Filed 10/7/16 P. v. Bell CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063330

v.                                                                      (Super.Ct.No. FVI1302127)

GARY BELL,                                                              OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Collette Cavalier and Andrew

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       In March 2015, a jury convicted defendant Gary Bell of first degree murder (Pen.

Code, § 187, subd. (a)) in connection with a shooting that occurred in May 2000. The

trial court imposed a sentence of 25 years to life.

       On appeal, defendant asserts the following claims of error: (1) the trial court

erroneously instructed the jury on aiding and abetting, in the absence of sufficient

evidence to support such an instruction; (2) defendant was deprived of effective

assistance of counsel by his trial counsel’s failure to move to exclude certain statements

by law enforcement officers in videotaped interviews with defendant that were played to

the jury; and (3) the trial court should have excluded certain evidence introduced by the

prosecution to impeach a defense witness. He contends that these errors, individually and

cumulatively, require reversal of his conviction.

       We find no error, and affirm.

                                    I BACKGROUND

       On May 8, 2000, the body of Louis Frake aka Louis Horner (victim) was

discovered alongside a freeway off ramp near Barstow, California. He had been shot five

times. Several Winchester .380 cartridges were found nearby. The victim’s pants were

unzipped and his penis was exposed; a moist area on the ground nearby was consistent

with urine, and a later autopsy would find his bladder to be empty. A folded wad of $940

in cash was found in his pocket. His wallet contained, among other things, his New

Jersey driver’s license, as well as a business card with the name “Gary,” a phone number,

and a room number handwritten on it. Also in the wallet were torn pieces of paper with

two phone numbers, one for “Gary” and one for “Vic.”

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       On May 12, 2000, police found the victim’s car in a grocery store parking lot in

San Bernardino. A search of the car revealed, among other things, $12,900 in one

hundred dollar bills under the back seat; a cigarette butt in the center console ashtray; and

fingerprints on a seat belt buckle. In 2014, analysis would determine DNA found on the

cigarette butt matched defendant’s DNA profile, and the fingerprints on the seat belt

buckle matched defendant’s fingerprints.

       The phone number for “Gary” found in the victim’s wallet belonged to Debra

Holly, who was then defendant’s girlfriend, and with whom he stayed when he was in

town. She lived a short walk from the location the victim’s vehicle was found. She told

police in 2000 that prior to the murder, a man named Louis had called her phone number

twice, asking for “Gary.”

       A friend of the victim, David Phoebus, testified at trial that on May 5, 2000, he

had met with the victim at a bar in New Jersey. Phoebus testified that the victim showed

him an attaché case in the trunk of his car filled with “a sizable amount” of money, which

the victim said he planned to double in California. When Phoebus was interviewed by

law enforcement in 2000, however, Phoebus did not mention the attaché case.

       In 2000, Victor Ross was defendant’s long-haul truck driving partner and close

friend. Ross’s girlfriend at the time was Karla Richardson. Richardson testified at trial

that the victim had been to her house several times. She described one occasion when

defendant, Ross, a nephew of Ross named Ty Dawson, and the victim (whom defendant

had referred to as “the white boy”) were all at her house, and they had cocaine on her

kitchen table. Richardson heard defendant tell the victim that he knew where he could

                                              3
get a large quantity of cocaine for the victim to purchase, for about $250,000.

Richardson told defendant that the victim “was stupid” because “he didn’t know them.”

Defendant responded that “it was all cool . . . it was trust.” Later, however, defendant

told Richardson, “I’m gonna get this money from this white boy, stupid people do stupid

things.”

       Richardson further testified that, after the victim’s murder, Richardson was at

Holly’s apartment with Holly, Ross, Dawson, and defendant. She observed defendant

with a bag of money; he gave Dawson $10,000, but Ross did not take any.

       Richardson’s trial testimony was not identical to her previous statements to police.

She had previously told police that defendant had told her that he had shot the victim, but

she testified that she did not in fact hear him say that. Also, in a recorded excerpt of an

interview with a detective that was played for the jury, Richardson stated that defendant

gave Dawson $20,000. She also elaborated in the recorded interview excerpt that the

purported drug deal was a ruse to “lure” the victim; defendant did not have any drugs, but

only intended to “set [the victim] up and take all the money . . . .”

       In 2000, law enforcement was unsuccessful in making contact with defendant.

Detectives eventually spoke to defendant in two interviews, both conducted in 2013, and

both of which were recorded and played for the jury. During the first interview,

defendant recognized a picture of the victim as someone he and Ross had met at a strip

club in New Jersey; at the time, defendant had been working as a long-haul trucker

making runs between California and New Jersey. Defendant stated that he had talked to

the victim by phone, when the victim called him to ask him about “[b]uying some dope.”

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Defendant was concerned that the victim was trying to set him up, and told him “I don’t

know about no dope.” Defendant knew from talking to Ross, however, that the victim

came to California twice to purchase large amounts of drugs—specifically, marijuana and

cocaine—to take back to New Jersey. Defendant repeatedly denied ever being in the

victim’s car, and denied that any of the cigarette butts found in the car could have been

his.

       In his second interview with law enforcement, defendant provided additional

details regarding the two trips to California to purchase drugs that defendant mentioned

in the first interview—and two different stories regarding the second trip. According to

defendant, after he and Ross met the victim in a New Jersey strip club, they did drugs

together, and Ross and the victim exchanged telephone numbers. Subsequently, the

victim travelled to California on a trip organized by Ross, during which he purchased

about 20 pounds of marijuana through Ross’s nephew, Dawson.

       Defendant also stated that before the victim’s second trip to California, the victim

called him from New Jersey, asking if he knew where he could get a large quantity of

cocaine, as well as some methamphetamine and marijuana. The victim felt that he was

being “ripped off” by Ross. But defendant told the victim that he did not know anybody.

So the victim then contacted either Ross or Dawson, and returned to California to make

“one large purchase” so that he would not “have to come back for a while.”

       Defendant further described how, when the victim arrived in California, defendant

met him outside Holly’s apartment; initially, just defendant and the victim, with Victor

coming over an hour or so later. The three men went to a bar together, with the victim

                                             5
driving them in his car, and defendant riding in the passenger seat. A few hours later, the

victim dropped defendant off at Holly’s apartment, while the victim and Ross drove to

meet Dawson. Defendant left to visit his sick mother in Chattanooga the next morning.

He never saw either Ross or the victim again. Ross called him a few days later, however,

and told him that the victim had been killed (while denying involvement).

       After additional questioning, defendant changed his account of the victim’s second

trip to California to purchase drugs. Defendant told police that the victim was shot by

someone named Tony. Tony (whose last name defendant did not know) lived in the same

apartment complex as Holly. Tony and defendant were hanging out when the victim

came out to see Ross. After defendant, Tony, Ross, and the victim went to a bar together,

Ross left, and the remaining three went for a drive, heading towards Las Vegas. Tony

and the victim had been in an argument earlier about “money and drugs,” but Tony said

that he knew where to get drugs; the victim drove, defendant rode in the front passenger

seat, and Tony gave directions from the back seat. At one point, they pulled off the road

to relieve themselves. Defendant was standing near the front of the car, the victim and

Tony at the back of the car, when defendant heard several gunshots. Defendant did not

see the gun, but saw Tony pointing it, and saw flashes. Defendant was scared, and

jumped back into the car. Tony got back into the car too, and they returned to San

Bernardino, stopping along the way for cigarettes and a soda. Tony said that he shot the

victim because he was “tired of the white boy.” Upon arriving back in San Bernardino,

defendant went home for a while, then left for Chattanooga to visit his mother, as he had

previously planned.

                                             6
       At trial, defendant testified in his own defense, again attributing the victim’s

murder to Tony, and denying any prior knowledge or involvement.

       The defense also called Holly, who testified that she never saw defendant with

large sums of money or cocaine. She further stated that she never met anyone from New

Jersey with defendant and Ross, and that there never was a meeting at her house where

she was there with Richardson, Ross, and Dawson. She characterized Richardson’s

testimony about defendant being at Holly’s house with a bag full of money, and giving it

out to people, as a “lie.”

       Ross was also called by the defense. He testified that he and defendant had met

the victim in New Jersey, and that the victim had come out to visit in California with

someone named John. He denied, however, that there was ever an occasion when he was

at Richardson’s house with defendant and persons from New Jersey when there was

cocaine on Richardson’s dining room or kitchen table. He denied that defendant had ever

been at Holly’s house with defendant, Dawson, and Richardson, when defendant had a

big bag of money and was passing it out, stating that it “did not happen.” He also denied

telling Richardson that defendant had shot anybody from New Jersey. He testified that

the last time he saw defendant was before the victim was killed, and he had talked to

defendant one time since then, in 2007.

       On cross examination, the prosecutor asked Ross if he had ever told a detective

that he had “seen [defendant] with a gun but . . . didn’t know what kind it was.” Ross

testified that he did not recall. The prosecutor also asked whether Ross told a different

detective he was “offered money because of [the victim’s] murder” and that he had

                                              7
responded that he “wanted nothing to do with it.” Ross testified that he did not recall.

The prosecution later introduced evidence to impeach Ross on those two issues. An

excerpt of an interview with a detective was played for the jury, in which the detective

asked Ross if he heard correctly that Dawson had called Ross, and “started talking about

getting money from [defendant], and you said, ‘I don’t want nothing to do with that and

you shouldn’t have nothing to do with that, either.’” Ross responded: “Yeah.” Also,

another detective testified that Ross had told him that he had once seen defendant with a

gun in his waistband. Ross was not able to precisely identify when this occurred, only

estimating it “could possibly” have been within a year of the victim’s murder.

                                      II. DISCUSSION

A. The Trial Court Did Not Err By Instructing Jury on Aiding and Abetting.

       The trial court, at the request of the prosecution, instructed the jury using several

standard instructions regarding different aspects of liability for aiding and abetting a

crime. Defendant contends these instructions were not supported by substantial evidence,

and therefore were not properly given. We find no error.

       “It is error to give an instruction which, while correctly stating a principle of law,

has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116,

1129.) “A party is entitled to a requested instruction if it is supported by substantial

evidence”; conversely, “instructions not supported by substantial evidence should not be

given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050 (Ross).) “Evidence is

‘[s]ubstantial’ for this purpose if it is ‘sufficient to “deserve consideration by the jury,”

that is, evidence that a reasonable jury could find persuasive.’” (Ibid.)

                                               8
       Here, there was substantial evidence in support of the instruction on aiding and

abetting. The defense argued that Tony was the shooter, while defendant was “just along

for the ride,” and had no intent to aid or abet Tony’s actions. The prosecution’s primary

theory of the case was that defendant shot the victim during the course of a robbery, and

that “Tony” does not exist. The jury, however, reasonably could have accepted only part

of each side’s arguments. It could have believed defendant’s own statements, placing

him on the scene of a shooting actually committed by Tony. At the same time, it could

also have believed the prosecution’s evidence, tending to show defendant had an active

role in planning at least the robbery, if not the murder, of the victim; for example,

Richardson’s statements that defendant told her before the murder that “I’m gonna get

this money from this white boy, stupid people do stupid things,” and that she had later

seen him passing out large sums of money, as well as her statement to police (later

retracted) that defendant had told her that he shot the victim. These facts constitute

substantial evidence to support a murder conviction on an aiding and abetting theory.

       In arguing for the contrary conclusion, defendant asserts that “the People made no

attempt to establish anyone other than appellant shot [the victim].” This assertion is not

supported by the record; the prosecution explicitly argued the aiding and abetting theory

as an alternative also supported by the evidence, if the jury believed defendant’s

testimony that Tony was the shooter. Furthermore, whether or not the instruction was

appropriate turns on whether or not it was supported by substantial evidence, not whether

it was a point of emphasis by either the prosecution or the defense. (Ross, supra, 155

Cal.App.4th at 1049-1050.) For the reasons discussed above, there was evidence in

                                              9
support of an aiding and abetting theory sufficient to deserve consideration by the jury, so

instructions on aiding and abetting were properly given.

B. Defendant Fails to Establish That Trial Counsel Was Ineffective.

       Defendant argues his attorney provided ineffective assistance of counsel by not

objecting to portions of defendant’s videotaped interviews with police, specifically, by

not requesting the court to redact certain statements made by the interrogating officers.

We find no ineffective assistance of counsel.

       To demonstrate ineffective assistance of counsel, a defendant must show:

(1) “counsel’s performance was deficient because the representation fell below an

objective standard of reasonableness under prevailing professional norms”; and

(2) prejudice resulted from the counsel’s deficient performance, i.e., “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” (People v. Williams (1997) 16 Cal.4th 153, 214-

215.) Generally, a reviewing court does not second-guess trial counsel’s strategic and

tactical choices. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059 (Mitcham).) There is a

“‘strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “A

defendant who raises [ineffective assistance of counsel] on appeal must establish

deficient performance based upon the four corners of the record.” (People v.

Cunningham (2001) 25 Cal.4th 926, 1003.) The judgment must be affirmed “[if] the

record on appeal sheds no light on why counsel acted or failed to act in the manner

challenged . . . unless counsel was asked for an explanation and failed to provide one, or

                                             10
unless there simply could be no satisfactory explanation.” (People v. Pope (1979) 23

Cal.3d 412, 426, overruled on other grounds by People v. Berryman (1993) 6 Cal.4th

1048, 1081, fn. 10.)

       In this case, the rule that we generally will not second guess trial counsel’s

strategic and tactical choices resolves the issue.1 The statements that defendant finds

objectionable in this appeal are moments when the interrogating officers push back

against defendant’s story; for example, statements that defendant was lying about not

being responsible for the victim’s murder; that other witnesses had implicated him; that

he had planned on setting up the victim for purposes of robbery; that no one named

“Tony” was involved, and that in fact defendant had acted alone. Defense counsel spoke

at some length during closing arguments about the “style that detectives use” in

interviewing suspects, trying to elicit information. Counsel emphasized that defendant

“remained firm” about his story, despite being pushed by his interrogators. In contrast,

according to defense counsel, detectives did not push other witnesses, such as Phoebus,

instead taking what they said “at face value.” This line of argument was aimed, it seems,

particularly at undermining the testimony of prosecution witnesses establishing motive

(robbery), and supporting the veracity of defendant’s own testimony about the

circumstances of the murder.



       1 We therefore need not, and do not, address the parties’ arguments about whether
the statements would have been admissible over a timely objection by the defense, and
about whether any prejudice arose from admission of the statements in the absence of an
objection.

                                             11
       In short, defense counsel reasonably could have opted to have the jury see the

videotapes in unedited form to cast the police in an unflattering light, and have the jury

discount statements to police by prosecution witnesses, while supporting defendant’s own

testimony. Because reasonable trial tactics appear to underlie counsel’s actions,

defendant has not established that counsel’s performance was deficient. (Mitcham,

supra, 1 Cal.4th at p. 1059.)

C. Impeachment Evidence Was Properly Admitted, and Any Error Was Harmless.

       At trial, Ross testified that he did not recall telling a detective that he had seen

defendant with a gun, and that he did not recall telling another detective that he had been

offered money because of the victim’s murder, and that he had declined the offer. The

prosecution presented evidence to impeach Ross on these statements, offering an excerpt

of an interview transcript, and the testimony of police detectives who interviewed Ross.

Defendant contends that this evidence was not properly admitted. We find no error, but

in any event, any error was harmless.

       “Normally, the testimony of a witness that he or she does not remember an event

is not inconsistent with that witness’s prior statement describing the event.” (People v.

Johnson (1992) 3 Cal.4th 1183, 1219.) Nevertheless, “a trial witness’s deliberately

evasive forgetfulness is an implied denial of prior statements, which creates

‘inconsistency in effect’ and authorizes admission of the witness’s prior statements under

Evidence Code section 1235.” (People v. Perez (2000) 82 Cal.App.4th 760, 764.) Even

where evidence would be inadmissible to show that the defendant committed a criminal

act, it may be admissible on the issue of the witness’s credibility. (E.g., People v. Abel

                                              12
(2012) 53 Cal.4th 891, 928 [noting that evidence a defendant possessed weapons that

were not used to commit a crime is inadmissible to show the defendant committed a

criminal act, but could be admitted on the issue of a witness’s credibility].)

       We review a trial court’s evidentiary rulings for abuse of discretion. (People v.

Waidla (2000) 22 Cal.4th 690, 717.) “When the admissibility of evidence depends upon

determinations of fact, the trial court’s findings, and in particular its credibility

determinations, are reviewed under the substantial evidence standard.” (People v. Price

(1991) 1 Cal.4th 324, 413.)

       Here, substantial evidence supports the trial court’s implicit determination that

Ross’s asserted lack of memory with respect to his statements to police constituted

deliberate evasions. Ross admitted that he did not want to come to court to testify, and

that he was upset when law enforcement contacted him, because he did not want to be

involved in the case. Ross’s description of why he was upset arguably suggests a

conflation between not wanting to be involved and not having any knowledge: “I was

[upset] because I didn’t want to be—I don’t know nothing about what’s going on or

nothing . . . .” Moreover, Ross did not profess a lack of memory only about what he had

told law enforcement; he also responded “I’m not sure. I don’t remember” when asked

directly “Did you ever get offered money because of [the victim’s] death and refuse it?”

It is not beyond the bounds of reason to believe that being offered money in connection

with someone’s murder is not something that one forgets, absent extraordinary

circumstances; it either happened or it did not happen.



                                               13
       In short, the trial court had a better opportunity to assess Ross’s demeanor and the

amount of credibility that should be given to his assertions of lack of memory than we do.

Nevertheless, a reasonable basis to conclude Ross was being deliberately evasive appears

even on the face of the cold record. As such, evidence of Ross’s prior statements was

properly admitted under Evidence Code section 1235 and the case law cited above.

       In any case, even assuming that the trial court erred in some respect by admitting

the challenged evidence, any error was harmless. Ross’s statement that he had once seen

defendant with a gun was essentially cumulative of defendant’s own statement to police

that he had shot handguns before. Ross’s statement that he had been offered (and

declined) money in connection with the victim’s murder was cumulative of Richardson’s

more detailed and specific testimony, observing defendant with a bag of money after the

murder, and handing large sums out to others, but not Ross. And neither statement by

Ross substantially supports or undermines the central pillars of the prosecution’s case

against defendant, namely, defendant’s own statements, including his trial testimony,

placing himself on the scene of the murder, and establishing his knowledge that the

victim had travelled to California with large sums of money to purchase drugs;

Richardson’s testimony that defendant planned to “get this money” from defendant; and

the implausibility of defendant’s self-serving story about “Tony.” It is therefore not

reasonably probable that the admission of the challenged evidence affected the verdict,

even if we were to accept defendants’ arguments that it was erroneously admitted.

(People v. Watson (1956) 46 Cal.2d 818, 836.)



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                                  III. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                     HOLLENHORST
                                                              Acting P. J.
We concur:

     MILLER
                             J.

     CODRINGTON
                             J.




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