erred by excluding
evidence regarding a romantic relationship that Andrea had with another
person during the period she had a relationship with Michael. In particular,
they argue that the court should not have precluded them from questioning
Andrea about a relationship she had with Danny D.
A
Before trial, the prosecution filed a motion in limine requesting that
the court preclude defense counsel from questioning Andrea about her
relationship with Danny, whom she had represented in a separate criminal
case. The prosecution argued evidence regarding that relationship was
irrelevant and would constitute inadmissible character evidence. At the
request of defense counsel, the court deferred ruling on that motion until
trial.
During the prosecution’s direct examination of Andrea, out of the jury’s
presence, Michael’s counsel requested that he be allowed to cross-examine
Andrea regarding her relationship with Danny. In support of his request, he
argued that an investigator’s affidavit in support of a warrant asserted there
was probable cause to arrest Andrea based on his belief she may be harboring
Danny, a fugitive. He argued that the fact that Andrea could face criminal
charges related to Danny was one of the reasons that she could have had for
providing information to the prosecution during the free talks. When the
prosecutor argued that Andrea had no knowledge of the warrant, Michael’s
counsel replied that Andrea knew Danny had a warrant for his arrest,
42
provided him with lodging, paid his utility bills, and had sexual relations
with him. Matthew’s counsel agreed with Michael’s counsel and argued that
because Andrea had suggested it was a mistake and out of character for her
to become involved with Michael, the jury should know she simultaneously
was in a relationship with Danny, which would impact her credibility. He
also argued the jury should know that Andrea was a lawyer who violates her
ethical obligations. Because Andrea had placed her character for honesty at
issue, he and Michael’s counsel should be permitted to present evidence to
rebut it.
The court denied their request to cross-examine Andrea regarding
Danny, stating:
“At this point, she hasn’t said this is the only mistake she
made. . . . [¶] She said it [her relationship with Michael]
was a mistake. People make more than one mistake in
their life. She hasn’t said, ‘This is the only mistake I’ve
made. This is the only time I’ve done something improper
or that I’ve regretted.’ So its impeachment value doesn’t
exist yet.”
The court then stated: “At this point it’s [Evidence Code section] 352.” It
indicated that if Andrea were to subsequently testify to something
inconsistent (e.g., that her relationship with Michael was a “one-time thing”
and she had “never done anything like this before”), then her relationship
with Danny may become relevant for impeachment. The court confirmed
that it was also excluding evidence regarding Danny as to Andrea’s motive to
lie to the prosecution because she was facing potential charges of harboring a
fugitive. It excluded that evidence under Evidence Code section 352,
explaining that it was “de minimis compared to the charges she was facing
for all her conduct with the Tellechea brothers.”
43
On conclusion of Andrea’s direct examination, the court requested that
counsel provide written statements on what they anticipated Andrea’s
testimony would be regarding Danny. It noted that Matthew’s counsel had
already submitted an email in which Andrea stated Danny was her
boyfriend, was staying in an apartment with her, and she could add him to
the lease if the landlord desired. The prosecution had submitted Andrea’s
statement denying that she was involved with criminal activity with Danny.
In that statement, Andrea stated she had rented an apartment for Danny in
her name and knew he had an outstanding arrest warrant, but told him to
contact the public defender’s office to get it recalled. She also stated she had
given notice she was vacating the apartment and had terminated its utilities
contract.
Citing People v. Wheeler (1992) 4 Cal.4th 284, the court stated that it
had broad discretion whether to admit specific acts of honesty or moral
turpitude for purposes of impeachment. Asked how evidence on Andrea’s
relationship was admissible, Matthew’s counsel argued that Andrea had
“put[ ] herself out as this honest person, this terribly ethical, never does
anything unethical [person]” and had even told the prosecution that she
never had sexual relations with Danny. He argued that the evidence showed
Andrea was a dishonest person who needed to be impeached. He requested
that the court allow him to ask Andrea one “simple” question: “How many
boyfriends did you have in May of 2018?” Also, Michael’s counsel argued that
he should be allowed to question Andrea about her relationship with Danny
to show she had a motive to lie during the free talks (i.e., because she had
committed another criminal act by harboring Danny, a fugitive).
The prosecutor argued that Andrea’s relationship with Danny would
not have given her a motive to lie and that she had no obligation to report
44
him and, instead, told him to contact the public defender’s office. He also
argued the evidence should excluded under Evidence Code section 352
because it would involve “side issues.”
The court noted that defense counsel already had evidence on which
they could cross-examine Andrea and argue to the jury that she was
dishonest, citing her apparent dishonesty with her office, husband, and
children by not disclosing to them her relationship with Michael and her
other deceitful behavior (e.g., not disclosing her involvement in procuring a
weapon). The court stated that it was focusing on whether under the
Evidence Code and, in particular, Evidence Code section 352, evidence on
Andrea’s relationship with Danny “sheds light on her credibility in a way
that[ ]—the probative value is not substantially outweighed by the waste of
time or sideshow or separate trial.” The court stated that defense counsels’
reasons for allowing them to question Andrea on her relationship with Danny
constituted “frankly, . . . a traditional bad character argument. She’s
immoral. She’s a three-timer. She lies to her children. That’s not a
credibility question. That’s a bad character question of which the Evidence
Code is crystal clear is improper.” Pending subsequent questioning of Andrea
outside of the jury’s presence on the issue, the court noted that the only
possible relevant evidence could be if she states she was living at the
apartment she rented for Danny and, if she so stated, that statement could be
used for impeachment as a prior inconsistent statement and, if she did not so
state, the evidence would be excluded.
During a subsequent break, the court, outside the jury’s presence,
asked Andrea whether she had ever stayed at Danny’s apartment. She
answered, “No.”
45
B
Evidence Code section 780 provides: “Except as otherwise provided by
statute, the . . . jury may consider in determining the credibility of a witness
any matter that has any tendency in reason to prove or disprove the
truthfulness of his [or her] testimony at the hearing, including but not
limited to any of the following: [¶] . . . [¶] (e) His character for honesty or
veracity or their opposites. . . .” Even if evidence is relevant or otherwise
admissible, a trial court has “discretion to exclude [that evidence] under
Evidence Code section 352 ‘if its probative value is substantially outweighed
by the probability that its admission will . . . necessitate undue consumption
of time or . . . create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.’ ” (People v. Dalton (2019) 7 Cal.5th 166,
214 (Dalton).)
C
Based on our review of the record, we conclude, contrary to the
arguments of Michael and Matthew, that the trial court did not err by
excluding evidence on Andrea’s relationship with Danny. In particular, we
conclude the court did not abuse its discretion under Evidence Code section
352 by excluding that evidence. The court could reasonably conclude that
any probative value of evidence on Andrea’s relationship with Danny would
be substantially outweighed by the probability that its admission would
necessitate undue consumption of time or create a substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury. (Evid.
Code, § 352; Dalton, supra, 7 Cal.5th at p. 214.) The record shows the court
expressly weighed the various Evidence Code section 352 factors in making
its ruling to exclude the evidence. For example, it cited Evidence Code
section 352 in implying that her relationship with Danny would not have
46
significant probative value in impeaching Andrea unless she were to testify
inconsistently with her prior statements (e.g., if she were to testify that her
relationship with Michael was a “one-time thing” and she had “never done
anything like this before”). The court also weighed the “de minimis”
probative value of evidence that she may have known she was harboring a
fugitive (i.e., Danny) against the charges she was facing for her conduct
related to the Tellechea brothers. The court also presumably weighed the
minimal probative value of evidence on her relationship with Danny against
other probative evidence on which defense counsel could cross-examine
Andrea and argue to the jury that she was dishonest (e.g., her apparent
dishonesty with her office, husband, and children by not disclosing to them
her relationship with Michael and her other deceitful behavior). Importantly,
the court concluded that under Evidence Code section 352 the probative value
of evidence on Andrea’s relationship with Danny regarding her credibility
was “not substantially outweighed by the waste of time or sideshow or
separate trial.” Therefore, the court, in effect, found that the probative value
of evidence on her relationship with Danny (e.g., to show her dishonesty
and/or motive to lie during the free talks) was substantially outweighed by
the probability that its admission would necessitate undue consumption of
time and/or create a substantial danger of confusing the issues or misleading
the jury. (Evid. Code, § 352.) By weighing the relevant factors under
Evidence Code section 352 and excluding evidence on Andrea’s relationship
with Danny, we conclude the court did not act in an arbitrary, capricious, or
patently absurd manner. (Dalton, supra, 7 Cal.5th at p. 214; People v. Miles
(2020) 9 Cal.5th 513, 587–588 [abuse of discretion standard of review applied
to Evidence Code section 352 ruling].) The court reasonably concluded that it
would take an inordinate amount of time and/or would confuse the jury if
47
evidence on Andrea’s relationship with Danny were admitted and, weighing
those factors against the minimal probative value of that evidence, properly
exercised its discretion under Evidence Code section 352 to exclude that
evidence.
Neither Michael nor Matthew carries his burden on appeal to persuade
us that the court abused its discretion by excluding evidence on Andrea’s
relationship with Danny. In particular, we do not accept Michael’s assertion
that her relationship with Danny would necessarily have been covered with
only a couple of short questions on cross-examination because the prosecution
presumably would then need to place that relationship in context.
Furthermore, contrary to his assertion, we conclude the court did not violate
his Sixth Amendment right to confront Andrea when it properly exercised its
discretion to exclude evidence on her relationship with Danny. (Cf. People v.
Frye (1998) 18 Cal.4th 894, 946; People v. Belmontes (1988) 45 Cal.3d 744,
780; Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679.) Accordingly, we
conclude that the court did not err by excluding evidence on Andrea’s
relationship with Danny.
VI
No Prosecutorial Error
Michael and Matthew contend that the prosecutor prejudicially erred
by: (1) showing during his opening statement a slide that displayed the words
“felons in possession” adjacent to their photographs; and (2) offering in
evidence an exhibit (exh. 36) that displayed their photographs adjacent to two
screen shots from a video recording showing two individuals fleeing from
Laura’s burning vehicle.
48
A
During his opening statement (which was not reported and therefore is
not part of the record on appeal), the prosecutor apparently displayed for the
jury a slide showing photographs of Michael and Matthew with the words
“felons in possession” adjacent to their photographs. During a subsequent
break during the trial, Matthew’s counsel, outside the presence of the jury,
moved for a mistrial on the ground that the prosecutor had shown in large
print on the monitor that Matthew and Michael had been charged with being
felons in possession. He argued that based on the trial court’s pretrial ruling,
the prosecutor should not have referred to evidence on those charges or the
fact the defendants were felons. As an alternative to a mistrial, he requested
that the court sever Matthew’s trial from Michael’s trial because only Michael
had been charged for being a felon in possession.
The court initially replied that what the attorneys stated and displayed
during their opening statements was not evidence. It also stated that defense
counsel had previously delayed addressing the prosecutor’s argument on the
felon-in-possession charges, thereby preventing it from ruling on it. In
response, Matthew’s counsel argued that it was the court’s responsibility to
make rulings on admission of evidence. He argued that the prosecutor was
aware of the court’s pretrial ruling precluding him from telling the jury about
the fact that Matthew and Michael had prior felony convictions.
The court noted that it “was not happy” to see the prosecutor’s screen
with the word “felon” on it. It further noted that the issue of evidence
regarding the defendants’ felon status “was an unsettled issue” at the time of
the prosecutor’s opening statement. It then ruled on the pending in limine
motion, concluding that if Michael and Matthew stipulated to their felon
status, the jury would not learn about the nature of their prior felony
49
offenses, but the jury could still learn they had prior felony convictions.
Matthew’s counsel argued the jury nevertheless should not have seen the
words “felon[s] in possession” during the prosecutor’s opening statement. He
argued the jury had been “poisoned” and there was “no way to unring the
bell.” The court replied that admissions of felony convictions would not
preclude the jury from learning about their felony convictions, which was an
element the prosecutor needed to prove. Accordingly, it denied the motion for
a mistrial. Later during the trial, Michael and Matthew stipulated that they
had been convicted of felony offenses.
B
During Andrea’s trial testimony, the prosecutor showed her exhibit 36,
which consisted of a slide with three portions. On the left side, an image of
both Michael and Matthew from one of their social media accounts was
shown, and in the middle and on the right side, two screen shots from a
surveillance camera video recording were shown with individuals running
from Laura’s burning vehicle. When asked, Andrea confirmed that the screen
shot on the left side was the same or similar to a video Matthew had sent her.
She testified that it showed Michael and Matthew laughing and flashing
lights from fire trucks visible in the background.
Two days later, Matthew’s counsel moved for a mistrial, arguing that
exhibit 36 was unduly prejudicial. The court noted that exhibit 36 had been
part of the prosecutor’s exhibit binder that the court had received weeks
before trial and no objections had been made to it. The prosecutor argued
that exhibit 36 was proper because it allowed the jury to compare the
clothing that Michael and Matthew had worn that morning to the clothing
worn by the unidentified individuals depicted in the surveillance recording
screen shot. Reminding counsel that they should have made any objections
50
to the exhibits during its consideration of the in limine motions, the court
nevertheless concluded that exhibit 36 was not improper because it was
appropriate to allow the jury to compare the clothing worn by Michael and
Matthew with the clothing worn by the individuals running from the scene of
the fire and then decide whether Michael and Matthew were those
individuals. The court then denied the motion for a mistrial.
C
“A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make
the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” (People v.
Morales (2001) 25 Cal.4th 34, 44 (Morales).) To preserve a claim of
prosecutorial misconduct or error, a defendant must timely object and
request a curative admonition unless an admonition would not have cured
the harm caused by the misconduct or error. (People v. Hinton (2006) 37
Cal.4th 839, 863 (Hinton); People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).)
“As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” (People v. Samayoa (1997) 15
Cal.4th 795, 841 (Samayoa).) However, “[a] defendant will be excused from
the requirement of making a timely objection and/or a request for an
admonition if either would have been futile. [Citation.] In addition, the
failure to request that the jury be admonished does not forfeit the issue for
appeal if an admonition would not have cured the harm caused by the
51
misconduct or the trial court immediately overrules an objection to alleged
misconduct such that the defendant has no opportunity to make such a
request.” (People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole).)
Absent a fundamentally unfair trial under the federal Constitution,
prosecutorial misconduct or error does not require reversal of the judgment
unless it was prejudicial under state law, i.e., it is reasonably probable the
defendant would have obtained a more favorable verdict absent the
misconduct or error. (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew);
People v. Bell (1989) 49 Cal.3d 502, 534, 542 (Bell); People v. Castillo (2008)
168 Cal.App.4th 364, 386 (Castillo).) If the prosecutorial misconduct or error
renders the defendant’s trial fundamentally unfair under the federal
Constitution, reversal of the judgment is required unless the misconduct or
error is harmless beyond a reasonable doubt. (Castillo, at pp. 386–387;
People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323–1324.)
D
We conclude that Michael and Matthew waived or forfeited their claim
of prosecutorial misconduct regarding the prosecutor’s display during his
opening statement of a slide bearing the words “felons in possession” adjacent
to their photographs because they did not timely object to that display and
request a curative admonition. (Hinton, supra, 37 Cal.4th at p. 863; People v.
Guerra (2006) 37 Cal.4th 1067, 1124 (Guerra); Earp, supra, 20 Cal.4th at
p. 858; Samayoa, supra, 15 Cal.4th at p. 841.) The record shows that an
objection was not made until a subsequent break during the testimony of the
prosecution’s third witness, which was long after the prosecutor had
displayed the slide during his opening statement. And then when Matthew’s
counsel finally objected to the slide, he sought only a mistrial and did not
request a curative admonition. We conclude that by not timely objecting to
52
the prosecutor’s display of the challenged slide and not timely requesting a
curative admonition, Michael and Matthew waived or forfeited any purported
prosecutorial misconduct or error related to its display. (Hinton, at p. 863;
Guerra, at p. 1124; Earp, at p. 858; Samayoa, at p. 841.)
Nevertheless, assuming arguendo that they did not waive or forfeit
their claim, we conclude, contrary to their assertion, that the prosecutor’s
display of that slide did not deprive them of a fundamentally fair trial under
the federal Constitution (i.e., it did not infect the trial with such unfairness
as to make their convictions denials of due process). (Morales, supra, 25
Cal.4th at p. 44.) They received a jury trial, were allowed to and did cross-
examine witnesses against them, were allowed to and did present the
testimony of witnesses and evidence in their defense, and were not denied
any of the other rights to which a criminal defendant is entitled under the
federal Constitution. They do not persuade otherwise.
We further conclude that any error by the prosecutor in displaying the
slide did not constitute prosecutorial misconduct or error under the state
standard (i.e., it did not involve the use of deceptive or reprehensible methods
to attempt to persuade either the trial court or the jury). (Morales, supra, 25
Cal.4th at p. 44.) Based on our review of the record, it appears that the
prosecutor, contrary to the trial court’s pretrial ruling, mistakenly failed to
remove the words “felons in possession” from the slide with the photographs
of Michael and Matthew shown during his opening statement. Absent any
affirmative evidence showing otherwise, we infer that the prosecutor’s
mistake was merely an oversight and did not constitute the use of deceptive
or reprehensible methods to attempt to persuade the jury. (Ibid.) Therefore,
the prosecutor’s challenged conduct in showing the slide did not constitute
prosecutorial misconduct or error under state law. (Ibid.) Finally, we
53
conclude that any such purported prosecutorial misconduct or error under
state law did not prejudice either Michael or Matthew because it is not
reasonably probable either of them would have obtained a more favorable
verdict absent the misconduct or error. (Crew, supra, 31 Cal.4th at p. 839;
Bell, supra, 49 Cal.3d at pp. 534, 542; Castillo, supra, 168 Cal.App.4th at
p. 386.) As the trial court implied in denying Matthew’s motion for a
mistrial, it had instructed the jury that nothing in counsels’ opening
statements was evidence. The record shows that before opening statements,
the court instructed the jury as follows: “[W]hat the attorneys say is not
evidence. That doesn’t mean it’s not important, but it does mean it is not
evidence. So it offers no information that you can apply in your tasks of
looking at the crimes and the elements of the offenses, et cetera.”
Furthermore, its jury instructions at the close of the trial included CALCRIM
No. 222, which stated in part: “ ‘Evidence’ is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else I told you to
consider as evidence. [¶] Nothing that the attorneys say is evidence. In
their opening statements and closing arguments, the attorneys discuss the
case, but their remarks are not evidence. . . .” We presume the jurors
followed those instructions and, in so doing, did not consider anything the
prosecutor stated or displayed during his opening statement to be evidence
which they could consider in deciding Michael’s or Matthew’s guilt of the
charged offenses. Accordingly, we presume the jurors did not consider the
words “felons in possession” shown on the slide with their photographs as
evidence in reaching their verdicts. Therefore, we conclude it is not
reasonably probable they would have obtained more favorable verdicts had
those words been deleted from that slide and, based thereon, conclude there
54
was no reversible prosecutorial misconduct or error under state law. (Crew,
at p. 839; Bell, at pp. 534, 542; Castillo, at p. 386.)
E
We likewise conclude that Michael and Matthew waived or forfeited
their claim of prosecutorial misconduct regarding the prosecutor’s offer of
exhibit 36 into evidence because they did not timely object to admission of
that exhibit and request a curative admonition. (Hinton, supra, 37 Cal.4th at
p. 863; Guerra, supra, 37 Cal.4th at p. 1124; Earp, supra, 20 Cal.4th at
p. 858; Samayoa, supra, 15 Cal.4th at p. 841.) As discussed above, without
any objection by Michael or Matthew, the prosecutor showed Andrea exhibit
36, which consisted of a slide with three portions. She described what was
depicted on that slide and the video that Matthew had sent to her. It was not
until two days later that Matthew’s counsel moved for a mistrial, arguing
that exhibit 36 was unduly prejudicial. The court noted that exhibit 36 had
been part of the prosecutor’s exhibit binder that the court had received weeks
before trial and no objections had been made to it. We conclude that by not
timely objecting to exhibit 36 either before trial or at the time the prosecutor
presented it to Andrea, Michael and Matthew waived or forfeited any
purported prosecutorial misconduct or error related to the admission of that
exhibit. (Hinton, at p. 863; Guerra, at p. 1124; Earp, at p. 858; Samayoa, at
p. 841.)
Nevertheless, assuming arguendo that they did not waive or forfeit
their claim, we conclude, contrary to their assertion, that the prosecutor’s
display of that slide did not deprive them of a fundamentally fair trial under
the federal Constitution (i.e., it did not infect the trial with such unfairness
as to make their convictions denials of due process). (Morales, supra, 25
Cal.4th at p. 44.) As the People argue, exhibit 36 was not improper and the
55
prosecutor did not err by offering it into evidence. Michael and Matthew do
not appear to argue that each of the three portions of exhibit 36 could not
have been properly admitted into evidence had they been separated into
three separate exhibits. On the contrary, viewed separately, we conclude
each of those portions would have been properly admitted as independent
exhibits. And if those three exhibits had been admitted in evidence, the
prosecutor would have been able to properly show those three exhibits to
Andrea and ask her to discuss them and then argue in closing that the jury
should compare the three exhibits in determining whether Michael and
Matthew were the individuals shown in the screen shot from the surveillance
video recording. Because the prosecutor could have properly done with three
separate exhibits what he actually did with one combination exhibit, we
conclude he did not: (1) deprive them of a fundamentally fair trial under the
federal Constitution (i.e., it did not infect the trial with such unfairness as to
make their convictions denials of due process); or (2) commit prosecutorial
misconduct or error under the state law standard (i.e., it did not involve the
use of deceptive or reprehensible methods to attempt to persuade the jury).
(Ibid.) Michael and Matthew do not persuade us to reach a contrary
conclusion. Because the prosecutor did not commit error in offering exhibit
36, we need not, and do not, address the question of whether they were
prejudiced by that error under either the federal standard or state law
standard.
VII
Substantial Evidence Supports Matthew’s Section 496d Conviction
Matthew contends that substantial evidence does not support his
conviction of receiving a stolen vehicle (§ 496d). In particular, he argues
there is insufficient evidence to support findings that he knew the vehicle
56
(i.e., Laura’s white Range Rover) was stolen and that he was in possession of
it.
A
Section 496d, subdivision (a) provides: “Every person who buys or
receives any motor vehicle . . . that has been stolen or that has been obtained
in any manner constituting theft or extortion, knowing the property to be
stolen or obtained, or who conceals, sells, withholds, or aids in concealing,
selling, or withholding any motor vehicle . . . from the owner, knowing the
property to be so stolen or obtained, shall be punished . . . .” (Italics added.)
“To sustain a conviction for receiving stolen property, the prosecution must
prove: (1) the property was stolen; (2) the defendant knew the property was
stolen . . . ; and, (3) the defendant had possession of the stolen property.”
(People v. Russell (2006) 144 Cal.App.4th 1415, 1425, italics added.) “[T]he
second element of the offense is knowledge that the property was stolen,
which is a specific mental state.” (Ibid.) Therefore, if the defendant received
a stolen vehicle by mistake without knowing it was stolen, that defendant
lacks the required mental state of knowledge and cannot be convicted of
receiving a stolen vehicle. (Id. at p. 1427.) “The elements of receipt of stolen
property . . . do not require the defendant to have engaged in” taking of that
property. (People v. Orozco (2020) 9 Cal.5th 111, 121–122.)
As discussed above, substantial evidence is not synonymous with any
evidence or a mere scintilla of evidence, but is only evidence that is of
ponderable legal significance, reasonable in nature, credible, and of solid
value. (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1005–1006.) The
testimony of a single credible witness may constitute substantial evidence.
(Mix, supra, 14 Cal.3d at p. 614.) In applying the substantial evidence
standard of review, we accept all evidence, and all reasonable inferences
57
therefrom, to support the jury’s finding and do not determine whether there
is substantial evidence to support a contrary finding. (Schmidt, supra, 44
Cal.App.5th at pp. 581–582.)
B
In arguing that substantial evidence does not support his section 496d
conviction of receiving a stolen vehicle, Matthew argues there is insufficient
evidence to support the second element of knowledge and third element of
possession. However, in so arguing, he cites evidence and inferences
therefrom that would have supported contrary findings that he did not know
Laura’s white Range Rover was stolen and that he did not possess it. In
particular, he summarizes Laura’s trial testimony and then argues that she
“was not a reliable witness and her testimony was inconsistent,” citing the
fact that she did not report her stolen vehicle to police. He also argues the
evidence showed that Michael, and not he, was in possession of Laura’s
Range Rover. By so arguing, he misconstrues and/or misapplies the
substantial evidence standard of review. In applying the substantial
evidence standard of review, we accept all evidence, and all reasonable
inferences therefrom, to support the jury’s findings and do not determine
whether there is substantial evidence to support contrary findings. (Schmidt,
supra, 44 Cal.App.5th at pp. 581–582.) Based on our review of the record, we
conclude there is substantial evidence to support Matthew’s section 496d
conviction, including underlying findings by the jury that he knew Laura’s
white Range Rover was stolen and that he possessed it or withheld it from
her. In particular, Laura testified that in December 2017 she bought a white
Range Rover for herself and a blue Range Rover for Matthew, the price for
which he was to pay her back. She testified that she left her white Range
Rover at the dealership for repairs and a few days later, Michael or Matthew
58
picked it up from the dealership and Michael began driving it. Later in
December, Laura sent Matthew a text message stating that she wanted her
Range Rover back. Matthew replied that Michael, and not he, had the white
Range Rover, but he stated he would get it to her. On December 17, 2017,
Matthew sent Michael a text message in which he stated in part: “[Laura]
sent me rat text about you treating [sic] her life and wanting her Rover back
now. I will forward the text messages to you. Mikey, seriously, drop that
rat’s car back ASAP.”
On February 21, 2018, Laura sent a text message to Matthew, stating:
“I want my car back.” Matthew replied by text: “[Y]ou think you got it like
that LOL, LOL. You already know what the deal is. Also you dumb fuck.
Those pearly gates are screaming for you.” Later that day, Laura sent text
messages to Matthew, stating: “ ‘Your brother picked up my vehicle from the
dealership without my permission, and I still have not received it.’ ” and “ ‘I
want my car, skateboard, and chairs.’ ” The following day, Matthew replied
by text: “You’re a crazy bitch. You’re nuts. You owe me [$]66,000 in cash for
hit-for-hire [video],” and “I have nothing that belongs to you.” Laura replied
in part: “I do own a Rover. I have the title and key, and your brother picked
it up without my permission,” and “Are you telling me I owe you money for
the repairs you got without my permission on my vehicle, the Rover, and
telling me we need to talk about your meetings and money to get my vehicle
back is extortion and also illegal. I want my property back.” Matthew
replied: “Fuck you, bitch.” In sum, the above evidence, along with other
evidence admitted at trial, constitutes substantial evidence to support
Matthew’s section 496d conviction, including underlying findings by the jury
that Laura’s white Range Rover was stolen, that Matthew knew her white
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Range Rover was stolen, and that he possessed it or withheld it from her.
Matthew has not carried his burden on appeal to persuade us otherwise.
VIII
The Prosecutor Did Not Commit Any Brady Error
Michael contends, and Matthew joins in his contention, that the
prosecutor erred under Brady, supra, 373 U.S. 83, by not disclosing to him
the entire video recording of the shooting incident, which recording was made
by their home surveillance camera. However, in so arguing, they merely
speculate, and do not show, that the prosecution or its investigators
possessed a copy of that video recording and withheld it from them, except for
a screen shot from that video recording.
A
During Andrea’s free talks, she told investigators that Michael had told
her about the shooting incident regarding Marc and had shown her a video
taken from his surveillance equipment, stating Michael thought the video
would be helpful to him. Andrea stated that she tried to load the video
recording onto a blank USB drive, but was unsuccessful in doing so.
At Michael’s and Matthew’s preliminary hearing, Matthew’s counsel
stated that he needed to view the video recording. The prosecutor replied
that Andrea’s reference to the video recording was to the recording taken by
Michael’s and Matthew’s home surveillance equipment, which had been
downloaded and provided to them in discovery. Michael’s counsel stated it
was his understanding that Andrea had copied the video recording footage
onto her cell phone and because it might be exculpatory, they should receive
it. Matthew’s counsel stated that the video recording provided to him by the
prosecution was only for the month of June because, according to Andrea, the
home surveillance video recordings were deleted after 30 days. He further
60
stated that when he requested additional footage from the prosecutor, the
prosecutor explained that he had only a picture of a video clip and the video
recording was gone. Matthew’s counsel asserted that Andrea either had a
copy of the video recording or took a video of the video recording on her
phone. The prosecutor disagreed, stating that Andrea had never stated she
recorded the video, but only that she saw the video on Michael’s and
Matthew’s surveillance equipment. The prosecutor represented to the court
that his investigators had downloaded everything that was on the
surveillance equipment and provided that download to defense counsel. The
court requested, and the prosecutor agreed to ask, that the discovery special
master review all of the video files to determine whether the video recording
in question existed.12
At trial, Andrea testified that Michael and Matthew had a “pretty
sophisticated surveillance” system. She further testified that the
surveillance system did not save any video recordings. She stated that she
believed the still image shown on exhibit 64 had been taken from the video
recording footage. She then described what she recalled seeing on the video
recording about the locations of the white Range Rover and Marc’s Cadillac
at the time of the shooting.
After the jury returned its verdicts, Michael’s counsel filed a motion for
a new trial, asserting, among other things, that the prosecution’s
investigators (i.e., the San Diego County District Attorney’s Digital
Investigation Division, or “CATCH” team) had been in possession of the video
recording of the shooting incident all along and because the prosecution
committed Brady error, Michael should be given a new trial so a defense
12 The People represent that the record does not include any further
information regarding that request or whether the discovery special master
reviewed all of the video files and, if so, what he or she found.
61
forensic expert could review the actual surveillance equipment to determine
whether there was footage containing exculpatory material.
The prosecutor responded that a thumb drive had been recovered from
the defendants’ possession and the prosecution had copied it and given a copy
to their counsel in October 2018. The prosecutor represented to the court
that the thumb drive contained only one second of the video, which was
offered in evidence as exhibit 64. The prosecutor represented that the
surveillance equipment had also been recovered and its data was duplicated
and turned over to defense counsel years before trial. Although defense
counsel initially indicated that they were interested in retaining an expert,
they later stated they would rather have their investigator meet with a
member of the CATCH team, and, then shortly before trial, they obtained the
equipment to examine it themselves. He represented that there had been no
indication that anything would be recovered from the surveillance equipment
and argued it was pure speculation by defense counsel that there would be.
The court noted that exhibit 64 was a screen shot from the video
recording and not a portion of the recording itself and that the prosecution
did not have the original video recording. It stated that the issue for it to
decide was a factual question of whether the original video recording was still
in existence. An expert’s opinion that the recording “might be” in existence
was not terribly compelling to the court. It further stated that Michael and
Matthew were the only persons who knew whether the original video
recording had been erased or destroyed. After hearing arguments by counsel,
the court denied the motion for new trial.
B
62
Under Brady, supra, 373 U.S. 83, and its progeny, “the prosecution has
a constitutional duty to disclose to the defense material exculpatory evidence,
including potential impeaching evidence. The duty extends to evidence
known to others acting on the prosecution’s behalf, including the police.”
(People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709 (Johnson).)
“For Brady purposes, evidence is material if it is reasonably probable its
disclosure would alter the outcome of trial.” (Id. at pp. 709–710.) “There are
three components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” (Strickler v.
Greene (1999) 527 U.S. 263, 281–282 (Strickler).) On appeal, it is the
appellant’s burden to show a Brady violation. (Id. at p. 289.) We
independently review the record in determining whether there was a Brady
violation, but, in so doing, give great weight to the trial court’s findings that
are supported by substantial evidence. (People v. Masters (2016) 62 Cal.4th
1019, 1067 (Masters).)
C
Contrary to Michael’s and Matthew’s assertion, the record does not
support a reasonable inference that any video recording of the shooting
incident existed on their home surveillance system when it was recovered
during a search of their home. At the hearing on their motion for new trial,
the prosecutor represented to the court that he had possessed only the screen
shot taken on Andrea’s phone (i.e., exhibit 64) when she viewed the video
recording shortly after the shooting incident. At the preliminary hearing,
Matthew’s counsel represented that their surveillance system deleted video
recordings after 30 days. Because the shooting incident occurred on April 5,
63
2018, and Michael was not arrested until late June 2018 (about 11 weeks
later), the video recording of the shooting incident presumably would have
been deleted by that time. Also at trial, Andrea testified that Michael had
played the video recording for her and the surveillance system had not saved
that recording. Finally, the trial court implicitly, if not expressly, found that
no such video recording existed at the time the home surveillance system was
recovered and substantial evidence supports that finding, which we give
great weight in our determination. (Masters, supra, 62 Cal.4th at p. 1067.)
Michael and Matthew have not cited any evidence showing that the
prosecution or its agents were ever in possession of a video recording of the
shooting incident. In his opening appellant’s brief, Michael even concedes: “It
is possible that no mischief occurred here, and that what actually existed was
a single screenshot of the alley found on the thumb drive[.]” We conclude
that Michael’s mere speculation that a video recording may have existed on
his home surveillance system when it was recovered by law enforcement and
that the prosecution or its agents may have possessed that recording and
failed to produce it in discovery is insufficient to carry his burden to prove a
Brady violation occurred. Furthermore, his assertion that the circumstances
surrounding the deletion of video recording were “suspicious” is likewise
insufficient to support his request that his convictions be reversed and a
hearing be held on whether a defense forensic expert could attempt to recover
any video recordings from the home surveillance system. As the People note,
a defense expert admitted in his declaration that he had access to the home
surveillance system long before the trial began, but did not conduct a forensic
examination of it due to other “administrative” duties. That expert further
indicated that he was unable to determine with any degree of certainty
whether video recording footage could, in fact, be recovered from the system.
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“Because it appears that no evidence was in fact ‘suppressed’ and that
defense counsel had adequate time to conduct additional investigation,
[Michael’s and Matthew’s] Brady claim is without merit.” (People v. Williams
(2013) 58 Cal.4th 197, 257–258.) In sum, we conclude that Michael and
Matthew have failed to carry their burden to prove that there was a Brady
violation by the prosecution by not disclosing a video recording of the
shooting incident which purportedly existed on their home surveillance
system at the time it was recovered and possessed by the prosecution or its
agents. (Ibid.; Johnson, supra, 61 Cal.4th at p. 709; Strickler, supra, 527
U.S. at pp. 281–282.)
IX
Trial Court Did Not Abuse Its Discretion by Allowing
Matthew’s Niece to Read a Letter at His Sentencing
Matthew contends that the trial court prejudicially erred by allowing
his niece to read a letter at his sentencing in which she described his sexual
abuse of her as a child. He argues her letter should have been excluded as
irrelevant and inflammatory evidence.
A
At Matthew’s sentencing, Matthew submitted evidence in mitigation,
including letters from family members and friends describing his difficult
childhood and stating that he was a kind and loving person (e.g., he was
“considerate of others” and was a “loving young [man]”). Matthew also spoke
at his sentencing, stating: “I never hurt anybody, I never did any violence.”
Overruling an objection by Matthew’s counsel, the trial court allowed
his niece to read a letter that she had submitted to the court before his
sentencing. In that letter, she stated that about 10 years earlier when she
was 13 years old, Matthew manipulated her and forced her to kiss and touch
him inappropriately. She asked the court to sentence him to the maximum
65
punishment for what he had done in order to protect any future victims of
Matthew if he were to be released from custody.
B
As Matthew concedes, sentencing courts have wide discretion in
weighing aggravating and mitigating factors. (People v. Avalos (1996) 47
Cal.App.4th 1569, 1582.) In particular, the court may consider whether a
defendant poses a danger to society, as well as any other factors statutorily
declared to be circumstances in aggravation or which reasonably relate to the
defendant. (Cal. Rules of Court, rule 4.421(b)(1), (c).) In particular, a
sentencing court may consider whether a “defendant has engaged in violent
conduct that indicates a serious danger to society.” (Cal. Rule of Court, rule
4.421(b)(1).) However, at least in capital cases, evidence of a defendant’s
background, character, or conduct that is not probative of any specific
sentencing factor is irrelevant and inadmissible. (People v. Nelson (2011) 51
Cal.4th 198, 222 (Nelson).) Nonetheless, evidence offered as rebuttal to
defense evidence in mitigation need not relate to any specific aggravating
factor. (Id. at pp. 222–223.)
C
Contrary to Matthew’s assertion, the trial court properly exercised its
discretion by allowing his niece to read her letter at his sentencing.
Specifically, the court could reasonably conclude that her letter described
conduct by Matthew that rebutted his mitigating evidence that he was
considerate of others, a loving young man, and had never hurt anybody.
Nelson, supra, 51 Cal.4th at pp. 222–223.) By allowing such rebuttal
evidence, the court did not abuse its discretion at his sentencing.
In any event, Matthew has not carried his burden on appeal to show
that the court’s purported error was prejudicial (i.e., it is reasonably probable
66
that he would have obtained a more favorable result had that evidence been
excluded). When the court admitted the niece’s letter in evidence, it
reminded Matthew’s counsel that it was familiar with the California Rules of
Court and relevance requirements and assured him it would make its
sentencing decision within those parameters. Although the court noted there
was “a good argument” for it to impose the upper term, it ultimately imposed
only the middle term sentence on Matthew’s base offense (arson of property).
Matthew does not show it is reasonably probable the court would have
imposed a lesser sentence had it excluded his niece’s letter. (People v.
Sanchez (1994) 23 Cal.App.4th 1680, 1684.)
X
No Cumulative Prejudicial Error
Because, as we have concluded above, the trial court erred only
regarding its failure to instruct the jurors that certain prosecution witnesses
had been granted immunity and that factor could be considered in weighing
those witnesses’ credibility, there were no multiple errors from which Michael
and Matthew could have suffered any cumulative prejudice.13 (People v.
Grimes (2016) 1 Cal.5th 698, 737 [if there is nothing to cumulate, there can
be no cumulative prejudice]; see also, People v. DeHoyos (2013) 57 Cal.4th 79,
155 [where each error was harmless when considered separately, court
concluded their cumulative effect was likewise harmless and did not warrant
reversal].) Therefore, we reject their contention that cumulative error
13 As we conclude above, we do not consider the prosecutor’s inadvertent
mistake during his opening statement by showing the words “felons in
possession” on the slide with their photographs to constitute prosecutorial
misconduct or error. Therefore, that mistake is disregarded in a cumulative
prejudice analysis.
67
deprived them of their constitutional rights to due process and a fair trial.
(People v. Mireles (2018) 21 Cal.App.5th 237, 249.)
XI
Modification of Matthew’s Assessments and Fines
Matthew contends, and the People concede, that the trial court erred in
imposing certain assessments and fines and his abstract of judgment should
be amended to reflect the correct amounts.
A
At Matthew’s sentencing, the court imposed, among other things, the
following: (1) a court operations assessment of $280 (§ 1465.8); (2) a court
facilities assessment of $210 (Gov. Code, § 70373); and (3) a theft conviction
fine of $41 (§ 1202.5). Matthew argues that because he was convicted of only
six [sic] offenses, the court operations assessment should have been $240, and
not $280, and the court facilities assessment should have been $180, and not
$210. (§ 1465.8, subd. (a)(1) [assessment of $40 for each criminal conviction];
Gov. Code, § 70373, subd. (a)(1) [assessment of $30 for each criminal
conviction].) However, contrary to Matthew’s assertion and the People’s
concession, the record clearly shows he was convicted of seven, and not six,
offenses (i.e., counts 1, 2, 4, 6, 7, 12, & 13). Therefore, the premise of his
argument regarding the two assessments is faulty. Accordingly, we conclude
that the trial court correctly imposed the $280 assessment under section
1465.8, subdivision (a)(1) (i.e., $40 multiplied by 7) and $210 assessment
under Government Code section 70373, subdivision (a)(1) (i.e., $30 multiplied
by 7).
68
B
Matthew also contends, and the People concede, that because he was
not convicted of a theft offense within the meaning of section 1202.5, the $41
fine under that statute was inapplicable and should not have been imposed
by the trial court. (§ 1202.5, subd. (a).) We agree. Accordingly, we modify
his sentence to strike the $41 fine imposed under section 1202.5. The San
Diego County Superior Court clerk is directed to issue an amended abstract
of judgment reflecting that modification of Matthew’s sentence and to
forward a copy of it to the California Department of Corrections and
Rehabilitation.
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DISPOSITION
The judgment entered as to Michael Tellechea is affirmed. The
judgment entered as to Matthew Tellechea is modified to strike the section
1202.5 fine of $41. As so modified, his judgment is affirmed. The San Diego
County Superior Court clerk is directed to issue an amended abstract of
judgment reflecting the modification of Matthew’s judgment and to forward a
copy of it to the California Department of Corrections and Rehabilitation.
O’ROURKE, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
70