Filed 1/14/20 P. v. Santana CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOEL SANTANA,

Defendant and Appellant.

A152398

(San Mateo County

Super. Ct. No. SC083116)

After a jury trial, appellant Joel Santana was found guilty of perjury for willfully making false statements to a grand jury while testifying under oath. On appeal, Santana argues that the trial court erred in allowing the prosecutor who conducted the grand jury proceedings to offer his opinion as to the truthfulness of Santana’s grand jury testimony. The trial court further erred, he contends, when it admitted audio recordings of several jail calls among individuals charged with conspiring to murder Lamont Coleman, the subject of the grand jury proceedings. Finally, Santana challenges the trial court’s decision to allow the private readback of his trial testimony to the jury during deliberations. According to Santana, these asserted errors were both individually and cumulatively prejudicial, requiring reversal of his perjury conviction. Seeing no reversible error, we affirm.

I. BACKGROUND

On April 24, 2015, the San Mateo County District Attorney filed an information charging Santana with perjury based on his February 2014 grand jury testimony. Jury trial with respect to the perjury charge commenced in May 2017.

A. Prosecution Case
B.
On the night of January 26, 2013, Detective Audyama Williams responded to a report of gunfire and a possible shooting victim in East Palo Alto. When he arrived on the scene, he discovered Coleman dead with apparent gunshot wounds to his back. Defendant Joel Santana lived two houses down from the crime scene. Investigators later learned that several cell phone calls had been placed between Santana and the person suspected of committing the Coleman murder, Tyrone Love-Lopez. The prosecution called several witnesses to establish that Santana’s testimony before the grand jury—in which he denied knowing Love-Lopez and participating in these calls—had been false.

1. Deputy District Attorney Morris Maya’s Testimony
2.
After the judge briefly explained the grand jury process, the prosecutor read Santana’s February 2014 grand jury testimony in its entirety. Deputy District Attorney Morris Maya was then called as a witness. Maya had been assigned to the “Sunny Day” prosecutions—cases arising out of a series of shootings from September 2012 through January 2013 between the Sac Street, DaVill, and Taliban gangs. The Sunny Day matters encompassed several nonlethal shootings, four charged homicides, and a related fifth homicide, including the murder of Lamont Coleman. Maya explained that a grand jury was used to investigate and bring charges in the Sunny Day prosecutions because the secret nature of such proceedings was helpful to minimize witness intimidation in cases of this type and because the grand jury procedure can be more efficient in the early stages of a complex case. Maya emphasized the investigatory function of the grand jury, noting “we don’t always know the information that is knowable because, oftentimes, witnesses either refuse to answer police officers’ questions or are dishonest with police officers.” Placing such witnesses under oath before a grand jury, in contrast, creates “real consequences” should an individual choose to lie.

As part of the Sunny Day grand jury proceedings, Maya sought an indictment against Tyrone Love-Lopez, Emmanuel Hyland, Marvin Ware, Nina Cragg, and Roberto Bustos-Montes for the murder of Lamont Coleman. Maya called Santana to testify before the grand jury because investigators with the district attorney’s office believed that Santana had been in contact with Love-Lopez by cell phone both before and after the Coleman murder and because Santana lived only a few houses away from the scene of the crime. Maya believed that these phone calls reflected an attempt by Love-Lopez to monitor the progress of the investigation. Maya described to the jury the evidence which led investigators to believe that Santana and Love-Lopez were using their respective cell phones to communicate with one another.

Over defense objection, Maya testified that he believed much of Santana’s grand jury testimony had been untruthful. Specifically, Maya opined that Santana was lying when he claimed not to know Love-Lopez and when he denied speaking to Love-Lopez over cell phone. Maya based his opinion on the evidence of cell phone contacts between the two men as well as the fact that Santana’s cell phone “seemed to have quite a bit of content related to both Tyrone Love-Lopez and his family members,” suggesting an established relationship. When Maya had shown Santana a picture of Love-Lopez and asked if he recognized Love-Lopez, Santana told the grand jury that they might have played football at the same high school. Maya found this testimony of a vague connection difficult to square with the evidence of their repeated phone communications.

Maya further testified that Santana’s refusal to testify truthfully regarding his contacts with Love-Lopez was detrimental to the Coleman murder investigation because the homicide was “the product of a very carefully planned conspiracy that did require a lot of moving parts and a lot of phone communication.” Maya explained that Coleman was a member of the Sac Street gang and had been a police informant. Phone calls among several of the Sac Street conspirators led investigators to believe that Love-Lopez was the person tasked to murder Coleman, and other evidence placed Love-Lopez and Bustos-Montes in the same area as Coleman at the time of the murder. But investigators were not able to determine who pulled the trigger and could not recover the murder weapon. DNA taken from a surgical mask found near the crime scene did not match any of the indicted coconspirators, leaving investigators to wonder if they had identified all the coconspirators.

Because Santana denied any relationship with Love-Lopez, investigators were unable to find out what had been discussed by the two men in the period immediately before and after the murder. Given the timing of these calls and the fact that Santana “had, literally, his eyes on the investigation—he interacted with a police officer manning the crime scene,” Maya viewed the calls “to absolutely be important.” Investigators wanted to know whether a brief call between Santana and Love-Lopez shortly before the murder “was part of the planning or an overt act in furtherance of this very intricate conspiracy to murder Lamont Coleman.” Thus, according to Maya, Santana’s truthful testimony could have shed light on these conversations and potentially identified additional coconspirators or strengthened the evidence against the individuals who had already been indicted.

3. Cell Phone Evidence
4.
Inspector Boyd of the district attorney’s office was assigned to investigate both the Coleman murder and Santana’s possible perjury. At trial, he was qualified as an expert in cell phone analysis, cell phone mapping, and interpretation of call data records. Boyd testified that Love-Lopez’s previous cell phone had been seized on January 16, 2013, and that Love-Lopez acquired a new cell phone the following day. The new cell phone was connected to Love-Lopez in various ways, including his interactions with friends and family.

Love-Lopez lived in Visalia during the relevant time period. On the evening of the murder, Love-Lopez’s cell phone was tracked leaving Visalia and arriving in East Palo Alto. An eight-second call was then made by Love Lopez’s cell phone to Santana’s cell phone at 4:49 p.m. After the murder, at 10:13 p.m., a 57-second call was placed by Love-Lopez’s cell phone to Santana’s cell phone. Santana’s cell phone returned the call at 11:56 p.m., lasting 45 seconds. The next morning, Love-Lopez’s cell phone called Santana’s cell phone for approximately 39 seconds. A return call was placed from Santana’s cell phone several minutes later, lasting 119 seconds. That evening, Love Lopez’s phone was tracked returning to Visalia when it received a call from Santana’s cell phone. Love-Lopez’s cell phone returned the call 12 minutes later, lasting 27 seconds. Although investigators had fairly extensive phone records for Love-Lopez, the only documented phone activity between Love-Lopez and Santana occurred over this brief two-day period. Boyd also testified regarding his analysis of Facebook records linked to Love-Lopez and Santana. Love-Lopez and Santana were Facebook friends and, on November 9, 2011, Santana wished Love-Lopez a happy birthday, stating: “ ‘Happy Bday, my nigg.’ ”

Boyd executed a search warrant for the home of Maria Love, Love-Lopez’s mother. Several other people lived there at that time, including Ana Ramirez, Love Lopez’s aunt. After extracting the electronic data from Ramirez’s cell phone, Boyd discovered a contact associated with Santana’s cell phone number which had been created on January 16, 2013, a week before the Coleman murder. Ramirez’s cell phone also contained contact information for “ ‘TLove’ ”—a nickname for Tyrone Love Lopez—and for Maria Santana, one of Santana’s sisters (created August 2013). A picture of Santana leaning against a car in front of his house was stored in Ramirez’s cell phone.

Boyd also analyzed the contents of Santana’s cell phone, recovered during execution of a search warrant at Santana’s home. The cell phone contained e-mail and Facebook accounts and photographs linking it to Santana. A contact for “ ‘T-Love’ ” had been created in the phone at 4:53 p.m. on January 26, 2013, the date of the Coleman homicide. Also found on the phone were contacts for “Lola Lopez” and “Monty,” whom Boyd identified as Maria Love and one of her sons, Gary Diamonte Love IV. Santana’s cell phone further disclosed that Love-Lopez and Santana had been connected through Voxer, a communication application, since January 2012, which contained a profile picture of Love-Lopez. According to Boyd, Santana’s cell phone contained over 14,000 pictures, many of which were not put into evidence, including “[m]aybe hundreds” referencing the Norteño criminal street gang.

5. Recorded Jail Calls
6.
Inspector Draper was an inspector with the district attorney’s office with 18 years of experience as a police officer. He had been working in a gang-related assignment since 2002. Draper was qualified as an expert in criminal street gangs, particularly the Norteños in San Mateo County, which included the Sac Street gang. He was involved in the Coleman murder investigation and, as part of his duties, listened to “[t]housands of hours” of recorded telephone calls made to gang members incarcerated in the San Mateo County jail during that timeframe. According to Draper, certain of these jail phone calls “led us to who we believe orchestrated the murder of Lamont Coleman, including Mr. Love-Lopez.” In particular, Draper identified three of these calls involving Marvin Ware, Nina Cragg, Emmanuel Hyland, and Roberto Bustos-Montes—all members or associates of the Sac Street gang who had been indicted in the Coleman murder. Audio recordings of these three calls were played for the jury.

Prior to playing the calls for the jury, the trial court gave the following limiting instruction: “You are to consider them for the purpose for which they are offered. [¶] I believe it’s the case that the evidence will be that the defendant here, Joel Santana, is not a party to any of these telephone calls that you’re going to hear. [¶] And so you’re to consider this as some background information that the People want to put before you as to events that were—that led up to some things that happened later after that.”

After audio from the first call on January 17, 2013, was played, Draper explained that Cragg called Ware, who was incarcerated in jail, to discuss a recent traffic stop involving Hyland in which a gun and narcotics were found in the vehicle. Hyland’s girlfriend later consented to a search of her apartment, where two more guns and various narcotics were found. Cragg mused on the call to Ware: “But I don’t know, in order for them to, um, get a search warrant for [the girlfriend’s] house they would have to have an informant, ‘cause that’s not his address.” Ware agreed and exclaimed: “Man I can’t believe this shit. This shit is all falling apart, everything. Everything, everything. Cannot believe this shit.” Draper testified that, in fact, Lamont Coleman was the police informant who had provided the information that led to the traffic stop. He further testified that Norteños, including the Sac Street gang, have a big problem with “ ‘snitching’ ” and that a confirmed informant would be put on a hit list and subject to death. As the call progressed, Cragg tried to get both Love-Lopez and Bustos-Montes on the phone at Ware’s request. Eventually, Cragg was able to connect Bustos-Montes on a three-way call, leading to the following exchange:

“[Bustos-Montes]: Well what you think bro?

“[Ware]: Man you already know who, bro.

“[Bustos-Montes]: All right. You want me to make that happen?

“[Ware]: Yes, blood like man.”

Draper explained this exchange meant that Ware was telling Bustos-Montes there was an informant and they both knew who it was. Draper further opined that Bustos Montes was asking Ware if he wanted him to kill the informant. And Ware acknowledged that he did.

The second call took place two days later, on January 19, 2013, among Ware, Cragg, and Hyland. After Ware asked, “[W]hat about our other partner?” Hyland responded: “Yeah, we about to, um—we about to put that together—yeah to tell you the truth, I like didn’t even want—like I haven’t hit that nigga up for nothing. I don’t even wanna talk to that nigga until, you feel me we do it. So I’m a figure out everything, um, really I think—I think, um—I think the dog Love is gonna be able to do that.” Draper testified that he believed Ware was asking about Coleman and Hyland indicated that Love-Lopez was going to be the one to kill Coleman.

The final call occurred January 27, 2013, the day after the Coleman murder, and involved Ware, Cragg, and Bustos-Montes. When asked by Cragg what was up, Ware responded that he was “enjoying the weather” and had “heard some good news.” Bustos Montes then joined the call, reporting that he and Love Lopez were together at a Chinese restaurant. When asked by Bustos Montes what was up, Ware again commented that he was “enjoying this weather, I’m liking how this feels.” Ware added: “I like these cold nights, sunny days,” and Bustos-Montes commented that “they always come with each other.” Draper opined that Ware was talking about the “good news” of Coleman’s death the previous night and elaborated: “It’s my belief [Ware’s] referencing the ‘cold night’ being Lamont Coleman dying and now ‘sunny days’ ahead now that the informant is dead.”

Draper further testified that, based on his training and experience, photos extracted from Santana’s cell phone reflected his association with the Norteño criminal street gang. One photo included Sac Street gang members Ware, Hyland, and Bustos-Montes, several photos showed Santana displaying gang-related hand signs, and other photos depicted Norteño gang members and gang-related sayings such as: “Keep Calm and Stop Snitchin’ ” on a red background. In Draper’s opinion, Santana was an associate of the Norteño gang of East Palo Alto. Draper also testified that Santana’s older brother was a past member of the Sac Street gang. At the time of the Coleman murder, Santana’s older brother lived in the Central Valley. The only people living at the Santana residence on the date of the Coleman murder were Santana and his parents.

7. Defense Evidence
8.
Santana testified in his own defense. He reported that he was in college and employed. He had also been employed and attending college at the time of the Coleman homicide. Santana testified that his grand jury testimony regarding not knowing or speaking by cell phone to Love-Lopez was truthful. According to Santana, other individuals had access to his phone on January 26 and 27, 2013, including his two older brothers and Ramirez, whom he “was seeing at the time” and with whom he had carried on a relationship for approximately two years. He testified that Ramirez was “pretty comfortable” going in and out of his house. He did not know who had possession of his phone on those dates. He lent his cell phone overnight to several friends and family members in the past. He assumed that someone else put the contacts for Love-Lopez’s family members in his cell phone. He denied connecting to Love-Lopez on Voxer.

Santana also testified that, at the time of the murder, he was into music and video production as well as graphic design. He was sometimes paid for his services and did not screen his clients based on their associations. According to Santana, he had over 3,000 Facebook friends at that time who followed his posts in the entertainment business. He regularly received notifications from Facebook regarding birthdays of “followers” and sent birthday wishes without knowing them personally. Santana characterized saying “my nigg” in a birthday greeting as “youngster lingo” that “doesn’t really mean anything.” He had viewed “tens of thousands” of pictures on Facebook and was unaware his phone saved such images. He deactivated his Facebook account after his grand jury testimony because he “felt violated.” Finally, Santana indicated that he did socialize with some individuals who were gang members, but he did not consider himself to be an associate of any gang. The hand signs he made in the photos were not gang signs, but instead meant “money over bullshit.”

9. Jury Deliberation and Sentencing
10.
After the close of evidence, the trial court instructed the jury that it was the jury’s duty alone to determine the facts and to judge the credibility of witnesses. The court also noted that the jury had heard some opinions from nonexpert or “lay” witnesses and instructed the jury that it was “not required to accept those opinions as true or correct,” but could instead give them “whatever weight you think appropriate.” It referenced its prior limiting instruction with respect to the jail calls, reiterating that Santana was not mentioned in the calls and stating: “I instructed you to consider that evidence for the purpose for which the People offered it, which was to give you background into things that led up to the later time when Mr. Santana was called in front of the grand jury and the investigation that related to that.” The jury was also instructed on the necessary elements to prove perjury and was expressly cautioned as follows: “You may not find that the defendant’s statement was false based on the testimony of Deputy District Attorney Morris Maya alone. In addition to the testimony of Morris Maya, there must be some other evidence that the defendant’s statement was false. This other evidence may be direct or indirect. [¶] However, if you conclude, based on the defendant’s own testimony, that the allegedly false statement was, in fact, false, then additional evidence is not required.”

During deliberations, the jury asked to have Santana’s testimony read back in its entirety. Defense counsel had previously asked that any readbacks be done in the courtroom, with Santana, counsel, and the court present. After discussion of relevant precedent, and over defense objection, the trial court determined that the readback would be done privately in the jury room. Both counsel then agreed on the scope of the testimony to be read, and the trial court admonished the jurors regarding required procedures for the readback.

On May 18, 2017, the jury found Santana guilty of perjury. Judgment of conviction was entered on August 31, 2017, at which time the court sentenced Santana to 60 days in county jail and three years of formal probation. This appeal followed.

II. DISCUSSION

A. Testimony on Truthfulness of Santana’s Statements to Grand Jury
B.
Conviction for perjury requires proof of a “willful statement, made under oath, of any material matter which the declarant knows to be false.” (People v. Trotter (1999) 71 Cal.App.4th 436, 439; § 118, subd. (a).) A statement is material if it is probable that it would influence the outcome of a judicial proceeding. (People v. Pierce (1967) 66 Cal.2d 53, 61; CALCRIM No. 2640; see People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 858 [“ ‘false statements on matters not pertinent to the proceeding do not constitute perjury’ ”; a false statement is material “ ‘if it could probably influence the outcome of the proceeding’ ”].) The materiality of a false statement is a question for the jury. (People v. Kobrin (1995) 11 Cal.4th 416, 420.)

As discussed above, Deputy District Attorney Maya testified that he believed Santana lied under oath concerning his relationship with Love-Lopez and his cell phone usage on the night of the Coleman murder. Maya also explained why these false statements materially impeded the Coleman murder investigation. Santana raises several claims of error concerning Maya’s testimony. We review the trial court’s decision to admit this opinion testimony under an abuse of discretion standard. (People v. Farnam (2002) 28 Cal.4th 107, 153–154 (Farnam).)

Santana first contends that given Maya’s years of experience in the district attorney’s office and his role as the prosecutor who conducted the grand jury proceedings, the jury likely viewed Maya as an expert witness and thus his opinion as to Santana’s truthfulness should be deemed an expert opinion. Santana then discusses various reasons why it was improper expert testimony. We are not persuaded.

The trial court was clear in ruling on Santana’s objection that Maya was a “fact witness” rather than an expert. The court found that Maya is “in a better position to have an opinion on this [the truthfulness of Santana’s testimony], knowing everything that happened in the grand jury room and having seen at the time Mr. Santana’s demeanor in the grand jury room, as one of the elements of judging his credibility, that is something that the jury here cannot see.” Further, when it instructed the jury with respect to opinion testimony, the trial court distinguished Maya’s testimony from the expert testimony offered by Boyd and Draper in this case, stating: “[Y]ou heard some opinions from nonexpert witnesses who we call ‘lay witnesses.’ And then, you heard the two inspectors who were accepted as experts by the Court.” The court then instructed as to each type of opinion. Thus, the jury was aware that Maya was deemed a lay witness and was instructed it need not accept his opinions as true but should give them “whatever weight you think appropriate.”

Furthermore, the trial court correctly determined that Maya’s testimony was not a matter for expert opinion. An expert with “special knowledge, skill, experience, training [or] education” may provide an opinion if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subds. (a), (b).) “Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.” (People v. Torres (1995) 33 Cal.App.4th 37, 45 (Torres).) “Thus, the purpose of expert testimony, to provide an opinion beyond common experience, dictates that the witness possess uncommon, specialized knowledge.” (People v. Chapple (2006) 138 Cal.App.4th 540, 547.) As defense counsel argued at trial, and the trial court agreed, Maya does not possess any special power to discern the truthfulness of a witness’s testimony and has no particular knowledge or familiarity with Santana that would provide a unique window into his credibility. The question of Santana’s truthfulness was within the realm of common experience and required no specialized expert testimony to assist the trier of fact.

Santana further argues that Maya’s testimony was inadmissible as lay opinion because it went beyond Maya’s own observations and delved into impermissible matters such as his opinion of Santana’s credibility and on the ultimate question of Santana’s guilt. “A lay witness may offer opinion testimony if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony.” (People v. Leon (2015) 61 Cal.4th 569, 601, citing Evid. Code, § 800.) “Generally, a lay witness may not give an opinion about another’s state of mind,” but “a witness may testify about objective behavior and describe behavior as being consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397 (Chatman).)

In People v. Virgil (2011) 51 Cal.4th 1210 (Virgil), for example, the Supreme Court concluded that testimony offered by a detective—how he came to suspect the defendant of murder based on the defendant’s resemblance to a composite sketch and other factors—was permissible lay opinion. (Id. at pp. 1253–1254.) The testimony was based on the detective’s own perceptions, it was helpful for the jury to understand how the investigation had progressed, and the testimony was not “unduly prejudicial” because “[t]he jury was, of course, free to draw its own conclusion.” (Id. at p. 1254; see Farnam, supra, 28 Cal.4th at pp. 153–154 [correctional officer’s testimony that defendant “stood ‘in a posture like he was going to start fighting’ ” when confronted with a court order for blood and hair samples was proper lay opinion as it was rationally based on officer’s perception and sufficiently within common experience]; People v. Becerrada (2017) 2 Cal.5th 1009, 1032–1033 [sheriff deputy’s opinion that defendant was “among the ‘top five’ inmates in manipulating a situation” was admissible because the witness knew the defendant well, the testimony was based on the deputy’s own perceptions, and it helped illuminate the seriousness of defendant’s behavior in jail].)

However, our high court has also held that a lay witness’s opinion about the veracity of another person’s statements is generally inadmissible. (People v. Melton (1988) 44 Cal.3d 713, 744; see People v. Houston (2012) 54 Cal.4th 1186, 1221–1222.) “The high court reasoned that such lay opinion testimony invades the province of the jury as the ultimate fact finder, is generally not helpful to a clear understanding of the lay witness’s testimony, is not ‘properly founded character or reputation evidence,’ and does not bear on ‘any of the other matters listed by statute as most commonly affecting credibility’ in Evidence Code section 780, subdivisions (a) through (k).” (People v. Zambrano (2004) 124 Cal.App.4th 228, 239–240, citing Melton, at p. 744; but see Chatman, supra, 38 Cal.4th at pp. 380–384 (questioning that prompts testimony about truthfulness of another person’s statements is not categorically barred; such questioning is improper if asked of a witness who has no personal knowledge of the facts or calls for conjecture or speculation.)

Santana contends that Maya’s testimony went well beyond his personal observations of the grand jury proceedings and invaded the province of the jury to weigh and evaluate the evidence of Santana’s truthfulness. For example, in testifying about the cell phone contacts and extracted data, Maya stated: “[T]here’s just a lot of connections there that led me to believe he was being untruthful intentionally regarding his connection with and relationship to Tyrone Love-Lopez because he knew that it might implicate him in the criminal activity that we were seeking indictments on.” It appears that Maya, who was not a percipient witness to the underlying events, was allowed to speculate about Santana’s motive for lying to investigators about his relationship with Love-Lopez. The People respond that Maya’s opinion testimony was properly admitted because it was helpful for the jury to understand how Santana’s lies materially affected the investigation into Coleman’s murder. They contend it is analogous to Virgil, in that Maya’s testimony shed light on why Santana came to be investigated for perjury. And the jury was free to draw its own conclusions from the evidence. We need not decide whether the trial court erred in admitting Maya’s testimony because any error was harmless.

The evidence offered to prove the charge of perjury was substantial. In addition to cell phone records establishing multiple communications between Santana and Love Lopez on the evening of the Coleman murder and the following day, Santana’s cell phone disclosed numerous ties to Love-Lopez and his family, including communications over Facebook, photographs, and several “contacts” entered into his phone. Santana’s claim—that he did not know Love-Lopez and had never spoken with him, and that other, unknown individuals must have used his cell phone on the days in question—strains credulity in the face of this evidence. In addition, the jury was properly instructed that it could not find Santana’s statements false based solely on Maya’s testimony, and that it need not accept witness opinions as true but should give them “whatever weight you think appropriate.” We presume the jury followed these instructions. (See People v. Riggs (2008) 44 Cal.4th 248, 300 (Riggs) [“[W]e see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide the issue of credibility and guilt based upon its own assessment of the evidence, not the opinions of any witness.”].)

Finally, we do not find Maya’s opinion testimony to be prejudicial for the simple fact that it can hardly have been news to the jury that the district attorney’s office—having charged Santana with perjury—believed he had lied under oath. In Riggs, an inspector testified that he believed the defendant was guilty of the charged offenses and was untruthful when he denied responsibility for the crimes. (Riggs, supra, 44 Cal.4th at p. 300.) The Supreme Court concluded that any error in the admission of this lay opinion was harmless because the testimony “did not present any evidence to the jury that it would not have already inferred from the fact that [the inspector] had investigated the case and that defendant had been charged with the crimes.” (Ibid.) The same holds true here.

The parties dispute whether error in the admission of this testimony is subject to the strict harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, or the reasonable-probability-of-a-more-favorable-result standard of People v. Watson (1956) 46 Cal.2d 818, 836. We conclude that any error was harmless under either standard. The record permits no reasonable doubt but that the outcome of the trial would have been the same had Maya’s challenged opinions been excluded.

B. Admission of Jail Calls
C.
Our analysis of the admissibility of the jail call evidence “begins from the premise that, ‘[e]xcept as otherwise provided by statute, all relevant evidence is admissible.’ (Evid. Code, § 351.) Relevant evidence is that which ‘ha[s] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ (Id., § 210.)” (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 31.) “The standard of review for decisions as to whether or not certain evidence is relevant is abuse of discretion.” (People v. Sanders (1995) 11 Cal.4th 475, 554–555.)

A trial court also has “considerable discretion” to decide whether evidence, even if relevant, should nevertheless be excluded because its probative value is substantially outweighed by its possible prejudicial effects. (Evid. Code, § 352; People v. Merriman (2014) 60 Cal.4th 1, 78.) “ ‘[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 286.) A trial court’s rulings on the issue of undue prejudice “will be upheld on appeal unless it is shown ‘ “the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (Merriman, at p. 78.)

Santana’s attorney objected strenuously to the admission of the jail calls, arguing they did not mention Santana, were not relevant to the perjury proceeding, and were highly prejudicial. In particular, defense counsel stressed that the calls were “obviously prejudicial . . . in the sense that they’re being used to, I think, explain the bad acts of other people, but the prejudice is going to roll over on Mr. Santana.” On appeal, Santana reiterates these claims of error and further avers that the trial court’s erroneous admission of the calls violated his due process rights to a fair trial.

The asserted basis for introducing audio of the jail calls was to provide background to a murder conspiracy which involved Love-Lopez, among other gang coconspirators. The prosecution argued, and the trial court agreed, that the jail calls were relevant to establish Love-Lopez’s involvement in the Coleman murder and thus the materiality of the phone calls between Love-Lopez and Santana around the time of the murder. Santana responds that the jail calls were unnecessary to provide background into the murder conspiracy because other testimony had already established those details.

Maya testified that the Coleman murder was one in a series of gang-related crimes dubbed the “Sunny Day” prosecutions and that, as a result of the grand jury process, several coconspirators, including Love-Lopez, were indicted for the Coleman murder. Maya explained that Coleman was a member of the Sac Street gang and a police informant. He testified that Coleman was found out by the Sac Street gang and was murdered because of it. Maya further testified that Love-Lopez participated in the Coleman murder and was described on a phone call by a coconspirator as the person who would “do it”—that “ ‘Dog Love would do it.’ ” Maya also testified that other evidence placed Love-Lopez and Bustos-Montes in the area of the crime scene at the time of the murder but that investigators did not know which man pulled the trigger. Finally, Maya explained that Marvin Ware was the Sac Street gang member who spearheaded the suspicion over Coleman.

Inspector Draper testified that Ware, Cragg, Hyland, and Bustos-Montes were all members or associates of the Sac Street gang. He testified that certain jail calls among these individuals “led us to who we believe orchestrated the murder of Lamont Coleman, including Mr. Love-Lopez.” He explained that Ware was in the San Mateo County jail at the time the calls took place among the coconspirators. After the jail calls were played for the jury, Inspector Draper went through the challenged phone calls with the jury and essentially decoded them, giving his opinion as to what they meant.

The substance of the jail calls was relevant to establish the existence of a conspiracy to murder Lamont Coleman and the identities of the alleged coconspirators, including Love-Lopez. This background, in turn, was relevant to explain why cell phone communications between Santana and Love-Lopez on the day of the murder would be material to the Coleman investigation and to Santana’s grand jury testimony. But because Santana was never charged or implicated in the Coleman murder and he was not mentioned in the jail calls, we question the wisdom of playing audio of the calls in a perjury trial. As Santana points out, the relevant details of the murder plot were adduced through the testimony of Maya and Draper and other cell phone evidence. Maya also testified at length on the materiality of Santana’s false statements before the grand jury.

We nevertheless conclude that any error in the admission of the jail calls was harmless under either Chapman or Watson. While the communications involved the planning and celebration of a murder, the language was not inflammatory or violent. In fact, the discussions were so guarded that they required Draper’s expert testimony to decipher them. And, during closing argument, the prosecutor mentioned the jail calls only for the purpose for which they were admitted, arguing that they showed Love-Lopez participated in the murder. Finally, the trial court repeatedly instructed the jury that Santana was not mentioned in the jail calls and that they were to be considered solely as background information. Given the strength of the prosecution’s case for perjury and the trial court’s limiting instructions, it is not reasonably probable that the jury would have reached a different conclusion had the jail calls been excluded, and any error was harmless beyond a reasonable doubt.

D. Readback of Grand Jury Testimony During Deliberations
E.
Santana finally challenges the trial court’s decision to allow the private readback of his trial testimony to the jury during deliberations. Specifically, he complains that the trial court’s process—chosen over his express objection—violated his rights to personal presence, effective assistance of counsel, and a public trial. As Santana essentially acknowledges, however, Supreme Court precedent forecloses these arguments.

In People v. Lucas (2014) 60 Cal.4th 153 (Lucas), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53–54, footnote 19, the trial court permitted the jury to read transcripts of requested trial testimony in the jury room during deliberations rather than having the testimony read back to the jury. (Lucas, at p. 299.) Although he had not challenged this procedure at trial, Lucas claimed on appeal that the chosen process violated his constitutional rights to personal presence and counsel. (Id. at pp. 299–300.) Our Supreme Court rejected both contentions.

The court observed that “regardless of whether defendant waived his right to be present, the rereading of testimony is not considered a critical stage of trial in which the defendant has a constitutional right to personal presence.” (Lucas, supra, 60 Cal.4th at p. 299.) Indeed, “[a] ‘ “defendant is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his or her opportunity to defend the charges against him [or her].” ’ ” (Id. at pp. 299–300.) Moreover, the burden is on a defendant to demonstrate that his or her absence prejudiced the defense or denied him or her a fair and impartial trial. (Id. at p. 300.) Noting that Lucas had failed “to explain how his presence would have assisted the defense in any way or altered the outcome of his trial,” the Supreme Court found no personal presence violation. (Ibid.) In doing so, the high court rejected as “entirely speculative” Lucas’s suggestion that the proceedings “could have involved ‘an inadvertent omission of a part of the testimony, a mistake in the reading . . . or an inappropriate emphasis of voice.’ ” (Ibid.)

The Lucas court additionally found no violation of the defendant’s right to counsel. Although Lucas had forfeited the argument, the court addressed the merits of his claim, concluding the right to counsel is limited to “ ‘stage[s] of a criminal proceeding where substantial rights of a criminal accused may be affected.’ ” (Lucas, supra, 60 Cal.4th at p. 300.) Since the court had “established that a readback proceeding is not a critical stage of trial,” no infringement of Lucas’s constitutional right to counsel occurred. (Ibid.)

Several years later, in People v. Covarrubias (2016) 1 Cal.5th 838 (Covarrubias), the Supreme Court disposed of similar claims through citation to Lucas. (Covarrubias, at p. 917 [quoting Lucas for proposition that a defendant has no right to personal presence at readback of testimony because it is not a critical stage of trial]; Covarrubias, at p. 918 [holding that under Lucas a defendant’s right to counsel is not violated when readback of testimony is done in counsel’s absence].) The court also concluded that the defendant failed to show any prejudice stemming from his absence at the readback. (Covarrubias, at p. 918 [rejecting “speculative” suggestion “that the reporter may have given undue emphasis to certain portions of the transcript (e.g., by emphasis of voice) or read from the wrong transcript, or that a portion of the testimony may have been inadvertently omitted”].)

Santana’s attempts to distinguish this controlling precedent are unavailing. He argues that his claim should be treated differently because he actually objected in the trial court. But, while Lucas and Covarrubias involved defendants who failed to object at trial, the Supreme Court’s discussion in both cases clearly dispose of the relevant arguments on their merits. (Covarrubias, supra, 1 Cal.5th at pp. 917–918; Lucas, supra, 60 Cal.4th at pp. 299–300.) Santana also asserts that the readback in his case should be deemed a critical stage in the proceedings because it involved his own trial testimony. However, our high court has reached the same result even when the defendant’s own testimony was the subject of the readback. (See People v. Lang (1989) 49 Cal.3d 991, 1028 (Lang), abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Bloyd (1987) 43 Cal.3d 333, 360 (Bloyd).)

Santana’s additional argument that the readback procedure violated state statutes requiring written waiver of a defendant’s presence at trial is without merit. (See § 977 [requiring written waiver of defendant’s right to be personally present during felony trial proceedings]; § 1043, subds. (a), (b), (d) [generally requiring personal presence of defendant at felony trial absent written waiver].) The cited statutes have been construed to require written waivers of presence only for critical stages of the proceedings. (See Bloyd, supra, 43 Cal.3d at pp. 359–360 & fn. 14 [cases interpreting sections 977 & 1043 “ ‘uniformly have held that the accused is not entitled to be personally present . . . at . . . matters in which defendant’s presence does not bear a “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge’ ” ’ ”]; see also People v. Ayala (2000) 23 Cal.4th 225, 288, fn. 8 [no waiver under section 977 required where a defendant’s presence “ ‘ “ ‘does not bear a “reasonably substantial relation to the fullness of his opportunity to defend against the charge” ’ ” ’ ”].) The Supreme Court’s conclusion that jury readbacks are not a critical stage of trial proceedings disposes of Santana’s statutory argument as well.

Finally, we reject Santana’s assertion that the trial court’s readback procedure violated his right to a public trial. We need not decide this claim because Santana failed to object on this basis and has therefore forfeited the right to raise the issue on appeal. (See Lucas, supra, 60 Cal.4th at pp. 301–302 [right to public trial may be waived by failure to object]; Lang, supra, 49 Cal.3d at p. 1028 [same].)

III. DISPOSITION

Santana’s conviction is affirmed.

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Sanchez, J.

WE CONCUR:

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Humes, P. J.

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Banke, J.

A152398 People v. Santana