P. v. Barragan

Filed 9/17/08 P. v. Barragan CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In November 2002, Kerry MacDougall awoke to find his son shot in the head in the hallway. Fourteen-year-old Daniel MacDougall was killed in what proved to be a foiled home invasion robbery. The district attorney charged Victor Barragan, Terry Gonzales, Jr., Luis Dominguez and Gerardo Herrera with the crime. The information alleged the following felony offenses and enhancements as to all defendants: (1) in count 1, murder (Pen. Code,  187),^[1]with the special circumstances of felony murder/attempted robbery and felony murder/attempted burglary ( 190.2, subds. (a)(17)(A) & (G)), and an enhancement for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)); (2) in count 2, burglary ( 459) with a personal firearm use enhancement ( 12022.5, subd. (a)); and (3) in count 3, attempted home invasion robbery ( 664/211) with enhancements for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)) and for committing the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The information also alleged in counts 4 and 5 that Barragan and Gonzales were each felons in possession of a firearm. ( 12021, subd. (a).) As to all relevant counts, the information alleged that Gonzales had a prior violent felony conviction. ( 667, subd. (b)-(i).)

Codefendant Dominguez was severed from the trial of Gonzales and Barragan and codefendant Herrera pled guilty to manslaughter and being an active participant in a criminal street gang, and admitted a strike. He testified as a prosecution witness. This is an appeal from the joint trial of defendants Barragan and Gonzales.

The jury convicted Barragan and Gonzales of all counts and found true all special allegations. The court sentenced Barragan to life without the possibility of parole for murder with special circumstances in count 1, plus 25 years to life for the firearm discharge enhancement, plus 10 years for the criminal street gang enhancement, all consecutive to a three-year determinate term for being a felon in possession of a firearm in count 5. The strike resulted in a significantly longer sentence for Gonzales: life without the possibility of parole for murder with special circumstances in count 1, plus 50 years to life for the firearm discharge allegation, plus 20 years for the criminal street gang enhancement, all consecutive to a six-year determinate term for being a felon in possession of a firearm in count 4.

On appeal, defendants collectively make over 20 claims of error. They argue that they are entitled to reversal because of evidentiary error, prosecutorial misconduct, instructional error, and sentencing error, among other claims. We shall strike the section 186.22, subdivision (b)(1)(C) enhancement imposed on each defendant in count 1, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

A. Robberies Near Modesto - October 2002:

On October 27 and 28, 2002, two men robbed a Motel 6 in Modesto, a Stop N Save convenience store in Modesto, a Quik Stop convenience store in Ripon, and a Dennys restaurant in Lathrop. The robbers were dressed in dark clothing, ski masks and gloves. One robber had a gun. The victims were unable to identify the two men who robbed them.

B. Discovery Of Daniel MacDougalls Body - November 5, 2002:

Fourteen-year-old Daniel MacDougall lived with his parents Kerry and Elizabeth MacDougall in Tracy. Kerry MacDougall worked nights. He suffered from a partial hearing loss andwas a heavy sleeper. Kerry did not hear Elizabeth leave for work before dawn on the morning of November 5, 2002.

Daniel usually left for school around 6:30 or 7:00 a.m., turning off the house alarm and locking the front door with his key. He telephoned his friend V.M. at 6:22 a.m. on November 5, 2002, but did not show up to walk to school with her as planned. V.M. tried unsuccessfully to reach Daniel by phone between 7:00 and 7:30 that morning.

Manuel Reyes, who lived in the neighborhood, drove past the entrance to the MacDougalls street at 6:30 a.m. on November 5, 2002. He noticed that the front door of the MacDougall house was standing open. Reyes saw two young men walking toward the door. The first man was about 5 feet 10 inches tall. The second mans face was red, as if he had been running, but he had a lighter Hispanic complexion than the first man. Both wore dark, baggy clothing and head coverings.

Kerry discovered Daniels body in a large pool of blood in the front entry hallway when he came downstairs around 9:00 a.m. Daniel was dressed for school and held the front door key in his hand. Kerry called 911 and waited for the police to arrive.

The initial police investigation revealed that Daniel had died an hour or more before Kerry discovered the body. Nothing in the rest of the house was disturbed or bloodstained. However, the front door was damaged and investigators found a shoe impression near the door handle.

The MacDougalls, who were ex-Marines, had a gun collection which they kept in a large gun safe in the garage and a smaller safe in the master bedroom. The only fingerprints on the gun safe were Kerrys. None of the MacDougall weapons fired the fatal shot.

The autopsy revealed that the cause of death was a massive head wound from a .38 or .357-magnum round-jacketed hollow bullet. Investigators found no weapon at the scene. Daniel was shot at close range. The bullet lodged behind his left jawbone.

Tracy police detectives had no specific suspects after nearly two months of investigation, but the case started to break at the end of December 2002 with the recovery of Gonzaless cell phone and Gonzaless return to Duell Vocational Institute (DVI) for a parole violation.

C. Recovery Of Gonzaless Cell Phone - December 22, 2002:

On December 22, 2002, Modesto Police Detective Phillip Owen responded to a call from a Modesto store owner who had shot a man who had attempted to rob him. The would-be robber, later identified as Manuel Wino Quijas, was dead at the scene. Owen found a loaded handgun and a cell phone in Quijass possession. The cell phone belonged to Gonzales.

In an attempt to identify the body, Detective Owen left messages for Gonzales to call him. Gonzales contacted Detective Owen two days later and confirmed that his cell phone had been missing from his bedroom for a couple of days.

The prosecution produced the records for Gonzaless cell phone at trial. The records for November 5, 2002, were consistent with other testimony regarding contacts between Gonzales and the principal players in the MacDougall crime.

D. Gonzales Requests Meeting With Police - January 27, 2003:

In August 2002, Gonzales was released on parole after serving a prison sentence for assault with a deadly weapon. On December 24, 2002, he was rearrested for a parole violation after failing a drug test. Gonzales arrived at DVI on December 30, 2002.

On January 27, 2003, Sergeant David Stapp, the supervisor of the reception center at DVI, received a letter from Gonzales requesting a confidential meeting. Gonzales indicated that he had urgent information about a murder. Stapp set up the meeting. He observed that Gonzales was very nervous. Gonzales asked Stapp to contact Detective Phillip Owen of the Modesto Police Department, stating that he had information about the Sund-Palosso murders in Yosemite and a recent murder in the local area.

Sergeant Stapp and Owen both knew that Cary Stayner had been convicted of the Sund-Palosso murders, and Detective Owen was unaware of any other unsolved murders in the Modesto area. Owen asked Sergeant Stapp to get more information from Gonzales.

E. Statements Made By Gonzales - January 31, 2003:

During his second interview with Sergeant Stapp, Gonzales stated that he had information about the murder of Daniel MacDougall in Tracy. He added, I was there. Gonzales requested that an attorney be present before he continued his conversations with law enforcement. Stapp ended the interview and contacted Detective Dean Hicks at the Tracy Police Department. Hicks arranged to conduct a videotaped interview with Gonzales at DVI that afternoon.

Detective Shawn Steinkamp and Deputy District Attorney Todd Turner accompanied Detective Hicks to the interview. According to Hicks, Gonzales was willing to provide information but did not want to receive any time as a result of doing so. Steinkamp explained to Gonzales that they needed to hear what Gonzales knew before they could make any deals. Gonzales responded, [It] aint gonna work that way.

F. DVI Contacts Lead To Christina Flores:

Sergeant Stapp identified Gonzaless girlfriend Christina Flores as a frequent visitor to Gonzales at DVI. Stapp discovered two addresses for Flores in the DVI records: (1) as Gonzaless girlfriend living at an address in Tracy; and (2) as his wife living at the same address as Gonzaless parents in Modesto.

Flores and Gonzaless mother, Deborah Phipps, visited Gonzales on February 15, 2003. Stapp and Detective Hicks reviewed the audio recording of that visit. Among other things, Gonzales told the two women to make sure that Flores stayed at his parents residence to keep her from running her fucking mouth to the homicide detective and others.

Modesto police executed a search warrant at the parents address on February 27, 2003. The search revealed gang indicia, rap lyrics that appeared to have been authored by Gonzales at DVI, and letters from Gonzales to his mother and Flores. The officers found Flores in her bedroom. She asked to be taken to the police department in handcuffs so that Gonzaless parents would be unaware that she wanted to cooperate. The police provided Flores with protection. Flores became the prosecutions star witness.

G. Floress Sister Was The Link To Daniel:

Christina Floress younger sister, S.F., was Daniels girlfriend. In October 2002, Gonzales and Flores overheard a cell phone conversation between S.F. and Daniel. Gonzales took the phone and the conversation turned to what types of guns Daniels father collected. After the phone conversation about the guns, S.F. invited Flores and Gonzales to Daniels house to meet Daniel face-to-face. Daniel, who was home alone, gave them a tour of the house and garage where they saw the safe containing the gun collection. Daniel explained that only his father could open the safe. S.F. did not tell police about the phone call or home tour until they served a search warrant on the Flores family residence in Tracy on February 27, 2003.

H. Flores Provides Information About Daniels Murder:

Flores had a juvenile record and associated with Norteos and Norteo wannabes at the time of Daniels murder. She enjoyed the gang identity, personal notoriety and respect.

Both Gonzales and Barragan told Flores that they shot Daniel. Gonzales confessed to Flores within hours of the murder; Barragan confessed to her in February 2003.

Flores knew about the plans for a home invasion robbery and observed Gonzaless efforts to recruit others to take part. Gonzales shared his plans with Barragan, Herrera and Dominguez. Gonzales bragged that they could get 45 guns from the MacDougall house. According to Flores, Gonzales and his cohorts considered several approaches to the problem of opening the gun safe without a key or combination. Flores provided information about the interior of the MacDougall home. Gonzales eventually decided to take Daniel hostage before school and wait for his parents to return home to unlock the safe. The four participants would divide up the guns to sell or keep for themselves. Flores would share what Gonzales received. They purchased a scanner, walkie-talkies and masks.

Flores testified that on the morning of November 5, 2002, Gonzales left their apartment around 4:00 a.m. He returned around 9:00 a.m., wearing all black. Flores described his face as pale beyond white. Gonzales wrapped himself around Flores and started crying. Flores asked if anybody got hurt. Gonzales responded, Titi, Daniels dead. He told her that he had driven Barragan, Herrera and Dominguez to the MacDougall house in her fathers Mazda. The four participants watched someone drive away from the house at 5:30 a.m. At that point, Gonzales and Barragan went up to the house and Gonzales kicked the door. When Daniel came out of the house, Gonzales and Barragan ran up wearing masks and told Daniel to go inside. Gonzales told Flores that he shot Daniel in the head when Daniel took off running. Gonzales stopped Flores from calling her sister. He told her to stay quiet because the others wanted to kill her.

I. Flores Links Barragan And Gonzales To The October Robberies:

Flores also testified that Barragan and Gonzales were responsible for the four unsolved robberies that took place in October 2002 in the Modesto area. Defendants wore masks and gloves and at least one of them carried a gun. Flores participated in three of the robberies.

J. Statements Made By Gonzales - February 27, 2003:

Detective Hicks returned to DVI after interviewing Flores on February 27, 2003, and told Gonzales that there would be no deal and no immunity from prosecution. Hicks advised Gonzales of his Miranda rights.^[2] Gonzales started crying and repeated over and over, Take me to trial.

K. Statements Made By Gonzales - March 12, 2003:

On March 12, 2003, at DVI, Detective Hicks served an arrest warrant on Gonzales and transported him to the Tracy Police Station where he was booked and interviewed. Detective Steinkamp advised Gonzales of his Miranda rights and Gonzales responded that he understood. When advised again that there would be no immunity deal, Gonzales stated that the district attorney better . . . come in with immunity or he wasnt gonna say anything. At one point, Steinkamp told Gonzales that he knew Gonzales was there when Daniel MacDougall was murdered. The conversation turned to the murder weapon and Gonzales said that he knew that Steinkamp did not have the gun. Gonzales then asked, What if I could get it for you? He continued, What if I told you I saw Daniel MacDougall die? The interview ended with Gonzales reiterating his desire for immunity and Steinkamp saying that it wasnt gonna happen.

Detectives Steinkamp and Hicks took Gonzaless fingerprints and palm prints at booking. As Hicks took the palm prints, Gonzales laughed and said, What are you doing that for? I was wearing gloves. Hicks asked, What kind of gloves, and Gonzales responded, Burners. Hicks testified to his understanding of the term burners.

L. Gonzaless Statements To Michael Cain - March 2003:

Meanwhile, at DVI, inmate Michael Cain contacted Sergeant Stapp. Cain provided Stapp with notes from a series of conversations he had with Gonzales when both were housed in the same wing. Gonzales told Cain that he and his homies of the Nuestra Familia planned the home invasion robbery of the MacDougall home in order to get guns and other weapons, including a grenade launcher, from three safes. He identified himself, Barragan, Huero and Spider as the perpetrators. Gonzales said that he and Barragan accosted Daniel as he started to leave the house. Gonzales warned Daniel not to look at him and shot him when he did. Gonzales told Cain at least 15 times that he was the shooter. Other times, Gonzales stated that Barragan fired the fatal shot.

Gonzales said that his cell phone wound up in the hands of Wino who was killed in a robbery. Gonzales made threats against Flores and other family members who knew about his crimes.

M. Barragans Statements To Marcos Medina - April 2003:

Meanwhile, defendant Barragan returned to prison custody on a parole violation. In April 2003, Marcos Medina and Barragan spent four hours in adjoining holding cells at DVI. Barragan, who introduced himself as Psycho and Victor, told Medina that he was on the way to court in Tracy in connection with the murder of a boy in a home invasion robbery. Barragan said that the only proof against them was a female witness, Strangers girlfriend. Barragan planned to save up money to have one of his codefendants take the blame or to kill the witness. He maintained that they would beat the case if she were gone.

N. Juan Carlos Herrera And The Murder Weapon May 2003:

When Juan Carlos Herrera was arrested in May 2003 for being a felon in possession of a firearm, he mentioned to the arresting officers that he had information about the Tracy[MacDougall] murder. Juan Carlos, a brother to Gerardo Herrera then a codefendant in the MacDougall case, cut a deal in which the district attorney would drop the charge of illegal possession, ask the California Youth Authority (CYA) not to violate his parole, and provide him with protection. Juan Carlos testified that he heard Barragan and Gonzales talking about the murder a few days after Daniel was shot, when a group of Norteos gathered at Dominguezs house. Barragan said that they intended to do a home invasion robbery and a kid got killed inside the residence. Barragan had mentioned Gonzaless name in front of Daniel so Gonzales told Barragan to kill him. Gonzales knew the people at the MacDougall house. When Barragan told Gonzales something like You [could] end up like that little kid, Gonzales laughed.

Barragan stated at the gathering that the murder weapon had been melted down, but Juan Carlos did not believe it. He noticed a chrome, snub-nosed .357 Rossi on the table. Juan Carlos told Detective Hicks that he had fired the Rossi six months earlier in Del Puerto Canyon in Patterson. With the help of Juan Carlos, Detective Hicks recovered bullets at that site. Analysis revealed that the bullets found in Patterson were fired from the same gun that fired the bullet that killed Daniel.

O. Gerardo Herrera Testifies Against Barragan and Gonzales:

Police arrested Gerardo Herrera in March 2003. He faced the same charges as Barragan, Gonzales and Dominguez. After the preliminary hearing in September 2003, Herrera agreed to cooperate with the prosecution. He entered a plea for which he received an 11-year sentence.

Herrera testified that he, Dominguez, and Gonzales were Norteos. Barragan was a Norteo part of the time. The four of them met the night before the murder at Dominguezs house. Barragan and Gonzales needed money and wanted to commit the robbery at the MacDougalls home. They told Herrera that they would telephone him when they decided what to do. Herrera stated he had no plan to share any of the weapons with the Nuestra Familia.

According to Herrera, it was agreed that Gonzales and Barragan would break into the house. They made several unsuccessful attempts while Herrera and Dominguez drove around the area. Herrera and Dominguez picked up Gonzales and Barragan after the last attempt. Barragan appeared frightened and said, Go. Go. Just speed up. Barragan told them that he had shot Daniel.

They drove to Stockton. Barragan telephoned his girlfriend Melynda Silveria who lived there. Silveria picked up Herrera, Dominguez and Barragan. Gonzalez drove away in the Mazda. Herrera left the Rossi gun on the table at Dominguezs house.

P. The Norteo Connection:

Detective Richard Delgado, the prosecutions gang expert, described the Norteos as a criminal street gang that answered to the Hispanic prison gangs. He testified that in the hierarchy of northern gangs, the Nuestra Familia prison gang was above the Northern Structure prison gang. In Delgados view, Gonzales, Barragan, Dominguez, and Herrera were active members of a Norteo street gang on November 5, 2002. Delgado opined that the Norteo gang, as well as the Northern Structure, had directed its members to form teams and commit home invasion robberies to obtain weapons for the benefit of the gang.

Q. Gonzales Testifies At Trial:

Gonzaless account of the events minimized his participation and differed from the testimony provided by others in one significant detail he substituted Herrera for Barragan. He testified that Herrera was the organizer and shooter. Gonzales claimed that he participated because he feared Herrera. He testified that en route to Tracy, he disagreed with Herreras plan to go to the MacDougalls house. Gonzales heard Herrera cock a gun and saw Herreras finger on the trigger.

Gonzales also testified that he was on the doorstep of a nearby house at the moment Daniel was shot. He explained his confession to Flores as something Herrera told him to do. Gonzales testified that Herreras rationale was that Flores would go to the police if she knew that Herrera shot Daniel, but would not tell the police if Gonzales were the killer. Gonzales also denied any involvement in the October 2002 robberies.

R. Barragans Defense:

Barragans attorney reminded jurors in closing argument that Gonzales and Flores knew that Barragan was on the Norteos bad news list. He reviewed the several ways a person could get his name on the list: Either you didnt back up another fellow Norteo, or sometime in the past you snitched, gave information to law enforcement, whatever it is. You cant be trusted. Barragans attorney argued that no dedicated Norteo like Gonzales would have committed a crime like this one with someone on the bad news list.

DISCUSSION

Barragan and Gonzales raise numerous issues in this appeal, each joining in some of the issues raised by the other. We address each issue chronologically, as it developed in the course of the trial indicating which defendant raises the issue or if it is a joint issue.

I.

Barragans Faretta Motion [Barragan]

On July 29, 2003, the fifth day of a nine-day preliminary hearing, Barragan requested a Marsden hearing.^[3] Barragan argues that he made a timely and unequivocal request under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta) to represent himself after the court denied his Marsden motion, and the court erred in denying it. We conclude that Barragans request to represent himself was neither unequivocal nor timely, and the court did not err in denying it.

Criminal defendants who want to act as their own attorneys have a constitutional right to do so. (People v. Hines (1997) 15 Cal.4th 997, 1028, citing Faretta, supra, 422 U.S. at p. 834.) The erroneous denial of a request for self-representation is reversible per se. (People v. Joseph (1983) 34 Cal.3d 936, 948.) However, the defendants request must be timely and unequivocal. (People v. Horton (1995) 11 Cal.4th 1068, 1107.) The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendants conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendants conduct or words reflecting ambivalence about self-representation may support the courts decision to deny the defendants motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (People v. Marshall (1997) 15 Cal.4th 1, 23, italics added.)

Frustration is a common response when the court denies a defendants request to substitute counsel, often rendering the subsequent Faretta motion equivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1087 [defendants single reference to representing himself was properly viewed as an impulsive response to the courts refusal to immediately consider his Marsden request]; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888 [Faretta request not unequivocal where it was an impulsive response to the trial courts denial of defendants motion to substitute counsel and was not renewed at the next court date].)

To assess a Faretta claim, we review the entire record de novo to determine whether the defendants invocation of the right to self-representation was knowing and voluntary. (Marshall, supra, 15 Cal.4th at p. 24.) The standard of review applicable to the courts determination that defendants request was equivocal or untimely is less clear. (Id. at p. 25.) However, we conclude that under either de novo review or the deferential substantial evidence standard, the court properly rejected what was clearly an untimely motion for self-representation made in passing anger or frustration. (Id. at p. 23.)

We summarize the Marsden hearing in detail because it provides the context within which Barragan raised Faretta. The in camera Marsden hearing took place during the preliminary hearing testimony of Melynda Silveria, Barragans former girlfriend. Barragan initially complained about his inability to view certain videotapes even though the court had continued the preliminary hearing for that purpose. Barragan also complained of his limited contact with his attorney Doug Jacobsen and his investigator since his arrest in March. Barragan stated, I just feel I should be better represented . . . . Attorney Jacobsen explained the difficulty with arranging for Barragan to see the videotapes.

The court found that [n]one of this, as far as I can tell, has to do with the quality of representation that Mr. Jacobsens giving under the circumstances. The court expressed doubt that Barragan had any constitutional or statutory right to [the videotapes] prior to the preliminary hearing. The court assured Barragan that he had a well-respected criminal defense attorney and found that there had been no substantial impairment of [Barragans] right to counsel.

The discussion continued. Barragan complained that he did not understand his case. He had done research and cited the legal premise that inadequate investigation denies a criminal defendant a meaningful defense. Jacobsen returned to the limited contact issue and responded that although he had difficulty scheduling meetings with Barragan at DVI he had talked with him between 15 and 20 times -- almost every time we come to court. Jacobsen believed that he had excellent communication with Barragan.

The court explained matters to Barragan and ultimately denied the Marsden motion.

After a brief discussion about transportation issues, Barragan reiterated his complaint that he did not understand what was going on in his case in spite of receiving regular written reports. The court stated, Were going to proceed today. Barragan responded: [I]f this is not granted, I would like to file a Faretta motion. This prompted the following exchange:

THE COURT: Well, wait a minute. I dont understand. Do you understand what a Faretta motion is?

DEFENDANT BARRAGAN: Yeah, its basically pro per with co-counsel, and Ive read up a little bit. I dont really understand that.

THE COURT: You dont, because if you ask to represent yourself, that doesnt mean you get co-counsel.

DEFENDANT BARRAGAN: Thats fine.

THE COURT: And you just got through telling me that you dont understand whats going on now. The two concepts are completely diametrically opposed. That means it doesnt make any sense that you dont understand whats going on, but at the same time you want to represent yourself. That would be probably one of the stupidest things you ever did in your life, and the law requires me to tell you how stupid that is.

DEFENDANT BARRAGAN: Thats fine.

THE COURT: So Im telling you that now, okay. I think you ought to sleep on that at least. But for now, its real late to ask to represent yourself. Were in the middle of the preliminary hearing. Im not going to give you time to get up to speed to represent yourself. If you want to renew your Faretta application at the conclusion of the preliminary hearing, I suppose I have to consider that, but right now --

DEFENDANT BARRAGAN: What can I do?

THE COURT: Excuse me, right now, Im going to find that that is -- the request is late and it will only serve to disrupt the proceedings, and were going to let Mr. Jacobsen continue to represent you at this stage.

At that juncture, Barragan stated that he did not want to be represented by Jacobsen, did not get along with him, and did not want to sit down in the courtroom. The court asked the bailiff to take Barragan back to the courtroom, Barragan repeated that he did not want to go to the courtroom and did not want to be represented by Jacobsen. When the court asked, Are you refusing to go back into the courtroom? Barragan responded, I would like to practice my rights of the Faretta motion. The court stated, Yeah, that will be denied based on what I just said. Jacobsen asked for leave to talk to his client.

This record reveals that Barragan had two opportunities during the Marsden hearing to convince the court that Jacobsen failed to communicate or keep Barragan abreast of what was happening in the case. With each denial, Barragan continued to try to frustrate the courts effort to proceed with the preliminary hearing by stating that he did not understand what was happening in the case. The court noted that reports summarizing the case had been available.

Considering Barragans conduct as well as his words (Marshall, supra, 15 Cal.4th at p. 23), we conclude that Barragans request to proceed in pro per was a passing, impulsive response to the courts denial of his request to replace Jacobsen. The record suggests that the tension continued to build after the court encouraged Barragan to be patient, trust his attorney, and not let his emotions get away from him. It culminated in Barragans request to represent himself and apparent refusal to return to the courtroom. Based on Barragans repeated claim that he did not understand the case, we cannot say that his Faretta request was informed or unequivocal.

The court encouraged Barragan to sleep on the request to represent himself. Barragan did not renew his Faretta request during the preliminary hearing -- another indication that the initial request was merely a passing, impulsive response to the courts denial of the Marsden motion. (See Jackson v. Ylst, supra, 921 F.2d at p. 888.)

The record also supports the courts finding that Barragans request was untimely. Barragan complained that he did not understand the case just before he asked to proceed in pro per. It was therefore reasonable for the court to conclude that a ruling in Barragans favor would disrupt the proceedings, requiring a continuance to enable Barragan to review the videotapes he had not been able to view at DVI, get up to speed on what he did not understand about his case, and prepare to actively participate in the remainder of the preliminary hearing. The court, five days into a nine-day preliminary hearing had already continued it for more than five weeks.

II.

Shackling of Gonzales at Trial [Gonzales & Barragan]

Citing People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran), Gonzales contends that the court abused its discretion in ordering that a restraint chair be used during trial because there was no showing of manifest need. He also argues that there is no support for the courts finding that the shackles were not demeaning. Gonzales asserts that he is entitled to reversal because, in spite of the courts efforts to hide the physical restraints from view, the jurors saw them on several occasions. Barragandoes not appeal his own shackling but joins in Gonzaless argument regarding shackles, maintaining that Gonzaless credibility was key to his own defense. We conclude that the court did not abuse its discretion in ordering the use of the restraint chair, and even assuming there were brief jury sightings of Gonzales in restraints as he was moved to court, defendants suffered no prejudice.

This court recently reviewed the law governing the use of physical restraints in People v. Vance (2006) 141 Cal.App.4th 1104. [A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jurys presence, unless there is a showing of a manifest need for such restraints. ([Duran, supra, 16 Cal.3d at pp. 290291]; see also 688 [No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge].) Manifest need arises only upon a showing of unruliness, an announced intention to escape, or [e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . . (People v. Cox (1991) 53 Cal.3d 618, 651 . . . (Cox), quoting Duran, supra, at p. 292, fn. 11.) Moreover, [t]he showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion. (Cox, supra, at p. 651, quoting Duran, supra, at p. 291.) The burden is on the People to establish in the record the manifest need for the shackling. (People v. Prado (1977) 67 Cal.App.3d 267, 275 . . . .) (Vance, supra, at p. 1112.)

Where the circumstances require the use of visible restraints, the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendants guilt. However, when the restraints are concealed from the jurys view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided. (Duran, supra, 16 Cal.3d at pp. 291-292.)

The Duran court also described the nature of the prejudice suffered where restraints are used without the required showing of manifest need. The negative impact of physical restraints includes possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendants decision to take the stand . . . . (Duran, supra, 16 Cal.3d at p. 290.) However, a jurors brief observation of physical restraints is not prejudicial. (Id. at p. 287, fn. 2; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 584 (Tuilaepa).) With these principles in mind, we turn to the facts of the case before us.

A. Determination of Manifest Need:

Motions in limine filed by Gonzales and Barragan included the request that defendants not be shackled in court and that the court, not security personnel, make the determination of manifest need for restraint.^[4] After an initial, unreported discussion in chambers, the court indicated that it intended to have defendants shackled to restraint chairs. The court explained: For the record, the restraint chair is a blue chair . . . . Kind of a cross between a lounge and an office chair. Its on wheels. Its got an opening in the back thats not visible to the jury that has restraint chains. The chains wrap around the defendants waist, cannot be seen by anybody other than by crawling under the table and looking at them that way.^[5]

Both defendants objected. In response to a question by Gonzaless attorney, John Panerio, the court clarified that Gonzaless hands would be free. Panerio also suggested that defendants be seated in the restraint chairs before the jury was seated. The court agreed and stated that defendants would enter through an adjoining courtroom, rather than the outside hallway. The court explained that the jurors would not have access to the defendants or see them being escorted. After Panerio expressed concern about the pouches that held the chains on the back of the restraint chair, it was decided that defendants and counsel would all sit in the restraint chairs. Panerio also voiced Gonzaless concern that the chains around his waist were noisy. The court did not believe that the jury could hear the chains, given the poor acoustics in the courtroom.

At that juncture, the court cited 10 incidents involving Gonzales that occurred in court and at the jail, and expressly found that there was a manifest need to use the restraint chair. The jail incidents revealed a consistent pattern of non-conforming conduct over more than a year. The court also documented an aggressive confrontation between Gonzales and former codefendant Dominguez while the two were being transported to their cells from the court. In that incident, the defendants ignored an order from the officers to stop. In addition, the court personally witnessed Gonzales taking a step toward Flores during a court hearing, and cocking his head. It appeared to the court that the movement was an attempt to intimidate the witness.

Gonzales argues that the incidents listed by the court were insufficient to establish manifest need because some occurred two years before trial, another involved a verbal disagreement of a mutual nature, and the others had nothing to do with violence or attempts to escape . . . . He contends that the only relevant incident was when he took a step toward Flores. In our view, Gonzaless arguments ignore his pattern of recalcitrant, defiant and sometimes aggressive behavior. Moreover, efforts at witness intimidation raised legitimate security concerns in the context of a gang-related crime.

Quoting Mar, Gonzales next emphasizes the psychological impact of physical restraints. In that case, the California Supreme Court considered the application of Duran and its progeny to the use of a stun belt, which was invisible to jurors, but could be activated at any time, intentionally or accidentally. (28 Cal.4th at pp. 1204-1205.) Gonzaless reliance on Mar is misplaced. Here, the court ordered the use of a restraint chair which employed passive restraints, not the high-voltage stun belt challenged in Mar. (Id. at pp. 1205-1206.) Gonzaless hands were free. He, Barragan and counsel all sat in restraint chairs. The record supports the courts finding that the arrangement was not demeaning. And based on the nature of the restraints, we reject Gonzaless claim that they imposed a prejudicial psychological impact on his ability to testify.

For all these reasons, we conclude that the record provides substantial evidence of the manifest need to use physical restraints. The court did not abuse its discretion in ordering the use of the restraint chairs.

B. Impact of Jurors Seeing Gonzaless Restraints:

In spite of the courts efforts to avoid jurors seeing defendants physical restraints, Gonzales and his attorney reported five instances where a juror may have seen the restraints used with Gonzales:

1. On one occasion, Gonzales reported that people attempted to look into the courtroom that he passed through on the way to the courtroom where the trial took place. The court assumed that those people were simply waiting for the first courtroom to open.

2. On another occasion, the officers failed to follow the courts order and led Gonzales to the courtroom through a short hallway where he was visible to two jurors. Gonzales told the court that one of the jurors saw him adjust his leg restraint and gave him what he took as a dirty look. The court concluded that there was no prejudice. It explained that although the court had attempted to minimize the occasions that the jurors saw defendants in the hallway, the legal reality and the practical reality of it is, jurors know when a defendants in custody, whether they see him in custody, or in chains, or not . . . . The court invited defense counsel to request an instruction on physical restraints if they decided it was needed.

3. Gonzales took the oath sitting down when he testified at trial.

4. The back of Gonzaless restraint chair fell down and the deputy put it back in position. Defendant acknowledged that the jury did not see the chain, but stated that they may have heard it and did, in fact, see the deputy move toward the chair.

5. During deliberations, the jury foreperson stepped into the hallway outside the jury room when a deputy was taking the handcuffed Gonzales through the same hallway. Counsel agreed that the court should give a modified version of CALJIC No. 1.04. Immediately thereafter, the court instructed the jury as follows: The fact that a defendant is or may be in custody must not be considered by you for any purpose. That fact is not evidence of guilt and must not be considered by you as any evidence that a defendant is more likely to be guilty than not guilty. You must not speculate as to the reason a defendant is or may be in custody. In determining [the] issues in this case, disregard this matter entirely, okay?

The record does not support defendants claim of prejudice. At no time did defense counsel ask the court to question jurors about what they, in fact, saw. As to the first three incidents there is no evidence the jurors saw defendant in restraints and in the fourth incident defendants concede the jury did not see the restraints. Moreover, with the exception of the last incident involving the jury foreperson, the court made no findings crediting defendants claims; it is mere speculation that members of the jury actually saw Gonzaless physical restraints.

As to the juror seeing Gonzales in handcuffs, in accordance with Duran, supra, 16 Cal.3d at pages 291-292, and the agreement of counsel, the court specifically instructed the jury to disregard the fact a defendant might be in custody. We presume that the jurors followed this instruction. (People v. Smith (2007) 40 Cal.4th 483, 517-518.) Accordingly, we conclude that Gonzales and Barragan suffered no prejudice from whatever brief glimpse jurors may have had of Gonzaless restraints.

III.

Barragans Statements To Medina and Flores [Gonzales]

A. Introduction:

After the death of Daniel MacDougall, defendants Gonzales and Barragan made a series of statements to a girlfriend, local law enforcement, prison authorities, and fellow inmates. The following sections address the defendants objections to the admission of these statements at trial.

Gonzales argues that the court violated his Sixth Amendment right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), by admitting statements that Barragan made to inmate Medina in DVI and Flores, Gonzaless girlfriend. Gonzales also contends that he was prejudiced by Barragans statement to Medina which implicated him through the use of a collective pronoun. As to Baragans statement to Flores, Gonzales asserts that it was inadmissible, self-serving hearsay. There is no merit in Gonzaless arguments.

B. Barragans Statement to Medina:

1. The Statements:

As we explained, Barragan conversed with Medina in April 2003 while the two men awaited transfer from adjoining holding cells at DVI.^[6] Medina testified at the preliminary hearing that Barragan told him that he was headed for court in a murder case. Barragan described the weakness of the prosecution case which he said depended on the testimony of a female witness, the girlfriend of his codefendant who was known as Stranger. The prosecutor asked Medina, What, if anything, did he say he [Barragan] was going to do to fight th[e] case? Medina responded, He said that he was planning on saving up money, about 50, 60,000, to have either Stranger or one of the co[]defendants accept a guilty deal, take the case, or have the witness removed, taken out.

The prosecution moved to admit Barragans statement at trial arguing that it was trustworthy. The court admitted the part of the statement in which Barragan referred to having Strangers girlfriend removed because it did not implicate Gonzales. After the Supreme Court decided Crawford in March 2004, the court expressly found that Barragans statements to Medina were not testimonial because they were made to another inmate, not a police interviewer. Closer to trial, the court revisited the question whether the remainder of the statement was admissible. It ruled that the entire statement was admissible because it was indicative of Barragans intent and consciousness of guilt. The court observed that the statement was not necessarily a declaration against interest because it was not admitted for its truth. The court noted that Barragans statement did not implicate Stranger in the plan to eliminate witnesses and bribe codefendants to enter a plea, and suggested it could be admitted in a joint trial with a limiting instruction. The court invited a response from Gonzaless counsel who offered no objection.

At trial, however, Medinas testimony went beyond his preliminary hearing testimony in some areas. After describing Barragans plan to save up money to take out the witness or pay a codefendant to accept a plea, the following exchange took place:

Q. What was presently being done to find Strangers girlfriend?

A. That they were looking for her, but they were unsuccessful.

Q. What, if anything, did he tell you Stranger was doing at that time?

A. That he was also looking--trying to find her, but I guess they couldnt find her. [] . . . []

Q. [D]id [Barragan] tell you whether he wanted her killed?

A. Did [Barragan] tell me that Stranger wanted her killed?

Q. Yes.

A. He didnt say those exact words, I dont believe, but he said that he was also looking for her. So I dont know what he could have meant by those terms. (Italics added.)

Gonzaless counsel did not object to this testimony by Medina.

2. The Confrontation Clause Challenge:

Crawford holds that [w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability [of the declarant] and a prior opportunity for cross-examination. (541 U.S. at p. 68 [158 L.Ed.2d 203].) Gonzales argues that Barragans statements to fellow prisoner Medina in the holding cell at DVI were testimonial within the meaning of Crawford. Specifically, he asserts that Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton) and Lilly v. Virginia (1999) 527 U.S. 116 [144 L.Ed.2d 117] (Lilly) apply to make the statements testimonial.

Defendant is wrong.

Both Bruton and Lilly focused on accomplice confessions, unlike Barragans statements to Medina, and both cases pre-dated Crawford. First, Bruton held that in a joint trial defendants right of cross-examination was violated by the admission of the non-testifying codefendants confession which inculpated the defendant, notwithstanding jury instructions that the codefendants confession must be disregarded in determining defendants guilt or innocence. (391 U.S. at pp. 124-125 [20 L.Ed.2d at pp. 478-479].) Lilly held that the trial court erred in admitting the confession of an accomplice because confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule. (527 U.S. at p. 134 [144 L.Ed.2d at p. 133].) The United States Supreme Court remanded the case to allow the trial court to determine whether the error was harmless beyond a reasonable doubt. (527 U.S. at pp. 139-140 [144 L.Ed.2d at p. 136].) Neither addresses the scope of the term testimonial.

Second, and most important, Barragans statements to Medina are not testimonial as post-Crawford cases have defined that term. In Davis v. Washington (2006) 547 U.S. 813, 821 [165 L.Ed.2d 224, 237] (Davis), the United States Supreme Court reiterated that [i]t is the testimonial character of the [out-of-court] statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Drawing from the analysis in Davis, the California Supreme Court in People v. Cage (2007) 40 Cal.4th 965 listed the factors for courts to consider in differentiating between testimonial and non-testimonial statements. First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if 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. (Id. at p. 984, fns. omitted.) Where Crawford is inapplicable, we review the admission of evidence, including hearsay issues, for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)

The record amply supports the courts finding that Crawford was inapplicable and the statements admissible. None of the factors set forth in Cage were present in the conversation between Barragan and Medina. Barragan was speaking to a mere acquaintance, a fellow inmate. The casual exchange between Barragan and Medina lacked the formality and solemnity characteristic of testimony. (Cage, supra, 40 Cal.4th at p. 984.) Viewed objectively, the statements were not made by Barragan or received by Medina primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. (Ibid.) The fact that a statement might be used at a subsequent trial is not enough to render ordinary hearsay testimonial. (Id. at p. 984, fn. 14.) Because the statements were not testimonial, they were not subject to the requirements of Crawford. The court did not abuse its discretion in admitting them at trial.

3. Use Of The Collective Pronoun:

Medinas preliminary hearing testimony formed the basis for the courts ruling on the admissibility of Barragans statements to Medina. Gonzales cites Medinas trial testimony and contends that the statement that they were looking for Strangers girlfriend implicated Gonzales in the plan to kill witnesses to the crime. He maintains that the statement was inflammatory in itself, and more so to Gonzales because it was his girlfriend and her relatives. Gonzales testified at trial that he participated in the robbery at the MacDougalls under duress, and asserts that his participation in a plot to kill his girlfriend and her relative would severely undermine that defense.

We conclude that Gonzales forfeited this issue by failing to make a specific and timely objection to Medinas testimony. (People v. Alvarez (1996) 14 Cal.4th 155, 187, fn. 4.) Indeed, Gonzales made no objection whatsoever. In any event, in light of Medinas clarifying response and all the participants in the crime, the fleeting mention of a collective pronoun was harmless. Once Medina clarified the prosecutors question asking if Barragan told him that Stranger wanted Flores killed, Medinas answer did not implicate Gonzales. Medina answered, He didnt say those exact words, I dont believe, but he said that he was also looking for her. So I dont know what he could have meant by those terms. So, contrary to Gonzaless claim, Medina did not directly implicate Gonzales in the plot to kill witnesses.

Additionally, the audio tape of Floress and Phippss visit to Gonzales at DVI on February 15, 2003, revealed that Gonzales wanted Flores to stay with his parents to prevent her from running her fucking mouth to the homicide detective and others. Flores was aware it would be dangerous to approach the police. When Modesto police found her during the search of Gonzaless parents apartment on February 27, 2003, Flores asked to be taken away in handcuffs to hide the fact that she was willing to cooperate. Thereafter, the police provided Flores with protection. This and other evidence showed that Gonzales had already enlisted his parents help in attempting to prevent Flores from becoming a witness against him. Thus, Medinas suggestion that Gonzales was looking for Flores in April 2003 did little if anything to further undermine Gonzaless defense of duress.

C. Barragans Statement to Flores:

1. The Statement:

The prosecution also moved to admit Barragans February 2003 statement to Christina Flores that Gonzales kicked in the front door and Barragan shot Daniel while Herrera and Dominguez were outside in the car. The court ruled that Barragans statement was trustworthy and admissible as a declaration against interest, based on its findings that it was made to Flores, then viewed as an ally, under circumstances of relative privacy, with words of self-incrimination, and based on first-hand knowledge. The court reviewed its ruling after the decision in Crawford and People v. Cervantes (2004) 118 Cal.App.4th 162, and rejected any claim that the statement was testimonial. The court noted that there was no suggestion that Barragan made the statement with the knowledge or expectation that