P. v. Besenty
Filed 5/9/13 P. v. Besenty CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. NANCY MARIE BESENTY et al., Defendants and Appellants. | B237699 (Los Angeles County Super. Ct. No. TA115853) |
APPEAL from
the judgments of the Superior Court
of
County, John T. Doyle, Judge.
Affirmed.
J. Kahn,
under appointment by the Court of Appeal, for Defendant and Appellant Nancy
Marie Besenty.
Patricia A.
Scott, under appointment by the Court of Appeal, for Defendant and Appellant
Francisco Ramon Lozano.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels, Supervising
Deputy Attorney General, Rene Judkiewicz, Deputy Attorney General, for
Plaintiff and Respondent.
The jury found defendants and
appellants Francisco Ramon Lozano and Nancy Marie Besenty guilty in count 1 of
the murder of Yesenia Quintanilla (Pen. Code, § 187, subd. (a))
2 of the attempted willful, deliberate, and premeditated murder of Carlos
Quintanilla (§§ 664, 187, subd. (a)). The jury found
true as to both counts that the crimes were committed for the benefit of, at
the direction of, and in association with a criminal street gang with the
specific intent to promote, further, and assist in criminal conduct by gang
members (§ 186.22, subds. (b)(5), (b)(1)(C)).
As to Lozano, the jury found that he personally and intentionally discharged
a firearm, causing great bodily injury and death (§ 12022.53, subds. (d),
(e)(1) (counts 1 and 2)). The trial
court found that Lozano served two prior prison terms within the meaning of
section 667.5, subdivision (b).
The trial court sentenced defendants
to 50 years to life in prison on count 1, comprised of 25 years to life for
murder and 25 years to life for the firearm use. As to count 2, defendants were sentenced to
life in prison, plus a consecutive 25 years to life for firearm use. As to Lozano, the court additionally imposed two
one-year prison terms for the priors under section 667.5, subdivision (b).
Besenty contends on appeal that her
convictions must be reversed because they are based on uncorroborated
accomplice testimony. Alternately, she
argues that even taking the accomplice testimony into consideration, there is
insufficient evidence to support her convictions on an aiding and abetting
theory. Besenty additionally contends
that the trial court’s refusal to strike expert witness testimony violated her
right to due process. Finally, she
alleges prosecutorial misconduct and argues she was prejudiced by the
cumulative errors at trial. Appointed counsel
for Lozano filed an opening brief raising no issues but requesting this court
to independently review the record for arguable contentions pursuant to
436. We address the issues raised by Besenty, in addition
to undertaking a review of the record with respect to Lozano’s convictions, as
required by Wende. We affirm both judgments.
FACTS
On the afternoon of November 25, 2010, Cindy Sanchez drove her boyfriend, Carlos
Quintanilla, to the apartment of Carlos’s sister, Yesenia Quintanilla.
fenced complex with a locked gate.
Carlos had been a member of the 18th Street gang for about 10 years and
was tattooed with gang insignia on his forehead, arms, neck, and above his left
eyebrow. Carlos had the gang moniker
“Lil Crazy.†Although she did not belong
to the gang, Yesenia claimed the Los Players clique of the 18th Street gang and used the monikers
“La Loca†and “La Crazy.â€
At around 10:00 p.m., Carlos ran out of beer and
insisted on leaving the apartment to buy more.
He ran down the stairs and jumped the fence. Yesenia ran after him. Both of them had been drinking and were
intoxicated. Sanchez did not want them
to walk to the store, so she grabbed her daughter and got into her car to go
after them. She picked up the
Quintanillas and drove them to a liquor store.
Yesenia directed Sanchez to a second location, where she wanted to go to
get money. Yesenia then asked to be
driven to a location on 79th Street, which was within 18th Street gang territory. She told Sanchez “she needed to go talk to
somebody, something personal.â€
When the group arrived, Yesenia and
Carlos got out of the car and began yelling for Ada Zeledon,
“Giggles.†The Quintanillas did not get
along with Zeledon. Zeledon had told
Yesenia’s friend she heard Yesenia had been “prostituting,†and making the gang
look bad. Zeledon and her friend Janet
had also “jumped†the Quintanillas’ younger sister, Susie.
Zeledon came out of the house and
argued with Yesenia. Carlos tried to hit
Zeledon with a bottle. Both Carlos and
Yesenia challenged Zeledon to come out and fight, but she refused. At one point, Zeledon called her friend Mala,
who was also an 18th Street gang member.
She also called Lozano to come over and help her, but he did not show
up. The Quintanillas left when Zeledon’s
mother came out of the house.
After the Quintanillas got back in
the car, Yesenia directed Sanchez to drive her to a fourth location, on 82nd Street, which was another area
known to Sanchez as claimed by the 18th Street gang. Yesenia wanted to look for Lozano, an 18th
Street gang member known by the moniker “Stormy,†who had the word “eighteenâ€
tattooed on his stomach. Sanchez had
previously seen Carlos talk to Lozano.
Carlos knew Lozano was a “shot caller†for the Los Gangsters
clique. Carlos testified that a shot
caller is a gang member with the authority to tell other gang members what to
do. Susie had dated Lozano, but they had
an unfriendly breakup about a month before Thanksgiving.
As Sanchez passed Hoover Street, the
Quintanillas jumped out of the moving car.
Sanchez saw the Quintanillas heading toward Lozano, who was standing in
front of the gate of an apartment. There
were about 15 other people outside the apartment.
Carlos tried to punch Lozano, but
Lozano ducked. Yesenia did not want the
two to fight, so she approached Lozano and pepper-sprayed him. Yesenia yelled profanities at Lozano.
A couple of minutes after Lozano was
pepper-sprayed, Besenty, who identified herself by the moniker “Casper,†came
over. Carlos knew Besenty to be a shot
caller. Yesenia and Lozano were arguing
loudly about nearby graffiti on a wall at Vermont and 82nd Street. The statement, “Bitch, you ain’t from my
‘hood,’†was written on the wall, and Yesenia’s gang moniker “La Crazy†was
crossed out. Yesenia asked Lozano why he
crossed out her name. Lozano told
Yesenia that she was not from the 18th Street gang, that she needed to stop
claiming the gang, and that he did not like her.
Besenty and Carlos also argued for
over an hour. Sanchez got out of her car
in the middle of the argument because Besenty punched Carlos in the face. Yesenia asked Besenty why she hit Carlos, and
Sanchez told Besenty not to ever punch Carlos because it was disrespectful to
her and her daughter. Besenty told
Carlos that she was “an OG from 18th Street.â€
Yesenia asked her brother if he wanted her to fight Besenty, but he said
no. Besenty asked Carlos, “Man, you know
you talking to the main head?†Besenty
took out her cell phone and called Yesenia Escobar, known as “Shorty,†and told
her to come over. She gave Lozano “a
look.†Lozano warned the Quintanillas to
“watch tomorrow†several times and said that he was going to get them. The Quintanillas returned to Sanchez’s
car. They drove back to Yesenia’s
apartment, where they spent the night.
In the middle of the next day,
Zeledon called Lozano because she was upset that the Quintanillas
“disrespected†her house and that her mother had to see “all this
nonsense.†Zeledon told Lozano what
happened to her, and Lozano told Zeledon that Yesenia had pepper-sprayed
him. He told Zeledon that he wanted to
beat up Yesenia. Zeledon also wanted to
beat up Yesenia.
Later that night, Zeledon, her
friend Mala, and Lozano got into Besenty’s car and drove around looking for
Yesenia. Besenty drove them to Yesenia’s apartment. Zeledon saw Escobar in her car with two women
named “Pattyâ€
name="_ftnref5" title="">[5]—Patricia Acosta and
Patricia Ortiz.
After they arrived at Yesenia’s
apartment complex, Zeledon, Lozano, and Mala got out of Besenty’s car and
jumped over the gate. Besenty remained
in the vehicle. Escobar and one of the “Pattys†also got out of their car,
jumped the gate, and went up to Yesenia’s apartment.
Sanchez, her daughter, Yesenia, her
children, and Carlos were having dinner when they heard a loud knock on the door. Yesenia told her brother to open the
door. Before doing so, the Quintanillas
asked who was there. Someone outside the
apartment answered, “Hey, what’s up? It’s me.â€
They opened the door to find Escobar
and Acosta
title="">[6] outside.
The two women entered the apartment and asked Yesenia why she
pepper-sprayed Lozano.
Escobar left the apartment but came
back about two minutes later with Mala, who was a member of Columbia Lil Cycos
clique of the 18th Street gang. Mala
said she came to Yesenia’s apartment because she had heard that someone was
claiming her “hood.†Mala asked Yesenia,
“Aren’t you from Columbia?†Yesenia
responded, “No. I’m from Los
Players.†Carlos also replied, saying he
was from either Lil Cycos or Columbia.
Each of these cliques were subsets within the 18th Street gang.
The women told Yesenia that they
wanted her to go outside. She refused,
saying that she had her family inside and that if they wanted to tell her
something, they could do it right there.
Mala asked Carlos to go outside, and
he agreed. When Carlos stepped out of
the apartment, he saw Lozano putting on the hood of his jacket. Afraid of what
Lozano might do, Carlos tried to turn around to go back inside the apartment,
but Escobar pepper-sprayed him. Mala
grabbed Carlos by the shirt. Mala,
Zeledon, and Acosta beat up Carlos.
Sanchez could hear Carlos struggling and screaming. Carlos tried to go back into the apartment
but couldn’t because Zeledon was holding the collar of his shirt and punching
him. Yesenia tried unsuccessfully to
pull Carlos back into her apartment.
Lozano pulled out a gun wrapped in a
sock and without saying anything, he shot Carlos in the head. Carlos collapsed, and Acosta, Mala, and
Zeledon fled, jumping over the fence.
Sanchez heard Yesenia yelling,
“Don’t do this. I have kids.†Sanchez ran with the children to Yesenia’s
bedroom, where she heard a gunshot.
Sanchez did not close the door.
Lozano, who was wearing a hooded sweater with the hood up, pointed a
sock-covered gun at Yesenia’s head. She
screamed, he shot her in the head, and she fell on the floor. After Yesenia was shot, she ran to her
bathroom and tried to close the door.
Lozano ran behind Yesenia toward the
bathroom. He then walked into Yesenia’s
bedroom, where Sanchez was squatting down on the mattress. He aimed for Sanchez’s head with his arm
stretched out, his hand covered with a sock, and his four fingers clenched and
thumb upwards. Sanchez kicked Lozano and
moved her head around because he was trying to aim for her head. After a couple of minutes, Lozano left
without saying anything. Sanchez,
Zeledon, and Mala ran to Besenty’s car, where she was waiting. Besenty quickly drove them back to her house
in another neighborhood.
Sanchez waited about 30 seconds and
then went to Carlos, who was on the floor by the front door, bleeding from the
left side of his head from a bullet wound.
Carlos asked Sanchez to take him to his sister’s bathroom because his
eyes were still burning from the pepper spray and he wanted water. Carlos asked to see his sister, so Sanchez
moved him to the bathroom, where Yesenia was on the floor with her eyes closed.
An ambulance and police officers
arrived on the scene. The Quintanillas
were taken to the hospital. Yesenia died
as a result of the gunshot wound to her head a few days later.
The prosecution’s gang expert,
Officer Gabriel Gonzales, testified that he knew Lozano was an active 18th
Street gang member. Officer Gonzales
opined that Lozano was a shot caller for the Los Gangsters clique of the 18th
Street gang and also belonged to the Wall Street clique. Officer Gonzales also testified that shortly
after the preliminary hearing, he learned from two informants that Besenty was
also an active 18th Street gang member, with “OG shot caller†status.
Besenty and Lozano did not testify.
A. Accomplice Testimony
At the
close of the prosecution’s case-in-chief, Besenty’s counsel moved for dismissal
under sections 1118.1 and 1111 on the basis that the testimony of accomplices
Zeledon and Acosta was not corroborated by sufficient independent evidence to
sustain the judgment. Besenty challenges
the denial of her motion.
Section 1111 prohibits conviction on
the basis of accomplice testimony absent independent evidence that “tend[s] to
connect the defendant with the commission of the offense . . . .†The statute further dictates that independent
corroborative evidence showing only that the crime occurred or showing only the
circumstances of the crime is not sufficient to support
the trial court must enter a judgment of acquittal at the close of evidence
pursuant to section 1118.1.
“To determine if sufficient
corroboration exists, [an appellate court] must eliminate the accomplice’s
testimony from the case, and examine the evidence of other witnesses to
determine if there is any inculpatory evidence tending to connect the defendant
with the offense.†(People v. Falconer (1988) 201 Cal.App.3d 1540, 1543 (
accomplice’s testimony to give it value . . . .†(People
v. Reingold (1948) 87 Cal.App.2d 382, 393.)
However, “[t]he corroborating evidence may be circumstantial or slight
and entitled to little consideration when standing alone, so long as it tends
to implicate the defendant by relating to an act that is an element of the
crime. [Citations.] The independent evidence need not corroborate
the accomplice as to every fact on which the accomplice testifies [citation]
and need not establish every element of the charged offense [citation].†(People
v. Vu (2006) 143 Cal.App.4th 1009, 1022.)
In reviewing corroborating evidence, “[w]e view the evidence in the
light most favorable to the verdict and resolve all conflicts in its
favor.†(Id. at p. 1013.) We will not
disturb the trial court’s finding on the issue of corroboration unless the
independent evidence “could not reasonably tend to connect a defendant with the
commission of a crime . . . .†(
In this case, there is no dispute
that Zeledon and Acosta were accomplices, nor does Besenty argue that the jury
was not properly instructed that accomplice testimony requires
corroboration. The only challenge
Besenty raises is whether the independent evidence sufficiently corroborates
the accomplice testimony of Zeledon and Acosta.
We conclude that it does.
Both Sanchez and Carlos testified
regarding the events of the day prior to the shootings, which precipitated the
events that followed. Besenty was not a
mere bystander. Sanchez testified that Besenty
appeared after Yesenia pepper-sprayed Lozano and loudly identified herself by
the gang moniker “Casper.†Besenty then
argued with Carlos for more than an hour, at one point punching Carlos in the
face. Sanchez heard Besenty announce
that she was an “OG†from the 18th Street gang.
When Lozano told Carlos repeatedly that he had better “watch tomorrow,â€
Besenty gave Lozano “a look.†Carlos
testified that Besenty was a “shot caller†for the 18th Street gang and had
authority to tell other gang members what to do. He recounted that Besenty had punched him
hard in the face in the course of the argument, and that she announced she was,
“the main head.†Besenty then called
Escobar and told her to come to the location where the altercation was taking
place.
This independent evidence tends to
connect Besenty to the crimes by showing that Besenty had motive to commit the
crimes and the authority to order other gang members to carry them out. Besenty was angry and reacted to Carlos
verbally and through physical violence one day before the shootings. She made it known that she was not only
affiliated with the 18th Street gang, but that she had the power to direct
other gang members to retaliate for the incident. Moreover, Escobar, the person Besenty
contacted to come to the altercation, was a key participant in the shootings
the next day, pepper-spraying Carlos to disable him prior to the shooting, and
hitting him to prevent him from getting back into his sister’s apartment.
We are not persuaded by Besenty’s
argument that these facts are analogous to other cases in which corroborating
evidence was determined to be insufficient.
The independent evidence in the cases Besenty cites did not tend to show
the defendant was connected to the
crime, but only that the defendant was somehow connected to a person involved
in the crime, had some knowledge of the victims, or matched a general
description of the perpetrator. (See
showed that the defendant was the father of one of the perpetrators, visited
the scene of the crime eight or nine months before the incident, and knew the
victim grew marijuana]; People v. Rios (1985) 163 Cal.App.3d 852, 870
[independent witness saw a “short Mexican-appearing man†running in the area
where the crime was committed]; People v.
Martinez (1982) 132 Cal.App.3d 119, 132-133 [independent witness indicated
the defendant’s complexion was exactly like that of the perpetrator];
726, 737 [independent evidence showed that a burglary occurred; the defendant
knew the victims, the location of their home, and their schedules; and the
defendant was a friend of the testifying accomplice and had been to the
accomplice’s home at about the time stolen goods were delivered].)
the crimes and her stated authority to order others to carry them out tends to
connect her to the crimes. Such evidence
is sufficient to corroborate Zeledon and Acosta’s testimony.
failed to proffer sufficient evidence that she was guilty of the crimes charged
on an aiding and abetting theory. She
argues she was not present at the scene of the shootings and merely drove
Lozano and the other participants to and from Yesenia’s apartment. Her contention is without merit.
In California, any “person who aids
and abets the commission of a crime is a ‘principal’ in the crime, and thus
shares the guilt of the actual perpetrator.â€
(People v. Prettyman (1996) 14
Cal.4th 248, 259; § 31.) “‘A person aids
and abets the commission of a crime when he or she, (i) with knowledge of the
unlawful purpose of the perpetrator, (ii) and with the intent or purpose of
committing, facilitating or encouraging commission of the crime, (iii) by act
or advice, aids, promotes, encourages or instigates the commission of the
crime.’ [Citations.]†(People
v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell).) Moreover, “‘[a]
person who knowingly aids and abets criminal conduct is guilty of not only the
intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence
of the intended crime. The latter
question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged
objectively, it was reasonably
foreseeable. [Citation.]’ [Citation.]
Liability under the natural and probable consequences doctrine ‘is
measured by whether a reasonable person in the defendant’s position would have
or should have known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.’
[Citation.]†(
920.)
“The ‘act’ required for aiding and abetting liability
need not be a substantial factor in the offense. ‘“Liability attaches to anyone ‘concerned,’
however slight such concern may be, for the law establishes no degree of the
concern required to fix liability as a principal.†[Citation.]’
[Citation.]†(
Cal.App.4th 733, 743.) Thus, lookouts,
getaway drivers, and persons present at the scene for the purpose of diverting
suspicion are principals under the law.
(Ibid.) When assessing whether a defendant aided and
abetted a crime, we consider several factors, including “presence at the crime
scene, companionship, and conduct before and after the offense.†(In re
Juan G. (2003) 112 Cal.App.4th 1, 5.)
“‘Whether [the] defendant aided and abetted the crime is a question of
fact, and on appeal all conflicts in the evidence and reasonable inferences
must be resolved in favor of the judgment.’
[Citation.]†(
409.)
In determining whether sufficient evidence supports a
conviction, “we review the whole record to determine whether
found the essential elements of the crime or special circumstances beyond a
reasonable doubt. [Citation.] The record must disclose substantial evidence
to support the verdict—i.e., evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.
[Citation.] In applying this
test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence.
[Citation.] . . . ‘We resolve
neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to supportâ€â€™ the jury’s verdict. [Citation.]â€
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)
Here, substantial evidence supports the judgment. As discussed above, Besenty’s actions on the
day prior to the shootings tended to connect her to the crimes. Evidence was presented that she argued loudly
and at substantial length with Carlos the day before, even going so far as to
strike him in the face. When she did so,
both Yesenia and Sanchez challenged her—Yesenia made it known that she was
ready to fight Besenty, and Sanchez warned her never to hit Carlos again. In response, Besenty announced she was an
“O.G.†and the “main head,†someone who had authority to order other gang
members to retaliate. Besenty then
called Escobar, a gang member and key participant in the crimes the following
day, and summoned her to the scene. From
these facts, the jury could reasonably infer that Besenty had motive to harm
the Quintanillas and the ability to do so without having to directly
participate in any violence herself. The
jury could also reasonably infer that, as an “O.G.†or “shot caller,†Besenty
would necessarily be aware of any plans that other gang members would have to
harm the siblings, because, as Officer Gonzales testified, shot callers
orchestrate all crimes committed by the gang.
Moreover,
evidence was presented that, prior to going to Yesenia’s apartment on the day
of the shootings, Besenty drove Lozano, Zeledon, and Mala around the area,
looking for Yesenia. Besenty then drove
the three to Yesenia’s apartment and waited as the others scaled the locked
gate to enter the apartment complex.
When the three came running from the scene, again scaling the gate, she
drove them to her house in another neighborhood at a high speed. The jury could reasonably infer that Besenty
was involved in the crimes as a planner and a getaway driver, and that she was
aware of and encouraged an attack on the Quintanillas by multiple gang
members. Even if Besenty had been
unaware that Lozano was armed, great bodily injury and death were reasonably
foreseeable consequences of the crimes she encouraged. Accordingly, we conclude that substantial
evidence supports her conviction as an aider and abettor.
Besenty contends the trial court erred in refusing to
strike the testimony of the prosecution’s gang expert, Officer Gonzales,
because Officer Gonzales’s opinion that Besenty was an OG with shot caller
status within the 18th Street gang was based on information gleaned from two
informants whose existence had not been disclosed to the defense. At the preliminary hearing, Officer Gonzales
had testified that he was unable to discover any information with respect to
Besenty’s alleged gang affiliation, despite using city, county, and state law
enforcement resources. At trial,
however, Officer Gonzales opined that Besenty was an OG with shot caller status
within the 18th Street gang, based on information he received from informants
at two different agencies approximately one month after the preliminary
hearing. To obtain this information,
Officer Gonzales utilized ATF, FBI, and INS resources, which had not been
available to him through the police department.
Although the prosecution had no independent recollection of it, Officer
Gonzales testified that he shared the information with the district attorney’s
office at the time he received it. The
defense had no knowledge that the informants existed prior to Officer
Gonzales’s testimony at trial. Besenty
asserts that the prosecution’s failure to timely disclose information
concerning the informants was a violation of her due process rights requiring
reversal of her conviction under Brady v.
Maryland (1963) 373 U.S. 83, 87 (Brady).
In Brady,
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.†(
and its progeny, the prosecution is required to disclose any material,
favorable evidence, even in the absence of a discovery request. (Ibid.;
United States v. Bagley (1985) 473
U.S. 667, 678 (Bagley);
97, 106-107; In re Sassounian (1995)
9 Cal.4th 535, 543.)
“The scope of this disclosure obligation extends beyond the
contents of the prosecutor’s case file and encompasses the duty to ascertain as
well as divulge ‘any favorable evidence known to the others acting on the
government’s behalf . . . .’ [Citation.]
Courts have thus consistently ‘decline[d] “to draw a distinction between
different agencies under the same government, focusing instead upon the
‘prosecution team’ which includes both investigative and prosecutorial
personnel.â€â€™ [Citation.]†(In re
Brown (1998) 17 Cal.4th 873, 879, fn. omitted.) Accordingly, the prosecution must disclose
evidence that is actually or constructively in its possession or accessible to
it from other agencies, including the police department. (People
v. Kasim (1997) 56 Cal.App.4th 1360, 1380.)
“Evidence is ‘favorable’ if it hurts the prosecution or
helps the defense[]†(People v. Earp
(1999) 20 Cal.4th 826, 866; In re
Sassounian, supra, 9 Cal.4th at
p. 544), that is, if it is exculpatory or has impeachment value. (Strickler
v. Greene (1999) 527 U.S. 263, 281-282 (Strickler).) Moreover, “the prosecution’s duty of
disclosure extends to all evidence
that reasonably appears favorable to the accused . . . .†(People
v. Morris (1988) 46 Cal.3d 1, 30, fn. 14, disapproved on other grounds in
Evidence is material where “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.†(
The defendant need not show that disclosure of the evidence would have
resulted in acquittal; rather, “[t]he question is . . . whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.†(Kyles v. Whitley (1995) 514 U.S. 419, 434 (Kyles).) A
undisclosed favorable evidence “could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.†(Id.
at p. 435, fn. omitted.)
On appeal, the burden is on the defendant to establish
the elements of a Brady
violation. (Strickler, supra, 527
U.S. at pp. 289, 291.) We review
independently the trial court’s legal determinations concerning whether the
elements have been met. (
1031, 1042.)
Although we agree with Besenty that the prosecution
should have disclosed the information from the two informants to the defense,
we conclude that the evidence was not material, and thus no
disclosed to the defense, it is not reasonably probable that the outcome of the
trial would have been different. Officer
Gonzales’s testimony was not the only evidence tending to show that Besenty was
a member of the 18th Street gang, an OG, and a shot caller. Sanchez testified that Besenty loudly
referred to herself by her gang moniker, “Casper,†during the confrontation on
the day before the shootings and announced that she was an OG from the 18th
Street gang. Carlos identified Besenty
as a shot caller for the 18th Street gang and testified that she warned him she
was “the main head†during their confrontation.
Besenty made a phone call to Escobar, telling her to come to the
altercation, from which it can be inferred that she had some authority over
Escobar. Moreover, Besenty was in the
company of 18th Street gang members, including Lozano, who was known as a shot
caller to both Carlos and Officer Gonzales, on both the day of the shooting and
the previous day. She drove Lozano and
two others to and from Yesenia’s apartment where the shootings took place and
housed several of the people involved in the incident there afterward. Besenty’s connection to the gang and her role
in it were evidenced in multiple ways by different witnesses entirely
independent of the informants upon which Officer Gonzales’s opinion relied,
such that if his opinion were eliminated, the evidence would not reasonably
have been taken in a different light.
Additionally, the trial court instructed the jury under
Judicial Council of California Criminal Jury Instructions (2010-2011) CALCRIM
No. 306 as follows: “Both the People and
the defense must disclose their evidence to the other side before trial, within
the time limits set by law. Failure to
follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An
attorney for the People failed to disclose information from a confidential
informant that Officer Gonzales relied on in his opinion regarding Ms.
Besenty’s alleged gang membership or status.
[¶] In evaluating the weight and
significance of that evidence, you may consider the effect, if any, of that
late disclosure.†The jury is presumed
to understand and follow the instructions given to it and to be capable of
weighing opinion testimony in light of the knowledge that information regarding
confidential informants was not timely disclosed to the defense. (See People
v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.) There is no reason to believe that it failed
to do so here.
On direct examination, Carlos
testified that he “guessed†Besenty was a shot caller. Defense counsel moved to strike the response
as speculative. The prosecutor
responded, “Your Honor, if Ms. Besenty wants to testify—.†The trial court cut the prosecutor’s
statement short, stating: “Now, let’s
not start talking about if Ms. Besenty wants to testify. Let’s not get into that.†The prosecutor then said, “Well, your Honor,
I ask that she be admonished.â€
as an objection and overruled it, telling counsel, “Just relax and sit there.â€
After defense counsel cross-examined
Carlos, the trial court admonished the jury to disregard the prosecutor’s
statement concerning Besenty, explaining, “[the prosecutor] realized that he
should not have said that and brought it to my attention that he wished me to
tell you that he knew that he should not have said that being the ethical
prosecutor that he is. And, so,
disregard that.â€
Prior to the close of the People’s case-in-chief,
defense counsel moved for a mistrial based on the prosecutor’s statements. The trial court denied the motion but
determined to instruct the jury regarding a defendant’s right not to testify.
After the presentation of evidence, the trial court
instructed the jury pursuant to CALCRIM No. 355, as follows: “A defendant has an absolute constitutional
right not to testify. He or she may rely
on the state of the evidence and argue that the People have failed to prove the
charges beyond a reasonable doubt. Do
not consider, for any reason at all, the fact that the defendant did not
testify. Do not discuss that fact during
your deliberations or let it influence your decision in any way.â€
Besenty argues that the combination
of the prosecutor’s comment and the nondisclosure of the informants upon whose
information Officer Gonzales based his opinion testimony violated her due
process and Fifth Amendment rights.
In Griffin v. California (1965) 380 U.S. 609, 613-614 (
the prosecution is prohibited from commenting on a defendant’s exercise of his
Fifth Amendment right not to testify.
Our Supreme Court has interpreted Griffin
to “forbid[] argument that focuses the jury’s attention directly on an
accused’s failure to testify and urges the jury to view that failure as
evidence of guilt. [Citation.]†(People
v. Avena (1996) 13 Cal.4th 394, 443.)
Griffin “[prohibits] the
prosecution from so much as suggesting to the jury that it may view the
defendant’s silence as evidence of guilt.â€
(People v. Guzman (2000) 80
Cal.App.4th 1282, 1287-1288, citing United
States v. Robinson (1988) 485 U.S. 25, 32.)
“In conducting this inquiry[; however], we ‘do not lightly infer’ that
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.†(
970.) We review the prosecutor’s
comments to determine whether there is a reasonable probability the jury would
be misled and draw inferences against defendant because of his failure to
testify. (People v. Lewis (2001) 25 Cal.4th 610, 670-671.)
Here, it is not reasonably probable
that the jury inferred guilt from the prosecutor’s comment. Taken in context, it is clear that the
prosecutor was expressing frustration with Besenty’s interjections, combined
with defense counsel’s objection to Carlos’s testimony. The prosecutor’s follow-up statement that
Besenty should be admonished further emphasizes that he was commenting on
Besenty’s disruption of the testimony and not on her silence. Moreover, any adverse inferences with respect
to Besenty’s guilt were cured by the trial court’s immediate reprimand of the
prosecutor, admonition to the jurors that the statement was improper and to be
ignored, and instruction with respect to a defendant’s right not to testify. In light of the foregoing, we conclude that
no Griffin error occurred.
For the reasons discussed earlier,
we also conclude Besenty has failed to establish a denial of due process based
on late discovery of statements from two informants that Besenty was a shot
caller in her gang.
E. Cumulative
Error
Finally, Besenty contends that the cumulative error
deprived her of due process. There was
no cumulative error, as any error was inconsequential. (See People
v. Hines (1997) 15 Cal.4th 997, 1075.)
II
With
respect to Lozano, we have examined the entire record, and we are satisfied
that no arguable issues exist. (
DISPOSITION
The
judgments are affirmed.
KRIEGLER, J.
We
concur:
ARMSTRONG,
Acting P. J.
MOSK, J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all statutory references are to the Penal Code.
Lozano suffered one serious or violent prior felony or juvenile adjudication
under the three strikes law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)).
