Batiste case - accident scenario OK

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					Not Reported in Cal.Rptr.3d, 2011 WL 4360112 (Cal.App. 1 Dist.)
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                           Court of Appeal, First District, Division 3, California.
             The PEOPLE, Plaintiff and Respondent,
            Jamie BATISTE, Defendant and Appellant.
                                             No. A127801.
                             (Contra Costa County Super. Ct. No. 050805143).
                                             Sept. 20, 2011.

Office of the Attorney General, San Francisco, CA, for Plaintiff and Respondent.

First District Appellate Project, San Francisco, CA, Waldemar Halka, San Diego, CA, for Defendant and

      *1 Jamie Batiste was convicted by a jury of the first degree murder of Faith Blevins (Pen.Code, §
187), was found by the jury to have committed the murder by intentionally discharging a firearm
(Pen.Code, § 12022.53), and was sentenced to 50 years to life in prison. He argues that evidentiary and
instructional errors require reversal of the judgment. His principal contention is that his confession to
killing Blevins was involuntary and should have been suppressed. We hold that the confession was
properly admitted, reject the remaining arguments, and affirm the judgment of conviction.

                                         I. BACKGROUND
     Blevins was found murdered in her bed around 7:00 a.m. on October 16, 2007. She died from six
gunshots to her head, fired from a distance of six to 12 inches. One of the shots went through a comforter
on the bed before entering Blevins's temple, suggesting that she had the comforter over her head when the
shot was fired. There was no evidence of a struggle, or disturbance of any property in the apartment where
Blevins lived. Suspicion immediately focused on Batiste.

      Blevins and her children Destiny and Isaiah shared an apartment on West 8th Street in Antioch with
Patricia Lucia and Lucia's nine-year-old daughter. Blevins had previously lived with Batiste, and Batiste
was paid over $13,000 in assistance by the Contra Costa Child Care Council from January to September
2007 for caring for Blevins's children. When Blevins broke up with Batiste, he received no further child
care payments after September 25, 2007. Blevins told Lucia that she was afraid of Batiste because they had
just gone through a ―rough‖ breakup, and she had seen him in the neighborhood.

      Blevins told Lucia the day before she was murdered that a man named Robert had approached her and
said that Batiste was threatening to shoot up her house. On the morning before the murder, Blevins sent her
friend Dina McMahan a text message stating that Batiste had threatened to shoot up her house with her and
the children in it. She sent text messages the day before the murder to the children's father, Junior Gaines,
to ask him if he could take the children because she was in danger and feared for her life. She took Isaiah to
spend the night with McMahan, and Destiny went to spend the night with Gaines.

      Lucia testified that Blevins went into her bedroom and closed the door around 9:00 p.m. Blevins
texted Lucia at 9:34 stating, ―I'm just going to pretend I left. If anyone comes in the door, tell them I got
picked up already.‖ Blevins usually kept her T.V. on, but did not that night. She texted Lucia at 9:35
stating, ―it's hard not to make noise, coughing, no air or T.V., LOL, this sucks.‖ Blevins texted McMahan
between 9:00 and 10:00 p.m. and said she was laying down by herself with all the lights off. She also texted
Gaines, saying, ―not sure, just ain't trying to have any problems with this crazy man.‖

      Police interviewed Veronica Stallworth, Blevins's next door neighbor, on the morning of the murder.
Stallworth said that Batiste had come by her place between 10:30 and 11:45 that night with a person named
Macmelli, that she had not seen Batiste for a long time, and that it was not normal for him to come over so

     *2 Blevins and Batiste exchanged text messages that night, which are set forth in the margin.FN1 At
3:19 a.m., after the last text message in the sequence, Batiste phoned Blevins and talked to her for a little
over one minute. He then texted her for a last time at 3:33 a.m., stating, ―so we not gone 2 motel 6 i'm gone
2 bed it got the twin.‖

FN1. The timing of the texts and testimony about the texts from Antioch Police Detective Santiago
Castillo, one of the investigating officers, are noted in parentheses.

   Batiste: ―OK yur dude there, ha.‖ (9:21 p.m.)

   Blevins: ―No I told getn picked up goin to city. Im doin my hair. U aint have the time so fuk it.‖ (9:23)

   Batiste: ―U gone yet‖ (10:00)

   Blevins: ―What u doing‖ (1:44 a.m.)

   Batiste: ―Y u not text back‖ (1:51)

   Blevins: ―U havn nice night?‖ (1:51)

   Blevins: ―Car‖ (1:53)

   Batiste: ―What car?‖ (1:54)

   Blevins: ―My friendz‖ (1:54)

   Blevins: ―What u doin?‖ (2:12)

   Batiste: ―Shit.‖ (2:15)
Blevins: ―Where u?‖ (2:20)

Batiste: ―10st y?‖ (2:21; 10th Street, two blocks from Blevins' apartment)

Blevins: ―What's on 10 st?‖ (2:22)

Batiste: ―Tryn 2 get back‖ (2:23)

Blevins: ―Get bak what‖ (2:25)

Batiste: ―My money up‖ (2:25; referring to making money)

Blevins: ―Oh yeah, thats coo‖ (2:26)

Batiste: ―Were u at?‖ (2:26)

Blevins: ―On way home by bart station‖ (2:27)

Blevins: ―Where? Not at house so where at‖ (2:28)

Batiste: ―Where is 4 U‖ (2:29)

Blevins: ―Huh?‖ (2:30)

Batiste: ―We can meet by the water‖ (2:31; seven or eight blocks from Blevins' apartment)

Batiste: ―Where u at now‖ (2:37)

Blevins: ―Its to cold out‖ (2:38)

Batiste: ―Where u at doe‖ (2:42)

Batiste: ―Can i c u‖ (2:44)

Batiste: ―Where u at man‖ (2:52)

Batiste: ―So i can c u ha‖ (2:58)
   Blevins: ―House. Where c me at?‖ (3:01)

   Batiste: ―Just cum 2 10 and K‖ (3:01; two blocks from Blevins' apartment)

   Batiste: ―U gone cum 2 the back‖ (3:03)

   Batiste: ―U at the house‖ (3:04)

   Blevins: ―Then what?‖ (3:05)

   Batiste: ―Can i c u‖ (3:06)

   Blevins: ―Where at? You cant b here‖ (3:07)

   Batiste: ―Cum 2 7st‖ (3:07; one block from Blevins' apartment)

   Blevins: ―Then what?‖ (3:08)

   Blevins: ―I dnt wana post up‖ (3:08; not wanting to hang out)

   Batiste: ―We not‖ (3:09)

   Blevins: ―Where we goin‖ (3:10)

   Batiste: ―2 the 6‖ (3:10; Motel 6)

   Batiste: ―R u gone‖ (3:13)

   Batiste: ―What up man‖ (3:16)

   Batiste: ―So that mean u not comn‖ (3:18)
     Between 3:00 and 4:00 a.m., Lucia woke up when she heard a loud bang, followed by five or more
gunshots in rapid succession. She thought the shots were fired from outside the apartment, but was too
afraid to get up and look out the window to investigate. When she got up at 7:00 a.m. the back door to the
apartment and the door to Blevins's bedroom were open. Once she saw what had happened to Blevins she
called the police. It appeared to the police that the back door had been kicked in because there was a
shoeprint on the door. Lucia gave the police a statement implicating Batiste, and took them to an address on
West 18th Street where he had lived with Blevins.
      Risa Peoples lived on West 18th across the street from Batiste and Blevins's former residence; Batiste
stored belongings in a converted garage in Peoples's backyard, which was like a studio apartment. Peoples
testified that Batiste came to the house shortly after 8:00 a.m. on October 16, went to the garage for about
20 minutes, and then sat on the front porch of the home making phone calls. Officers found Batiste there
and took him to the police station. Peoples directed the officers to the garage in the backyard, where they
found Batiste's identification, photos of Batiste and Blevins, shoes with treads on their soles consistent with
the shoeprint on Blevins's apartment door, and the gun used in the murder.

     Batiste was interviewed at the police station beginning around 11:45 a.m. All but 10 minutes of the
questioning, which continued, with breaks, past 7:00 p.m., was videotaped or audiotaped, and the tapes
were played for the jury. During the interrogation, detailed below, Batiste eventually confessed to killing
Blevins, but claimed he did so in self-defense. Before confessing, he said that he spent the entire night at
the home of his friend Marcos, and got a ride from Marcos's brother Jose to Peoples's place in the morning
following the murder.

     Police located ―Marcos‖ (Marco Martinez), who told them that Batiste had spent the night in the
company of his brother, ―Freddy‖ (Jose Hernandez). Martinez testified that he, Hernandez and Batiste hung
out in a parking lot at a housing project before midnight talking and smoking marijuana. Sometime after
11:00 p.m. he went with Hernandez to their mother's place, and then went home to his apartment.
Hernandez and Batiste showed up at Martinez's apartment sometime in the early morning. Hernandez asked
him if Batiste could spend the night there, and Martinez said that Batiste could stay after his girlfriend left
for work at 7:00 a.m. When Martinez went to Hernandez's car to speak with Batiste, Batiste said that he
needed a place to stay because he and his girl ―got into it .‖ Batiste came over around 7:00 and fell asleep.
Hernandez returned and picked Batiste up around 10:30 that morning.

    *3 Antioch Police Officer Josh Vincelet spoke with Martinez at his apartment on the day of the
murder. At that time, Martinez did not report Batiste saying anything about a quarrel with his girlfriend;
Martinez said Batiste told him that he needed money.

     Police found Hernandez at his mother's apartment and took him to the police station where he gave a
statement. Detective Santiago Castillo, who took the statement, testified that Hernandez said he agreed to
give Batiste a ride around 2:00 that morning. Batiste had Hernandez drive him to a house on West 18th
Street. Batiste went into the house and returned with something in his pocket. Hernandez asked Batiste
what was going on and Batiste said ―something to the effect of, don't worry about it, I'm just packing.‖
Hernandez asked Batiste what he was planning and Batiste again said ―not to worry about it, he was just
going to handle some business.‖ Hernandez dropped Batiste off about 200 yards from Blevins's residence
and drove around until he got a call from Batiste. The call was made around 3:30 a.m., after Hernandez
heard gunshots. Batiste ran to the car with a gun in his hand and got inside. Hernandez asked Batiste what
he had done but Batiste would not say, and Hernandez drove Batiste to Martinez's apartment. When they
were near the apartment, Hernandez saw Batiste toss shell casings into a gutter; he later took police to a
location where they recovered shell casings fired from the murder weapon in a storm drain.

     Phone records showed that Batiste called Hernandez five times on the night of the murder; the first
call was placed at 9:22 p.m., the last call at 3:24 a.m.

     Batiste's fingerprints were found in Hernandez's car, and the swing arm to the murder weapon was
found in the car's glove box. A gunshot residue test on Batiste was negative. But a residue test on
Hernandez came back positive. Hernandez was interviewed again by Castillo after the positive test. At that
time, Hernandez said that he had touched a couple of guns on the night of the murder when he, Martinez,
and Batiste were hanging out in the parking lot. Martinez testified that he did not see guns being passed
around, or Hernandez touching a gun, when they were in the parking lot. Hernandez testified that he had
touched Batiste's gun when they were in his car on the night of the murder, but he did not mention this
during his interviews with Castillo. At trial he testified that he had fired a gun the day before the murder.
     Hernandez also testified that he agreed to give Batiste a ride on the night of the murder in exchange
for marijuana. Both he and Martinez identified Batiste as their drug dealer. Hernandez stated that Batiste
came back to the car with a gun when they stopped at Peoples's home, but Peoples's son, Durrell Anderson,
told police that he slept that night in the backyard garage where the gun was found after the murder. Unlike
Castillo's account of the information Hernandez provided in his first interview, Hernandez's testimony did
not provide a coherent time line of events on the night of the murder. For example, he testified at trial that
he saw Batiste shortly after he heard gunshots, but he testified at the preliminary hearing that he waited in
the car for Batiste for one-half hour or an hour after the shots were fired.

    *4 Hernandez was given use immunity for his trial testimony. He admitted having been a Sureno gang
member, and that he was arrested for discharging a firearm in a gang-related incident. He denied killing

     Blevins's ten-year-old daughter, Destiny, testified that Batiste once had a gun on a table in the
backyard; Batiste's friend Mike was there at the time. Antioch Police Officer Blair Benzler testified that
when she spoke with Destiny on the day of the murder, Destiny reported seeing Batiste with a gun on
another occasion when the gun was near a T.V.

      Hattie George, the mother of two of Batiste's children, testified that when she called Batiste on the
morning of the murder about babysitting the children, he told her that Blevins had been killed and that
someone had kicked in Blevins's door. The conversation could have occurred as late as 10:30 a.m. George
recounted an incident when Batiste came over to her home to pick up speakers, they had words, and he
pointed a gun at her. On another occasion, he flicked a cigarette at her and ―walked off‖ because he ―didn't
want to hear what [she] was saying.‖ Antioch Police Detective Marty McCann testified that George told
him the gun and cigarette incidents occurred in the two days before Blevins's murder. George told McCann
that she saw Batiste holding a gun, but did not mention him pointing a gun at her. Fay Jones, Batiste's
cousin, testified for the defense that she went with him to pick up the speakers and that he did not have a
gun that night. She had never seen Batiste with a gun and did not know that he was a drug dealer.

     Police found 6.98 grams of marijuana divided into nine baggies in an open purse two feet from
Blevins's head, 10.56 grams in a sack in the closet of the apartment, and 60.31 grams in a jar in a heating
vent. Given the quantity and packaging of the marijuana, Officer Vincelet ―couldn't say 100 percent that it
would be possessed for sales,‖ but it seemed ―outside the realm of personal use.‖ He said that what
transpired in Blevins's case did not appear to be a ―dope rip,‖ i.e., a robbery for drugs, because the
residence had not been ransacked.

      Ronald Dabney, who allegedly told Blevins of Batiste's threats against her, testified for the defense
that he did not tell her that Batiste was going to shoot up her house, or harm her or her children. He never
heard Batiste threaten Blevins or her children, and never saw Batiste, who was his drug dealer, with a gun.
He denied telling police that Batiste was angry that Blevins had a new boyfriend. He did tell them that
Batiste and Blevins ―had really been going through it with their relationship.‖

      The prosecution argued to the jury that Batiste murdered Blevins during the interval between his 3:19
a.m. call to her and his 3:24 a .m. call to Hernandez on the night in question. The defense maintained that
Hernandez killed Blevins to obtain marijuana. The prosecution submitted that, even if Hernandez were the
killer, Batiste would be guilty of murdering Blevins under theories of aiding and abetting, or felony murder
during the course of a burglary.

     *5 Presentation of evidence and argument in the case took approximately six full court days, and the
jury deliberated for approximately 14 hours before rendering its verdicts.

                           II. DISCUSSION
A. Whether the Confession Should Have Been Suppressed

1. Batiste's Motion and the Applicable Legal Standards
     Batiste moved to exclude his confession to Blevins's killing on the ground that it was involuntary.
After reviewing the audio and video recordings of Batiste's interrogation, the court denied the motion.
Batiste contends that the court erred when it ruled his confession was admissible.

     Admission of an involuntary confession as evidence violates a defendant's state and federal rights to
due process. ( In re Shawn D. (1993) 20 Cal.App.4th 200, 208.) A confession is involuntary when, in light
of the totality of the circumstances, the defendant's choice to confess ―was not ‗essentially free‘ because his
will was overborne.‖ ( People v. Memro (1995) 11 Cal.4th 786, 827.) The confession or admission must be
shown to be voluntary by a preponderance of the evidence. ( People v. Markham (1989) 49 Cal .3d 63, 71.)
The issue is determined on the record as a whole, taking into account the character of the accused and the
details of the interrogation. ( People v. Vasila (1995) 38 Cal.App.4th 865, 873.) Whether a confession was
voluntary is subject to our independent review. ( Ibid.)

2. Record
      Detective McCann took the lead in the interrogation. The first phase of questioning, with Detective
Castillo also present, began around 11:45 a.m. and ended before 4:00 p.m. All but the last 10 minutes of
this phase of the interview were videotaped; these tapes were not transcribed. There were breaks in the
questioning from 12:34 to 12:51, 1:35 to 1:47, and 2:38 to 3:01 p.m. Before the 12:34 break, the officers
asked Batiste whether he wanted water or was hungry; he asked for water and the officers brought him a
bottle of water when the interview resumed at 12:51. Before the questioning at 3:01 began, the officers
asked him if he wanted water or a candy bar, gave him another water bottle, and apologized for poor air
conditioning in the room.

      During this first phase of the interview, Batiste maintained his innocence. He said that he and Blevins
had a 10–month relationship and that he had not seen her during the month since they broke up. He texted
Blevins on the night of the murder for money to stay at Motel 6, but spent the entire night at the home of
his friend Marcos. Blevins's next door neighbor Stallworth was wrong to say that she had seen Batiste in
Blevins's neighborhood. He woke up around 10:20 a.m. and Hernandez drove him to Peoples's home.

      The officers periodically yelled at Batiste, accused him of lying, and told him they knew everything
that had transpired. He eventually admitted that he went to the parking lot behind Blevins's apartment for
10 minutes around 11:30 p.m. to purchase marijuana; Stallworth brought him a baggie. After the officers
told him other details, including that a gun had been recovered on 18th Street and that multiple people had
seen him running from Blevins's apartment, Batiste offered to take a lie detector test. He said that he did not
own a gun, and that his fingerprints would not be on the gun the police had found. He denied kicking down
Blevins's door. At one point, after the officers and Batiste yelled at each other and Castillo left the room,
McCann suggested there was animosity between he and Batiste, which Batiste denied.

      *6 Toward the end of the first phase of the interview, it appears that Batiste became emotional and
may have cried for a couple of minutes. He said that people had threatened him and that he had not
threatened Blevins. The tape of this first phase ended at approximately 3:30 p.m., and the questioning in
that phase continued for another 10 minutes thereafter. McCann testified that he was not sure why the tape
stopped, and that nothing significant was said during the unrecorded time. He only recalled Batiste insisting
that Blevins was not afraid of him.

     McCann called Mike Schneider to administer a polygraph test to Batiste, and told Schneider that he
thought Batiste was withholding information. Schneider retired as senior homicide investigator for the
Antioch Police Department, and taught a college course on interrogation. Schneider conducted a pre-test
interview with Batiste beginning at 5:10 p.m., and spoke to him for 50 minutes trying to establish a rapport.
The interview was audiotaped and transcribed; the recording was poor and many parts of the transcript are
labeled ―unintelligible.‖

     Schneider told Batiste ―if there is any doubt in your mind, be careful‖ about taking the polygraph test.
Batiste asked if he would be released if he passed the test; an officer came to the room and said, ―I can't
give the answer right now. We got Marcos here now.‖ Batiste told Schneider that Marcos would vouch for
him. Schneider told Batiste, ―I think you keep going where you going, they aren't going to have no mercy....
[¶] They going to say he was pissed because she was playing with some other dude.‖ The following
exchange ensued: ―A. It is hard to put myself over there though. Q. Shit they already got you there.... They
may be bull shitting, they may not be bullshitting. But I'm not. A. They can't bull shit a bull shitter. [¶] ...
I'll take this here and pass the mother fucker and they're going to let me out. Q. You—you ain't going to
pass.... You know you're not going to pass. A. What, this here one? Q. Yeah, I've done 100 of these in
fucking three weeks man.... A. Tell them to come take me back to my little cell so I can lay down man.‖ FN2
Schneider testified that, when he told Batiste that he would not pass the polygraph test, Batiste ―nodded,
and hung his head.‖

FN2. Despite this last statement, Batiste did not express any objection to further questioning when the
interview resumed.

     Schneider told McCann that he thought he was close to getting a confession, and suggested that he
remain in the room when McCann resumed the questioning. The last phase of the interview began at 6:33
p.m. and lasted less than an hour; all of it was audiotaped and transcribed, and all but the last 10 minutes
were videotaped.

       McCann began by telling Batiste that Marcos denied that Batiste had spent the night at his apartment.
Schneider then said, ―What if this was like a self defense thing? [¶] ... That would change everything right?
[¶] ... That would change the whole complexion, wouldn't it?‖ McCann agreed that would ―definitely ... be
in [Batiste's] favor,‖ and Schneider added, ―I'm not putting words in the man's mouth. I'm just asking. You
know, I'm just asking.‖ The interrogators said they had heard that Blevins was ―controlling,‖ and had a
―violent temper.‖ Batiste acknowledged that Blevins tried to be controlling, and took Prozac because she
was violent. When McCann said that Blevins's temper and medication might ―put things in a different
light,‖ Batiste said that Blevins was close to men who were shooting at him and had tried to set him up.
Schneider said, ―She's just as dangerous as they are,‖ and Batiste replied, ―Yeah so it's ... you or me.‖

     *7 Shortly before confessing, Batiste protested to McCann that Castillo had ―hollered‖ at him earlier
in the interview, but acknowledged ―everybody got a job to do.‖ McCann apologized and said, ―Usually
people feel comfortable with me.‖ Batiste replied, ―Yeah. Like now I'm hella comfortable.‖

      Batiste said that he went to Blevins's apartment carrying a gun he obtained a month or two earlier after
being robbed in a drug deal, and hearing that people were trying to kill him and that Blevins was trying to
set him up. She let him in the back door and he followed her to her bedroom where she lay down on the
bed. He heard a squeaky noise in the house and did not know who else was there. When he saw Blevins's
hand come up something flashed that appeared to be a knife, and he shot her three or four times in the chest
and stomach. He ―shot out of fear,‖ and ―just broke.‖ He described a prior incident when he woke up and
Blevins was standing over him with a large butcher knife. He had told her, ―You stab me with that knife I'm
going to beat the shit up out of you.‖

3. Analysis
      Batiste contends that his confession was coerced because it was the product of deception or implied
promises of leniency by the officers. Promises of benefit or leniency can render a confession involuntary
when they are the ―motivating cause‖ of the defendant's admissions. ( People v. Williams (1997) 16 Cal.4th
635, 661; see People v. Cahill (1994) 22 Cal.App.4th 296, 316 [promises were ―dominant focus‖ of the
interrogation].) While deception is a factor that can weigh against a finding of voluntariness ( People v.
Thompson (1990) 50 Cal.3d 134, 167), a confession obtained through deception is admissible unless the
subterfuge is likely to produce an untrue statement ( People v. Felix (1977) 72 Cal.App.3d 879, 886).

    Batiste argued in the trial court that the officers made an implied promise of leniency when they
suggested he might have acted in self-defense. That argument lacked merit. Here, as in People v..
Carrington (2009) 47 Cal.4th 145, 171, ―suggestions that the ... homicide might have been an accident, a
self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible
explanations of the events and offered defendant an opportunity to provide the details of the crime. This
tactic is permissible. [Citation.] Moreover, any benefit to defendant that reasonably could be inferred from
the substance of [the officer's] remarks was ‗ ― ‗merely that which flows naturally from a truthful and
honest course of conduct,‘ ― ‗ because the particular circumstances of a homicide can reduce the degree of
culpability, and thus minimize the gravity of the homicide or constitute mitigating factors in the ultimate
decision as to the appropriate penalty. [Citation].‖ The trial court was troubled by the suggestion of self-
defense, and in light of the fact of this crime, six shots to the victim's head at close range, so are we. But
there was no express promise of leniency and no suggestion by the officers that Batiste in fact must have
acted in self-defense.

      *8 Batiste observed in the trial court and in this appeal that the officers repeatedly lied to him about
evidence of his guilt, but exaggeration of the incriminating evidence was not coercive because it was
unlikely to produce a false admission. (See People v. Chutan (1999) 72 Cal.App.4th 1276, 1280–1281
[citing numerous cases].) He also said that the officers yelled at him a number of times in the first phase of
the interview, but ―harsh questioning‖ does not necessarily ―rise to the level of psychological coercion.‖ (
People v. Boyde (1988) 46 Cal.3d 212, 242; see In re Joe R. (1980) 27 Cal.3d 496, 515 [―loud, aggressive
accusations of lying‖ did not ―amount[ ] to coercive threats‖].) Batiste said that he felt no animosity toward
the officers after a particularly heated exchange, and later remarked, as to the contentious periods of the
interview, ―everybody got a job to do.‖ Batiste described himself as ―hella comfortable‖ immediately
before confessing. In viewing the interrogation and listening to the exchange between Batiste and his
interrogators, we are confident Batiste held his own and his will was not overcome by the circumstances.

      Batiste contends that the length and physical conditions of the interrogation were coercive because he
was ―subjected to repeated and unrelenting questioning‖ for seven hours in a small, sweltering room.
However, there were periodic breaks in the interrogation, including an hour and a half between the end of
the first phase of the questioning and the beginning of the interview with Schneider. The interrogation was
not conducted in the middle of the night; it extended from about noon to 7:00 p.m. The officers asked
Batiste if he was hungry or thirsty, and gave him water when he requested it. He did not complain that the
room was too warm. He was ―not worn down by a lengthy interrogation or deprived of human comforts or
necessities.... He did not complain about a lack of sleep or food, or suffer any physical ailments.‖ ( People
v. DePriest (2007) 42 Cal.4th 1, 35.) The length and conditions of the interrogation did not render it

     The officers confirmed that Batiste understood his rights under Miranda v. Arizona (1966) 384 U.S.
436, Batiste freely chose to answer the officers' questions, and he never asked for the interview to stop. A
preponderance of the evidence establishes that Batiste's confession was voluntary. Based on the totality of
the circumstances appearing in the record, we conclude that the motion to exclude it was properly denied.

B. Accomplice Instructions
     Batiste contends that the court erred by failing to instruct the jury pursuant to either CALCRIM No.
334 (―Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice‖) or
CALCRIM No. 335 (―Accomplice Testimony: No Dispute Whether Witness Is Accomplice‖) with respect
to Hernandez's testimony. Even though defense counsel did not request such an instruction, Batiste
contends that the court had a duty to furnish it sua sponte. The instruction Batiste now advocates would
have advised that Hernandez's testimony incriminating him ―should be viewed with caution,‖ and required
independent corroborating evidence ―connect[ing Batiste] to the commission of the crime.‖ (CALCRIM
Nos. 334 & 335.)

     *9 ―The court need give such instructions only where there is substantial evidence that the witness was
an accomplice. [Citations .] ‗An accomplice is ... one who is liable to prosecution for the identical offense
charged against the defendant‘ [citation] and does not include an accessory [citations]. ‗An accomplice
must have ― ‗guilty knowledge and intent with regard to the commission of the crime.‘ ― [Citation].' ― (
People v. Boyer (2006) 38 Cal.4th 412, 466–467.)
     Given Hernandez's knowledge that Batiste was a drug dealer, his awareness that Batiste had obtained a
gun and was going to ―handle some business,‖ Batiste claims that Hernandez must have known that Batiste
was ―planning some type of assault with a firearm.‖ Batiste reasons that because homicide is a reasonably
foreseeable consequence of assault with a firearm (e.g. People v. Karapetyan (2006) 140 Cal.App.4th 1172,
1176–1177), Hernandez could have been prosecuted for murder as a coconspirator or aider and abettor (
People v. Hayes (1999) 21 Cal.4th 1211, 1271 ( Hayes ) [accomplice status may be established under the
foreseeable consequence theory of liability] ).

     The specific knowledge Batiste seeks to attribute to Hernandez is too speculative. While Hernandez
could well have surmised that Batiste's ―business‖ would involve drugs, there was no evidence that such
―business‖ would include criminal assaults, that Hernandez was aware that Batiste had a tendency toward
assaultive behavior, or that he was likely to assault someone that night. According to Hernandez's trial
testimony and statements to the police, he had seen Blevins a few times but did not know her. Nothing
suggests that he knew he was letting Batiste out of the car near the home of an estranged former girlfriend,
or that he intended to assist Batiste in assaulting her or anyone else. The evidence showed that Hernandez
helped Batiste to escape from a crime scene, but aiding Batiste's escape did not make Hernandez an
accomplice in the shooting. ( People v. Hoover (1974) 12 Cal.3d 875, 879 [―aiding in the escape of a
principal does not result in liability as a principal, but only as an accessory‖].) Substantial evidence for
accomplice instructions was lacking here.

      Even if CALCRIM No. 334 was required, Batiste was not prejudiced by its omission. An error of this
nature ―is harmless if there is sufficient corroborating evidence. Corroborating evidence may be slight, may
be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.‖ (
Hayes, supra, 21 Cal.4th at p. 1271.) A great deal of evidence independent of Hernandez's testimony
connected Batiste to Blevins's killing, including most notably his admission. Other evidence showed that
Batiste had threatened Blevins and that she was afraid he would harm her and her children. The gun used in
the murder and shoes with tread consistent with the footprint on Blevins's apartment door were found with
Batiste's property. Batiste's fingerprints were found in Hernandez's car, and shell casings fired from the
murder weapon were located where Hernandez said Batiste had discarded them. If there was any error in
failing to give accomplice instructions, it was harmless.

C. Evidence of Batiste's Threat and Blevins's Fear
      *10 The court denied Batiste's motion to prevent introduction of Blevins's statements and text
messages indicating that Batiste had threatened her and that she feared him. Batiste argues that this
evidence should have been excluded as irrelevant or unduly prejudicial, but the evidence was relevant and
its admission was not an abuse of discretion.

      Blevins's text messages concerning Batiste's threat and her fear were admissible under Evidence Code
section 1370, which provides in part: ―(a) Evidence of a statement by a declarant is not made inadmissible
by the hearsay rule if all of the following conditions are met: (1) The statement purports to narrate,
describe, or explain the infliction or threat of physical injury upon the declarant. (2) The declarant is
unavailable as a witness pursuant to Section 240.(3) The statement was made at or near the time of the
infliction or threat of physical injury.... (4) The statement was made under circumstances that would
indicate its trustworthiness .(5) The statement was made in writing....‖ Blevins's oral statements of her fear
of Batiste and his threat were admissible under Evidence Code section 1250, which provides in part: ―(a) ...
[E]vidence of a statement of the declarant's then existing state of mind ... is not made inadmissible by the
hearsay rule when: (1) The evidence is offered to prove the declarant's state of mind ... when it is itself an
issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant.‖

      Batiste contends that the state of mind exception to the hearsay rule does not warrant admission of the
evidence in this case because Blevins's state of mind was not at issue. ( People v. Ruiz (1988) 44 Cal.3d
589, 609 [victim's expressions of fear inadmissible to prove the defendant's conduct or state of mind;
otherwise, such statements ―could be routinely admitted to show that the defendant had a motive to injure
or kill‖]; People v. Hernandez (2003) 30 Cal.4th 835, 872 ( Hernandez ) [victim's expressed fear is
inadmissible to prove killer's identity].) However, a murder victim's fear of the alleged killer may ―be in
issue when, according to the defendant, the victim has behaved in a manner inconsistent with that fear.‖ (
Hernandez, supra, 30 Cal.4th at p. 872.) ―For example, where the defendant claims self defense ...
statements by the victim showing his fear of the defendant may be admitted to show that the victim would
not likely have been an aggressor against the defendant....‖ ( People v. Garcia (1986) 178 Cal.App.3d 814,
822.) Batiste put Blevins's state of mind at issue by claiming in his statement to the police that he killed
Blevins in self-defense.

     When admission of the evidence was discussed in the trial court, Batiste informed the court that he
would not be relying on a self-defense theory. He submits that his Evidence Code section 352 objection
should have been sustained because ―self-defense was not a real issue at trial.‖ But it was. The tape of
Batiste's confession was played to the jury. ― ‗The trial court is vested with broad discretion in determining
the admissibility of evidence. [Citation.] This is particularly true where, as here, underlying that
determination are questions of relevancy, the state of mind exception to the hearsay rule, and undue
prejudice.‖ ( People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.) We find no abuse of the court's broad
discretion in the matter.

D. Other Crimes Evidence
     *11 Batiste argues that the court improperly and prejudicially solicited ―other crimes‖ evidence when
it questioned Hattie George. In direct and cross-examination, George testified to: an incident when Batiste
came over to pick up speakers, they ―had words‖ and he pointed a gun at her; and an incident when he
flicked a cigarette at her. The court then asked George questions submitted by the jury, which solicited
additional details about the incidents. In response to those questions, George stated that Batiste pointed the
gun at her when they had an argument about who owned the speakers, and that she had felt threatened
when he did so. As for the cigarette incident, the court's questions and George's answers were: ―[Q.] With
regard to the cigarette, what happened there? Why was he flicking the cigarette at you? [A.] He came to
bring diapers, and he was in the car, and as he walked off, he flicked a cigarette at me. [Q.] Kind of like in
anger? [A.] He was just, like, you know—didn't want to hear what I was saying.‖

     The People contend that Batiste forfeited his challenge to the court's questions because he did not
object when the questions were asked. Batiste contends that the challenge was preserved through his
unopposed motion in limine, which the court granted, to exclude evidence of any alleged prior criminal acts
on his part. We need not decide whether the point was forfeited because the admission of this evidence was
neither error nor prejudicial.

     ―[O]f course, the trial court may question a witness in order to elicit additional information or clarify
confusing testimony.‖ ( People v. Sanders (1995) 11 Cal.4th 475, 531 ( Sanders ); see also People v.
Hawkins (1995) 10 Cal.4th 920, 947–948 [court may examine witnesses to clarify testimony or cover
omissions], disapproved on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) As in Sanders,
the questions here ―were brief, fair and nonargumentative. They did not suggest a lack of neutrality or
unfairly comment on the evidence.‖ ( Sanders, supra, 11 Cal.4th at p. 532.) No judicial bias was implicit
because the questions came from the jurors, not the court.

      Moreover, the questions did not produce anything significant. The questioning revealed that George
felt threatened when Batiste pointed the gun at her, but otherwise merely elicited context for his assaultive
behavior. George's natural reaction to having a gun aimed at her could not conceivably have affected the
outcome of the case. Thus, any error in connection with the evidence was harmless under any standard.

E. Instruction on Dissuading a Witness from Testifying
     As noted above, Blevins's next door neighbor, Veronica Stallworth, told police that Batiste and a
person named Macmelli visited her between 10:30 and 11:45 on the night of the murder, she had not seen
Batiste for a long time, and it was unusual for him to come over that late. At trial, however, Stallworth
denied telling police that Batiste had not been over for a long time, or that his late visit was unusual. The
prosecution then elicited testimony from Stallworth that she had filed a police report in March 2008 stating
that Macmelli had threatened to shoot up her house. Macmelli had seen her returning from the police
station in the backseat of a police car, and must have thought she was a snitch. She had applied for ―witness
relocation‖ because of her fear of Macmelli.

     *12 Batiste contends that, in light of Stallworth's testimony about Macmelli, the court was required
sua sponte to instruct the jury that a third party's attempt to dissuade a witness from testifying cannot be
used against a defendant to establish consciousness of guilt unless the defendant authorized the attempt.
(See CALJIC No. 2.05 [defendant must authorize effort to procure false evidence; even if defendant
authorized the effort, such conduct is not sufficient by itself to prove guilt]; CALCRIM No. 371 [defendant
must authorize attempt to conceal evidence; such conduct cannot by itself prove guilt].) This argument is
untenable. ( People v. Najera (2008) 43 Cal.4th 1132, 1139 [no duty to instruct sua sponte that ―a fact or
cluster of facts is not, without more, substantial evidence of guilt,‖ citing CALJIC No. 2.05 as an example];
Bench Notes to CALCRIM No. 371 [no duty to give this instruction sua sponte].)

      Batiste maintains that his counsel was incompetent for failing to request an instruction on dissuading a
witness and consciousness of guilt. When the record on appeal sheds no light on the reason for counsel's
failure to act, we must affirm the judgment unless there could be no ― ‗satisfactory explanation‘ ― or
―rational tactical purpose‖ for the omission. ( People v. Haskett (1990) 52 Cal.3d 210, 248; People v.
Fosselman (1983) 33 Cal.3d 572, 581.) Defense counsel here could have reasonably decided to forego
consciousness of guilt instructions to avoid any focus on the threat Stallworth reported or any implication
that Batiste was involved with it.

                                         III. DISPOSITION
     The judgment is affirmed.

We concur: POLLAK, Acting P.J., and JENKINS, J.

Cal.App. 1 Dist.,2011.
People v. Batiste
Not Reported in Cal.Rptr.3d, 2011 WL 4360112 (Cal.App. 1 Dist.)
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)

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