Filed 6/20/13 P. v. Olesh CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A132983
v.
JEFFREY JAMES OLESH,                                                 (Contra Costa County
                                                                     Super. Ct. No. 5-101327-5)
         Defendant and Appellant.


                                              I. INTRODUCTION
         A jury found Jeffrey Olesh and codefendant Edward Fraser guilty of second
degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), finding true, as to Fraser, that he
used a firearm and, as to Olesh, that a principal in the crime was armed with one (id.,
§ 12022, subd. (a)(1)). Each was sentenced to an aggregate six years in prison, Olesh’s
sentence consisting of a five-year upper term for the robbery (id., § 213, subd.
(a)(1)(B)(2)), a consecutive one-year enhancement for the vicarious arming, and a
concurrent two-year midterm for violating probation that had been granted for grossly
negligent discharge of a firearm (§ 246.3, subd. (a)).
         Olesh alone appeals, raising several claims of improper admission of evidence, a
claim of ineffective assistance concerning his counsel’s failure to object to a ruling that
led to defense evidence not being introduced, and a claim of cumulative prejudice. We
affirm the judgment, finding no prejudicial error.




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                 II. FACTUAL AND PROCEDURAL BACKGROUND
       The case concerns the armed robbery of Jennafer Dwinell shortly before midnight
on January 2, 1010, at her job as nightshift main office manager at the Days Inn, in the
5300 block of Clayton Road in Concord. The brevity and stress of the encounter plus her
assailants’ concealing clothing left Dwinell unable to positively identify them at trial.
This made the main issue for both defendants identity, and lent significance to accounts
by their respective girlfriends. One testified at trial under immunity; the other’s
testimony from the preliminary hearing was admitted after failed attempts to locate and
serve her for trial.
A. The Robbery
       Dwinell was working alone in the front desk area when, upon emerging from a
restroom in the back, she saw a man enter the lobby and rush her way, wearing a black or
brown cowboy hat low on his brow, a blue bandanna concealing his lower face, and a
beige or off-white sweat suit, with matching top and bottom, like workout clothes. He
walked up, grabbed her with one hand by the ponytail and collar, pushed her into some
tables and chairs in a corner dining area, and commanded twice, “Get on the floor.”
Dwinell did not at first see a second man enter but became aware of him from talk
between the two men about where the money was. The first man grabbed her again,
pulled her back to her feet, and walked her around a half-wall divider into a small office
(10 or 12 by five feet), where he demanded keys and then cash. His short stature
compared with her own, his grip on her hair and collar, plus what felt like his other hand
pressing into her lower back,1 forced Dwinell’s head and gaze upward, and she only saw
the second man once they were all in the office. Both men wore bandannas, one red and
one blue, and the second man wore a “beanie cap,” jeans and a blue sweatshirt, and

       1 What pressed into Dwinell’s back did not feel sharp to her, and while she was
not focused on hands or another weapon, she did not see either man with an 8- to 10-inch
green knife, and did not report to police seeing one. The initial intruder moved “like a
man on a mission” and did not appear to have a limp or other physical disability,
although Dwinell’s initial position behind the half-wall impeded her view of his lower
extremities.


                                              2
carried a black gun that looked to Dwinell, who had experience firing shotguns, like a
sawed off shotgun. He held the gun by its stock and barrel, in a “ready stance,” and
Dwinell noticed, on the floor of the lobby, a soft-carry guitar case she assumed had held
the gun. Both men wore gloves, and Dwinell directed them to two drawers, one holding
keys and the other cash. The man with the gun took their contents. Dwinell usually
conducted transactions in credit and had come on shift that night without counting the
cash, but she thought there had been at least one $20 bill, plus smaller bills, and certainly
no more than $80 or $100 total. (She would tell an officer later that the amount was $50
or $60.)
       In the office was a closed door that led to the apartment of live-in housekeeping
and maintenance manager Mohib Nabizada, who was off duty but in the apartment. The
gunman tried that door (after taking the money according to Dwinell), but it was locked.
The shaking of the doorknob roused Nabizada, who figured it was Dwinell wanting
something. So he left the apartment, not by the office door but by one that opened on a
public hallway, walked down it, and peered into the lobby area through a glass-paneled
door. Through the glass, Nabizada saw the men with their faces covered, one holding
Dwinell from behind and the other in front. From surveillance monitors in the office,
Dwinell and the intruders could see Nabizada peering in, and the first intruder said:
“We’ve got company. Hurry up.” Frightened, Nabizada quickly went back to his
apartment and called 911, having noticed that one of the men wore a cowboy hat. The
intruders left through the front lobby door, warning Dwinell to stay there and “not call the
cops.” The gunman then reentered to retrieve the soft case from the floor.
       A video exhibit played for the jury, with descriptive narrative from witnesses
Dwinell and then Nabizada, shows concurrent split-screen views from four surveillance
cameras mounted inside the hotel. Three notably showing the two-minute encounter are
one trained on the front door of the lobby, one in the lobby area before the desk, with the
glass-paneled door through which Nabizada peered behind, and one with a view of the
hallway down which Nabizada walked. The light-clad intruder enters first, not visibly
armed but wearing loose fitting clothes. He trots without evident physical impediment to


                                              3
Dwinell (partly visible just briefly) and goes out of camera range. Immediately behind
him enters a taller, dark-clad intruder, who removes a shotgun from a black case and
drops it to the floor before moving to the desk and then back across the lobby into the
office, off camera. (What Dwinell described as a “beanie cap” on the second man was a
knit cap pulled down onto his brow.) About a minute into the sequence, the first intruder
crosses the lobby, steering a stiffly restrained Dwinell ahead of him, and goes off screen
into the office. Nabizada immediately leaves his apartment and walks down the hall to
the glass-paneled door through which he peers (visible on two cameras) until, with a
troubled look, he retreats back to his apartment. Some two minutes into the sequence,
both intruders reemerge from off screen and leave, the dark-clad one first, through the
lobby’s main door. Nabizada leaves his apartment again (presumably having called 911)
and goes back to the glass-paneled door, through which he peers again just as the dark-
clad man hurriedly reenters to retrieve the soft case from the floor before exiting again.
Nabizada enters the lobby during that final exit and crosses the lobby, looking toward the
office before hesitantly following the exit path of the intruders.
B. Victim’s Identifications
       Dwinell said in testimony that she had limited opportunity during the robbery to
see either man’s face. Her view of the first man, given his cowboy hat and bandanna,
was limited to the area between his eyebrows and lower eye sockets or cheekbones, and
she saw his face for only about 10 seconds as he initially approached her from the lobby
door. Her view of the man with the shotgun was longer and occurred in the office. It
was 30 to 45 seconds at most but less than “a full spectrum” because she was still being
restrained by the first man and “held upwards” (which the record shows she demonstrated
by looking upwards, her head tilted up).
       Six days following the robbery, after information to Concord Police Department
(CPD) from Fraser’s girlfriend, Danielle Wilson, focused suspicion on Olesh and Fraser,
Detective David Ishikawa prepared six-person photo lineups involving each man and
showed them to Dwinell at the hotel, giving her standard admonishments. Ishikawa
testified that, for the lineup containing Fraser’s photo, Dwinell narrowed it down to


                                              4
photos number two (Fraser’s) and four as the gunman, but saying that number two, based
on the eyes and the bone structure of the face, looked more like the gunman than did four.
       Regarding the lineup containing Olesh’s photo, Dwinell was not able to identify
any one photo; she told Ishikawa that none “jumped out” but that two of them (neither
one being Olesh’s) were definitely not the other man. Dwinell confirmed at trial that,
based on her “[m]inimal” observation of facial structure and “overall apparent build,”
“breadth of shoulders and whatnot,” she had been able to “rule people out for sure” but
not make a positive identification, and she had also been shown still shots from the
incident at that time. At the trial, nearly a year and a half later, she could not positively
identify the two people who rushed in on her, although she identified the individuals in
still shots from the video as depicting those who entered that night, and had done so as
well at the preliminary hearing in November 2010.
C. The Wilson Lead and Arrests of Fraser and Olesh
       On the morning of January 7, 2010, five days after the robbery, Danielle Wilson
contacted CPD about the robbery, and Detective Ishikawa spoke with her at the Vallejo
apartment she shared with Fraser. In a back room, Ishikawa and Officer Greg Pardella
found a soft guitar case containing a shotgun with a chambered shell, plus a pouch
holding another 20 shells. The gun and case were consistent with those in the video
surveillance, and Wilson, when shown stills from that surveillance, quickly and very
positively identified Fraser and Olesh (“Corey and Jeff” to her).
       Later that day, the officers arrested Fraser at his workplace, an Oakland hardware
store. Hanging in the break room were his blue sweatshirt with white stripes, and a gray
“beanie,” both consistent with those worn by the gunman in the surveillance video. His
Honda, parked nearby, had more shotgun shells, on the floorboard behind the driver’s
seat, and had a blue bandanna on the front passenger seat.
       Late that same afternoon, Olesh was arrested as he used a key to enter his Concord
apartment. He was with Amanda Torres. The arresting officer noticed that, while Olesh
carried a bottle of prescription OxyContin, he had not evinced any disability in walking




                                               5
some 100 feet to the apartment door and did not complain of pain. Officers found, on a
table in his bedroom, a large fixed-blade knife in a sheath.
       Wilson recounted at trial the events surrounding the January 2 robbery, using parts
of interviews she had with officers soon after the event to refresh her recollection on
many points. She was in a romantic relationship with Fraser that, she said, was “a little
bit worse than just ‘on the rocks,’ ” but shared a room with him at his Vallejo address.
Fraser kept the shotgun and the guitar case in their room. Sometime after dark the night
of the robbery Fraser drove her to a get-together at Olesh’s apartment, which was next
door to the Days Inn. Wilson drank vodka with cranberry juice while at the apartment,
but remained coherent, not drunk. She did not know any of the several other people there
except for Fraser, Olesh and Torres. Olesh and Fraser talked at some point about a
Valero gas station situated on a corner across the street from the apartment. Wilson heard
Olesh direct Torres to go see when it closed, and saw Torres leave the apartment. Torres
returned, and when she left again, this time with Olesh and Fraser, Wilson followed her
out onto the patio, not wanting to be alone inside with people she did not know. Fraser
had the guitar case in his hands, and while she never actually saw the shotgun, it was
inside the case.
       Olesh and Fraser walked off in the direction of the gas station. Olesh wore a
khaki-colored (“lighter khaki”) jacket with black trim, and perhaps cowboy boots, and
Fraser wore a black or blue sweatshirt with white stripes and lettering, a jacket that was a
Christmas gift from his aunt that Wilson had seen him open. The men returned 15 to 30
minutes later, Olesh arriving first and handing his khaki jacket to Wilson over a tall fence
enclosing the patio area before coming over the fence himself. He told the women to go
inside and that he and Fraser would be in shortly. (Wilson told Detective Ishikawa that
this took place around 11:40 p.m. and that Olesh, at the fence, handed her a knife as well
as the jacket.)
       A couple minutes later, Wilson saw Olesh inside, and then Fraser, who still wore
the sweatshirt and may have come in through the front door. She was glad to see Fraser
back, having worried about him, but sensed that “something obviously wasn’t right.” She


                                             6
went to Olesh’s room, where he and Fraser, and then Torres, had gone, and she heard the
men conversing. One said, “We rob this bitch for only $19,” and both men were “pretty
pissed.” Fraser pulled a wad of money from his pocket, uncrumpled and counted it, and
the men “divvied it up” between them. Wilson, shocked, took Fraser aside and said
something like, “What the fuck happened, like what went on[?]” Then when Fraser went
into the bathroom, she confronted Olesh and asked, “What the ‘F’ did you guys do?”
Olesh said, “[W]e only got fucking $19 out [of] it,” and Wilson retorted, “Was it really
worth it?”
         Wilson wound up staying overnight at the apartment, after failing to persuade
people she phoned to come and pick her up. Half an hour or more after the bedroom
conversation, she heard that there were cops out front, and saw them herself in the Days
Inn parking lot. She saw a purple bandanna at the apartment that night and noted in
testimony that Fraser had long hair at the time and wore bandannas off and on.
Somewhere inside the apartment she also saw a cowboy hat, not worn by Olesh but
maybe being held by his roommate, Scott, who tended to dress like a cowboy.
         Wilson was reluctant to come forward until motivated to contact the police by a
talk she had with her father. She identified Olesh and Fraser from still photos Detective
Ishikawa showed her within a week of the robbery. Identifying the photos again at trial,
she explained as to Fraser: “Corey always wore glasses, that’s his sweatshirt that he
loved, that’s his big choppy sideburns he used to have.” She explained as to Olesh:
“That’s the jacket that I was referring to . . . . [T]hat’s how I knew it was him.” She
confirmed that no one else at the party that night had a khaki jacket like Olesh’s or a blue
sweatshirt like Fraser’s, and said that the cowboy hat Olesh wore in the photo appeared to
be the hat she saw that night in the apartment. She did not see the men “gear up” that
night.
D. The “Pretext” Call to Torres
         Wilson spoke with CPD officers on January 7 and 8, 2010, and the latter date
involved Detectives Ishikawa and Jason Smith picking her up that evening from a San
Francisco hotel, driving her out to the CPD in Concord, and there recording a “pretext”


                                              7
phone call she made to Torres. A tape recording and transcript of the call were in
evidence at the preliminary hearing, during testimony by Torres. At trial, Torres was an
unavailable witness, but jurors heard the tape and viewed the transcript during the reading
of Torres’s preliminary hearing testimony.
       The call was made on the evening of January 8th, after Fraser and Olesh had been
taken into custody. Ishikawa guided her beforehand on subjects to cover and recorded
the call, but Wilson did not reveal that to Torres, or that she was calling from the police
station. Wilson conveyed a needy insecurity, fear of what police detectives knew, tension
from pressure she felt from them, apprehension about what to tell them and what Torres
had already said or would say, and concern that detectives not find physical evidence
tying Olesh and Fraser to the robbery. Torres was guarded about talking about this on the
phone, saying her mother had warned her that police could be listening (“[s]o that’s why
I’m just being careful”), and cautioned, “Danielle, why are you talking about this over the
phone with me?” and “this alone could fucking get them arrested.” Yet she seemingly
tried to allay Wilson’s fears until they could meet or talk the next day. She said she had
been shown pictures of Fraser “holding the shotgun,” but said Olesh was “all covered.”
She said the detectives “don’t know shit,” and were faking knowledge to harass Wilson
or break her down. Wilson sometimes primed the conversation with details of the
evening and robbery, obviously trying to draw Torres out. Torres acknowledged few
details but did imply that she knew the men had committed the robbery, and assured
Wilson variously that evidence had been “burned” or “disposed of,” was “gone,” was
“gone forever,” or just told her, “don’t worry about it.” Torres also alluded several times
to having had dental surgery, mentioning taking “Percocets” for having her “wisdom
teeth out,” saying, “I have these gross ass gauze things in my mouth,” and complaining
toward the end, “My wisdom teeth are fucking (unintelligible) right now.”
       To Wilson’s concerns about what Torres might have said, Torres assured, “I didn’t
tell them anything,” adding: “But what I said was [Jeff and I] were fighting all night so
we were barely talking. And . . . I was kind of jealous. I didn’t want him talking to any
other girls ‘cause I—like we were fighting and stuff. I was kind of watching him. Like, I


                                              8
never noticed him leave for more than five minutes at the back door to have a cigarette.”
[¶] . . . I know Jeff went to Safeway. He went probably around like 8:30 to 9:00. He was
back in no longer than ten minutes. And the robbery didn’t happen till 11:45.” To
Wilson’s protest that the story was too complicated to remember, Torres said: “Well, we
can’t have the same story anyway. So you don’t need to know anything about me and
Jeff. All you need to know is what happened with you and Corey. You need to tell them
you guys have been off and on since New Years, you guys broke up, you guys are
trying—you guys are trying to work things out. She urged Wilson just to “say you don’t
know anything”. “They have a witness—they have a witness seeing them in the hotel
and leaving the hotel and running in different directions. That’s it.” By answering
“Yeah” to Wilson’s musing that the men had traumatized them and the victim all for a
“measly” $19, Torres arguably admitted knowing the amount. She offered that Fraser
perhaps had been trying to “protect” Wilson, saying: “I know that like he was broke and
couldn’t pay his bills. And Jeff didn’t have any money to give him.”
       Wilson then pressed: “Everything that happened that night, we both know. We’re
gonna pinky promise we will not tell anybody that we know that Jeff and Corey did what
they did. Pinky promise me.” “I pinkie promise,” Torres said, adding, “I’m not throwing
you under the bus.” Wilson urged: “We need to have the pact that we know that they did
it but we’re not gonna say anything. Promise me that right now.” Torres reassured: “We
have a pact. We have a fucking pact. I promise you.” Asked about the photos, Torres
said: “They just showed me the ones of Jeff. And you couldn’t see Jeff. [¶] I saw a little
bit of Corey from far away. It looked like (unintelligible).” She warned, “They’re on
you, like watching you like a hawk,” and advised Wilson not to carry drugs, or they
would use the threat of custody to increase pressures on her. She also cautioned:
“Anything you can, be honest about. That’s what I’m saying. Like, ‘cause if they find a
little fucking tiny lie, they’re gonna think you’re lying about everything. [¶] So like, I
fucked myself over by saying my car was fucking at home, you know? So now they
think I’m lying about everything.”



                                              9
E. Torres’s Preliminary Hearing Testimony
       Torres’s testimony at the preliminary hearing, 10 months after the pretext call, was
in part an exercise in studied denial as to anything she had said in the call. A grant of
immunity overrode her privilege against self-incrimination; but she still considered
herself Olesh’s girlfriend; and his parents were in the courtroom. Her repeated claims of
memory lapse, despite use of the call to refresh recollection, led the court to declare her a
hostile witness and allow use of the call as prior inconsistent statements for “the non-
hearsay purpose” of impeachment. At trial, the court instructed that jurors could use the
call statements to assess the credibility of her prior testimony, and, to the limited extent
that they found she spoke from personal knowledge of a defendant’s acts or statements,
for the truth of matters.2
       The preliminary hearing transcript was read in some length at trial, with trial
counsel on each side lodging objections for the trial court’s rulings. Torres
acknowledged being Olesh’s girlfriend on the night of the robbery, “hanging out” with
him that day, attending the party with him that night at his apartment, Fraser and his



       2  General instructions advised that one factor in evaluating any witness’s
credibility was to ask: “Did the witness make a statement in the past that is consistent or
inconsistent with his or her testimony?” and that, “If you do not believe a witness’s
testimony that he or she no longer remembers something, that testimony is inconsistent
with the witness’s earlier statement on that subject. Instruction specific to Torres, based
on modified CALCRIM Nos. 319 and 318, added: “The testimony that Amanda Torres
has given under oath was read to you because she was not available. And you must
evaluate that testimony by the same standards that you apply to a witness who testified
here in court. [¶] In addition to this testimony of Amanda Torres, you have heard
evidence that Amanda Torres made other statements. And I’m referring by that to the
telephone conversation that was recorded and was heard by you. [¶] Now, if you
conclude that Amanda Torres made those other statements in the telephone call, you may
only consider them in a limited way. Firstly, you may use them in deciding whether to
believe the testimony of Amanda Torres that was read to you here at trial—that is, her
testimony from the preliminary hearing. Secondly, if you find that from the statement or
testimony it appears that Amanda Torres personally observed an act or statement of one
of the defendants, and only in that instance, you may use the statement as evidence that
the earlier statement is true.”


                                              10
girlfriend Danielle (Wilson) showing up, plus others, and days later getting the call from
Wilson, the night after Olesh was arrested and Torres herself had spoken with police.
       Her account of the party was that she and Olesh were fighting, and she was upset,
probably about other girls. She stayed the whole evening except for walking once to the
store and back, drank vodka, was drunk, probably passing out at the end of the night, and
then stayed overnight. Being upset, she went to Olesh’s bedroom for awhile and so did
not see both men the whole time, but she only recalled them leaving the apartment
together once, for about 10 minutes toward the start of the party, to buy alcohol. There
were only periods of about five minutes where she did not see Olesh, but she did not pay
as close attention to what Fraser did. Olesh wore blue jeans, turquoise shoes, a black
“Fox” sweatshirt she had gotten him for Christmas, and a black baseball hat. She did not
recall what Fraser wore. She did not recall anyone wearing a beanie, cowboy hat, or a
sweater of the kind seen in the robbery surveillance video, and she thought she would
have remembered a cowboy hat. Olesh and Fraser were still there at the end of the party,
at midnight, and neither one spoke about a robbery. She remembered seeing cops outside
later that night.
       As for the recorded phone call with Wilson, Torres generally, but inconsistently,
denied recalling anything she said in the call. This was despite having completely read
and listened to the call before the preliminary hearing, and then, at the hearing, read parts
of the transcript again to try and refresh her recollection. She recalled speaking a couple
of times with Wilson after their boyfriends were arrested, and confirmed that it was her
voice on the tape, but claimed no memory of what she “ ‘actually said.’ ” In fact, she
“ ‘didn’t really remember that day.’ ” She attributed her failed memory to the passage of
time, and to having had her wisdom teeth removed that morning. She said she was on
medication afterward, had gone back to sleep when she got home, and was awakened by
the call. “ ‘Yeah I guess,’ ” she answered, when asked if she was “ ‘too high to
remember’ ” it. On the other hand, she did recall not wanting to talk to Wilson about the
robbery over the phone due to concern that police were listening in on the conversation.
“ ‘I was listening to my mom,’ ” she said, who had advised her not to talk on the phone


                                             11
because police might be listening in. She also claimed that she was not concerned about
implicating her boyfriend and that her not wanting to talk with Wilson over the phone
was: “ ‘Just because I wanted to meet up with her. We were both upset over our
boyfriends, and I wanted to meet with her.’ ” Her testimony was internally inconsistent,
as where she explained: “ ‘I mean, since I saw [the transcript of the call], I remember bits
and pieces; but I don’t remember saying any of it.’ ” The trial court, soon after that
jumble, answered a defense objection that Torres had “no personal knowledge” with: “A
person can be impeached by ‘I don’t remember.’ Overruled.”
       When asked next whether she recalled telling Wilson she had lied to the police,
Torres first answered “No” but then was able to elaborate after reading the call transcript:
“I know what you’re talking about now. What I was talking about—yeah, when they
arrested Jeff, I lied about where my car was because I was scared and I left.” She said
she was referring to police asking her to wait in her car until they could take her
statement; after 10 minutes, however, she “ ‘got scared’ ” and drove off to a store parking
lot and lied to them by telling them she had gone home. In follow-up questions about
why she was scared to speak “ ‘ the truth’ ” to police and say Olesh was with her the
whole night and did nothing, Torres said she was “ ‘upset’ ” because of Olesh’s arrest
and “ ‘needed time to cool down.’ ”
       Torres then tried to distance herself from the “ ‘pinkie promise’ ” to Wilson not to
tell what they knew. Asked if she made the pinkie promise, she first said: “ ‘No. I was
just trying to calm her down.’ ” Then she double-waffled, saying “ ‘Yes, I said that,’ ”
and then ,“ ‘I just don’t remember actually saying that.’ ” Asked next if she told Wilson
that she saw surveillance pictures of Corey (Fraser) holding a shotgun, Torres replied, “I
think I said something like, they showed me pictures,’ ” but then added, “ ‘I can’t say I
remember saying it’ ” and that the call would not refresh her recollection. Then she
answered “No” when asked if she remembered asking Wilson where evidence from the
case was, again saying her recollection would not be refreshed by the call. She also did
not recall telling Wilson she had seen pictures of the robbery and that both defendants’
faces were covered. At this point in the trial reading, the court allowed a tape of the call


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to be played for the jury, over objection by Olesh’s counsel that it was “improper
impeachment.”
       After the playing of the tape, Torres was asked if she ever burned any of the
evidence, and she said no. Asked, then, why she said that on the tape, she said, “ ‘I didn’t
say that’ ” then, inconsistently, that she did not remember the conversation due to her
medication. Asked similarly whether Olesh told her to “ ‘lace up’ ” her story and, upon
her denial, why she said so on the tape, Torres offered: “ ‘I said yes and no to every
question, but I don’t remember. So I don’t know.’ ” Asked to explain, she said:
“ ‘Every question she asked me I’m like, Yes, No, Yes, No, Yes, No, Yes, No. Honestly,
I don’t remember from the day it happened.’ ” This triggered inquiry into just what
Torres did remember from the phone conversation, and elicited a broad denial that she
remembered anything. Her denial, of course, contradicted her earlier testimony about
various details of the call.3

       3Questioning at the preliminary hearing had been by Deputy District Attorney
Chris Walpole, who led this passage:
       “ ‘[Q]: What do you remember about this conversation?
       “ ‘[A]: What I just heard.
       “ ‘[Q]: What do you mean?
       “ ‘[A]: Like I remember what I just heard.
       “ ‘[Q]: The whole tape?
       “ ‘[A]: I don’t remember what I said on that exact day. I don’t remember saying
any of this conversation.
       “ ‘[Q]: Okay. That’s what I’m trying to get at. As you sit here today, what do
you remember about the conversation? Do you remember anything as far as you sit here
today?
       “ ‘[A]: No.
       “ ‘[Q]: Do you remember even having a conversation?
     “ ‘[A]: I mean, I remember I would talk to Danielle a couple times; but I don’t
remember remembering [sic] that specific conversation.
      “ ‘[Q]: Okay. So everything in this 18-minute conversation, the details of which
you remember nothing, but you remember you had the conversation?


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F. Defense Case
       Neither codefendant testified, but Olesh presented alibi witness Gaelan Shields,
who described himself as a friend who did not want to see Olesh convicted of any crime.
He also claimed to be less close a friend to Fraser yet “more than an acquaintance.”
Shields said he was at Olesh’s place the entire time from about 8:00 p.m. to 2:30 a.m., to
“hang out” with Olesh, that Olesh wore blue jeans and a darker blue T-shirt and no
cowboy hat, that he left only for about 15 minutes at 9:00 p.m. (returning with alcohol
and cigarettes), and that the only other time Olesh was out of sight was for 45 minutes to
an hour when he went into his room with Torres.
       In contrast to his certainty about what Olesh did and wore that night, Shields
remembered little beyond there being eight to 15 people throughout the evening, drinking
eight or nine beers but not being tipsy, and calling two women friends that night who
joined him there. He did not recall when the women arrived or left, who they were, or
what they looked like. Despite knowing of Olesh’s arrest for the robbery since the month
it occurred, Shields never came forward with his information until trial.
       Olesh also called a police officer to testify that her trained German shepherd
picked up a scent of some kind at the robbery scene (which was rife with contaminating
scents), and followed it through the apartment complex, but lost it a couple of streets
away. Another officer related that the victim, Dwinell, who was shaken by the robbery
and said she thought she was going to die, said she estimated the value of the uncounted
money taken in the robbery was $50 to $60.
       Detective Ishikawa, recalled by the defense to further discuss his interviews with
Wilson, said she never mentioned there being black trim on the jacket or a knife present
in the apartment. She also did not mention, in her pretext call to Torres or her initial
statements on the ride from San Francisco, anything about the Valero gas station.
(Ishikawa explained that it was difficult for him to direct or inject himself into the “free
flowing conversation” of the pretext call and that Wilson “didn’t go there with it.”)

      “ ‘[A]: I never said I remember having the conversation. I’m saying I remember
having a few conversations with her after they got arrested.’ ”


                                             14
Wilson also said in her initial statements, when asked about the guitar case and shotgun,
something like, “ ‘No, that’s the thing, I didn’t see him the whole night with it[.]’ ”
Later, however, she said she saw Fraser with the case (the gun being inside). She had
also said initially that she was drinking vodka, but without mentioning mixing it with
cranberry juice, and did not mention what Olesh wore when he emerged with Fraser from
his room. Wilson had also read an article about the robbery online, and described a
cowboy hat but then, after seeing still shots of the robbery video, said that she (or the
article) had gotten the color of the hat wrong.
                                    III. DISCUSSION
A. Confrontation Issues as to Preliminary Hearing Testimony and Pretext Call
       Olesh claims that the admission at trial of Torres’s preliminary hearing testimony
and statements from the pretext call violated Evidence Code section 12914 and his Sixth
Amendment right to confront witnesses as established by Crawford v. Washington (2004)
541 U.S. 36 (Crawford). Neither claim has merit.
       “A criminal defendant has a constitutionally guaranteed right to confront and
cross-examine the witnesses against him or her. [Citations.] The right of confrontation is
not absolute, however, and may ‘in appropriate cases’ bow to other legitimate interests in
the criminal trial process. [Citations.] An exception to the confrontation requirement
exists where the witness is unavailable, has given testimony at a previous judicial
proceeding against the same defendant, and was subject to cross-examination by that
defendant. [Citations.]


       4 All further section references in this opinion are to the Evidence Code unless
specified otherwise.
        Section 1291 provides in part: “(a) Evidence of former testimony is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness and: . . .
[¶] (2) The party against whom the former testimony is offered was a party to the action
or proceeding in which the testimony was given and had the right and opportunity to
cross-examine the declarant with an interest and motive similar to that which he has at
the hearing.” Former testimony, for this purpose, is defined in part as testimony given
under oath in “a former hearing or trial of the same action.” (§ 1290, subd. (a).)


                                             15
       “California permits the use of the prior testimony of a witness against a criminal
defendant only when the unavailability of the witness and the reliability of the testimony
are established. [Citation.] . . . [Citation.] The testimony is deemed reliable if ‘[t]he
party against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at the
hearing.’ (Evid. Code, § 1291, subd. (a)(2).)
       “ ‘. . . [T]he “admission of the former testimony of an unavailable witness is
permitted under . . . section 1291 and does not offend the confrontation clauses of the
federal or state Constitution—not because the opportunity to cross-examine the witness at
the preliminary hearing is considered an exact substitute for the right of confrontation at
trial [citation], but because the interests of justice are deemed served by a balancing of
the defendant’s right to effective cross-examination against the public’s interest in
effective prosecution.” . . . [A] defendant’s motive in cross-examining a witness at a
preliminary hearing may differ somewhat from the motive at trial, but nevertheless the
earlier testimony may be admissible at the trial under section 1291 because the “motives
need not be identical, only ‘similar.’ ” [Citations.]’ ” (People v. Carter (2005) 36
Cal.4th 1114, 1172-1173 (Carter).)
       Olesh does not challenge the court’s finding that Torres was unavailable, a finding
based on numerous attempts to serve her, locally and at locations in Southern California,
and on a conclusion that she remained Olesh’s girlfriend and was “hiding herself.” Olesh
also does not dispute that his counsel, Roberta Brooks, who was also his trial counsel, in
fact exercised the opportunity to confront and cross-examine Torres at the preliminary
hearing. What he argues, rather, is that his interest and motive in cross-examining Torres
at the preliminary hearing were too dissimilar to satisfy the Sixth Amendment or section
1291. He is unpersuasive.
       Olesh cites a constant in this situation, that a defendant’s interest and motive in
confronting an adverse witness at a preliminary hearing differs because the degree of
proof is less for a holding order than for a criminal conviction. However, since the


                                              16
admission of preliminary hearing testimony is “ ‘routinely allowed’ ” without offending
statutory and constitutional rights (People v. Seijas (2005) 36 Cal.4th 291, 303), the
differing standard of proof is clearly not enough, alone, to constitute error. A court looks
for a similar, not identical, interest and motive. To paraphrase one case example, Olesh’s
“interest and motive in cross-examining [Torres] at the preliminary hearing were similar
to those at trial: to challenge [her] credibility and discredit [her] account of the [events].”
(People v. Harris (2005) 37 Cal.4th 310, 333.)
       Olesh urges that things were significantly different here because of “[t]he nature
of” Torres’s testimony. At the preliminary hearing, she gave an account that was “largely
favorable” to him, thus assertedly leaving “no motive” to vigorously cross-examine her.
At trial, by contrast, he stressed that the most damning witness against him was Wilson,
who had not testified at the preliminary hearing, and asserts that this elevated Torres’s
account to corroboration for Wilson’s.
       Olesh makes too much of Wilson being absent from the prior hearing, for her
account was indeed in evidence at that hearing. Detective Ishikawa related in detail the
various interview statements she gave, and Olesh makes no claim that those statements
conflicted significantly with how they would be presented at trial, where Wilson testified
personally. California law allows hearsay testimony to come into evidence at a
preliminary hearing through the testimony of an officer specially trained in relating such
hearsay. This hearsay recounting of victim statements at the preliminary hearing is well
established (Correa v. Superior Court (2002) 27 Cal.4th 444, 464-466 [approving officer
relation of translated statements]), and here Brooks vigorously cross-examined the
detective about Wilson’s statements without apparent limitation by the court. Thus, the
use of Torres’s account as corroboration for Wilson’s stronger account was not
significantly different at the preliminary hearing than it would be at trial. Brooks
presumably anticipated that Wilson’s account would be related by an officer rather than
Wilson herself (§ 1203.1; Pen. Code, § 872), and nothing indicates that counsel expected
her to be unavailable for trial. Thus, Olesh had reason to cross-examine Torres fully
about any parts of her testimony that corroborated Wilson’s account. Brooks in fact did


                                              17
so, eliciting that her poor recollection was due to sleepiness, after general anesthesia that
morning to have all four wisdom teeth extracted, and then taking probably four pain pills
(perhaps Vicodin and a second drug). Brooks also elicited testimony of a strained
relationship between Torres and Wilson. Wilson was nice to her but did not like her,
Torres said, and created a lot of “drama” between herself and Olesh. Wilson was also
“nice to Jeff’s face” but “would make up rumors.” Brooks seemingly pulled no punches
at the preliminary hearing and, again, was not evidently limited there by the judge.
       But Olesh focuses on the recorded call, urging that his motive and interest was
rendered too dissimilar because it was admitted at the preliminary hearing only for the
non-hearsay purpose of impeaching Torres whereas, at trial, it was further admitted for
the truth of matters to the extent that jurors might find that Torres spoke from personal
observation of acts or statements by a defendant (fn. 3, ante). Olesh calls this difference
a “bait-and-switch” that effected a “blind-siding of defense counsel” on the need to cross-
examine Torres about the truth of her call statements.
       We disagree and find little analogy in the case law examples of dissimilarity Olesh
cites. The prior proceeding here was not a suppression hearing where an informant’s
credibility was explored only in the limited context of whether police officers reasonably
relied on his account (People v. Sanders (1995) 11 Cal.4th 475, 525-526 [pre-Crawford,
court did not abuse its discretion in denying use of the prior testimony]) or a preliminary
hearing where evidence was admitted only against a codefendant (In re Jones (1996) 13
Cal.4th 552, 572-573 [pre-Crawford, competent counsel would have objected based on
§ 1291, subd. (a)]). The fundamental issue in both of these proceedings was whether
Olesh was one of the robbers, and Torres’ statements to Wilson in the pretext call went
directly to that issue, whether taken as true or just used to impeach Torres’s exculpatory
testimony. In both proceedings, the prosecution was using the call to show that Torres
was covering up for Olesh in her preliminary hearing testimony.5


       5 For purposes of these confrontation claims, Olesh does not dispute the
underlying premise, noted by the Attorney General, that Torres’s call statements were
admissible as prior inconsistent statements of an unavailable witness to the extent they

                                             18
       Olesh contends that, had he known at the preliminary hearing that the truth of
Torres’s call statements was at issue, his counsel could have tried to pin Torres down on
what parts of her statements “were based on her own observations or Olesh’s statements
versus unsupported assumptions, speculation, or third-party hearsay,” and thus perhaps
limited or foreclosed all potential use of statements for their truth. On this record,
however, this argument seems more theoretical than practical. Olesh is vague about what
potentially “true” facts he has in mind. He alludes to suggestions by Torres, in response
to Wilson’s urgent and repeated requests for assurance, that any incriminating evidence
had been disposed of, or even burned. But if we imagine a scenario where the judge at
the preliminary hearing had, like the trial judge, ruled to admit some of her statements for
their truth, it is hard to say how defense counsel Brooks would have accomplished a
sorting out of assumptions versus personal knowledge beyond what Torres had already
said. We have already set out her testimony at length (pt. II.E., ante). To broadly
summarize, Torres had started out by repeatedly disclaiming memory of her statements in
the call, despite attempts to refresh her recollection with the transcript, only to turn
around and explain, inconsistently, what she meant by some of those statements. Then,
late in the direct examination, prosecutor Walpole carefully probed Torres about what
exactly she did remember saying in the call. Torres responded by denying memory of
any statements at all (fn. 4, ante), and this was right after inconsistently saying, when
probed about whether Olesh asked her to lace up her story: “ ‘I said yes and no to every
question, but I don’t remember. So I don’t know.’ ” “ ‘Every question [Wilson] asked
me I’m like, Yes, No, Yes, No, Yes, No, Yes, No. Honestly, I don’t remember from the
day it happened.’ ”
       It is with that testimony in place that defense counsel Brooks stepped up to cross-
examine Torres. One may argue that Torres’s denials were not fully credible, given the


were inconsistent with her preliminary hearing testimony. (§ 1294; People v. Martinez
(2003) 113 Cal.App.4th 400, 408-409.) In part III.B. of this opinion, post, we consider
his separate claims of due process error regarding the call’s admission, which he bases on
claimed undue prejudice and lack of foundation.


                                              19
waffling she had done, but Brooks surely saw her denials as benefitting the defense. It is
interesting, in fact, that Brooks chose at trial to let the reading of the preliminary hearing
testimony end shortly after those denials, reading from her cross-examination only one
small part that reinforced Torres’s earlier statement on direct (made without reference to
the call) that Olesh had never told her to “ ‘lace up’ ” her story. The perplexing question
is how Brooks would have gone about eliciting denials of personal knowledge about
things Torres said in the call when Torres had just emphatically denied recalling
anything. It would have been a dicey exercise, and one that risked provoking the
prosecutor to explore the subject further, via redirect examination. (Cf. People v.
Cleveland (2004) 32 Cal.4th 704, 747.)
       While we are not specifically guided by Olesh as to how his counsel might have
proceeded had the broader admissibility ruling of trial been in place at the preliminary
hearing, we are confident that there was no confrontation right violation. Although the
call statements had been admitted only for impeachment, not their truth, Olesh had every
reason at the preliminary hearing to explore their bases with Torres on cross-examination,
in order to rehabilitate her otherwise exculpatory account. Of course, this had already
been accomplished in part by the prosecutor eliciting from Torres that she was just saying
yes or no to placate Wilson—not to admit anything Wilson suggested. The fact that
Brooks opted at that point to let the record stand essentially as it was appears to reflect a
tactical decision, not a lack of motive or interest in having Torres deny any foundation for
whatever her call responses might otherwise suggest. “ ‘[A]s long as a defendant was
provided the opportunity for cross-examination, the admission of preliminary hearing
testimony under . . . section 1291 does not offend the confrontation clause of the federal
Constitution simply because the defendant did not conduct a particular form of cross-
examination that in hindsight might have been more effective.’ [Citations.]” (Carter,
supra, 36 Cal.4th at pp. 1173-1174, italics added.)
B. Foundation, Undue Prejudice, and Due Process Regarding the Pretext Call
       Olesh separately attacks admission of the pretext call as lacking a foundation of
personal knowledge by Torres and Wilson for some of their statements (§ 702, subd. (a)),


                                              20
as containing statements by both women that he deems unduly prejudicial (§ 352), and as
rendering his trial fundamentally unfair, denying him federal due process (U.S. Const.,
5th & 14th Amends.). He raised the foundation and undue prejudice arguments below
and, while not having raised a due process claim there, may do so on appeal to the narrow
extent that he urges that the consequence of the errors he did raise was so serious as to
violate due process. (People v. Partida (2005) 37 Cal.4th 428, 435-436.)
       “To testify, a witness must have personal knowledge of the subject matter of the
testimony, i.e., ‘a present recollection of an impression derived from the exercise of the
witness’ own senses.’ [Citations.]” (People v. Lewis (2001) 26 Cal.4th 334, 356 (Lewis).
“[T]he personal knowledge of a witness concerning the subject matter of his [or her]
testimony” is a preliminary fact (§ 403, subd. (a)(2)), thus placing on the proponent of the
proffered evidence “the burden of producing evidence as to the existence of the
preliminary fact,” and “the proffered evidence is inadmissible unless the court finds that
there is evidence sufficient to sustain a finding of the existence of the preliminary fact
. . .” (§ 403, subd. (a)). The issue typically arises in the case law when there is a
challenge to the witness’s capacity to perceive and recollect, and our Supreme Court has
held, in that context that, in a jury trial, a trial court “should allow a witness’s testimony
unless ‘no jury could reasonably find that he has such [personal] knowledge.” (Lewis,
supra, at p. 356.) “A witness’s uncertainty about his or her recollection of events does
not preclude admitting his or her testimony. (People v. Avery (1950) 35 Cal.2d 487, 492
[uncertainty of recollection goes to the weight and not admissibility of a witness’s
testimony].)” (Lewis at p. 357; accord People v. Dennis (1998) 17 Cal.4th 468, 525;
People v. Montoya (2007) 149 Cal.App.4th 1139, 1150.)
       Olesh resists applying that analysis to personal knowledge where capacity to
perceive and recollect are not at issue. We do not. Whether a witness has personal
knowledge of what she speaks can rest in whole or part upon her own testimony (§ 702,
subd. (b)), which, as here, may be inconsistent, unclear or evasive, requiring resolution
by a trier of fact. The statute speaks of “personal knowledge,” not just its capacity
component, as being a preliminary fact for this purpose (§ 403, subd. (a)(2)), and directs


                                              21
the trial court, where proffered evidence has been conditionally admitted, to “instruct the
jury to disregard [it] if the court subsequently determines that a jury could not reasonably
find that the preliminary fact exists.” (Id., subd. (c)(2).) “Unlike in other situations[, like
the competence of a witness under sections 402 and 405], under . . . section 403, ‘[t]he
preliminary fact questions listed in subdivision (a) . . . are not finally decided by the
judge because they have been traditionally regarded as jury questions. The questions
involve the credibility of testimony or the probative value of evidence that is admitted on
the ultimate issues. It is the jury’s function to determine the effect and value of the
evidence addressed to it. . . . [T]he judge’s function on questions of this sort is merely to
determine whether there is evidence sufficient to permit a jury to decide the question.
The “question of admissibility . . . merges imperceptibly into the weight of the evidence,
if admitted.” ’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 466-467 (Lucas).)
Protection for an adverse party comes from the court’s authority (or duty upon request) to
“instruct the jury to determine whether the preliminary fact exists and to disregard the
proffered evidence unless the jury finds that the preliminary fact does exist” (§ 403, subd.
(c)(1)), instruction which was given here (fn. 3, ante). Nor does Olesh persuade us that a
different analysis should apply where the witness is unavailable to cross-examine at trial.
Personal knowledge, like confrontation, does promote reliability of the evidence (People
v. Valencia (2006) 146 Cal.App.4th 92, 103-104), but confrontation issues involve
distinct criteria. We have applied those criteria and found no confrontation error from the
call’s admission (pt. III.A., ante); we are aware of no authority altering the analysis of
personal knowledge questions where the witness in question happens to be unavailable
for trial. Thus, under settled law, “ ‘[T]he court may exclude the testimony of a witness
for lack of personal knowledge only if no jury could reasonably find that [s]he has such
knowledge’ ” (People v. Anderson (2001) 25 Cal.4th 543, 573-574, italics omitted), and
“[t]he decision whether the foundational evidence is sufficiently substantial is a matter
within the court’s discretion. [Citations.]” (Lucas, supra, 12 Cal.4th at p. 466.)
       Olesh’s claim of error focuses mainly on uncertainty about Torres’s personal
knowledge that any evidence from the robbery was destroyed, and his underlying concern


                                              22
is the standard jury instruction given below on drawing guilt inferences from attempts to
conceal or destroy evidence.6 Torres’s call statements on that subject were reactions to
urgent inquiries from Wilson about whether there was any evidence for the police to find.
Torres never directly identified herself or anyone else in particular as having disposed of
evidence, but she did repeatedly assure Wilson that there was no such evidence, saying,
“don’t worry about it,” that “[e]verything’s taken care of,” or that it was “gone,” “gone
forever,” “disposed of,” or, as she said the last time, “burned.” When asked with seeming
reference to “Jeff” (Olesh), “When he destroyed the evidence, your hands were not on
any of those clothes, right?” Torres replied, “No, I didn’t do anything with any of his
stuff.” Olesh urges that, even if one discredits Torres’s flat denials at the preliminary
hearing of hearing about the robbery from either defendant, or burning evidence or saying
that she did, one cannot tell from her call statements whether she had personal knowledge
of destruction attempts, was relating something she took part in herself, or had just heard
about it from Olesh, Fraser, or others. A jury could also believe, as she suggested in
testimony, that she was just saying things to placate Wilson. The Attorney General
counters, albeit more broadly than as to statements about destroyed evidence: “When
heard in context, the statements [that] Torres makes during the pretext phone call support
the conclusion that she was speaking about events that she personally witnessed. Thus,
the trial court did not err in admitting the recording.”




       6 The court instructed from CALCRIM No. 371: “If . . . a defendant tried to hide
evidence[,] that conduct may show that he was aware of his guilt. If you conclude that a
defendant made such an attempt, it is up to you to decide its meaning and importance.
However, evidence of such an attempt cannot prove guilt just by itself. [¶] Now, if
someone other than the defendant tried to conceal or destroy evidence, that conduct may
show the defendant was aware of his guilt, but only if the defendant was present and
knew about the conduct . . . or if not present, authorized the other person’s actions. It is
up to you to decide the meaning and importance of this evidence. However, evidence of
such conduct cannot prove guilt by itself. [¶] If you conclude that a defendant tried to
hide evidence, you may consider that conduct only against that defendant. You may not
consider that conduct in deciding whether any other defendant is guilty or not guilty.”


                                              23
       In our view, the parties misframe the issue as error or lack thereof in allowing
factual use of Torres’s statement about disposing of evidence. Our reading of the record
is that the court specifically ruled to disallow that use of the statements. As the parties
are aware, there was a nearly 25-page discussion about this and other aspects of the call
statements during the settling of instructions, and the court took the view that there was
insufficient evidence of personal knowledge to use Torres’s call statements on that point
for their truth, as opposed to impeaching her preliminary hearing testimony denying
knowledge of the codefendants’ involvement in the robbery. In the course of that
discussion, the court articulated most of the same concerns Olesh now presents on appeal
and, at one point rejecting prosecutor Chad Mahalich’s argument that one would have to
imply that Torres “was either there or Mr. Olesh told her or both,” the court responded, “
. . . I think this situation about the burning is just too far removed.” To implement the
ruling, the court limited Mahalich to arguing to the jury just two areas of the call
statements for their truth, both being areas where personal knowledge was more strongly
apparent. One was Torres saying she had recognized both codefendants from
surveillance still photos, and the other was her saying, or at least implying, that she knew
they got only $19 in the heist. The court ruled: “I’m going to let [him] argue those two
portions of the tape as establishing facts, and I’m going to reword [CALCRIM No.] 319
in a way to caution the jury to be careful [that] the statement has sufficient credibility to it
that she has personal knowledge.”7 The court did alter the wording of that instruction




       7 The distinction between a discretionary ruling (Lucas, supra, 12 Cal.4th at
p. 466) denying admission and one allowing admission affects our appellate review, for
our duty is to view the ruling deferentially in light of the facts before the court (People v.
Garcia (1999) 20 Cal.4th 490, 503). Because the ruling here denied use of evidence, the
Attorney General’s evident invitation to view the evidence most favorably to admitting it
is misguided. The Attorney General relies on a reasonable inference that Torres knew of
evidence being destroyed because she had personally observed it, but there are contrary
reasonable inferences that require our deference. The Attorney General does also not
argue that the ruling limiting jury argument was an abuse of discretion.


                                              24
(see fn. 3, ante), and the prosecutor, as the Attorney General observes, did limit his jury
argument to those two areas.8
       The parties differ as to the effect of the court’s limitation: the Attorney General
implicitly views it as resolving the problem, but Olesh does not. Olesh has the better
argument. Nothing in the court’s instructions, or the prosecutor’s argument on those two
points, advised the jury that no other statements could be used for their truth, and
CALCRIM No. 371 actually informed them that they could use the truth of the evidence-
destruction statements to infer consciousness of guilt if they found that a defendant was
present or authorized the act. (Fn. 7, ante.) Our Supreme Court has noted, in the context
of examining a trial record for substantial evidence, that “the prosecutor’s argument is not
evidence and the theories suggested are not the exclusive theories that may be considered
by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
       Thus the error in this case, if any, was not in the ruling denying use of the
statements for their truth, but in failure to convey a limitation to that effect in the
instructions. This is turn raises a serious question of forfeiture, for Olesh does not appear
to have requested an appropriate limiting instruction following the ruling limiting the
prosecutor’s jury argument. Generally, “although a court should give a limiting
instruction on request, it has no sua sponte duty to give one. [Citations.]” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1051, and cases cited therein; § 355.) The parties,
who miscast the issue as error in the ruling rather than inadequate instruction, have not
briefed the forfeiture issue. Rather than delay resolution of the appeal with a request for
further briefing, we opt to assume without deciding, and purely for sake of discussion,
that there was instructional error and that it is cognizable.




       8   Mahalich briefly argued, for example, early in his opening argument: “And
defendant’s own girlfriend, Ms. Torres, discusses [the] surveillance still shots, talks about
seeing Defendant Fraser with the shotgun, seeing Defendant Olesh on the surveillance
still shot with them being covered. [¶] Ms. Torres states she knows how little money was
taken from the robbery and agrees to form a pact with Ms. Wilson not [to] talk about it.”


                                               25
       That brings us to prejudice from failure to instruct the jury that it could not use any
destruction-of-evidence statement for its truth. We find virtually none. It was reasonable
to infer that Torres spoke from personal knowledge when she told Wilson that evidence
was gone, taken care of, or burned, but instructions on using that evidence as true and
against a defendant mandated, under a tailored CALCRIM No. 318: “[I]f you find that
from the statement or testimony it appears that Amanda Torres personally observed an
act or statement of one of the defendants, and only in that instance, you may use the
statement as evidence that the earlier statement is true.” (Fn. 3, ante, italics added.)
Further, CALCRIM No. 371 told jurors that they could conclude from destroyed
evidence that a defendant was aware of his guilt “only if the defendant was present and
knew about the conduct . . . or if not present, authorized the other person’s actions.” (Fn.
7, ante.) Olesh’s vigorous arguments now that such conclusions are unsupported is a
concession against prejudice, because a bedrock presumption for us on appeal is that
jurors understand and follow instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725;
People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Nothing in this record rebuts that
presumption.
       But even accepting that a reasonable inference might weakly support Torres
basing her statements on an act or statement of Olesh or that he was present or authorized
actions by her, the key to this case was the credibility of Wilson. We have set out her
account in detail (pt. II.C., ante), but to summarize: she was Fraser’s girlfriend, knew
both codefendants, and came forward days after the robbery to readily identify both from
surveillance stills, and led police to the loaded shotgun and guitar case Fraser kept in their
room at his Vallejo residence. She placed both men at Olesh’s apartment next to the
Days Inn on the evening of the robbery, and saw Fraser that night with the guitar case
that held his shotgun. She identified the men as wearing clothing seen on the surveillance
video, reported seeing the cowboy hat in the apartment that night (albeit getting the color
wrong), knew the men had left for 15 to 20 minutes right around the time of the robbery,
and reported that when they returned, Olesh handed her his light khaki jacket and a knife
over the fence before leaping over himself. She heard the men talking in a miffed tone


                                              26
about getting only $19 and confronted Olesh about what they had done. Her tip to police
led to the arrest of Fraser at work, where he had his distinctive blue jacket and his beanie
with him. It is hard to imagine that erroneous consideration of Torres’s statements about
evidence destruction, if considered for their truth and involving Olesh, had any effect on
the jury’s view of Wilson’s credibility. In fact, Wilson’s cooperation with police was the
reason the call took place and was surely viewed by the jury as boosting her credibility.
It is not reasonably probable that, absent the erroneous failure to disallow jury use of the
truth of the evidence-destruction statements, the result would have been more favorable
to Olesh. (People v. Watson (1956) 46 Cal.2d 818, 836.) We are also confident that the
error did not render this trial fundamentally unfair so as to rise to the level of federal due
process error. Even if it had, the error would appear to be harmless beyond a reasonable
doubt based on the full record. (Chapman v. California (1963) 386 U.S. 18, 24.)
       Olesh also attacks, as lacking a foundation of personal knowledge (§ 702), call
statements by Wilson. He cites her telling Torres the following things: “ ‘We know they
robbed the fucking place. Get real.’ ” “ ‘Because the thing is, is Corey told me it was all
Jeff and Jeff told me it was all Corey.’ ” “ ‘Yeah. 19 bucks, yeah. And they traumatized
somebody now for their whole life. And now they traumatized me and you.’ ” Olesh
reasons, as to the robbery and the amount taken, that Wilson must have relied to some
extent on statements by the codefendants and, as to the traumatization, that there is no
evidence that the victim was traumatized for life. Then building on those arguments,
Olesh claims error in not excluding those statements under section 352, urging that lack
of foundation left the statements with little or no probative value and substantially greater
risk of undue prejudice. Section 352 “gives the trial court discretion to ‘exclude evidence
if its probative value is substantially outweighed by the probability that its admission
will . . . create substantial danger of undue prejudice’ ” (People v. Thomas (2012) 53
Cal.4th 771, 806), and “ ‘the “prejudice” referred to in . . . section 352 [characterizes]
evidence that uniquely tends to evoke an emotional bias against a party as an individual,
while having only slight probative value with regard to the issues’ ” (id. at p. 807). We
uphold such a ruling “unless the court abused its discretion, that is, unless it exercised its


                                              27
discretion in an arbitrary, capricious, or patently absurd manner. [Citations.]” (Id. at
p. 806.)
       Taking first the traumatized-victim statement, we note that the trial court
expressed, apparently on its own, unease about having the jury hear it, and articulated this
as part of general concern that prosecutor Mahalich might come to regret having
successfully had the jury hear the entire call: “The more I read this,” the court reflected,
“the more I wonder if the People get a verdict in this case . . . if the appellate court won’t
throw it out for my letting them hear this transcript. That was a risk the People took, I
guess.” To Mahalich’s “Yes, your Honor,” the court added, apparently as an example no
one had raised: “You never let anyone in the courtroom say they traumatized anyone for
their whole life. I would not admit that.” Mahalich replied that admission was not “for
the truth,” but Brooks took the cue, arguing: “You can’t parse it out. I mean, you have
the tape and you want to get snippets in that [are] for the truth and the bulk of it is
[section] 352 and limited purpose. I think you just end up confusing the jury. This is
why I’m objecting to allowing any of this to come in.” It was then that the court ruled to
limit use for the truth, saying with reference to Torres’s mention of $19 and identification
of both defendants, “I’m going to allow only the two portions that have been
referenced[.]”
       As we read the record, this was another example of something the court decided to
remove from consideration for its truth, yet while not informing the jury of this through
limiting instruction. Thus, while the parties again frame the issue as whether the court
erred in admitting the evidence for its truth, the ruling actually was to deny such use, and
we will assume, purely for the sake of argument, that there was cognizable error in failing
to effectively implement the ruling through instruction. Therefore, the appropriate
question for us is, again, possible prejudice from the lack of instruction. In this instance,
however, the error appears to have been largely self-correcting. There was no basis at all
in the evidence for the jury to conclude that Wilson—speaking just five days after the
robbery and with no apparent relationship or contact with the victim, Dwinell—actually
had any personal knowledge that Dwinell had been traumatized for life. The most any


                                              28
juror could draw from the statement was that Wilson was using hyperbole to try and bait
Torres into saying something incriminating against the codefendants. Thus we see no
risk that jurors considered the statement for its truth. As for the section 352 aspects of the
matter, the court acted within its sound discretion in rejecting defense counsel’s concern
that “parsing” the two uses of the evidence—impeachment versus truth—would confuse
the jury. Jurors were presumably capable of understanding and applying the instructions,
and to deny use of Torres’s statements altogether would have deprived the People of
highly probative evidence impeaching her preliminary hearing account. As the court
reasoned, it clearly damaged “[t]he credibility of Ms. Torres pretending she didn’t know
anything about this at the preliminary hearing when in the conversation, if you take this
thing as a whole, she’s saying I sure as heck knew what was going on.” Weighed against
that probative value was minimal risk that hearing Wilson speak of lifelong trauma
created prejudice. Common sense dictated that any normal person going through a
strong-arm robbery of the sort Dwinell endured would feel trauma, and jurors had already
heard from Dwinell herself: “I was in fear for my life. I didn’t want to get shot.” And
beyond that, jurors had no more basis than Wilson for believing that Dwinell would
suffer lifelong trauma. They had to appreciate that Wilson was trying to bait Torres with
the remark about victim trauma, and as the remark that Olesh and Fraser had traumatized
them as well.
       On complained-of statements by Wilson that she knew about robbery and that it
netted just $19, Olesh cannot show error under sections 702 or 352. Wilson’s knowledge
of those matters had already been established, without foundational objection, in her trial
testimony, where she recounted seeing the men leave the party in the direction of the
Days Inn, saw them return and speak of the $19, saw them divide it up, and confronted
Olesh about what she inferred they had done. There was likewise no basis of undue
prejudice for excluding the call statements when the matters were already in evidence and
certainly not prejudicial in the sense of section 352. “In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging’ ” (People v. Coddington (2000) 23
Cal.4th 529, 588 (Coddington), overruled on other grounds in Price v. Superior Court


                                             29
(2001) 25 Cal.4th 1046, and superseded by statute as stated in Verdin v. Superior Court
(2008) 43 Cal.4th 1096, 1107, fn. 4), and this was evidence of the charged crime, not
uncharged conduct (cf. People v. Lenart (2004) 32 Cal.4th 1107, 1123-1125 (Lenart)).
As for Wilson’s call statement that “ ‘Corey told me it was all Jeff and Jeff told me it was
all Corey,’ ” this, too, would have been seen by the jury as baiting Torres and was not
unduly inflammatory.
       Finally, none of the erroneously or assumed-erroneously admitted statements from
the call, even cumulatively, rendered Olesh’s trial fundamentally unfair so as to constitute
a federal due process violation. (Cf. Lenart, supra, 32 Cal.4th at p. 1125.)
C. Knife Evidence
       Olesh was not charged with any crime or enhancement involving use of a knife.
The video surveillance did not show one, and the victim never saw one during the
robbery, testifying that whatever was pressed into her back by the man who had her by
the hair and collar had not felt sharp (fn. 2, ante). Wilson told Detective Ishikawa that
Olesh, at the party, handed over the fence his jacket and a large knife, but then at trial,
even after reviewing her interview, said she did not know. Ishikawa testified that police
recovered a 12-inch fixed-blade knife in a black sheath, from atop a table in the bedroom
Olesh shared with Torres at his apartment, and the knife and sheath were introduced in
evidence. Ishikawa testified, on cross-examination by Olesh’s counsel, that Wilson told
him Fraser said a knife was used in the robbery, and Ishikawa replied “Yes,” when asked,
“And the individual who supposedly is carrying the knife is Mr. Olesh, correct?” Olesh
claims that this evidence violated sections 1230 (hearsay exception for declarations
against penal interest) and 352, and due process. We will hold that he is estopped to
complain of being identified as the robber with the knife, and that admitting the knife
itself was not error but, if error, harmless.
                                1. The Knife-Use Testimony
       Debate about knife testimony began with an in limine motion by the People, who
urged that it could be admitted, over Aranda/Bruton concerns of out-of-court statements
of a nontestifying codefendant implicating another (People v. Aranda (1965) 63 Cal.2d


                                                30
518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton)), if the statements
fell within a firmly rooted hearsay exception. The motion posited possible application of
exceptions for spontaneous declarations (§ 1240), declarations against interest (§ 1230),
coconspirator statements (§ 1223), and adoptive admissions (§ 1221). The court ruled to
disallow any reference to the evidence in opening statement and to consider later in the
trial whether an exception had been established. It also clarified that, beyond opening
statements, “That doesn’t mean that the People can’t make reference to what Mr. Fraser
allegedly told Ms. . . . this witness about what he saw happen, you just can’t identify the
person”—meaning Olesh. The parties agree that the court had in mind the exception for
declarations against penal interest, and the Attorney General does not try to justify
admission under any other hearsay exception. Olesh claims error under sections 1230
and 352, and federal due process. We find him estopped to complain.
       Section 1230 applies to statements of an unavailable declarant that “so far
subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be true” (§ 1230), a risk that
ensures reliability for a declaration against penal interest and satisfies the confrontation
clause. (People v. Greenberger (1997) 58 Cal.App.4th 298, 329.) But the exception is
narrow in scope: “A court may not . . . find a declarant’s statement sufficiently reliable
for admission ‘ “solely because it incorporates an admission of criminal culpability.” ’
[Citations.] As the high court reasoned in interpreting the analogous exception to the
federal hearsay rule, ‘[t]he fact that a person is making a broadly self-inculpatory
confession does not make more credible the confession’s non-self-inculpatory nature.
One of the most effective ways to lie is to mix falsehood with truth, especially truth that
seems particularly persuasive because of its self-inculpatory nature.’ [Citation.]”
(People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).) A court should therefore excise
any portion of a statement that is not specifically disserving to the declarant (People v.
Duarte (2000) 24 Cal.4th 603, 622), especially statements that inculpate or shifting blame
to another (id. at p. 617), and this concern about collateral impeachment of a codefendant
is implicit in the Aranda/Bruton cases (People v. Leach (1975) 15 Cal.3d 419, 441, fn.


                                               31
17). We review a ruling on this exception for abuse of discretion. (Lawley, supra, 27
Cal.4th at pp. 153-154 [no abuse in admitting statement that declarant was paid to kill,
and did kill, while excluding statement that the Aryan Brotherhood hired him].)
       The Attorney General concedes section 1230 error, reasoning (record citations
omitted): “[I]n its in limine ruling, the trial court permitted the prosecution to introduce
evidence about Fraser’s statements that his cohort had a knife. However, the trial court
specifically cautioned that the evidence could not identify appellant as the cohort. The
court’s ruling was correct. The subsequent admission of evidence identifying [Olesh] as
the individual with a knife should have been excluded. However, its admission was
harmless.”
       We cannot accept the concession of error, first, because the in limine ruling was
only that there could be reference to use of a knife, not that a “cohort” used it. Second,
our review of the record shows that the prohibited link to Olesh was created by Olesh’s
own counsel, Brooks, and that Olesh is therefore estopped to claim error. We suspect
that the Attorney General’s ill-advised concession is based on a too-simple view that
Olesh was identified as having the knife in “the prosecution’s case.” That is true but
overlooks that it was Brooks who elicited the identification. She did so in cross-
examining Detective Ishikawa, testimony mistakenly stated by the Attorney General to
have been elicited by “[t]he prosecution.”
       We do, however, agree with the Attorney General that the court’s in limine ruling
was correct. Fraser’s statement that a knife was used in the robbery plainly inculpated
him as one of the robbers and was thus, to that extent, reliable and admissible so long as
it was purged of any reference to Olesh as the one who had the knife.
       Our estoppel holding requires a detailed exposition of the evidence. The first
witness was Dwinell, during whose testimony the surveillance videos were played, and
which our review confirms did not show either robber with a knife. The only exploration
about a knife with Dwinell was when defense counsel Brooks asked on cross-
examination if she saw either man with a long knife. Dwinell said she did not, saw no



                                             32
sign of a knife, and felt nothing sharp pressing her back as the man who held her by the
hair and collar “steered” her around.
       The next mention of a knife was during the testimony by Detective Ishikawa. He
said, on direct examination by the prosecutor, that a search of Olesh’s bedroom turned up
a fixed-blade knife and black sheath on top of a table, and that the knife and sheath were
seized. This was part of identifying and offering into evidence various items seized in the
searches of Olesh’s residence and Fraser’s workplace and car. The knife and black
sheath were offered in evidence, without discussion, over “relevance” and “[f]oundation”
objections by Brooks.
       The first mention of Fraser’s statement about a knife came during Brooks’s cross-
examination of Ishikawa. She began her examination by having Ishikawa confirm that
the knife was found in its black sheath. Then, when she asked, “And in your police
report, did you put that a knife was used in this robbery?” prosecutor Mahalich raised a
hearsay objection that the court sustained. Brooks asked for a bench discussion, which
was held but not reported or memorialized for the record.
       Immediately after that discussion, Brooks broached the subject of Fraser’s
statement by this path: “Q. In your investigation in this robbery, did anyone tell you that
a knife was used in the robbery? [¶] A. Yes. [¶] Q. In the actual robbery? [¶] A. Yes.
[¶] Q. And that person was the night clerk? [¶] A. No. [¶] Q. Okay. And, in fact, that
person was Ms. Wilson, correct? [¶] A. Yes. [¶] Q. And was she at the robbery? [¶] A.
No. [¶] Q. Okay. And so she has no knowledge that that knife was used in the robbery?”
This drew a “speculation” objection from Mahalich which the court sustained, saying,
“He wouldn’t know what she knows or doesn’t know.” Then Brooks continued: “Q.
Well, did she tell—when she said that that knife was in the robbery—I think you said she
wasn’t there, correct? [¶] A. She wasn’t. [¶] Q. Okay. Did she tell you that someone
told her that the knife was used in the robbery? [¶] A. Yes. [¶] Q. She did. Can you
show me where in the police report that she said someone told her the knife was used in
the robbery[?] [¶] A. (Witness reviews report.) It would be on page 5 of my report, first
paragraph. [¶] Q. Okay. So she stated someone else told her that the knife was used in


                                            33
the robbery? [¶] A. It was Mr. Fraser who told, yes.” Then, having herself elicited the
answer, Brooks voiced an unspecified “[o]bjection” and moved to strike. Mahalich then
sought a bench conference. One was held but, again, not reported or memorialized, and
the court, once back on the record, overruled the objection.
       Then, still during Brooks’ cross-examination, came the revelation that Olesh was
the one with the knife: “Q. Okay. And then—so when you met—now, when you talked
to Ms. Wilson about this, the use of the knife, that was before you met with the clerk . . . ,
correct? [¶] A. Yes. [¶] Q. Okay. And so when you met with [the clerk], you wanted to
know whether a knife was used in this incident, correct? [¶] A. Yes. [¶] Q. And you
asked her about it, Was a knife used in this incident, right? [¶] Yes. [¶] Q. And she told
you, No? [¶] A. She didn’t recall. [¶] Q. She didn’t recall seeing the knife? [¶] A. Yes.
[¶] Q. Okay. So in your police report, you did not put the clerk recalled seeing a knife?
[¶] A. Correct. [¶] Q. Okay. And now, that knife is about—what would you say, 8 to 10
inches long? [¶] A. I think I measured it. If I may, I’d like to refer to my report. [¶] Q.
Yes, please. [¶] A. (Witness reviews report.) I measured it to 12 inches. [¶] Q. 12
inches, that’s a pretty large knife? [¶] A. Yes. [¶] Q. And it’s in a black sheath, correct?
[¶] A. Correct. [¶] Q. All right. And the individual who supposedly is carrying the knife
is Mr. Olesh, correct? [¶] A. Yes. [¶] Q. Okay. And now there are two individuals—
okay.” (Italics added.) Brooks asked if Ishikawa had seen anyone in the surveillance
video carrying a knife, but the court sustained an objection, noting that the video would
be in evidence and speak for itself. Brooks concluded: “Q. If that clerk saw a knife, told
you she saw a knife, that would be in your police report, right? [¶] A. Yes. [¶] Q. And
the fact that the clerk—and that isn’t. The clerk telling you that a knife was used is not in
your police report, correct? [¶] A. Correct. [¶] MS. BROOKS: No further questions.”
       Thus, Fraser’s identification of Olesh as the one with the knife during the robbery
was before the jury, contrary to the in limine ruling, and Brooks’s questioning is what
revealed it. One might wonder whether the court changed its ruling in the unreported
bench discussions, but this is not shown by the record and is belied by a later discussion
with counsel where the court adhered to its in limine ruling—albeit evidently unaware


                                             34
that Brooks had already violated it. Thus, Olesh’s counsel placed the offending evidence
before the jury, and the commonsense rule for this is that “a party who himself offers
inadmissible evidence is estopped to assert error in regard thereto.” (People v. Williams
(1988) 44 Cal.3d 883, 912 (Williams); People v. Moran (1970) 1 Cal.3d 755, 762.)
       The record also shows a tactical basis for introducing the evidence. (Cf. People v.
Brown (2003) 31 Cal.4th 518, 560 [apparent tactical decision by counsel to withdraw
objection to instruction rendered the doctrine of invited error applicable].) Brooks
evidently decided to use Wilson’s report of Olesh having a knife as one more arrow in a
quiver of Wilson’s statements that Brooks would argue to the jury were lies spun because
of a strong dislike of Olesh. Discrediting Wilson was vital to the defense strategy, for she
was the strongest witness against Olesh. Brooks had already established through victim
Dwinell that she could not identify Olesh as one of the robbers and never saw or even felt
anything like a knife during the robbery. No knife had been evident in the surveillance
videos just played for the jury. Revealing Olesh as the one reportedly having a knife in
the robbery was surely a gamble, but Fraser’s reported statement could reasonably be
seen as having increasingly less sting against Olesh and greater utility as impeachment
against Wilson, who, it could be urged, was making it all up. Brooks would have been
watching for juror reaction to the testimony, and she had an evidently credible witness,
Ishikawa, through which to lay groundwork for her argument. Through him, she laid this
thinking: Ishikawa’s report did not mention a knife; the victim never reported one; the
video did not show one; Wilson was not at the robbery yet reported to him—before he
had himself interviewed the victim—that Fraser told her a knife was used; when Ishikawa
then specifically asked the victim about this, she did not remember any knife; and finally,
this would have been a large knife in a black sheath. Brooks at that point elicited the
link, using “supposedly” in implicit disdain for the idea: “And the individual who
supposedly is carrying the knife is Mr. Olesh, correct? [¶] A. Yes. [¶] Q. Okay. And
now there are two individualsokay.” (The witness had already said there were two.)
Brooks must have decided that, better than letting use of a knife remain vague, it was
useful to divulge the reported tie to her own client and argue that it was not actually an


                                             35
account by Fraser, but one completely manufactured by Wilson out of contempt for her
client.
          Olesh suggests in arguing prejudice that Brooks, in her jury argument, was just
trying “to mitigate the damage caused by the evidence.” While he does not frame the
idea as an argument against estoppel, we observe that ameliorative actions by counsel in
the face of “an erroneous preliminary ruling on the admissibility of evidence to be offered
by the prosecution” can avoid estoppel. (Williams, supra, 44 Cal.3d at p. 912.) That is
not the case here. The court’s in limine ruling allowing use of Fraser’s statement only if
purged of reference to Olesh was correct. Counsel’s choice to breach the protections of
that ruling therefore estops Olesh from claiming error on appeal.
          The ensuing trial shows Brooks acting consistently with her tactical decision and,
oddly, the court acting as though she had not breached the ruling.9 Mahalich did not
pursue the subject further in his witness examinations, or mention it in his initial jury
argument. Brooks, on the other hand, kept highlighting anomalies in Wilson’s testimony,
including, in this exchange with Ishikawa: “Q. Now, with regard to the knife, we’ve
heard [an] awful lot from Ms. Wilson about this knife. But when you interviewed the

          9
          It seems that Brooks enjoyed the best of both worlds, breaching the ruling for
tactical reasons while having the court continue to enforce it as if intact The next day, for
example, when prosecutor Mahalich wandered near the identification of Olesh during
examination of Wilson about what she told Ishikawa on the car ride from San Francisco,
the court on its own motion called a conference outside the jury’s presence. The colloquy
and what followed make clear that, during that car ride, Wilson said that Fraser told her
Olesh had held a knife up to the victim’s back. This was part of what Fraser said when
she confronted him at the party by saying, “[W]hat the ‘F’ did you guys do?” The court
reminded counsel of its prior rulings that there would have to be a further ruling before
“evidence of what one of the defendants might have said that implicated the other one”
was admitted, and Mahalich assured the court that he had instructed Wilson not to reveal
forbidden parts of the interview.
       Mahalich also argued, correctly but ineffectively, that Brooks had “opened the
door” about the knife. Reading through the preceding day’s testimony, Mahalich went
through most of what we have quoted in text above. The problem is, he stopped reading
just short of Brooks eliciting: “And the individual who supposedly is carrying the knife
is Mr. Olesh, correct? [¶] A. Yes.” This understandably left the court unimpressed with
the opened-door argument, and the ruling intact.


                                               36
victim and you went over her statement, she made no mention about a knife being
present, correct? A. Correct.” She also elicited, near the close of Wilson’s testimony,
that Wilson did not like Olesh, and thought Fraser was “completely different” from Olesh
and too easily influenced by him. She said she had “chalk[ed] them up as butt buddies.”
       Then in jury argument, Brooks unleashed a torrent of attacks on Wilson’s
credibility that included equivocal or “evasive answers,” her butt-buddies “pejorative”
and dislike of Olesh, drinking vodka at the party, reporting just $19 being taken (contrary
to Dwinell’s estimates) and that a cell phone was taken (denied by Dwinell), not initially
reporting the Valero gas station or seeing the shotgun, not describing trim or a hood on
the khaki jacket, getting the hat color wrong, not mentioning the gas station in the pretext
call, and being aggressive and pushy in the call. Brooks’s exploitation of the knife
statement, as is detailed later in this opinion (pt. III.C.2., post), was particularly strident,
the statement and knife in evidence being used to slam Wilson as a liar.
       Olesh’s tactically-based introduction and exploitation of the knife statement from
Fraser estops him from complaining about it on appeal, both as to his sections 1230 and
352 claims (Williams, supra, 44 Cal.3d at pp. 912-913), and his consequent federal due
process claim (cf. People v. Crittenden (1994) 9 Cal.4th 83, 158-159).
                                         2. The Knife
       Defense counsel was not responsible for placing into evidence the knife seized
from Olesh’s room and in fact objected unsuccessfully on “relevance” and “[f]oundation”
grounds. Olesh claims that the court abused its discretion under section 352 because the
probative value was substantially outweighed by risk of undue prejudice, and that this
also violated his federal due process right to a fair trial.
       We agree with Olesh that the knife, never identified as the one to which Fraser
referred and with no knife noticed by the robbery victim or appearing in the surveillance
videos, did not have a great deal of probative value. On the risk side, however, a large
knife found as here, sheathed and on a table in Olesh’s bedroom, was hardly something
that “uniquely tends to evoke an emotional bias against defendant as an individual”
(Coddington, supra, 23 Cal.4th at p. 588), especially in this case. Fraser kept a shotgun


                                               37
in his room, and even the victim was familiar with and had experience firing shotguns
and “several different forms of weapons.” As our Supreme Court reasoned in rejecting a
claim of section 352 error in admitting multifold evidence that the defendant had
ammunition and carried loaded guns, “Whatever the truth of defendant’s assertion that
possession of guns and ammunition is ‘uncommon behavior,’ it was hardly such
uncommon behavior among the witnesses at this trial, three of whom . . . testified they
owned guns, as to evoke intense emotional juror bias against defendant.” (Lenart, supra,
32 Cal.4th at p. 1125.) The evidence was held “not unduly prejudicial” (ibid.), and it
would be anomalous to conclude, with the witnesses here, that a large knife was unduly
prejudicial. It was not, and there was no section 352 abuse of discretion in admitting it.
       Alternatively, any such error was harmless. The prosecutor made no mention of
the knife in his opening arguments. Brooks then made combined use of the knife, along
with the knife statement by Fraser, to cap her arguments against Wilson’s credibility:
“Now, this is what’s really incredible. Why else do we know she’s not been truthful
about anything . . . . [¶] . . . She talked about a knife being used in a robbery. This is
Exhibit 60-A. You guys have all seen that video over and over and over and over again.
There is no knife in that video. Where is the knife? And see it’s in a dark sheath. The
person who apparently did the robbery, if I may show you this exhibit . . . . You
know . . . what Danielle Wilson is trying to say, this individual in light-colored clothing is
Mr. Olesh. [¶] Now, how do you miss a knife in a . . . black sheath against an individual
wearing light clothing? You’re going to see it. You guys have seen that tape. . . . Ms.
Wilson is making things up because she doesn’t like Mr. Olesh. [¶] Also, we know that
Ms. Wilson made this up because I would think the victim would have said there was a
knife. I mean, you look at the size of this knife. It’s huge. . . . [I]t’s heavy, and you can
pick it up. But why wouldn’t the victim see this? You would think if somebody was
going [to] bring a knife [to] a robbery, they would be waving it around. But you don’t
see it. Why? Because it’s another—I hate to use the word, but it’s another lie by Ms.
Wilson. . . . It’s another statement used to implicate Mr. Olesh, a person she hates.”



                                              38
       In response to that hybrid argument, prosecutor Mahalich spent a lot of his time
rebutting the broader notion that Wilson was lying. On whether a knife was used in the
robbery, he told jurors: “Made a big deal, there is no way there could have been a knife.
Well, yeah, there is. These are baggy clothing [sic]. There could have very easily been a
knife. [¶] Again, there’s no evidence to suggest one way or the other except for what you
heard here. And very easily there could have been a knife under the jacket. At no point
was it argued that there had been a knife held up to the victim. She testified, quite
frankly, she had no idea what was in her back. Again, it’s something to confuse you, to
distract you from the issues in this case.” Thus Mahalich correctly treated the matter as a
red herring having nothing to do with the charges (contrast People v. Riser (1956) 47
Cal.2d 566, 577), and more to the point, nowhere did he mention the one found in
Olesh’s room or insinuate that he was a bad or dangerous character for having one.10
       No prejudice appears. Adapting slightly apt language from the Lenart case, about
gun evidence: “It is not reasonably probable that had the [knife] related evidence been
excluded defendant would have obtained more favorable verdicts. (People v. Watson[,
supra,] 46 Cal.2d [at pp.] 835-836.) Nor are we persuaded that admission of this
evidence violated defendant’s right to due process of law under our federal Constitution,
requiring us to determine whether the claimed error was harmless beyond a reasonable
doubt (Chapman v. California[, supra,] 386 U.S. [at p.] 24.)” (Lenart, supra, 32 Cal.4th
at p. 1125.)




       10  Olesh’s briefing twice mounts a single analysis of prejudice based, not only on
undue prejudice from the knife’s admission, but also from claimed violations of sections
1230 and 352, and due process, in identifying him as the one Fraser reportedly said used
a knife in the robbery. He is estopped, however, by his trial counsel’s actions in placing
the Fraser statement before the jury, from complaining of any such error now, and
therefore cannot complain of ensuing prejudice either. It follows that he cannot combine
prejudice from the Fraser statement with prejudice under section 352 from admission of
the knife itself.


                                             39
D. Ruling to Admit Evidence of Prior Use Disability
       The issue first arose during in limine motions. Brooks had informally alerted the
prosecution of her intent to call two physicians. One, Dr. Rieglers, would testify that
Olesh had limited mobility, that surgery on his left foot had not gone well, and opine that
“it would be ‘unlikely that [Olesh] could run, hop, or move quickly.’ ” The other,
Dr. Reid, would opine, based on viewing the surveillance video, that “the person on the
video is not Mr. Olesh.” The People moved to exclude the evidence, noting that Olesh
had provided no discovery, and arguing that physician opinions on those subjects, about
events occurring nearly 18 months earlier, would be speculative, lack relevance, and
exceed the purview of even medical experts. Lacking specific information about when
Olesh’s foot surgery was and how it went, they also sought a section 402 hearing on the
evidence to determine relevance before admitting it.
       Alternatively, should the medical evidence be allowed, the People moved to admit
prior conduct not charged in this case, both to impeach the supposed injury and doctors’
opinions, and to show “a pat alibi.” Their proffer was that, twice just a year before the
robbery, and while wearing a cast (or “soft cast”) a month after surgery on his foot, Olesh
“fabricated and elongated any true effects of his injury (if one existed)” to mitigate or try
to deter discovery of firearm violations. On January 15, 2009, he shot the car of a woman
named Woods outside a party in Martinez. As Woods drove off with a passenger after
talking with Olesh, Olesh returned to his car, retrieved a rifle, and shot the car. Charged
with malicious discharge of a firearm at an occupied vehicle (Pen. Code, § 246), Woods
admitted the shooting but “stated that he ‘slipped’ and fired the gun because of his cast on
his foot.” He ultimately pled guilty to a lesser charge of willful and grossly negligent
discharge of a firearm that could result in injury or death (id., § 246.3). Then, on January
22, just a week after and during investigation of the first offense, Walnut Creek officers
stopped his car and had him step out to be pat-searched. Asked by the officer to spread
his feet further for the search, Olesh said he could not because he was “wearing a boot”
but then said, when they resumed searching, “Okay, I’ve got a gun in my waistband.” At
a hearing on the motion, the People proposed calling an officer in each incident, plus


                                             40
perhaps the victim in the first, who would say what she saw him do and that she did not
notice any limp.
       The court ruled that, subject to discovery and a review of the actual evidence,
Olesh could present medical testimony about his physical condition and capabilities,
although not on the ultimate question for the jury of whether he was the one on the video.
The court also ruled that the People could impeach that evidence with the two prior
incidents, albeit cleansed of undue prejudice (§ 352) from references to any charges or
resulting convictions, or that he had a gun in his waistband.
       We see no indication in the record that the defense ever obtained or presented for
the court’s review the medical evidence, but Brooks raised the matter again by a filing
just before the defense case, proposing to show physical disability through observations
by two lay witnesses. Gaelan Shields, the friend who went on to give alibi testimony,
would testify that Olesh met him outside a bowling alley at 8:00 p.m. on the evening of
the robbery and drove him to the party at the apartment. In walking about 40 yards to the
car, Shields noticed that Olesh was limping and had to slow down for Olesh to keep up
with him. Freddy Montes would testify that Olesh employed him as a dispatcher for a
couple of months at the end of 2009, and that he occasionally saw Olesh walk with a
limp. The theory proposed by Brooks in the filing was that these lay witnesses would not
be offering medical opinions, and thus remove the basis for the People using the prior
incidents as impeachment. The court heard argument on the matter but was unpersuaded
that the expert/lay distinction made a significant difference. It adhered to its prior
rulings.
       Brooks never put on the physical-disability evidence, medical or lay, and Olesh
did not himself testify. Olesh claims error in the rulings. Cognizant of the Luce/Collins
rule barring a defendant from claiming error in an impeachment-by-priors ruling unless
the defendant testified at trial (Luce v. United States (1984) 469 U.S. 38, 43 (Luce);
People v. Collins (1986) 42 Cal.3d 378, 385 (Collins)), Olesh tries to distinguish it away
and, should he fail in that, contends that Brooks rendered constitutionally ineffective
assistance of counsel by not preserving the issue by presenting the disability evidence.


                                             41
       We shorten the analysis by reviewing the ruling on the merits, assuming purely
for sake of argument that the Luce/Collins rule does not bar review. (Cf. People v. Ayala
(2000) 23 Cal.4th 225, 273 [reaching claim on the merits without deciding whether Luce/
Collins rule should extend to bar review of an in limine ruling as to a witness the defense
did not present].) Olesh claims that the ruling was erroneous and denied him federal due
process. We disagree.
       Much of Olesh’s argument rests on section 1101, subdivision (a), which prevents
use of uncharged criminal conduct “to prove his or her conduct on a specified occasion”
unless offered under subdivision (b) to prove some fact at issue like identity, plan, intent,
or knowledge, a process which invokes a crystallized process that includes weighing,
under section 352, the risk of undue prejudice from the jury hearing about uncharged
conduct. (See generally People v. Ewoldt (1994) 7 Cal.4th 380.) Thus he argues, for
example, that “the bad acts evidence” here was not sufficiently similar to warrant use to
show identity or a common plan.
       In our view, however, that is not the analysis needed here, or seemingly
undertaken by the trial court. The prior conduct here was related to bad acts with
firearms, one of which resulted in a criminal charge and a conviction, but the bad acts
themselves were not offered to prove anything. What were offered were Olesh’s use of a
physical limitation to excuse what he did in one instance (firing a gun) and did not do in
the other (spreading his feet), and it was ruled admissible to impeach evidence he might
present that the same or similar physical problems made it unlikely that he was as agile as
the robber seen in the video trotting up to and strong-arming the victim, or able to leap a
tall fence outside the apartment, as Wilson had testified. Section 1101, subdivision (c),
specifically states, “Nothing in this section affects the admissibility of evidence offered to
support or attack the credibility of a witness.” Evidence of Olesh’s prior excuses would
support the credibility of the victim and the arresting officer, who noticed no impairment,
and Wilson, who saw Olesh scale a tall fence. The evidence would also attack the
credibility of any defense witness who suggested that Olesh walked with a significant
limp. (§ 780.) The defense no doubt would have offered contrary views, but a


                                             42
reasonable jury could find that Olesh feigned or exaggerated physical impairment in one
or both of the prior instances.
       Some confusion on Olesh’s part may arise from discussion below about whether
his earlier conduct showed “alibi” or “pat alibi,” but this referred to a holding in a case
cited by the prosecution, People v. Ricketts (1970) 7 Cal.App.3d 441 (Ricketts), and did
not compel “bad act” analysis under section 1101, subdivision (b). The juvenile
defendant in that case had been stopped on the Hollywood Freeway driving a stolen car
and, at trial, testified, with corroborating witnesses, that he had borrowed the car from a
friend named Skip Frizzell who lived in MacArthur Park and that Frizzell had assured
him that the car, which lacked an ignition key, was not stolen. (Ricketts, supra, at
pp. 443-444.) The prosecutor was allowed to impeach the defendant with evidence that
he had been stopped four months earlier for driving another stolen car and similarly told
an officer that he had borrowed it from a friend at MacArthur Park. (Id. at pp. 444-445.)
The evidence had gone to the jury on instructions, consistent with section 1011,
subdivision (b), limiting use to show intent, or absence of ignorance or mistake. (Id. at
p. 445.) Citing such case law, the Court of Appeal held: “The evidence here in question
was highly relevant as tending to establish that the defense testimony about the friend in
MacArthur Park loaning defendant the car, was fabricated. From such evidence it could
reasonably be inferred that defendant had a ‘pat’ or ‘ready’ alibi for use when stopped in
a stolen car. The trial court properly exercised its discretion in admitting the evidence.”
(Id. at pp. 445-446.)
       The court here did not propose admitting the evidence to show common plan, and
the discussion below about whether Olesh’s prior conduct constituted a pat alibi was to
some extent a red herring. Olesh citing his impairment to ultimately reduce a malicious
shooting to one that was only grossly negligent functioned, in a broad sense, as an alibi,
but using his disability as a reason not to be pat-searched was not an alibi in any sense—
just an attempt to avoid discovery. The point was that both instances could reasonably be
viewed as falsely invoking impairment to get out of trouble. And while Olesh argues that
the evidence would be admitted to prove “identity,” that is not the case. It was ruled


                                             43
admissible to rebut the credibility of any witnesses who suggested that he was severely
enough impaired that he could not have committed the robbery as shown by testimony
and the video. Olesh himself no doubt hoped to raise reasonable doubt about whether he
was the one seen in the video, but the purpose of admitting the prior use of impairment as
an excuse was not to say that such conduct tended to show a common plan implicating
him in the current robbery.
       Rather, we find this case controlled by People v. Millwee (1998) 18 Cal.4th 96
(Millwee), where a capital defendant testified that, when reaching for a nonfunctioning
gun at his parents’ house, he mistakenly picked up a functioning, loaded one, and that it
misfired, killing his mother, “as the result of a sudden ‘jolt’ in his leg.” (Id. at pp. 111,
129.) The trial court allowed admission of the defendant’s testimony evidence from a
separate, pending case in San Diego, where he had shot a man with the same gun two
days later and given a similar excuse. The evidence was given with a limiting instruction
that it could be used only to evaluate the truth of the defendant’s testimony, not as
evidence of disposition or bad character. (Id. at pp. 129-130 & fn. 12.) Rejecting a claim
of abused discretion under section 1101 due to dissimilarities in the shootings that made
it improper to show common design or plan, the court reasoned: “Contrary to what
defendant seems to claim, the prosecution was not obligated to comply with the
requirements for showing a common plan under . . . section 1101, subdivision (b),
because the excerpts from [his] testimony in the San Diego case were not offered or
admitted for that purpose. The evidence was instead admitted, with an appropriate
limiting instruction, for the far narrower purpose of showing the implausibility and
untruthfulness of defendant’s testimony in the capital case. (See . . . § 1101, subd. (c)
[nothing in the statute ‘affects the admissibility of evidence offered to support or attack
the credibility of a witness’].) [¶] Indeed, defendant’s testimony in the San Diego case
suggested that he was not a credible witness because of at least one critical discrepancy
between the two accounts. While defendant testified in San Diego that he had not fired
the gun or known it was loaded prior to the shooting charged in that case, he admitted
under oath in the capital case that he shot his mother with the same weapon in Riverside


                                              44
two day earlier. Moreover, defendant sought to avoid responsibility for both shootings
by offering the same innocent explanation in each case. He testified in each proceeding
that he was thinking about selling the gun, that he was holding it oddly by the trigger and
that a sudden distraction caused the gun to shift and discharge in the direction of an
unintended victim. The jury could readily find that defendant’s credibility in the present
case was diminished by the fact that he offered the same explanation for another shooting
that occurred only 48 hours later. In light of the foregoing, the evidence was not subject
to exclusion under . . . section 1101.” (Millwee at pp.130-131.)
       Olesh distinguishes Millwee, but not meaningfully. It does not matter that his
conduct in the shooting case did not involve any question of identity, whereas this one
did. The evidence was not ruled admissible to show identity. Nor does it matter that it
was the defendant himself who was impeached in Millwee, whereas Olesh would have
presented doctors, whose testimony about his physical condition before the robbery
would not have been impeached by Olesh misusing his impairment a year earlier. We
have no record indication that Olesh actually secured the medical testimony his counsel
spoke about at the in limine hearing. We do not know that he could have secured any
medical testimony about his condition at or near the time of the robbery. Also, it looks as
if his counsel had shifted gears by the time of the defense case, proposing instead to use
lay witnesses, a friend and an employee who knew Olesh at or near the time of the
robbery. The veracity of both would have been in issue. The veracity of the friend,
Shields, was actually rejected at trial when he gave the alibi that Olesh was at the party
when the robbery occurred. Further, Olesh overlooks the fact that the prior incidents, if
found to be fabrications or exaggerations, would have tended to support the observations
of Wilson and the officer who arrested Olesh.
       Finally, Olesh tries but does not show abuse of discretion under section 352 in the
ruling. We presume that the court would have given appropriate limiting instruction, as
in Millwee (Millwee, supra, 18 Cal.4th at p. 131); nothing to the contrary appears from
the discussions and ruling. The court also indicated on the record that would exercise its
discretion under section 352 to forbid references to the charges and conviction in the first


                                             45
incident, and the loaded gun in the second. This left nothing that we could call
inflammatory or otherwise unduly prejudicial.
E. Cumulative Prejudice
       Olesh claims cumulative prejudice from the errors he has raised. However: “ ‘We
have either rejected on the merits defendant’s claims of [cognizable] error or have found
any assumed errors to be nonprejudicial. We reach the same conclusion with respect to
the cumulative effect of any assumed errors.’ ” (People v. Cole (2004) 33 Cal.4th 1158,
1235-1236, quoting from People v. Sapp (2003) 31 Cal.4th 240, 316.)
                                   IV. DISPOSITION
       The judgment is affirmed.




                                                 _________________________
                                                 Haerle, Acting P.J.


We concur:


_________________________
Lambden, J.


_________________________
Richman, J.




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