THE PEOPLE v. MAURICE LEON SIMMONS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MAURICE LEON SIMMONS et al., Defendants and Appellants.

B211208

Decided: February 18, 2010

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Maurice Leon Simmons. Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Lamont Lee Hall. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Joseph P. Lee and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted Maurice Leon Simmons and Lamont Lee Hall of second degree robbery, assault with a firearm and other related crimes and found specially alleged firearm enhancements to be true.   On appeal Simmons contends the trial court erred in denying his request to present surrebuttal evidence he was not a gang member, improperly admitted prejudicial hearsay evidence over his counsel's objection and abused its discretion in denying his request for probation.   Hall contends his counsel's failure to object to testimony highlighting Hall's status as a documented gang member deprived him of effective assistance of counsel.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information charged both Simmons and Hall with robbery (Pen.Code, § 211) 1 and assault with a firearm (§ 245, subd. (a)(2)).   The same information also charged Simmons with knowingly permitting a loaded firearm in a vehicle (§ 12034, subd. (a)) and Hall with possession of a firearm by a felon (§ 12021, subd. (a)(1)).   In addition, the information specially alleged Hall had personally used a firearm to commit the robbery (§ 12022.53, subd. (b)) and a principal in the robbery offense had been armed with a firearm (§ 12022, subd. (a)(1)).   It was also alleged that Hall had personally used a firearm in the commission of the assault offense (§ 12022.5, subd. (a)(1)).   The information did not allege any gang enhancements.

Simmons and Hall pleaded not guilty to all charges and denied the special allegations.

2. The Trial

Hall and Simmons were tried together before the same jury.   According to the evidence at trial, Edward Joseph was standing in the driveway of his home in Compton talking with his girlfriend when Simmons drove his Jeep Cherokee near Joseph's house and stopped.   Hall got out of the passenger seat of the Jeep, while Simmons remained in the driver's seat.   As Hall approached Joseph, Simmons yelled out the window of the Jeep, “Piru Blood,” a reference to a criminal street gang.   Hall walked up the driveway and demanded Joseph tell him where he was from, a question Joseph understood as inquiring about his gang affiliation.   Joseph told Hall he lived at the house, he was not in a gang, he was from Long Beach and was a soldier in the United States Army. Hall pulled out a handgun from under his sweater and told Joseph he should shoot him.   Joseph became scared and slowly backed away from Hall, toward the house.   After a few minutes, when Joseph had backed up against a car parked in the driveway, Hall put the gun back in his waistband and turned to leave.   Simmons then yelled at Hall from the car to take Joseph's cell phone.   Hall turned back to Joseph and demanded the telephone.   When Joseph hesitated, Hall again pulled out the gun and reiterated his demand, threatening to shoot Joseph if he did not comply.   Joseph gave Hall his telephone.   Hall returned to the passenger seat of the Jeep, and he and Simmons drove away.

Los Angeles County Deputy Sheriff Larry Waldie was patrolling the area with his partner when he saw Joseph and his sister trying to get his attention.   According to Waldie, Joseph and his sister pointed to the Jeep that was driving away from Joseph's house and yelled at Waldie that there was a gun in the vehicle.   Waldie (and other Los Angeles County Sherriff deputies in separate patrol cars) followed the Jeep and succeeded in stopping the vehicle.   Joseph identified Simmons and Hall at the scene, and the two men were arrested.

Hall did not testify.

Simmons testified in his own defense.   He explained he had picked Hall up earlier in the day after Hall had asked him for a ride to a liquor store.   Simmons saw Hall had a gun with him and asked Hall, “What's the matter?”   Hall told him “not to worry about it,” and Simmons did not protest because he did not want to be perceived as a “punk.”   At Hall's direction, Simmons drove to a liquor store where the two purchased and drank vodka.   Simmons did not drink very much.   Then, Hall asked Simmons to drive him to an address in Compton to see a relative.   When Hall saw Joseph in the driveway, he told Simmons to stop.   Simmons assumed Joseph was Hall's relative and waited in the car while Hall approached Joseph.   Simmons did not hear Hall threaten Joseph and did not see Joseph pull a gun, but knew Joseph was scared by the way Joseph had backed away from Hall. According to Simmons, he told Hall, “Come on, I got to go home.”   Simmons did not say, “Take his phone.”   Hall returned to the car, and the two drove away.

During cross-examination, Simmons denied saying the word “Piru” and denied knowing that Neighborhood 151 referred to the Piru Blood criminal street gang.   He admitted the arresting officer had found his cell phone during a search of his person incident to arrest, but denied that his cell phone had a digital graphic stating “Neighborhood 151 Little Monster,” and did not know what such a graphic would mean.   He explained his cell phone at the time of his arrest had a photograph of his girlfriend, not a reference to Neighborhood 151.

In rebuttal, Detective Carlos Herrera, a detective in the Los Angeles County Sheriff's Department gang unit and an expert in criminal street gangs, testified he had participated in the arrest of Simmons and Hall. During a search of Simmons incident to his arrest, he had found a cell phone that Simmons admitted on the scene was his.   Herrera testified the telephone had a digital graphic displaying “Neighborhood 151” and “Little Monster.”   Herrera explained “Neighborhood 151” is a Compton street gang known as Black Piru, a subset of the Bloods criminal street gang.   He also testified Hall is a documented member of the Piru Bloods, but had no information as to whether Simmons was in a gang other than the graphic on Simmons's telephone referencing Neighborhood 151 and his association with Hall. Herrera acknowledged on cross-examination the telephone had been returned to Simmons's family and no photograph had been taken of the telephone's opening digital graphic at the time it was seized.

At the conclusion of the prosecution's rebuttal case, Simmons sought to introduce surrebuttal evidence that he was not a member of, and did not associate with, a criminal street gang.   In an offer of proof, Simmons proffered the testimony of a high school security guard who knew the neighborhood, was familiar with the criminal street gangs in the area and knew Simmons was not in a street gang.   Simmons also advised the court his pastor would testify he was familiar with the neighborhood boys who were in gangs and he knew Simmons was not a gang member.   The People objected the evidence would result in a protracted trial, requiring additional witnesses.   The court refused to admit the proffered testimony, explaining any evidence relating to gang membership should have been presented in the defense's case-in-chief and, in any event, neither of Simmons's proffered witnesses would qualify as an expert in criminal street gangs.2

3. The Verdict and Sentence

The jury convicted Hall and Simmons of each of the charged offenses and found the specially alleged firearm enhancements true.   Hall was sentenced to an aggregate state prison term of 12 years, consisting of two years (the low term) for the robbery plus 10 years for the firearm enhancement.3  Simmons's request for probation (supported by the probation officer's recommendation in a supplemental probation report) was denied.   Simmons was sentenced to an aggregate state prison term of four years (the middle term of three years for the robbery, plus an additional one year for the firearm enhancement) (§ 12022, subd. (a)(1)).4

DISCUSSION

1.  The Trial Court Did Not Err, Prejudicially or Otherwise, in Excluding Simmons's Proffered Surrebuttal Evidence Concerning His Gang Status

Simmons contends the trial court abused its discretion in excluding his proffered surrebuttal evidence that he is not a gang member.   Although the information contained no gang enhancement allegations, Simmons argues evidence he was not a gang member was necessary to rehabilitate his credibility after the People introduced rebuttal testimony impeaching Simmons's assertions about the gang-related graphic on his cell phone.   There had been no need for him to address his gang status in his case-in-chief, he argues, because his alleged gang membership was only raised by the prosecution in its rebuttal case.

The trial court has broad discretion to limit the scope of evidence offered in rebuttal to prevent unnecessary repetition of matters that should have been sufficiently covered in the original case. (§ 1093, subd. (d);  see also § 1044 [authorizing trial court to “control all proceedings” and “to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”];  see also People v. Lamb (2006) 136 Cal.App.4th 575, 582 [“trial judge may limit scope of surrebuttal evidence to prevent repetition of matter that should have been covered in the original case or to prevent unfairness to the other party”].)   The decision whether to admit on rebuttal testimony that could have been presented in party's case-in-chief is reviewed for abuse of discretion.  (People v. DeSantis (1992) 2 Cal.4th 1198, 1232;  see generally People v. Alvarez (1996) 14 Cal.4th 155, 201 [trial court's discretion in admitting or excluding evidence is reviewable for abuse and will not be disturbed on appeal except upon a showing that decision was arbitrary, capricious or patently absurd and resulted in manifest miscarriage of justice].)

The trial court's decision to exclude Simmons's proffered surrebuttal evidence was not arbitrary, capricious or patently absurd, nor did it result in a miscarriage of justice.   At the threshold, Simmons's suggestion that the People only referred to his alleged gang association in its rebuttal case is simply incorrect.   The People provided evidence in their case-in-chief (through Joseph's testimony) that Simmons shouted “Piru Blood,” a gang reference, from the Jeep when Hall first approached Joseph.5  More significantly, because there was no gang enhancement charged in the information, Detective Herrera's testimony in the People's rebuttal case concerning the gang-related graphic on Simmons's telephone was, at most, impeachment of Simmons's credibility on a collateral matter.   The issue in the case was not Simmons's gang association, but his instigation of the robbery of Joseph's cell phone.   The court's conclusion the proffered surrebuttal testimony from Simmons's pastor and a school security guard-they knew Simmons and believed he was not a gang member-would consume an undue amount of time for very limited probative value was well within its broad discretion in such matters.  (See People v. Ayala (2000) 23 Cal.4th 225, 301 [exclusion of impeachment evidence on a collateral issue “ ‘empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues' ”].)   In any event, any error in excluding evidence on such a collateral issue did not result in a manifest miscarriage of justice.6

2. The Trial Court's Admission of Hearsay Evidence Does Not Compel Reversal

At trial Deputy Waldie testified during cross-examination that he had interviewed an unidentified male witness, one of the individuals who had flagged him down following the incident, but the man had told him he did not want to be involved in the matter.   On redirect, when asked why the witness did not want to become involved in the investigation, Waldie testified, over Simmons's objection on hearsay grounds,7 that the witness had told Waldie he was afraid and did not “want to mess with gang members.”   The trial court allowed the testimony, citing “state of mind.”

Simmons asserts the court's ruling-that the evidence satisfied a state-of-mind exception to the hearsay rule-is error because the unidentified witness's conduct or state of mind was not an issue in the case.  (See Evid.Code, § 1250 [evidence of a declarant's state of mind at the time he or she made the out-of-court statement is admissible, notwithstanding the hearsay rule, provided “[t]he evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action” or “[t]he evidence is offered to prove or explain acts of conduct of the declarant.”)   The People, however, argue the evidence was admissible to show the unidentified witness feared retaliation by gang members.  (See People v. Burgener (2003) 29 Cal.4th 833, 869 [“[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible”];  People v. Gray (2005) 37 Cal.4th 168, 220.)   Although that evidence of the unidentified man's state of mind would have been relevant to his credibility had he testified (cf.  Burgener, at p. 869), he did not do so.   Neither his credibility nor his state of mind at the time of the interview was at issue in the case.8

The question remains whether the erroneous testimony was prejudicial.   Simmons asserts the error not only violated the rules of evidence, but also deprived him of his Sixth Amendment right to confront the unnamed declarant.  (See Crawford v. Washington (2004) 541 U.S. 36, 68 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford ) [out-of-court statements offered for the truth of the matter asserted that are testimonial in nature are barred under the confrontation clause in the United States Constitution unless declarant is unavailable and the defendant had a prior opportunity to cross-examine declarant];  Davis v. Washington (2006) 547 U.S. 813, 823, 825 [126 S.Ct. 2266, 165 L.Ed.2d 224];  People v. Cage (2007) 40 Cal.4th 965, 981.)

As the People concede, the statement, made to Deputy Waldie in an on-the-street interview after the exigent circumstances had abated, was plainly testimonial.  (See Crawford, supra, 541 U.S. at p. 68 [whatever else the term “testimonial” covers, “it applies at a minimum” to statements that are the product of police interrogations];  People v. Cage, supra, 40 Cal.4th at p. 984 [statements elicited by law enforcement officers are testimonial unless the primary purpose in giving and receiving them “is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial”].)

Nevertheless, even when analyzed under the standard for federal constitutional error applicable to Crawford error (see Davis v. Washington supra, 46 Cal.4th at p. 620;  Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] ), the admission of the evidence was harmless beyond a reasonable doubt.   Contrary to Simmons's contention, the evidence did not specifically refer to Simmons as a gang member.   The declarant said he did not “want to mess with” gang members, and the evidence was undisputed at trial that Hall, at least, was a documented member of the Piru Blood gang.   Moreover, as discussed, the issue in the case was not Simmons's gang membership, but his conduct at the scene.   In that regard, evidence of Simmons's participation in the crime was overwhelming.   Simmons was heard explicitly shouting Piru Blood and directing Hall, who by this time had turned to leave, to take Joseph's cell phone.   Any passing reference to an unnamed witness's fear of becoming involved in the investigation was plainly harmless beyond a reasonable doubt.

3. The Trial Court Did Not Abuse Its Discretion in Denying Simmons's Request for Probation

a. Relevant proceedings

In the initial probation report prepared for Simmons's sentencing hearing, the probation officer recommended against probation and indicated he had not been able to interview Simmons.   The court agreed the probation report was incomplete and continued the sentencing hearing to allow for a supplemental probation report.

In the supplemental report, the probation officer recommended Simmons be placed on probation.   The probation officer explained his change in position:  “In the [initial] probation report of August 28, 2008, this officer recommended that probation be denied and the defendant be sent to state prison.   Prior to that report, this officer had made two attempts to interview the defendant without success.  [¶] After the court hearing, the probation officer was contacted by the defendant's father and his sister.   The father brought to this officer[ ] twenty reference letters from Compton Unified School District, the church, coaches, and friends.   These letters reflect that the defendant was a student at Dominguez High School, he was a football player, he had a 3.5 grade point average, he had been accepted at U.S.C. [ (University of Southern California) ], got a letter from Pete Carroll, the coach at U.S.C. and Ken Norton, linebacker coach, making reference to the defendant[ ] as a promising player for the upcoming year․  [¶] ․ [¶] The defendant states that he's fully aware that he made a huge mistake but he has learned from this effort.   His plans for the future are to attend community college, after he rehabilitates his [injured] leg;  he plans to apply to another major university.   He realizes that his chances to attend U.S.C. no longer exist.   [¶] ․ [¶] ․ This officer feels at this point, the defendant has been convicted by a jury, and it's felt that he should be sent to state prison, that the sentence be sta[yed], he be sentenced to probation for a period of five years which would allow him to prove to the court and to himself that he can become a productive member of the community.”

During the sentencing hearing, Simmons, along with his mother and his counsel, pleaded with the court to grant Simmons probation, citing his acceptance of responsibility, his remorse and his background as a law abiding citizen with no criminal record and no gang affiliation.   Joseph's mother also made a statement to the court, urging the court to sentence Simmons to prison.

The trial court acknowledged Simmons's lack of criminal history, but rejected his request for probation on the ground that Simmons “not only aided and abetted the assault with a firearm, he instigated the robbery․  And I find that those are aggravating factors, and that the aggravating factors outweigh the mitigating factors.   He not only participated in it.   He urged an additional crime and instigated the crime that the court is going to use as the base term in this case.”

b. The denial of probation was well within the trial court's discretion

Our review of a trial court's decision to grant or deny probation is deferential.  “The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.”  (People v. Carbajal (1995) 10 Cal.4th 1114, 1120;  Cal. Rules of Court, rule 4.414.)   To establish an abuse of discretion, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason.  (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 834, 835;  see also People v. Carmony (2004) 33 Cal.4th 367, 377[“[A] ‘ “decision will not be reversed merely because reasonable people might disagree.  ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” '  [Citation.]  Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].)  “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.”   (Carbajal, at p. 1120.)  “[A] grant of probation is not a matter of right but an act of clemency.”  (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.)

The trial court's decision to deny Simmons probation was well within its broad discretion.   The court properly considered Simmons's background and the arguments of counsel, the statements of Simmons's family and the victim's family and the probation report but decided against probation based on Simmons's instigation of the robbery and participation in two violent felonies.   There was nothing arbitrary or capricious about the court's decision.9

4. Hall Has Not Demonstrated Ineffective Assistance of Trial Counsel

During the People's rebuttal case, Detective Herrera testified, in response to questions as to whether he knew Simmons to be a gang member, that he did not know whether Simmons was actually a gang member but he did know that Hall was a documented member of the Piru Blood criminal street gang.   Hall's counsel did not object.   Hall asserts this failure to object constituted ineffective assistance of counsel because, had an objection been made, it would have been sustained 10 and the jury would have never heard any evidence of Hall's membership in a criminal street gang.

To prevail on this claim, Hall must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different.  (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674];  People v. Williams (1997) 16 Cal.4th 153, 215.)   There is a presumption the challenged action “ ‘might be considered sound trial strategy’ ” under the circumstances (Strickland, at p. 689;  accord, People v. Dennis (1998) 17 Cal.4th 468, 541.)

On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission.  (People v. Lucas (1995) 12 Cal.4th 415, 442[“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions”];  People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“ ‘[i]f the record 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 unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected’ ”].)

Here, the record is silent as to counsel's reasons for not objecting to Detective Herrera's testimony concerning Hall's gang membership.   Nonetheless, it is certainly plausible that Hall's counsel made a tactical decision to avoid highlighting her client's gang affiliation and to instead attempt to focus the jury on the question whether Hall was too intoxicated to have the specific intent to commit the robbery.   Moreover, this evidence of Hall's gang association was largely cumulative:  The testimony had already established that Hall repeatedly demanded that Joseph tell him where he was from, a challenge common among gang members and one that Joseph understood as a command to identify his own gang affiliation.   In any event, whatever counsel's reasons for not objecting, in light of the overwhelming evidence against Hall, it is not reasonably probable that the exclusion of Detective Herrera's very limited testimony on Hall's gang membership would have resulted in a more favorable verdict for Hall. (See People v. Williams, 16 Cal.4th at p. 215.) 11

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code unless otherwise indicated..  FN1. Statutory references are to the Penal Code unless otherwise indicated.

FN2. The court also denied the People's effort to submit in its rebuttal case evidence of Hall's gang-related tattoos.   The court explained the People should have presented that testimony in their case-in-chief..  FN2. The court also denied the People's effort to submit in its rebuttal case evidence of Hall's gang-related tattoos.   The court explained the People should have presented that testimony in their case-in-chief.

FN3. Hall was also sentenced to seven years for the assault (three years for assault with a firearm plus four years for the firearm enhancement (§ 12022.5, subd. (a)), and two years for felon-in-possession-of-a-firearm offense.   Both of those sentences were imposed concurrently with his 12-year term for the underlying robbery..  FN3. Hall was also sentenced to seven years for the assault (three years for assault with a firearm plus four years for the firearm enhancement (§ 12022.5, subd. (a)), and two years for felon-in-possession-of-a-firearm offense.   Both of those sentences were imposed concurrently with his 12-year term for the underlying robbery.

FN4. Simmons was also sentenced to three years for assault with a firearm and six months for the misdemeanor charge of permitting a loaded gun in his vehicle.   Both of those sentences were imposed concurrently with his sentence on the underlying robbery..  FN4. Simmons was also sentenced to three years for assault with a firearm and six months for the misdemeanor charge of permitting a loaded gun in his vehicle.   Both of those sentences were imposed concurrently with his sentence on the underlying robbery.

FN5. Of course, while Simmons could have presented evidence that he was not a gang member in his case-in-chief, Simmons's counsel's decision not to do so was certainly a reasonable tactical decision, one apparently intended to focus on Simmons's conduct and refrain from highlighting Joseph's testimony concerning the gang identification.   Consequently, Simmons's argument his counsel was constitutionally ineffective in failing to present testimony as to Simmons's lack of gang associations in the defense case-in-chief must be rejected.  (See People v. Lucas (1995) 12 Cal.4th 415, 442-443 [on direct appeal, conviction will only be reversed for ineffective assistance of counsel when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission];  Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674] [there exists a presumption that the alleged deficiency in representation “ ‘might be considered sound trial strategy’ ” under the circumstances].)Simmons has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel on other grounds.   We address that petition in a separate order filed concurrently with this opinion..  FN5. Of course, while Simmons could have presented evidence that he was not a gang member in his case-in-chief, Simmons's counsel's decision not to do so was certainly a reasonable tactical decision, one apparently intended to focus on Simmons's conduct and refrain from highlighting Joseph's testimony concerning the gang identification.   Consequently, Simmons's argument his counsel was constitutionally ineffective in failing to present testimony as to Simmons's lack of gang associations in the defense case-in-chief must be rejected.  (See People v. Lucas (1995) 12 Cal.4th 415, 442-443 [on direct appeal, conviction will only be reversed for ineffective assistance of counsel when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission];  Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 80 L.Ed.2d 674] [there exists a presumption that the alleged deficiency in representation “ ‘might be considered sound trial strategy’ ” under the circumstances].)Simmons has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel on other grounds.   We address that petition in a separate order filed concurrently with this opinion.

FN6. We also reject Simmons's related contention that the exclusion of his proffered surrebuttal evidence deprived him of his constitutional right to present a defense.  (See People v. Boyette (2002) 29 Cal.4th 381, 427-428 [“ ‘[a]s a general matter, the [proper] “[a]pplication of the ordinary rules of evidence ․ does not impermissibly infringe on a defendant's right to present a defense” ’ ” and “excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense”];  see also People v. Mincey (1992) 2 Cal.4th 408, 440.).  FN6. We also reject Simmons's related contention that the exclusion of his proffered surrebuttal evidence deprived him of his constitutional right to present a defense.  (See People v. Boyette (2002) 29 Cal.4th 381, 427-428 [“ ‘[a]s a general matter, the [proper] “[a]pplication of the ordinary rules of evidence ․ does not impermissibly infringe on a defendant's right to present a defense” ’ ” and “excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense”];  see also People v. Mincey (1992) 2 Cal.4th 408, 440.)

FN7. Hearsay, that is, “evidence of a statement that was made other than by a witness while testifying at the hearing” and “offered to prove the truth of the matter stated” (Evid.Code, § 1200, subd. (a)) is generally inadmissible unless it satisfies an exception to the hearsay rule.   (Evid.Code, § 1200, subd. (b).)  Statements that are not offered for the truth of the matter asserted are not hearsay.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1204.).  FN7. Hearsay, that is, “evidence of a statement that was made other than by a witness while testifying at the hearing” and “offered to prove the truth of the matter stated” (Evid.Code, § 1200, subd. (a)) is generally inadmissible unless it satisfies an exception to the hearsay rule.   (Evid.Code, § 1200, subd. (b).)  Statements that are not offered for the truth of the matter asserted are not hearsay.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1204.)

FN8. If introduced to prove Deputy Waldie's state of mind, the unidentified witness's comment is not hearsay at all.  (See People v. Mayfield (1997) 14 Cal.4th 668, 751 [witness's out-of-court statement to police officer that defendant possessed a gun “was not admissible to prove the defendant in fact possessed a gun” but “was admissible for the nonhearsay purpose of establishing [the officer's] state of mind and the appropriateness of his ensuing conduct” to rebut a charge of excessive force];  see generally People v. Thornton (2007) 41 Cal.4th 391, 447 [Whenever an utterance is offered to evidence “ ‘ “ ‘state of mind [that] ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible․’ ” '  Such evidence is not hearsay.”].) But the People do not argue and the record does not indicate how Waldie's state of mind was in any way relevant in this case..  FN8. If introduced to prove Deputy Waldie's state of mind, the unidentified witness's comment is not hearsay at all.  (See People v. Mayfield (1997) 14 Cal.4th 668, 751 [witness's out-of-court statement to police officer that defendant possessed a gun “was not admissible to prove the defendant in fact possessed a gun” but “was admissible for the nonhearsay purpose of establishing [the officer's] state of mind and the appropriateness of his ensuing conduct” to rebut a charge of excessive force];  see generally People v. Thornton (2007) 41 Cal.4th 391, 447 [Whenever an utterance is offered to evidence “ ‘ “ ‘state of mind [that] ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible․’ ” '  Such evidence is not hearsay.”].) But the People do not argue and the record does not indicate how Waldie's state of mind was in any way relevant in this case.

FN9. Simmons's contention the court never considered the supplemental probation report is not supported by the record.   Although at the sentencing hearing the court referred only to “a probation report” rather than the “supplemental probation report,” its consideration of the latter is clear.   The initial probation report mistakenly reported that Simmons was statutorily ineligible for probation.   The supplemental report corrected that error.   Rather than relying on the statutory bar to probation provided in the initial report, the trial court decided against probation based on other appropriate factors, including, primarily, Simmons's instigation of the robbery following the assault.   Nothing in this record indicates the court failed to consider the relevant documents.  (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [judgment is presumed correct and therefore, when record is silent, appellate court must presume matters were done properly absent affirmative evidence to the contrary];  People v. Myers (1999) 69 Cal.App.4th 305, 309-310 [appellate court is required to presume trial court considered all relevant factors absent affirmative record to the contrary].).  FN9. Simmons's contention the court never considered the supplemental probation report is not supported by the record.   Although at the sentencing hearing the court referred only to “a probation report” rather than the “supplemental probation report,” its consideration of the latter is clear.   The initial probation report mistakenly reported that Simmons was statutorily ineligible for probation.   The supplemental report corrected that error.   Rather than relying on the statutory bar to probation provided in the initial report, the trial court decided against probation based on other appropriate factors, including, primarily, Simmons's instigation of the robbery following the assault.   Nothing in this record indicates the court failed to consider the relevant documents.  (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [judgment is presumed correct and therefore, when record is silent, appellate court must presume matters were done properly absent affirmative evidence to the contrary];  People v. Myers (1999) 69 Cal.App.4th 305, 309-310 [appellate court is required to presume trial court considered all relevant factors absent affirmative record to the contrary].)

FN10. Hall emphasizes that, after Detective Herrera finished testifying, the trial court refused to allow the People to submit photographs of Hall's tattoos to establish his gang affiliation.   In denying the People's request to put on additional evidence of Hall's gang membership, the court stated, “[Hall] never testified.   He never denied he was a gang member ․ and if I let you get-put this in for him [evidence of his gang tattoos] it dirties him up ․ and it's definitely not proper․”  When the People complained that Hall's counsel did not object when Herrera had mentioned Hall's gang status, the court responded that Hall's counsel had no obligation to object to Herrera's brief reference to Hall's gang affiliation.   The court rejected the evidence of the tattoos on the ground “whatever probative value” the evidence of Hall's gang tattoos had was “outweighed by the prejudicial effect.”.  FN10. Hall emphasizes that, after Detective Herrera finished testifying, the trial court refused to allow the People to submit photographs of Hall's tattoos to establish his gang affiliation.   In denying the People's request to put on additional evidence of Hall's gang membership, the court stated, “[Hall] never testified.   He never denied he was a gang member ․ and if I let you get-put this in for him [evidence of his gang tattoos] it dirties him up ․ and it's definitely not proper․”  When the People complained that Hall's counsel did not object when Herrera had mentioned Hall's gang status, the court responded that Hall's counsel had no obligation to object to Herrera's brief reference to Hall's gang affiliation.   The court rejected the evidence of the tattoos on the ground “whatever probative value” the evidence of Hall's gang tattoos had was “outweighed by the prejudicial effect.”

FN11. Hall has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel.   The petition includes trial counsel's explanation for failing to object, information not contained in the record on appeal.   We address Hall's petition for habeas corpus in a separate order filed concurrently with this opinion..  FN11. Hall has also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel.   The petition includes trial counsel's explanation for failing to object, information not contained in the record on appeal.   We address Hall's petition for habeas corpus in a separate order filed concurrently with this opinion.

WOODS, J. JACKSON, J.

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