HALLER, J.
Defendant Mario Ponce was charged with conspiracy to commit murder (Pen. Code,
The prosecution initially intended to rely on the testimony of Saul Santana to implicate Ponce. In exchange for a plea deal, Santana admitted during a recorded interview that he helped Ponce locate Jose, and led two of Ponce's associates to him. Santana also admitted he was present (but not an active participant) when those associates mistakenly kidnapped Armando and killed him. For reasons that are unclear in the record, the prosecution ultimately withdrew Santana's plea deal and he did not testify at trial. However, his entire recorded statement was played for the jury.
The prosecution also relied on Ponce's business partner, Guadalupe Cuevas, to implicate Ponce. Also in exchange for a plea deal, Cuevas testified he was on the phone with Santana when he (Santana) kidnapped Armando, and relayed Ponce's directive to Santana to kill Armando. Other than admitting he was an unwitting conduit for the kill order, Cuevas minimized his role in the charged offenses.
The jury found Ponce guilty and found the special-circumstance allegation to be true. The trial court sentenced him to consecutive terms of 25 years to life on the conspiracy count, and life without the possibility of parole on the murder count.
On appeal, Ponce contends: (1) he was deprived of his rights to due process and a fair trial because the trial court admitted Cuevas's testimony, which the prosecutor allegedly knew would be false in light of its conflicts with Santana's recorded statement; (2) the trial court erred by admitting Santana's entire recorded statement, instead of just those portions helpful to Ponce; (3) the trial court erred by admitting Santana's direction to his wife to tell Ponce he "doesn't sing," which the court admitted as nonhearsay circumstantial evidence of Santana's state of mind; (4) the prosecutor improperly mischaracterized evidence during closing arguments; (5) Santana's statement and Cuevas's testimony were insufficiently corroborated by independent evidence, as required for accomplice testimony; and (6) the trial court erred by denying Ponce's motion to disclose a juror's contact information for purposes of pursuing a new trial motion based on alleged juror misconduct. We affirm.
On October 10, 2005, Julio Rosales was found dead in his Van Nuys apartment; he had sustained multiple gunshot wounds. A nine-millimeter handgun, nine-millimeter shell casings, and .45-caliber shell casings were found near his body. About one-half mile away, Marcelino Vega was found dead in the passenger seat of a minivan; he, too, had sustained multiple gunshot wounds. Based on a tip, police eventually found a nine-millimeter handgun in a hidden compartment in the minivan. Forensic analysis determined Vega had been shot by the gun found next to Rosales, and vice versa. Police surmised Vega and Rosales shot one another in the apartment during "a drug deal that apparently went bad."
Witnesses reported that two additional men (one heavyset, the other skinny) in a red pickup truck were also involved in the drug deal. Jose later admitted he drove a red pickup truck and had been at the apartment complex during the drug deal. Police later identified the skinny male as Gonzalo Acosta.
Even before the Van Nuys drug deal, Ponce was acting as a confidential source for the Drug Enforcement Administration (DEA), providing information on drug traffickers in Los Angeles and Mexico. He provided his DEA "handler" information on the Vega family (including Marcelino), which had connections to a major Mexican drug cartel.
On the day of the Van Nuys homicides, Ponce began informing the DEA what had transpired. He explained the homicides occurred during a 12-kilo cocaine deal that had gone bad; he provided the tip that led to the discovery of the handgun in the minivan; and he provided addresses for the two additional men who had been at the apartment. One address was for a residence at 1732 Virginia Avenue in Colton, where the heavyset male was believed to live; the other was for a location in Fontana, where Gonzalo Acosta was believed to live. The DEA forwarded the addresses to local police, who made little effort to contact the possible additional suspects.
Ponce informed his DEA handler that he had encouraged the Vega family and other witnesses to cooperate with the police in their investigation of the Van Nuys homicides. He also said the Vega family had asked him to coordinate Marcelino's funeral arrangements. Ponce ultimately paid for Marcelino's burial expenses.
After investigating for a few months, local police closed their investigation of the double homicide without pursuing any criminal charges.
About a year after the Van Nuys homicides, Ponce informed his DEA handler that Gonzalo Acosta had been kidnapped, tortured, and murdered in Mexico at the behest of Marcelino Vega's mother. Jose Fierro also testified he had heard that Acosta had been killed in Mexico.
In March 2007, Jose Fierro was trying to sell his house located at 1732 Virginia Drive in Colton. His brother, Armando, lived with their sister, brother-in-law, and niece in a different house on the same street. According to the relatives' testimony, on March 5, a man (later identified as Saul Santana) went to the sister's house looking for Jose. Santana pushed his way in, displayed a badge, and said he was a DEA agent; he was also carrying handcuffs. He threatened to take the family away unless Jose appeared. After about 30 or 40 minutes, Santana answered a call on his cell phone, said, "Stand by. I'm coming right now," left running, and drove down the street in a black Ford Mustang.
A neighbor on Virginia Drive testified she saw Armando park a "U-Haul-type" truck across the street from her house. A black Mustang stopped in the middle of the street by Armando's truck. When Armando got out of the truck, a man put silver handcuffs on him, placed him in the rear passenger seat of the Mustang, then got in the front passenger seat as the car drove off. The neighbor assumed Armando was being arrested.
Jose Fierro testified that on the day Armando was taken, someone called and set up an appointment to view Jose's house at 5:00 p.m. Jose arrived early at the house, saw Armando was there, and briefly drove to a nearby auto body shop to look at a vehicle that was for sale. While there, he received a call from someone purporting to be a DEA agent named Steve Rogers,
About two weeks later, someone reported to authorities what appeared to be a dead body in a ravine in a remote area of Riverside County. Sheriff's investigators found a body about 105 feet from a road at the reported location; the majority of the victim's skull was found about 20 feet away. A recycling receipt in the victim's pants helped investigators identify the victim as Armando, thus leading them to Virginia Drive. Witnesses there reported that they had not seen Armando since March 5, when he was apparently arrested by the DEA. An autopsy determined Armando died from multiple gunshot wounds.
Sheriff's investigators traced the phone number used for the ransom call to a "TracFone" purchased from a Walmart store. Bank records indicated Saul Santana purchased the phone on February 14, 2007. Bank records also indicated Santana paid to have his black Ford Mustang detailed at a carwash in Long Beach. Records from a Ford dealership showed he traded in his Mustang on March 6, and purchased a pickup truck for an additional $3,700, which he paid in "crisp hundred-dollar bills."
Cell phone tower data for the TracFone and Santana's personal cell phone showed that on the evening of March 5, the phones traveled from his workplace in Long Beach to Virginia Drive in Colton; from there to the remote area where Armando's body was found; and from there to within one mile of Santana's residence.
Sheriff's officials arrested Santana on May 7, 2007. Inside his home, they found a .45-caliber handgun and a magazine for a nine-millimeter handgun. In his truck, they found two badges, a pair of black handcuffs, a gun holster, and a roll of duct tape. Inside a satchel in the truck, they found a letter, on the back of which was written, "red '98 Ford King Cab," a license plate number, and the word, "Memo."
In 2008, after 10 months in custody, Santana initiated an interview with the sheriff's detective investigating Armando's murder. Santana hoped that if he "c[a]me clean," the district attorney would offer him immunity and provide "witness protection" for him and his family. At the end of the interview, the investigator concluded Santana had not provided any new information. Santana's 2008 interview was not introduced at trial.
About four years later, on May 24, 2012, Santana and his attorney met with the prosecutor and his investigator to make a proffer, hopefully in exchange for a plea deal.
Santana was 39 at the time of the interview. He met Cuevas when they were teenagers, when Cuevas used the first name "Guillermo," and went by the nickname "Memo." Cuevas had been given the name "Guillermo Pelaya" at birth in Mexico, but assumed the name "Lupe Cuevas" as a teenager after a young relative of that name died.
Santana joined the military, but stayed in touch with Cuevas over the years. Santana resigned from the military due to complications that arose from a prior felony conviction. After working various odd jobs, in early 2007, Santana contacted Cuevas (whom he then referred to as "Lupe"), who hired him to do sales work at a trucking company (Three Countries) Cuevas co-owned with Ponce.
Santana saw Ponce at the office a few times per week, but he did not appear to do any work; Cuevas was the knowledgeable one. Ponce's nephew, who also worked at Three Countries, told Santana that Ponce was involved with a Mexican drug cartel, which mainly included running guns to Mexico in exchange for drugs. The nephew recounted an occasion when he was arrested in Arizona for running guns, and Ponce bailed him out of jail and hired him an attorney.
Santana told the nephew he wanted to get involved in the drug trade. The nephew conferred with Ponce, and reported back that Santana could start with some small deals. After Santana completed a few small deals, Ponce told him (in Cuevas's presence) that he (Ponce) "`deals with drugs and major gun transactions.'"
At the same time he was dealing drugs, Santana was trying to become a police officer. Learning this, Ponce revealed that he had contacts at the county level who might be able to make Santana's prior conviction "`disappear.'" But upon learning that Santana had served his sentence in state prison, Ponce realized his county-level contact could not help. Based on his military experience and interest in law enforcement, Santana prepared to work as a private investigator. When Ponce learned of this, he put Santana to work collecting company debts.
After Santana had collected a few debts, Ponce asked him to work with Cuevas to locate Jose Fierro. Using a background check website, Santana found an address for Jose of "1742" Virginia Drive. Santana surveilled that address on February 20, 2007. He learned from a neighbor that Jose did not live at the subject house, which was for sale. Santana called the listing agent a few days later looking for Jose, but when the agent said he would handle all negotiations on Jose's behalf, Santana hung up.
On a second surveillance trip to Virginia Drive, Santana saw a "pretty heavyset guy," who matched the physical description of Jose that Ponce had provided, get out of a red SUV with a child. Santana did not have any paper handy, so he opened his glove compartment and retrieved "like, an envelope," and wrote down a description of the vehicle and its license plate number. He also wrote, "Memo," to remind himself to report this information to Cuevas.
Santana then called the listing agent's office and tricked the receptionist into giving him Jose's phone number. Santana called Jose, pretending to be a real estate agent, and set up a showing for 5:00 p.m. on March 5, 2007. Santana updated Cuevas, who said they should relay the information to Ponce. The day before the appointment, Ponce told Santana, "I'm gonna have my compadre go down with you. My compadre and another guy are gonna confront him."
On the afternoon of March 5, Santana prepared to depart for Virginia Drive from Three Countries. Before leaving, he met with Ponce and Cuevas in the office, at which point Ponce revealed "the true reason" he was looking for Jose: "they're gonna take him to Mexico and they're gonna take care of him." Ponce explained that the Vega family wanted Jose killed because he had killed Marcelino, and Ponce wanted to oblige the Vega family. Ponce told Santana to lead his men to Jose, and to not get involved. Ponce added, "specifically, `If there's any problem, get ahold of Lupe and then we'll see . . . what goes on." Ponce said he would pay Santana $20,000 if Jose "shows up."
Santana, Ponce, and Cuevas were in the trucking company's "yard" when Ponce's "compadre" and a younger male drove up in a minivan. Santana had seen them once before around the office, but he did not know either of their names. Ponce told his compadre that Santana would show them where Jose was. Santana led them there in his black Mustang.
Santana parked in front of "1742" Virginia Drive, and told a man there he was supposed to meet Jose to perform a home inspection. The man said Jose was not home, but let Santana into the house. Santana completed his fake inspection, and the man sent him next door to look for Jose. When no one answered next door, the man told Santana that Jose might be at his sister's house down the street. Santana headed there, while the compadre and the younger male waited in their minivan.
In the sister's front yard, Santana encountered Jose's brother-in-law, who said he wanted nothing to do with "that idiot." Santana asked to speak to Jose's sister, so the brother-in-law led him inside the house. The sister claimed she had not seen Jose in several months. Santana said he did not believe her, and that he was a private investigator and would report her to the DEA for drug activity. He presented her with his private investigator business card, which had an image of a badge on it. The sister insisted she did not know where Jose was. Santana responded, "Well, good enough," at which point he received a call from the compadre advising him that Jose was outside. Santana left the house, put his satchel in his Mustang, and approached the compadre's minivan.
As Santana approached, he saw the compadre approach Armando Fierro, who had arrived in a truck. The compadre spoke to Armando, and then to the younger man. As Santana drove his car between Armando's truck and the compadre's van, the compadre handcuffed Armando and tried to put him in Santana's Mustang. Santana would not allow it, so the compadre put Armando in the van, and drove off. Santana followed.
Santana and the minivan stopped in a different residential area. Santana, using his personal cell phone, called Cuevas to report that (according to the compadre) they had taken the wrong person—Armando, not Jose. Cuevas told Santana to not get involved, and to call back. About five minutes later, Santana called Cuevas again and relayed the compadre's request to ask Ponce what he wanted them to do with Armando.
Cuevas responded, "I got Mario [Ponce] right here. Hold on." Santana could hear Cuevas relaying the query to Ponce, and Ponce's response: "Oh, man. Hey, you tell them right now to take care of that. Do not release that guy. If they release that guy, that guy's gonna go back and tell them . . . who we are. Who just . . . picked him up. Tell them to take care of him." The compadre spoke briefly with Cuevas, then handed the phone back to Santana. Santana told Cuevas, "Hey, man, I'm out of here, man." Cuevas responded by directing Santana to "make sure that these dudes do what they have to do." Santana acquiesced and hung up.
During his interview, Santana explained that at some point before Ponce gave the instruction to kill Armando, Santana used his TracFone to call Jose and his attorney. Jose told Santana he would come forward, but wanted to know his brother was all right. The compadre let Jose speak briefly with Armando. Santana denied in his interview that he ever demanded $50,000 in exchange for Armando's release.
Santana also called Jose's attorney posing as a DEA agent (although he denied using the name Steve Rogers), and demanded that Jose turn himself in. The attorney seemed skeptical. When Santana reported to Cuevas that he had spoken with Jose's attorney, Santana overheard Ponce say, "We're fucked."
After this series of phone calls, the compadre kept Santana's TracFone and never returned it. Santana acknowledged there was evidence (cell phone records) showing the phone was near his house later that evening, but he surmised the compadre had followed him home.
Returning to the topic of dealing with Armando, Santana said he asked the compadre if he was going to take Armando to Mexico. The compadre said, "No. We're gonna take care of this guy," which Santana understood to mean they were going to kill him nearby. When he called Cuevas to report this understanding, Cuevas directed Santana to "just make sure they take care of that and then just leave it alone." Santana again acquiesced. He followed the minivan down a road, watched the men pull Armando from the van and walk him toward a ravine, then heard three or four gunshots. The compadre returned, holding a gun.
Santana called Cuevas to give a status update. When Cuevas learned that Jose had not produced himself to save his brother, Cuevas "cusse[d] him out." The final instruction to Santana that evening was to come to work early the next morning.
At work the next morning, Ponce's nephew told Santana to get rid of his Mustang "ASAP." Ponce told Santana he would still pay him $20,000 (even though Jose had not come forward), which Santana could use for a new car. Ponce told Santana more details about Jose's involvement in Marcelino Vega's death. Cuevas added that he had driven Marcelino's bloody minivan back from Van Nuys in 2005.
Santana took his Mustang to a carwash, then returned to the trucking yard. One of Marcelino's relatives was there with Ponce, Cuevas, and the compadre. Santana left and traded in his Mustang for a truck.
Later that day, Ponce delivered "two bundles of $10,000" to Santana at his desk in the office.
Santana's statement turned to events following his arrest. He described a jailhouse conversation with his wife in which he told her to call his work and tell his "comrade, not Lupe," that he "doesn't sing with mariachi" because he "doesn't know songs."
Santana described a letter he received, which he believed Cuevas had written, even though it purported to be from someone else. Santana construed the letter as a threat to his family if he did not "`keep quiet.'" Cuevas also visited Santana in custody and urged him "not to sing—not to flip." During one phone call with Cuevas, Santana referred to "El Padrino," which Santana said was a reference to Ponce.
Despite having worked at Three Countries for only about four months before his arrest, Santana continued receiving his salary for two years while in custody. Bank records introduced at trial show check and cash deposits into the bank account of Santana and his wife. These records show Santana earned less than $7,000 before his arrest, yet received approximately $67,000 while in custody. Some of the deposits were checks from Three Countries, but others were Ponce's personal checks.
Santana was initially represented by the public defender, but "all of a sudden" he was represented by "a whole squad" of attorneys (including David Elden) and paralegals. Cuevas told Santana "they paid $400,000 . . . for Elden."
Finally, Santana attempted to explain away the evidence that investigators found during his arrest. He said he did not have a firearm when Armando was kidnapped and murdered; it was only "after the fact" that he "borrowed it back from [his] buddy because of these guys." Likewise, Santana said he bought the handcuffs and a badge two days after the incident.
Cuevas was arrested in 2010. He testified at trial as part of a plea agreement, under which he was sentenced to eight years in prison instead of life without the possibility of parole. His deal required that he tell the truth. Cuevas was nervous about testifying because he considered it "common knowledge that if you testify against somebody, either gangs or cartel or anything, it's dangerous." He assumed Ponce was "part of" a cartel, or had family or friends who were.
When Cuevas was born in Mexico, he was given the name Job Pelayo. At age 12 or 13, his mother registered him as "Guellermo" Cuevas, and he sometimes went by the nickname "Memo." He came to the United States at age 14 or 15, and assumed the name Guadalupe Cuevas at age 16 or 17, after a relative of that name died. He admitted entering the U.S. illegally and using a false name on legal documents.
Cuevas was the operations manager of Three Countries, and he considered Ponce, who was president or CEO, to be "the boss." Cuevas denied that he or his company were involved in transporting drugs or guns.
On the day of Armando's kidnapping and murder, Cuevas had the day off. Santana called him that afternoon to cover for him so he (Santana) could take care of something for Ponce. Cuevas arrived at work as Santana was leaving. Cuevas believed the office was empty, though Ponce may have been in his office in the back. At some point Ponce appeared and sat in the dispatch area, which was unusual. Cuevas was going to head home to his nearby apartment, but Ponce asked him to stay and kill time with him. In exchange, Ponce offered Cuevas a ride home, which was "rare."
Later, as Ponce drove Cuevas home, Santana called Cuevas and asked, "Where's Mario?" Cuevas wanted to hand the phone to Ponce, but he wouldn't take it. Cuevas asked Santana, "What's happening? Talk to me." Santana repeated that he wanted to talk to Ponce. Cuevas responded, "`He wants to know what's up. Tell me.'" Santana said "he had been to somebody's house . . ., and, `He was not there. I couldn't find him. But I have his brother.'" Cuevas said, "Hold on while I tell Mario." Santana said, "`Let me go,'" and hung up. There were numerous calls during this period,
When Santana first began calling, Ponce stopped his truck in a strip mall about a block and a half from Cuevas's apartment. This led Cuevas to believe there "was definitely something going on," and that he "was supposed to be in the middle of" it. During one call with Santana, Ponce told Cuevas "`to tell him just to leave and come back later,'" and, "`Get him at a different time.'" Santana responded, "`No, I can't do that.' "Between calls, Ponce would walk 30 to 40 feet away from his truck and make phone calls. When Cuevas reiterated to Santana that Ponce wanted him to leave, Santana responded that he couldn't because "his face was all over the place" and "a lot of people saw [him] do this." Based on details Santana was providing, Cuevas began to get the sense that Santana had kidnapped someone. During one call, Santana told Cuevas "`he wasn't going to do this for free.'"
Santana called again and told Cuevas, "`I can't leave out of here and leav[e] him like that,' which indicated to [Cuevas] that, yes, he's going to kill him probably." In response to that statement, Ponce responded, "`Okay,'" which made it "clear in [Cuevas's] mind" that Ponce "was saying, `Tell Santana, okay. Kill the brother.'"
Cuevas later received a call from Santana that he suspected was an inadvertent "pocket dial." Cuevas heard muffled voices in the background, which really "freaked [him] out," causing him to give the phone to Ponce. Ponce gave an unhappy look, hung up the phone, and set it between himself and Cuevas in the truck. The same thing happened again. The phone rang a few more times, but Cuevas did not pick up.
Ponce drove Cuevas home. On the way, he repeatedly asked "if Santana was a cop." Cuevas said he didn't think so. Ponce dropped him at home, and it was "[v]ery awkward."
The next day at work, Santana told Cuevas what had happened the day before. Santana said he had set up an appointment to meet Jose, but Jose didn't show up. Santana looked for him at a nearby relative's house by impersonating a police officer, then left the house, at which point someone told him Jose's brother was nearby. Santana then took Jose's brother. Santana also recounted how he had called Jose and "told him to show his face." Santana was saying "that Jose had essentially gotten his brother killed because he lacked courage." Santana told Cuevas he got paid around $20,000 for his role in Armando's kidnapping and murder.
Cuevas said that Ponce explained he was targeting Jose to avenge Marcelino Vega's death. Back in 2005, Ponce had asked Cuevas to pick up the van in which Marcelino died. Cuevas did so, and took Marcelino's mother with him. Sometime later, Ponce told Cuevas that Marcelino's mother "`won't take the finger off the line,'" which Cuevas understood to mean that "she still wanted revenge."
Cuevas denied (1) having any advanced knowledge of the kidnapping or murder plot, (2) meeting with two men in the trucking yard on March 5, (3) telling Santana it was important to locate Jose, (4) directing Santana to report back on his surveillance of Jose, or (5) speaking by phone with anyone other than Santana (e.g., the compadre) during the kidnapping. Cuevas acknowledged that Santana sometimes referred to him by the nickname "Memo," but he had no explanation for why Santana would have written that name on the paper that police recovered from Santana's truck.
After Santana's arrest, Ponce took Cuevas to meet with a lawyer, David Elden. There, Cuevas saw Ponce negotiate a retainer for two payments of $250,000 each. In a later meeting with Ponce and Elden, Cuevas saw Ponce hand Elden a cloth bag containing an unspecified amount of cash. Ponce told Cuevas he hired Elden to represent Santana because if Santana "was happy," then "there would be no more investigations on the case and that all the blame or all the focus would be just on Santana and not on us or anybody else."
In June 2007, Santana and Cuevas spoke by phone while Santana was in custody; the call was recorded. Santana referenced a letter he sent to Cuevas asking that he do "something about [Santana's] Aunt Virginia." Cuevas claimed he did not understand until years later, after reading newspaper articles, that Santana was asking that Cuevas "go to Virginia [Drive] and basically intimidate the witnesses so that they won't testify against [Santana]." During the call, Santana referred to "El Padrino," which Cuevas understood was a reference to Ponce as the "Godfather."
Sometime while Santana was in custody, Ponce asked Cuevas if he knew anyone in jail who could make sure Santana didn't say anything, or kill him. Cuevas responded that he did not know anyone.
The jury found Ponce guilty of conspiracy to commit murder and murder, and found true the kidnapping special-circumstance allegation. The court sentenced him to a term of 25 years to life on the conspiracy conviction, followed by a term of life without the possibility of parole on the murder conviction.
Ponce contends he was denied due process and a fair trial because the trial court allowed Cuevas to testify at trial. Ponce reasons that because the prosecution initially intended to proceed with Santana as the primary witness against Ponce, and because Santana's statement is so inconsistent with Cuevas's testimony, the fact that the prosecutor ultimately presented Cuevas's testimony instead of Santana's indicates the prosecutor knowingly presented perjured testimony to obtain a conviction regardless of the truth. We are not persuaded.
Ponce initially moved in limine to preclude Santana from testifying at trial. Ponce understood that Santana intended to incriminate him in exchange for leniency. Ponce argued that the court should preclude Santana from testifying because he clearly "intend[ed] to perjure himself" inasmuch as he had "given numerous conflicting statements, and his most recent statement cannot be reconciled with the known facts and statements of other witnesses." For example, Santana's anticipated testimony would contradict his prior proffers, implicate the "invent[ed]" compadre, and conflict with cell phone tower data and eyewitness accounts of the events on Virginia Drive. The court never ruled on this motion because the prosecutor eventually withdrew Santana's plea deal, and Santana was deemed an unavailable witness.
Without Santana, the prosecution turned to Cuevas to inculpate Ponce. Ponce then moved in limine to preclude Cuevas from testifying, arguing Cuevas clearly "intend[ed] to perjure himself" inasmuch as he had "given a statement that is almost entirely self-exculpatory and materially at odds" with the statements of Santana on which the prosecution previously intended to rely. For example, Santana said (1) Cuevas coordinated the search for Jose Fierro, as evidenced by the "Memo" note found in Santana's vehicle and the numerous phone calls between Santana and Cuevas; (2) Cuevas was present for the meeting in the trucking yard among Ponce, Santana, the compadre, and his younger companion; (3) Cuevas spoke with the compadre by phone during the abduction; and (4) the compadre was the actual killer. On the other hand, Ponce anticipated Cuevas would contradict Santana by (1) disavowing any advanced knowledge of the kidnapping and murder plot (e.g., directing Santana to locate and surveille Jose Fierro, or meeting in the trucking yard the day of the incident), (2) denying any contact with the compadre, and (3) minimizing his role in the numerous phone calls by portraying himself as a mere conduit between Santana and Ponce. Ponce concluded "the net effect of having the State propose to call Santana and then call Cuevas instead, knowing that their stories are wholly incompatible[,] is to subvert due process and the truth-finding function of a trial."
The prosecution opposed the motion. The prosecution argued Ponce had cited no authority authorizing a court to preemptively exclude testimony that conflicts with other evidence, noting that the only authorities Ponce cited were inapplicable because they involved circumstances in which the prosecution had suppressed exculpatory material. The prosecution also noted the many ways in which Santana's and Cuevas's stories were consistent, including that: (1) Ponce ordered the kidnapping and murder; (2) Ponce's motive was to avenge the 2005 murder of Marcelino Vega; (3) Cuevas was the conduit for Ponce's instruction to Santana to kill Armando; (4) Ponce paid Santana for his role; (5) Ponce paid hundreds of thousands of dollars for Ponce's attorney to represent Santana; and (6) Ponce continued to pay Santana for several years after the murder.
The court denied Ponce's motion to preclude Cuevas from testifying. The court agreed with the prosecution that, absent some suppression by the prosecution team of evidence that would indicate a witness was lying, there was "no legal vehicle . . . to preemptively order the supposed perjured witness from testifying." And, in any event, the court noted the frequency with which witnesses provide conflicting testimony:
During opening statements, the prosecution and defense both warned the jury of the credibility determinations it would have to make. The prosecutor, for example, disclosed Cuevas's favorable plea deal and said it was for the jury "to decide what that means to the credibility of his testimony." As to Santana, the prosecutor said it was for the jury "to decide, which, if any, parts of his statement are credible."
Defense counsel addressed the prosecutor's opening statement, asserting "he knows . . . that there are going to be liars in this case." Counsel asserted that "Santana's credibility is a key" issue for the jury to decide, and that the independent evidence will show that "Santana is completely lying and fabricating this entire story." Counsel likewise argued the "[e]vidence will show that Guadalupe Cuevas is a liar," and "like Mr. Santana, is going to come into court and he's going to completely downplay his participation in this case." Counsel concluded it was ultimately the jury's role "to judge the credibility of the two witnesses, Saul Santana and Guadalupe Cuevas," and to determine "whether or not there's discrepancies between the two of them."
Cuevas testified at trial in the manner set forth in our factual summary. During direct examination, defense counsel moved to strike Cuevas's testimony in its entirety on the grounds that the "version of the facts of Cuevas'[s] involvement in the premeditation leading up to the murder as he testified to . . . is completely contradictory to the statement given by Santana." The court responded, "Not completely. There are many similarities and there are many differences." The court reiterated its prior ruling that the court is not "in a position, based on the evidence [it] heard, to find a witness, any witness, or even Mr. Santana's recorded statement, is an outright lie in all regards, and, therefore, somehow strike testimony or dismiss the case." The court denied the motion, telling defense counsel that his attacks on Cuevas's credibility "are all great arguments for the jury."
Defense counsel proceeded to rigorously cross-examine Cuevas, including regarding contradictions between his testimony and Santana's statement.
During closing arguments, the prosecution and defense again both addressed Cuevas's and Santana's credibility. The prosecutor acknowledged Santana appeared in his interview to be "completely self-serving," and that it would be "an insult to [the jury's] intelligence" to propose that his entire statement was truthful. He expressly acknowledged Santana said "a whole bunch of things that the evidence proves are not true," but emphasized it was for the jury to decide how to use that evidence, including whether to "use it to impeach Guadalupe Cuevas." The prosecutor likewise acknowledged that Cuevas's favorable plea deal called his credibility into question. The prosecutor reiterated it was the jury's role to resolve discrepancies between Santana's statement and Cuevas's testimony, and he asked the jury to "judge them fairly as to their credibility."
Defense counsel again emphasized witness credibility, telling the jury, "The most important thing in this case is the instructions that the Court will give you about how you are to judge the credibility of the witnesses." Counsel then summarized the evidence he believed would show that both Santana and Cuevas "completely lied." Counsel characterized the prosecutor's closing as acknowledging that Santana and Cuevas were "[h]alf lying, half true," and urging the jury to "[i]gnore the part about lying but accept the true part." Counsel questioned the prosecution tactic of acknowledging that "the witnesses are not telling the truth," yet "using them to try to convict somebody."
"A criminal judgment obtained through use of false evidence violates due process, whether the prosecution solicits the false evidence or simply allows it to go uncorrected when it appears." (Campbell v. Superior Court (2008) 159 Cal.App.4th 635, 652; see Napue v. Illinois (1959) 360 U.S. 264, 269.) "`Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.'" (People v. Avila (2009) 46 Cal.4th 680, 711.)
However, it is not enough that the prosecutor merely suspects that evidence is false; the prosecutor must know it is false. (People v. Harrison (2005) 35 Cal.4th 208, 242 (Harrison); People v. Gordon (1973) 10 Cal.3d 460, 474 (Gordon).) "When . . . the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury. . . ." (Harrison, at p. 242; Gordon, at p. 474.)
The courts also find ameliorative a prosecutor's disclosure to jurors of his or her doubts about a witness's veracity, introduction of the evidence leading to such doubt, and rigorous cross-examination. (See People v. Richardson (2008) 43 Cal.4th 959, 1014 ["while the prosecutor had his opinion about [the witness]'s credibility and shared that opinion with the jury, he was not present at the events about which [the witness] testified and therefore could not definitively have known whether [the witness] was perjuring himself"], italics added; Harrison, supra, 35 Cal.4th at p. 243 [no due process violation where the prosecutor's doubts about the witness's veracity "were based on the evidence presented at trial, not on facts of which the jury was unaware"]; People v. Riel (2000) 22 Cal.4th 1153, 1181 (["[The witness]'s credibility was indeed suspect. Defense counsel cross-examined him effectively. [The witness] made many prior inconsistent statements and had an obvious motive to blame defendant and minimize his own participation in the crime. He admitted he lied numerous times in the past about this crime. But these circumstances—known to the jury—do not provide a basis to exclude his testimony."]; Riel, at p. 1182 ["Allowing both [the witness] and defendant to testify subject to cross-examination and impeachment by available evidence, as was done here, afforded defendant a fair trial and comported with due process."]; Gordon, supra, 10 Cal.3d at p. 474 [no due process violation where the prosecutor presented the dubious "testimony with a full admonition of its doubtful veracity, so that the jury could decide for itself which of the conflicting versions of the incidents in question was true"].)
The admission of Cuevas's testimony did not violate Ponce's due process rights or deprive him of a fair trial. To be sure, the prosecutor clearly suspected that aspects of Cuevas's testimony would be false. But the record does not support the conclusion that the prosecutor knew that would be the case. Moreover, Ponce's due process rights were protected in several ways.
First, the prosecutor adequately disclosed his credibility concerns during his opening statement. Defense counsel did the same. Thus, jurors knew—before ever hearing from Santana or Cuevas—to view their statements with suspicion.
Second, Cuevas was subjected to rigorous cross-examination and impeachment. Indeed, defense counsel specifically confronted Cuevas about contradictions between his testimony and (1) Santana's recorded statement and (2) other conflicting evidence (e.g., cell phone records, Santana's "Memo" note). Ponce does not identify any additional exculpatory or impeachment evidence that the prosecution failed to produce during discovery.
Third, during closing arguments, the prosecutor and defense counsel again highlighted Cuevas's credibility issues. Defense counsel specifically addressed conflicts with Santana's statement and the prosecution's tactic of abandoning Santana as a witness in favor of presenting Cuevas.
Finally, the court instructed jurors regarding the evaluation of witness credibility, both generally (see CALCRIM No. 226), and as it relates to accomplices (see CALCRIM Nos. 301, 335, 708.)
Moreover, although there were certainly contradictions between Cuevas's testimony and Santana's statement, there were—as the trial court correctly observed—"many similarities." Indeed, even defense counsel acknowledged during his closing argument that there were substantial similarities—he accused Cuevas of, "in essence," repeating "Santana's story, "add[ing] a few wrinkles here and there, mainly den[ying] his own involvement."
In sum, the record does not establish that the prosecutor knew Cuevas's testimony would be false in material respects. Instead, the record shows (1) the jury was informed that Cuevas's credibility was a central issue and was instructed how to evaluate it; and (2) defense counsel rigorously cross-examined Cuevas with the abundant impeachment evidence available. This afforded Ponce due process and a fair trial.
Ponce contends the trial court abused its discretion by admitting Santana's statement in its entirety, instead of admitting only those portions Ponce wanted to use to impeach Cuevas. This contention has no merit.
As noted, Santana was deemed an unavailable witness. Ponce, who wanted to impeach Cuevas with Santana's statement, moved in limine to admit portions of it under the hearsay exception for statements against the declarant's penal interest. The prosecutor opposed the motion, arguing the statements were not against Santana's penal interest because they were (1) against Cuevas's penal interest, not Santana's; and (2) made under a grant of immunity. Alternatively, the prosecutor requested that if the court were to admit the portions of Santana's statement that impeach Cuevas, that the court also admit the remaining portions that inculpate Ponce.
The trial court concluded Santana's statements were inadmissible hearsay that did not fall within the cited exception. However, the court ruled that defense counsel could "cross-examine Cuevas about his knowledge of Santana's deal, immunity, and even some of the substance of what Santana told law enforcement in his immunized statement. . . . [I]t bears significantly on Cuevas'[s] credibility, whether he tailored his proffer and his testimony to fit the scenario that Santana gave or not." But the court cautioned that "context is critical in a situation like this," and "[o]ne cannot bring in one sentence and not bring out the following sentence if that second sentence gives context to the first." The court admonished counsel: "You're both professionals. You both need to weigh your strategy carefully."
The defense responded with "a very important point": that the prosecution was "preventing the defense from calling a critical witness, that is, Mr. Santana, directly or by using his prior statement that undermines Mr. Cuevas in material points." The court responded by pointing out the inconsistent arguments Ponce had asserted regarding the admissibility of Santana's statement.
Upon reflection and after "working hard over [a] few days" with the prosecutor, defense counsel stipulated to admit Santana's entire recorded statement: "I thought about it for a while and I'd rather have it all in than none of it in." (Italics added.)
Evidence Code section 356 "is sometimes referred to as the statutory version of the common law rule of completeness." (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3 (Parrish).) It states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
"The purpose of Evidence Code section 356 is `to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.'" (People v. Clark (2016) 63 Cal.4th 522, 600.) "Application of Evidence Code section 356 hinges on the requirement that the two portions of a statement be `on the same subject.'" (People v. Vines (2011) 51 Cal.4th 830, 861 (Vines).) "`"In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry."'" (Ibid.) Rather, the remainder of the conversation need only have "`"`"some bearing upon, or connection with, the admission or declaration in evidence."'"'" (Clark, at p. 600.) The California Supreme Court has "taken a broad approach to the admissibility of the remainder of a conversation under Evidence Code section 356[.]" (Ibid.)
"A trial court's determination of whether evidence is admissible under [Evidence Code] section 356 is reviewed for abuse of discretion." (Parrish, supra, 152 Cal.App.4th at p. 274.)
Setting aside the unbriefed issue of whether Ponce forfeited his challenge to the admissibility of Santana's entire statement by stipulating to it, we find no abuse of discretion in the trial court's ruling.
Ponce sought to undermine Cuevas's credibility by admitting those portions of Santana's statement that indicated Cuevas was more involved in the charged offenses than he let on. But the portions of Santana's statement that Ponce sought to exclude would have bolstered Cuevas's credibility by corroborating those portions of his testimony implicating Ponce. Thus, admitting only the portions helpful to Ponce would have given a misleading impression of both Cuevas's credibility and Ponce's involvement. Under these circumstances, the trial court did not abuse its discretion in admitting Santana's entire statement under Evidence Code 356. (See, e.g., Vines, supra, 51 Cal.4th at p. 861 ["both portions of the statement were part of [the accomplice]'s description of what happened during the . . . robbery murder, including who was involved in the offenses and what each person's role was that night, and the introduction of one portion without the other would have left a misleading impression in jurors' minds."].)
Ponce suggests that the admission of the unhelpful (to him) portions of Santana's statement under Evidence Code section 356 somehow violated his constitutional right to confront Santana. We disagree. Evidence Code section 356 "is founded on the equitable notion that a party who elects to introduce a part of a conversation is precluded from objecting on confrontation clause grounds to introduction by the opposing party of other parts of the conversation which are necessary to make the entirety of the conversation understood." (Parrish, supra, 152 Cal.App.4th at pp. 272-273; see Vines, supra, 51 Cal.4th at p. 862 [Evidence Code section 356 "`extinguishes confrontation claims on essentially equitable grounds.'"]; People v. Melendez (2016) 2 Cal.5th 1, 26.)
Ponce cites Chambers v. Mississippi (1973) 410 U.S. 284 to support the proposition that state hearsay laws must yield when they preclude the introduction of exculpatory evidence. Chambers is inapposite because it addresses the exclusion of exculpatory evidence, whereas Ponce complains about the admission of inculpatory evidence. (See Vines, supra, 51 Cal.4th at pp. 864-865.)
Ponce contends the trial court erred by admitting a statement Santana made to his wife while in custody, which Ponce contends was inadmissible hearsay. We disagree.
In May 2007, after Santana was arrested, he had a conversation with his wife at the police station. In the conversation, which was video-recorded, Santana told her:
On the second day of trial (August 4, 2015), the prosecutor made an offer of proof that he anticipated Santana's wife would testify about this conversation (among other things). Defense counsel objected that the statement was inadmissible hearsay. The prosecutor responded, "It's not hearsay because it's a command. . . . [T]here's no truth to the matter of `I don't sing with the mariachis.'" He further clarified the "People aren't admitting this to say literally Mr. Santana doesn't sing in the band with the mariachis. This is being admitted for the mental state, the fact that he's terrified because of the coconspirator." The court found it was "as clear as can be" that the statement was not hearsay "because it's not being admitted for the truth of the matter. It's simply being admitted to show . . . [the] state of mind of Mr. Santana. . . ." Santana's wife testified moments later, but she did not go into specifics of the conversation she had with Santana. Instead, she merely confirmed "he asked [her] to convey a message to somebody" who "was specifically not Lupe," and that she did not convey the message to anyone. (Italics added.)
On the same day Santana's wife testified, the prosecutor played for the jury the video of his May 2012 interview of Santana. In it, Santana acknowledged he told his wife to tell Ponce or Cuevas, "[I] don't sing . . . with mariachis," by which he meant, "I'm not gonna say shit." He explained: "And the reason I said that was because of the . . . caliber of people these are. You know, the people—the moment that, ah, I'm arrested, what's not to say that these people come and kill one of my family members and now they're telling me, `You better shut up or we keep killing them.'" Santana said he was not certain whether he told his wife to give the message to Ponce or Cuevas, but "it had to be one of the two of them."
On the fourth day of trial, during the testimony of a sheriff's homicide investigator, the prosecutor indicated he was going to play the recording of the conversation between Santana and his wife. Defense counsel objected on hearsay grounds, which the trial court overruled. After an unreported sidebar conference, the court gave the jury the following limiting instruction:
The recorded conversation was then played for the jury.
There are "two different theories under which statements of a declarant's present state of mind can be admitted: (1) as hearsay under the Evidence Code section 1250 exception for the declarant's present state of mind, and (2) as nonhearsay circumstantial evidence of a declarant's state of mind." (Clark, supra, 63 Cal.4th at pp. 590-591.) In People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz), the court distinguished these theories:
We review for an abuse of discretion a trial court's evidentiary rulings, including those regarding the admissibility of evidence based on distinctions between nonhearsay and the state-of-mind exception to the hearsay rule. (People v. Henriquez (2017) 4 Cal.5th 1, 31; Ortiz, supra, 38 Cal.App.4th at p. 386.)
We find no abuse of discretion in the trial court's admission of Santana's statement to his wife as nonhearsay circumstantial evidence of his state of mind. The evidence was not offered for its truth—that is, to establish that Santana did not, in fact, sing with mariachis. Rather, it was offered to show that Santana believed it was important—based on "the caliber of [these] people"—to tell Ponce he did not sing with mariachis. A reasonable inference from this statement is that Santana wanted Ponce to believe—whether it was true or not—that Santana was not cooperating with the authorities, which supports the further inference that Ponce was involved in the crimes. This is a relevant nonhearsay purpose, and the trial court instructed the jury accordingly.
Ponce contends the record does not support the conclusion that Santana was, in fact, referring to Ponce. For example, he surmises Santana's reference to a business card as the source of his work phone number could refer to his private investigation business. However, Santana told the prosecutor during his interview that he was referring to either Ponce or Cuevas ("it had to be one of the two of them"), and Santana unequivocally told his wife "not Lupe" Cuevas. Thus, at minimum, a reasonable inference supports the conclusion that Santana was telling his wife to tell Ponce that he was not cooperating with law enforcement.
Even if the trial court erred by admitting the recording of Santana's statement to his wife, or by allowing her to testify about it (as nominally as she did), Ponce has not shown that it caused him any prejudice. By stipulation, the jury viewed the recording of Santana's interview with the prosecutor wherein they discussed at length the statement to Santana's wife. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 414-415 [error in admitting hearsay statement was harmless because "properly admitted" statements by another witness "conveyed the same information"].)
Ponce contends the prosecutor improperly mischaracterized the evidence during his closing argument by "harp[ing] . . . that this was a `cartel' case" and by suggesting that Ponce hired an attorney for Santana to keep him quiet. The Attorney General counters that Ponce failed to preserve this contention for appeal by not objecting below, and, in any event, that the prosecutor was fairly commenting on the evidence and reasonable inferences derived from it. We agree with the Attorney General in both respects.
To preserve a claim of prosecutorial misconduct for appeal, "a defendant must raise a contemporaneous objection at trial and seek a jury admonition. [Citation.] In the absence of an objection, any claim is forfeited unless an exception applies." (People v. Gamache (2010) 48 Cal.4th 347, 371 (Gamache).) Exceptions exist where "an objection would have been futile and an admonition would have failed to cure any harm. However, `[a] defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough.'" (Ibid.)
The record shows Ponce did not object to the prosecutor's comments during closing argument. Nor has Ponce invoked any exceptions to the forfeiture rule. Indeed, he does not address the issue at all, even after the Attorney General expressly raised it.
Even if we were to reach the merits, we would find them lacking. "`"'"[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citation.]. . . ." [Citation.] "A prosecutor may `vigorously argue his case and is not limited to "Chesterfieldian politeness"' [citation], and he may `use appropriate epithets. . . .'"' [Citation.]"'" (Gamache, supra, 48 Cal.4th at p. 371.)
The prosecutor's comments were fairly based on the evidence or reasonable inferences derived therefrom. His cartel comments were supported by evidence that (1) Marcelino Vega's 2005 homicide occurred during a cartel drug deal; (2) Ponce had close connections to the Vega family; (3) Ponce was reporting to the DEA substantial details regarding the Vega family's cartel dealings; (4) Santana and Cuevas both stated the charged offenses were in revenge for Marcelino's death; (5) Ponce's nephew reportedly told Santana that Ponce was connected to a cartel; and (6) Cuevas testified he assumed Ponce was involved in, or had family or friends in, the cartel. In light of this evidence, it was fair for the prosecutor to suggest the charged offenses were cartel-related. The fact that Ponce has his own explanations for this evidence does not render the prosecutor's comments unfair.
The prosecutor's comments regarding the circumstances of Ponce's payment of a defense attorney for Santana were also fair. The evidence showed that (1) Ponce negotiated a $250,000 to $500,000 retainer with his attorney to represent Santana; (2) the attorney put "a lot of money" on Santana's jail books;
In his reply brief, Ponce complains of a PowerPoint presentation the prosecutor used during closing argument, which Ponce contends "punctuated" the prosecutor's spoken comments. Ponce acknowledges the presentation is "not technically part of the record" on appeal. Thus, we are unable to evaluate it. Moreover, it is, of course, improper to first raise an issue in a reply brief. (See Santa Clara Waste Water Co. v. Allied World National Assurance Co. (2017) 18 Cal.App.5th 881, 884, fn. 2.)
In any event, the trial court had the opportunity to review the PowerPoint presentation during trial and found (in denying Ponce's new trial motion) it was not prejudicial:
Thus, even if Ponce had not forfeited his challenge to the prosecutor's comments during closing arguments, we would find they were not improper.
Ponce contends insufficient evidence supports his convictions because the respective statement and testimony of Santana and Cuevas—both of whom were undisputedly accomplices in the charged offenses—were not sufficiently corroborated by independent evidence. We disagree.
"The law requiring corroboration of accomplice testimony is well established." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128.) Section 1111 provides in part: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."
"`"Corroborating evidence `must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.' [Citation.]"'" (Rodrigues, supra, 8 Cal.4th at p. 1128.) "[F]or the jury to rely on an accomplice's testimony about the circumstances of an offense, it must find evidence that `"without aid from the accomplice's testimony, tend[s] to connect the defendant with the crime."'" (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero).) "The testimony of one accomplice cannot serve to corroborate that of another [citation]." (People v. Jehl (1957) 150 Cal.App.2d 665, 668.)
"`"The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone. [Citations.]'"'" (Rodrigues, supra, 8 Cal.4th at p. 1128.) "`The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.'" (Romero, supra, 62 Cal.4th at p. 32.) "The evidence `need not independently establish the identity of the victim's assailant' [citation], nor corroborate every fact to which the accomplice testifies [citation], and `"may be circumstantial or slight and entitled to little consideration when standing alone"' [citation]." (Ibid.)
"`The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.'" (Romero, supra, 62 Cal.4th at pp. 32-33.)
Considering the "`entire conduct of the parties, their relationship, acts, and conduct'" (Romero, supra, 62 Cal.4th at p. 32), we conclude independent evidence corroborates Santana's and Cueva's statements connecting Ponce to the charged offenses. First, independent evidence shows Ponce was motivated by his friendship with the Vega family to have Jose Fierro kidnapped to avenge Jose's role in Marcelino's 2005 death. (See, e.g., People v. Szeto (1981) 29 Cal.3d 20, 28 [an accomplice's "testimony was corroborated by independent evidence that defendant had a motive . . ., namely, to assist fellow [gang members] in gaining revenge upon the [rival gangs] for the earlier slaying of" the defendant's fellow gang member].) Ponce had a close relationship with the cartel-connected Vega family independent of his role as a DEA informant; he initially aided law enforcement efforts to bring Jose to justice for his role in Marcelino's death; after law enforcement closed their investigation without bringing charges against Jose or his accomplice (Gonzalo Acosta), Acosta was murdered in Mexico; and Ponce had earlier provided the DEA with Jose's actual address on Virginia Drive, demonstrating his personal familiarity with the abduction site (see Szeto, at pp. 28-29 [defendant's prior work experience near the crime scene was corroborative of accomplice's testimony that defendant was familiar with it]).
Independent evidence further corroborates Santana's and Cuevas's statements in ways that tend to connect Ponce more directly to the charged offenses. Santana's wife provided crucial testimony. First, she testified that in March 2007 she saw Santana with $20,000 in cash, which tended to corroborate Santana's statement that Ponce paid him $20,000 for his role in Armando's abduction and murder. Second, despite the fact Santana had worked at Three Countries for only a few months by the time of his arrest, his wife testified he continued to be paid for the next two years. Independent banking records show he earned less than $7,000 while employed, yet received approximately $67,000 after his arrest. Moreover, these records show that Ponce made several of these payments with his personal checks.
In addition, authenticated jail records show that Santana received $1,900 in deposits on his "books" via his lawyers, which further corroborates the prosecution theory that Ponce was paying Santana "hush money."
Ponce contends this corroboration evidence is insufficient because it is all "after-the-fact." The contention lacks merit. Many aspects of a defendant's subsequent conduct can corroborate an accomplice's testimony. (See, e.g., People v. Williams (2013) 56 Cal.4th 630, 679 ["[E]vidence of defendant's flight after the crimes were committed supports an inference of consciousness of guilt and constitutes an implied admission, which may properly be considered as corroborative of the accomplice testimony."]; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1304 ["It is established that `[t]he possession of recently stolen property is sufficient to support corroboration for an accomplice's testimony.'"].)
People v. Andrew (1941) 43 Cal.App.2d 126 is particularly apt. The corroborative evidence there consisted of evidence that the defendant sent the incarcerated accomplice (1) money for 10 weeks; (2) a letter asking, "Please don't testify against me"; and (3) letters telling the accomplice that when he was released from custody he could take a vacation and share in the defendant's profits from a new venture. (Id. at pp. 128-130.) The Andrew court found this "corroborating evidence more than meets the requirements of section 1111," reasoning:
In light of these principles, we conclude the evidence of Ponce's alleged motive and efforts to induce Santana's silence is the type of evidence the jury could properly consider in determining whether Santana's and Cuevas's accounts were sufficiently corroborated. Because we have concluded this evidence was properly admitted and could tend to connect Ponce to the charged offenses, the jury's "`determination on the issue of corroboration is binding on [us].'" (Romero, supra, 62 Cal.4th at p. 32; see People v. Santo (1954) 43 Cal.2d 319, 330 ["[i]t was for the jury to determine the weight, if any, against defendants of such evidence"].)
Ponce contends the trial court abused its discretion by denying his posttrial motion to disclose (motion to disclose) the jury foreman's contact information so that Ponce could develop a new trial motion based on the foreman's potential misconduct in allegedly considering during deliberations the fact that Ponce did not testify at trial. We find no error.
About two months after the jury returned its guilty verdicts, Ponce filed the motion to disclose based on the following assertion in his counsel's declaration: "[T]he foreperson was asked by counsel what, in particular, induced him to come to the conclusion that the defendant was guilty. In response, the foreperson told counsel, in the presence of his investigator, that although he had been told by the Judge not to consider the fact that the defendant did not testify in his own behalf, `wild horses could not have kept him from testifying if [he] were innocent.'" Ponce inferred from this statement that the foreman had improperly disregarded the court's instruction to "not consider, for any reason at all, the fact that the defendant did not testify," and to "not discuss that fact during your deliberations or let it influence your decision in any way." (See CALCRIM No. 355.)
The prosecutor opposed the motion, arguing Ponce had not established "good cause" for the disclosure because the foreman's comment was "merely a speculative and personal sentiment of what this juror might do if he was on trial for a crime." The prosecutor further noted that even if Ponce had established good cause, the court had the discretion not to order the disclosure "if the record already shows a compelling interest against disclosure."
At the hearing on the motion to disclose, Ponce's counsel argued he needed the foreman's contact information so he could determine whether "what the foreman told [the defense team] was actually discussed among the jurors. . . ." The prosecutor responded that the foreman's statement was merely speculation about his own hypothetical conduct if ever charged with a crime, and "would require us to fill in a blank" about whether he had applied his anticipated personal standard to Ponce. The prosecutor also noted the defense team had already had an opportunity to speak with the foreman when developing the initial declaration, yet was unable to obtain any evidence that misconduct had actually occurred. Defense counsel responded he was "lucky at all to speak with [the foreman]" because the conversation occurred as the foreman was leaving the courthouse after trial, at which point he said, "`I'm leaving,'" which left the defense team "really no opportunity to follow up." Defense counsel also "thought it would have been more appropriate" to further develop the record in the courtroom, rather than one-on-one with the foreman.
After hearing argument, the trial court denied the motion to disclose on the alternative grounds that (1) Ponce had not shown good cause for disclosure, and (2) any good cause was outweighed by "a compelling interest against disclosure." Regarding good cause, the court viewed the foreman's statement as "merely reflect[ing] the juror's personal choice of how he would approach his right to not testify if he were accused." The court did not view the statement as inferring the foreman had considered Ponce's decision not to testify. The court based its conclusion, in part, on its experience that potential jurors make similar statements "every time" the court picks a jury, yet "ninety to one hundred percent of the time" those jurors indicate they would not hold their personal choice against the defendant. (Italics added.)
The court further reasoned that the foreman's statement indicated only "what was in the inner recesses of his mind, not what was discussed in the presence of other jurors during deliberations." That is, the statement did not support the conclusion that Ponce's decision not to testify was ever "discussed in the jury room."
Alternatively, the court concluded that even if Ponce had made a showing of good cause for disclosure, "a compelling reason against disclosure" existed because the defense team had already "had the opportunity"—though "[i]t may not have been optimal"—to speak with the foreman, who indicated (by leaving) that he did not want to speak any further. Thus, the court concluded "the release of this juror's personal information . . . would only lead to harassment since the juror did speak to counsel, provided comments to counsel, and then declined to talk further."
"Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors . . ., consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court. . . ." (Code Civ. Proc., § 237, subd. (a)(2).) "[A] defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose." (Id., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information." (Id., § 237, subd. (b).)
"Good cause, in the context of a petition for disclosure to support a motion for a new trial based on juror misconduct, requires `a sufficient showing to support a reasonable belief that jury misconduct occurred. . . .' [Citations.] Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported." (People v. Cook (2015) 236 Cal.App.4th 341, 345-346 (Cook).) "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
To make the required prima facie showing of good cause, a petitioning defendant need not introduce admissible evidence establishing juror misconduct actually occurred. (People v. Johnson (2013) 222 Cal.App.4th 486, 493 (Johnson).) However, the defendant must "prove that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct." (Ibid.)
Evidence Code section 1150 limits the admissibility of evidence regarding jury deliberations. It states, in part: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Id., § 1150, subd. (a).) Evidence Code section 1150 "`distinguishes "between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved. . . ."'" (People v. Danks (2004) 32 Cal.4th 269, 302.)
We review the denial of a petition for disclosure of juror information for an abuse of discretion. (Cook, supra, 236 Cal.App.4th at p. 346.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
We find no abuse of discretion in the trial court's findings that Ponce failed to meet his burden of showing good cause, or, alternatively, that any good cause was outweighed by a compelling reason against disclosure.
The trial court provided two reasons for its finding regarding good cause. The court drew from its firsthand experience in dealing with jurors who routinely speculate about how they would approach the difficult decision of whether to testify at trial if charged with a crime. Although the foreman's statement came after trial (and not during voir dire), trial courts are particularly well-situated to gauge juror sentiment.
Even if the trial court's threshold rationale for finding no good cause was erroneous, its secondary rationale—that there is no indication that jurors actually discussed Ponce's decision not to testify—was not. It would, of course, be juror misconduct for the foreman to have violated the trial court's instruction to not consider during deliberations Ponce's exercise of his constitutional right not to testify. (See People v. Lavender (2014) 60 Cal.4th 679, 687 ["The violation of the court's instructions constituted misconduct."].) But proof of such misconduct, if confined entirely to the foreman's internal thought processes, would be expressly inadmissible under Evidence Code section 1150. (See In re Hamilton (1999) 20 Cal.4th 273, 294 ["with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict"]; People v. Steele (2002) 27 Cal.4th 1230, 1262 ["Not all thoughts `by all jurors at all times will be logical, or even rational, or, strictly speaking, correct. But such [thoughts] cannot impeach a unanimous verdict; a jury verdict is not so fragile.'"].) Thus, because a good cause showing requires proof "that talking to the jurors is reasonably likely to produce admissible evidence of juror misconduct" (Johnson, supra, 222 Cal.App.4th at p. 493, italics added), the trial court did not err in concluding Ponce had not shown good cause with respect to obtaining further evidence regarding the foreman's internal thought processes.
Ponce acknowledges this, but argues disclosure is nonetheless necessary to determine whether the foreman discussed his internal thought processes with other jurors. Evidence of misconduct in the form of overt discussions would be admissible. (Johnson, supra, 222 Cal.App.4th at p. 495.) But the trial court found there was no evidence indicating the foreman discussed the issue with other jurors. Ponce counters with several speculative theories by which such evidence might exist.
Turning to the court's finding regarding a compelling interest against disclosure, we likewise find no abuse of discretion. The trial court's conclusion that the foreman's statement, "`I'm leaving,'" indicated the foreman wanted no further involvement with the case is neither arbitrary nor capricious. Having presided over the trial, which consisted of five days of testimony (regarding a drug cartel's revenge-murder) and three days of deliberations, the trial court had the opportunity to observe firsthand this jury's level of engagement and willingness to further participate. Under these circumstances, it was not an abuse of discretion for the trial court to conclude the foreman's interest in privacy outweighed Ponce's tenuous claim of good cause.
Affirmed.
NARES, Acting P. J. and DATO, J., concurs.
