P. v. Blanco
Filed 8/15/12 P. v. Blanco CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
PABLO BLANCO et al.,
Defendants and Appellants.
B227650
(Los Angeles County
Super. Ct. No. PA 056995)
APPEAL
from judgments of the Superior Court of
County. Ronald S. Coen, Judge. Affirmed.
H.
Russell Halpern for Defendant and Appellant Pablo Blanco.
Lynette
Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant Daniel Gonzalez.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle
and Michael C Keller, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Pablo
Blanco and Daniel Gonzalez (hereinafter collectively referred to as appellants
and individually by their last names) timely appealed from their convictions on
two counts of attempted premeditated murder and two counts of assault with a
firearm. The jury found true
charges, the court sentenced each of the appellants to life, with an additional
25 years to life for the firearm enhancement.
On the second attempted premeditated murder charge, the court sentenced
each of the appellants to a consecutive term of life, with an additional 20
years for the firearm enhancement. The
court stayed the sentence on the remaining counts and enhancements. Among other issues, appellants contend there
was insufficient evidence to support two attempted murder convictions, the
court misinstructed the jury about a kill zone and about the natural and
probable consequences doctrine, and the court did not adequately insure the
panel was not tainted by the misconduct of a discharged juror. We affirm the judgments.
During the
morning of January 8, 2008, Juan Alvarez drank some beer at his home on
Lonerock Street with his brother-in-law Oscar Jimenez and a friend Ricardo
Miranda. At some point, the three men
moved to the front yard.
That
afternoon, Jimenez noticed a black car that had stopped on Whites Canyon
Boulevard. Although the car was only two
houses away, there was a fence between Whites Canyon and the end of the
cul-de-sac on Lonerock. At least twice,
Jimenez heard someone inside the car yell, “‘Where you from’” In response, Jimenez replied, “‘Come around
and find out.’” The car then drove away.
Jimenez
went into the house and grabbed an aluminum baseball bat. When Jimenez went back outside, he saw
Miranda was holding a beer and Alvarez had nothing in his hands.
When
Jimenez saw the same black car stop near the corner of Lonerock and Deeptree,
he started walking toward the car with the bat in his hands. Alvarez followed Jimenez, and Miranda trailed
both of them.
As he
walked toward the black car, Jimenez noticed the car contained at least two
people, a driver and a front passenger.
Again, Jimenez heard someone inside the car ask where he was from in an
attempt to find out his gang affiliation.
Jimenez responded by shouting out “EYG’s,” the name of the tagging crew
that he previously had associated with.
Jimenez also stated he was from Panorama City, and referred to his area
code by saying “818.”
As Jimenez
continued approaching the black car, with his aluminum bat pointed toward the
ground, and Alvarez just one or two feet behind him, a gun was fired from the
passenger side of the car. When Jimenez
turned, he saw Alvarez lift up his shirt and expose an entry wound near his
hip; Alvarez was hit in the lower abdomen.
Alvarez, who was holding a can of pepper spray and a metal bar, fell to
the ground as the black car drove away.
Jimenez called for an ambulance and then hid the bat he had been
carrying.
Deputy
Sheriff Allen Hodge arrived on the scene at 1:50 p.m., approximately ten
minutes after receiving a radio call about the shooting. Upon seeing Alvarez on a gurney being wheeled
toward an ambulance, Hodge asked what had happened. In response, Alvarez said, “‘Some fools
rolled up and shot me.’” Alvarez further
said that one of his assailants yelled, “‘Brown Familia’” when the shot was
fired. According to Hodge, Brown Familia
was the name of a gang in the area.
During the
search of the scene, deputies found a tire iron and a can of pepper spray in
the street. Additionally, an aluminum
bat was found inside Jimenez’s car. The
victims acknowledged they had those weapons in their hands at the time of the
shooting.
Just prior
to the shooting, Wesley Brewer was driving on Whites Canyon when he noticed a
black Mustang with a broken license plate holder stop in front of him. The Mustang contained three Hispanic men. Two occupants sat in the front of the car,
and one sat in the rear; the men appeared to be discussing something. Upon pulling up next to the Mustang, Brewer
looked at both the driver and the front passenger and then drove away.
When Brewer
heard sirens approximately five minutes later, he returned to the area where
the Mustang had stopped. Brewer spoke
with a responding police officer at the scene and met with Deputy Sheriff
Patrick O’Neill the next day. Upon being
shown a photograph of a black Mustang with a broken license plate holder that
was registered to Gonzalez, Brewer identified the photograph as matching the
car he had seen. When Brewer was shown
photographic arrays, he identified Gonzalez as the driver and Blanco as the
front passenger. Brewer confirmed his
identifications at trial.
Deputy
Sheriff Mark Noel spoke with Alvarez at the hospital following the
shooting. While lying on a gurney
screaming inside the emergency room, Alvarez told Noel that he was outside his
house when three male Hispanics drove up in a black Mustang. Alvarez said one of the men fired a single
shot and then the car drove away. At
trial, Alvarez had no recollection of his conversation with Deputy Noel.
On January
17, 2008, O’Neill went to Alvarez’s home and showed him a photograph of
Gonzalez’s black Mustang. After Alvarez
told O’Neill that the photograph appeared to match the car he had seen, O’Neill
showed Alvarez a photographic array containing Blanco. Alvarez stated he saw the front passenger
holding a handgun. Alvarez identified
Blanco’s photograph as being that of the shooter. Alvarez was “70 per cent” certain of his
identification. At trial, Alvarez
claimed he made the identification only because he recognized Blanco from
school. Jimenez told O’Neill that the front
passenger fired the shot. O’Neill had
considerable experience with local gangs and knew that the Brown Familia and
Canones gangs were rivals.
Appellants’
residences were searched. Inside
Blanco’s bedroom closet, deputies found a newspaper that contained an article
about the drive-by shooting of Alvarez.
At Gonzalez’s residence, deputies found some gang writings and other
items that tended to connect him with the Brown Familia gang.
Deputy
O’Neill interviewed Gonzalez. The court
admonished the jury that anything Gonzalez said was limited to him and not to
Blanco. When he was arrested, Gonzalez
admitted he had been involved in the shooting.
Gonzalez, who admitted he and his two passengers were members of the
Brown Familia gang, told O’Neill that he was driving past the cul-de-sac with
two fellow gang members when he saw some rival gang members standing in front
of a house. Gonzalez made a U-turn and
stopped. At that point, people inside
his car loudly asked, “‘Where are you from’”
The rivals replied, “‘Come around here and we will tell you.’” Intending to fight to settle the differences
between the gangs, Gonzalez parked his Mustang and watched a few of the rival
gang members walk toward his car. One of
the rivals held a baseball bat, and another placed his hand in his pocket. At that point, the front passenger pulled a
handgun out of his waistband and fired one shot at the rivals who were between
45 and 60 feet away. Upon seeing one of
the rival gang members fall to the ground, Gonzalez drove away from the
scene. Gonzalez claimed he did not know
that one of his passengers was armed before the gun was used.
Although
Alvarez claimed to have quit before the shooting occurred, he admitted that he
had been a member of the Canones gang and acknowledged that a rivalry had
existed between Canones and Brown Familia.
Detective
Mark Barretto testified as an expert on local gangs. Canones and Brown Familia were rivals. Given a hypothetical based on the prosecution
evidence, Barretto opined that the shooting had been committed for the benefit
of the Brown Familia gang. Barretto
explained the shooting helped the gang by creating fear in the community and
the shooting was also likely to elevate the status of appellants within the
gang.
I. Attempted Murder Convictions
Appellants
contend there was insufficient evidence to support two convictions for
attempted murder because there was a single shot and the two victims were not
in the line of fire. In addition,
appellants contend the kill zone instruction was improper.
A.
Substantial Evidence
“On appeal,
‘“we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence -- that is, evidence that is
reasonable, credible, and of solid value -- from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.”’ In conducting such a review, we ‘“presume[ ]
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.”’
‘Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of
the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends. We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial
evidence.’” (Citations
omitted.) (People v. Lee (2011) 51 Cal.4th 620, 632.)
Generally
an intent to kill “must be inferred from the circumstances of the
shooting.” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.) “[A] person who intends to kill can be guilty
of attempted murder even if the person has no specific target in mind.” (People
v. Stone (2009) 46 Cal.4th 131, 140.)
However, “‘guilt of attempted murder must be judged separately as to
each alleged victim.’” (
Appellants
argue this case is similar to People v.
Perez (2010) 50 Cal.4th 222. In
eight counts of attempted premeditated murder based on firing a single shot at
a group of seven officers and one civilian; the court reversed seven of those
counts. (Id. at pp. 224, 233-234.)
Although Perez was decided
after the trial, appellants raised it at the hearing on their new trial
motions, and the court found it was not controlling.
The
case do not establish that defendant created a ‘kill zone’ by firing a single
shot from a moving car at a distance of 60 feet at the group of eight
individuals, notwithstanding that they were all standing in relatively close
proximity to one another. [The] kill
zone theory of multiple attempted murder is necessarily defined by the nature
and scope of the attack. The firing of a
single bullet under these circumstances is not the equivalent of using an
explosive device with intent to kill everyone in the area of the blast, or
spraying a crowd with automatic weapon fire, a means likewise calculated to
kill everyone fired upon. The
indiscriminate firing of a single shot at a group of persons, without more,
does not amount to an attempted murder of everyone in the group.” (People
v. Perez, supra, 50 Cal.4th at p.
232.)
The
“[T]he defendant [Smith] was standing a few feet behind a car that was pulling
away from the curb when he fired a single bullet through the rear windshield,
hitting the driver’s headrest and barely missing both the driver (the
defendant’s former girlfriend) and her three-month-old son, who was ‘secured in
a rear-facing infant car seat in the backseat’ directly behind her. Applying the deferential sufficiency of
evidence standard, we affirmed the jury’s verdicts convicting the defendant of
two counts of attempted murder. We
focused first on the fact that the infant was seated directly behind the
mother, with both victims (the mother and the infant) plainly ‘in [the
defendant’s] direct line of fire.’ We
concluded the presence of both victims in the shooter’s direct line of fire,
one behind the other, gave him the apparent ability to kill them both with one
shot.” (See also [People v. Chinchilla (1997) 52 Cal.App.4th 683, 685, 690] [single
bullet fired at two police officers who were crouched, one behind the other,
directly in shooter’s line of fire and visible to him, supported two counts of
attempted murder].)” (Citations &
italics omitted.) (People v. Perez, supra,
50 Cal.4th at pp. 232-233.)
The Supreme
Court continued: “We went on in Smith
to explain why the evidence supported the jury’s conclusion that the defendant
had acted with specific intent to kill both the mother and the infant. We observed that ‘evidence that defendant
purposefully discharged a lethal firearm at the victims, both of whom were
seated in the vehicle, one behind the other, with each directly in his line of
fire, can support an inference that he acted with intent to kill both.’ We explained, ‘The defense below offered nothing
to undercut the force of the inference, drawn by the jury on the People’s
evidence, that defendant acted with intent to kill both victims when he fired
off a single round at them from close range, each of whom he knew was directly
in his line of fire. . . . His defense
at trial thus furnishes no support for his claim on appeal that the People’s
evidence was insufficient to establish his intent to kill the baby.’ Last, we observed that ‘even if defendant’s
act of shooting at the baby was done “without advance consideration and only to
eliminate a momentary obstacle or annoyance,” the jury could still infer, from
the totality of the circumstances, that he acted with express malice toward
that victim.’” (Citations omitted.) (People
v. Perez, supra, 50 Cal.4th at p.
233.)
In
rejecting the application of Perez,
the trial court below found “the two victims that were alleged in this [case]
were one behind the other and one slightly to the side of the other, and it was
reasonable to infer, and the jury did so find, that the defendant or defendants
intended to kill both victims.”
Appellants
assert the victims were standing in proximity not directly in the line of fire,
i.e., the shot could have hit one or the other, but not both. Unlike Perez,
Blanco did not fire into a crowd of scattered people, but rather at two rival
gang members standing near each other.
Even though the evidence was not crystal clear as to exactly where the
victims were standing, there was evidence to support an inference Blanco intended
to kill both victims.
Alvarez
testified he was following Jimenez when he was shot; he was not sure how close
he was to Jimenez. Jimenez testified
Alvarez followed him and was behind him one or two feet away on his left side
and the gun was pointing at them; Jimenez stopped when he saw the gun. Miranda testified he followed Alvarez and
Jimenez, but he did not testify as to how close Alvarez was to Jimenez. O’Neill testified appellants told him Alvarez
was two feet to the left of Jimenez.
Exhibit 12, a photograph taken by O’Neill, shows two people standing
approximately where Jimenez and Alvarez were standing when Alvarez was shot,
but the line of fire was not established as the location of the car was not
indicated in the photograph. Blanco’s counsel
noted the locations of the people in the photo were just a guess. The prosecutor argued the victims were in the
line of fire. Neither defense counsel
cross-examined the victims about where they were standing nor argued the
victims were not in the line of fire.
Thus, under the deferential standard of review, we interpret the
evidence as supporting a finding the victims were in the line of fire.
B.
Kill Zone Instruction
The court
instructed the jury with CALCRIM No. 401 on aiding and abetting and No. 600 on
attempted murder, which included a paragraph about a kill zone. Gonzalez argues that even if there was
sufficient evidence of intent, the kill zone instruction was improper because
the evidence was legally insufficient to support it. Blanco also asserts there was no substantial
evidence to support the kill zone instruction.
As explained above, there was evidentiary support both victims were in
the line of fire so that the giving of the instruction was proper.
II. Natural and Probable Consequences
A.
The Instructions
In relevant
part, CALCRIM No. 403 (natural and probable consequences) provided that in
order to find an aider and abettor guilty of a non-target offense, it must
find:
1.
The defendant is guilty of a planned physical attack; [¶] 2.
During the commission of the planned physical attack a coparticipant in that
planned physical attack committed the crime of assault with a firearm and/or
attempted murder; [¶] AND
[¶] 3. Under all the
circumstances, a reasonable person in the defendant’s position would have known
that the commission of the assault with a firearm and/or attempted murder was a
natural and probable consequence of the commission of the planned physical
attack.
The jury
was not instructed to find attempted premeditated murder was a natural and
probable consequence of a planned physical attack.
In relevant
part, CALCRIM No. 601 instructed: “If you find the defendant guilty of
attempted murder . . . you must then decide whether the People have proved the
additional allegation that the attempted murder was done willfully, and with
deliberation and premeditation. [¶] . . . .
The attempted murder was done
willfully and with deliberation and premeditation if either defendant or both
of them acted with that state of mind.”
On both
counts of attempted murder, the jury found true the allegation the offense was
committed “willfully, deliberately and with premeditation.” The jury did not find attempted premeditated
murder was a natural and probable consequence of the planned physical attack.
B.
The Law
Gonzalez
contends his right to jury trial was violated when the court only instructed
that attempted murder was a natural and probable consequence of the target
crime instead of instructing that attempted premeditated murder was a natural
and probable consequence of the target crime.
“A person
who knowingly aids and abets criminal conduct is guilty of not only the
intended crime but also of any other crime the perpetrator actually commits
that is a natural and probable consequence of the intended crime.” (People
v. Mendoza (1998) 18 Cal.4th 1114, 1133; see also People v. Prettyman (1996) 14 Cal.4th 248, 260 [The natural and
probable consequences doctrine “is based on the recognition that ‘aiders and
abettors should be responsible for the criminal harms they have naturally,
probably and foreseeably put in motion.”’].)
“The
factual determination whether a crime committed by the perpetrator was a
reasonably foreseeable consequence of the crime or crimes originally contemplated
is not founded on the aider and abettor’s subjective view of what might
occur. Rather, liability is based on an
‘objective analysis of causation’; i.e., whether a reasonable person under like
circumstances would recognize that the crime was a reasonably foreseeable
consequence of the act aided and abetted.
The finding will depend on the circumstances surrounding the conduct of
both the perpetrator and the aider and abettor.” (Citation omitted.) (People
v. Woods (1992) 8 Cal.App.4th 1570, 1587.)
Citing Woods, the Supreme
Court adopted its reasoning that an accomplice under the natural and probable
consequences doctrine did not stand in the same position as the perpetrator and
might have a different degree of guilt based on the same conduct depending on
which of the perpetrator’s criminal acts were reasonably foreseeable and which
were not. (People v. Prettyman, supra,
14 Cal.4th at pp. 275-276.)
“The fact
the perpetrator cannot be found guilty of both a greater and a necessarily
included offense should not preclude an aider and abettor from being found
guilty of an uncharged, necessarily included offense when the lesser, but not
the greater, offense is a reasonably foreseeable consequence of the crime
originally aided and abetted. [¶] Therefore, in determining aider and abettor
liability for crimes of the perpetrator beyond the act originally contemplated,
the jury must be permitted to consider uncharged, necessarily included offenses
where the facts would support a determination that the greater crime was not a
reasonably foreseeable consequence but the lesser offense was such a
consequence.” (Citation omitted.) (People
v. Woods, supra, 8 Cal.App.4th at
pp. 1587-1588.)
Gonzalez
argues it was theoretically possible for the jury to find that Blanco
premeditated the attempted murder, but that such premeditation was not a
natural and probable consequence of the planned physical attack. Gonzalez notes that even though the facts in
the record were sufficient to support a finding of attempted premeditated
murder, those facts did not lead ineluctably to that conclusion.
Gonzalez
relies on People v. Hart (2009) 176
Cal.App.4th 662, 672. In
defendant Rayford’s conviction as an aider and abettor for premeditated
attempted murder because: “The
instructions did not fully inform the jury that, in order to find Rayford
guilty of attempted premeditated murder as a natural and probable consequence
of attempted robbery, it was necessary to find that attempted premeditated
murder, not just attempted murder, was a natural and probable consequence of
the attempted robbery.” “Error in
instructing the jury concerning lesser forms of culpability is reversible
unless it can be shown that the jury properly resolved the question under the
instructions, as given.” (
held that in reviewing a natural and probable consequences instruction which
failed to identify and describe the target crime, the inquiry was whether there
was a reasonable likelihood the jury applied the challenged instruction in a
way that violated the Constitution.].)
In the case
at bar, the prosecutor argued (and the jury was instructed on) both theories of
murder, aider and abettor and natural and probable consequences; the prosecutor
argued only that the jury had to find attempted murder, not attempted
premeditated murder, was the natural and probable consequence of the physical
assault. Nothing indicates which theory
the jury used to find Gonzalez guilty of attempted murder.
In
to the error in Woods,
concluding: “The jury was left to its
own devices without proper guidance concerning the law. Under the instructions given, the jury may
have found Rayford guilty of attempted murder using the natural and probable
consequences doctrine, an objective test, and then found the premeditation and
deliberation element true using the only instruction given as to that element,
which described a subjective test. Thus,
the instructions on the natural and probable consequence doctrine and attempted
murder were prejudicially deficient.” (
Citing
People assert it was not an error to fail to instruct the jury to determine the
personal willfulness of the aider and abettor as it was sufficient that the
attempted murder itself was premeditated.
In Lee the court addressed the
question of whether the provision of Penal Code section 664,
willful, deliberate and premeditated attempted murder applied to aiders and
abettors and concluded that it did. (
that the murder attempted was willful, deliberate and premeditated such that a
person might be convicted of attempted premeditated murder as an aider and
abettor even if he or she did not personally act with willfulness, deliberation
and premeditation. (Id. at pp. 616, 624, 627.)
The court noted that where the natural and probable consequences
doctrine did not apply, an attempted murderer who was guilty as an aider and
abettor might be less blameworthy and punishing such an attempted murderer with
life imprisonment would not run counter to Penal Code section 664’s purpose of
making the punishment proportionate to the crime. (Id.
at pp. 624-625.) Thus, the court left
open the question of whether the same rule applied where the defendant was
found guilty of attempted murder on a theory of natural and probable
consequences.
Some cases
have applied Lee in situations
involving the natural and probable consequences doctrine where the jury was
instructed the nontarget crime was attempted murder, not attempted premeditated
murder. (See e.g. People v Cummins (2005) 127 Cal.App.4th 667; People v. Curry (2007) 158 Cal.App.4th 766.)
the court reasoned: “Kelly was a willing and active participant in all the
steps that led to the attempt on Taglieri’s life. Although the evidence did not conclusively
determine which defendant had physical contact with the victim when he was
pushed [off a cliff], certainly Kelly’s conduct makes him no less blameworthy
than Cummins. The jury here was properly
instructed on the elements of attempted premeditated murder and, based on the
evidence, found the attempt on Taglieri’s life was willful, deliberate, and
premeditated. Nothing more was
required.” (People v. Cummins, supra,
127 Cal.App.4th at pp. 680-681.)
We vacated
submission of this case pending a decision by the Supreme Court in
16, 2011, S189317. On July 16, 2012, the
Supreme Court filed its opinion in People
v. Favor (2012) 54 Cal.4th 868 [2012 WL 2874241].) The court concluded that “the jury need not
be instructed that a premeditated attempt to murder must have been a natural
and probable consequence of the target offense.” (Id. at
p. ___.) The court relied on
that the attempted murder itself was willful deliberate, and premeditated’ (
only necessary that the attempted murder ‘be committed by one of the
perpetrators with the requisite state of mind.’
(Cummins, supra, 127 Cal.App
4th at p. 680.) Moreover, the jury does
not decide the truth of the penalty premeditation allegation until it first has
reached a verdict on the substantive offense of premeditated murder. [People
v. Bright (1996) 12 Cal.4th 652, 661.]
Thus, with respect to the natural and probable consequences doctrine as
applied to the premeditation allegation under section 664(a), attempted
murder—not attempted premeditated murder—qualifies as the nontarget offense to
which the jury must find foreseeability.
Accordingly, once the jury finds that an aider and abettor, in general
or under the natural and probable consequences doctrine, has committed an
attempted murder, it separately determines whether the attempted murder was
willful, deliberate, and premeditated.”
2874241*7].) It is not required that the
aider and abettor have “reasonably foresee[n] an attempted premeditated murder
as the natural and probable consequence of the target offense.” (Ibid.)
According
to the decision in Favor, we find the
jury was properly instructed in this case.
III. Gang Expert
Gonzalez
contends the gang expert (Detective Barretto) went beyond the permissible scope
of expert opinion and violated his right to due process and a fair trial in
that Barretto told the jury that because Gonzalez belonged to the same gang as
Blanco and was in the vehicle, Gonzalez must have known Blanco possessed the
firearm and endorsed Blanco’s use of it, which amounted to telling the jury how
to decide the case and replicated the error committed in People v. Killebrew (2002) 103 Cal.App.4th 644.
opinion on the ultimate fact of whether he (Gonzalez) knew Blanco had a firearm
and intended to use it. “‘Testimony in
the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the jury.’” (People
v. Vang (2011) 52 Cal.4th 1038, 1048.)
In response
to the prosecutor’s hypothetical question, Barretto testified in part: “Furthermore, it’s common for gang members to
know that other gang members are carrying weapons. It’s very unlikely that the passenger of this
vehicle didn’t know that [another] gang member was carrying a weapon. [¶]
Gang members who travel together are aware of weapons that are
stashed. They use stash houses. They use other gang members to carry
weapons. Everybody knows who carries
what. It’s kind of a rule that gang
members have. They know if they are
strapping or carrying a weapon.” Later,
Barretto stated Gonzalez knew Blanco had a handgun in the car.
Shortly
thereafter, at a pause in the proceedings, the court asked to see counsel at
sidebar where it raised the issue of whether an expert could opine that when
one gang member in a car possessed a gun, his fellow gang members inside the
car would know. Citing
noted that an expert could offer a general opinion about a gang member being
aware of what will happen and that there could be no error because there had
been no objection. Neither defense
counsel disagreed or objected.
The People
argue Gonzalez forfeited this claim by failing to object; however, Gonzalez
asserts failing to object was ineffective assistance of counsel. Accordingly, we will address the merits of
the claim Barretto exceeded the permissible scope of expert opinion. (People
v. Scaffidi (1992) 11 Cal.App.4th 145, 151.)
In
court held the expert exceeded the permissible scope of expert opinion by
testifying about the subjective knowledge and intent of each occupant in a
vehicle, but noted an expert might opine regarding a typical or hypothetical
gang member’s likely knowledge, intent or expectation in a given
situation. (See also
946, fn. 3 [recognizing the difference in having an expert testify about
specific persons rather than hypothetical persons]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1179 [The court
held the trial court erred by excluding expert opinion “as to whether in gang
culture and operation every time a gang member rides with other gang members he
or she is aware of what will happen.”]; People
v. Olguin (1994) 31 Cal.App.4th 1355, 1371 [The court permitted expert
testimony “focused on what gangs and gang members typically expect and not on
[defendant’s] subjective expectation.”].)
Gonzalez
posits this case is similar to People v.
Sifuentes (2011) 195 Cal.App.4th 1410.
Sifuentes involved a “gang
gun,” which was found under a mattress in a motel room occupied by two
defendants and two females. The court
reversed one defendant’s conviction for possession of a firearm by a felon (and
the attendant gang enhancement), concluding there was no substantial evidence
the defendant had control of the gun as the expert did not testify that any gun
possessed by a gang member was a gang gun, that the subject gun was a gang gun
or that all gang members always had the right to control a gang gun; the expert
just testified that a gang gun was accessible to gang members at most
times. (Id. at pp. 1417-1420.) In
contrast, ,here, Barretto testified gang members in general know if fellow gang
members in the same vehicle are armed.
Accordingly,
we conclude Barretto’s opinion, based on the hypothetical, was proper. (See People
v. Vang, supra, 52 Cal.4th at p.
1049 [To the extent the testimony responds to hypothetical questions, it does
not inform the jury of the expert’s belief of the suspect’s knowledge and
intent.].) Even though at one point
Barretto did offer an improper opinion about Gonzalez’s knowledge, under the
circumstances, it was not reasonably probable the jury would have reached a
more favorable result if that statement had not been made. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
As Gonzalez concedes, it was reasonable to infer he knew Blanco had a
gun. Moreover, the one statement was
brief and made after a detailed explanation of gang members’ knowledge such
that even if that one statement exceeded the permissible scope of expert
opinion, its admission was not so egregious as to render the trial
fundamentally unfair. (
439.)
IV. Gonzalez’s Confession
Blanco
contends the admission of Gonzalez’s redacted confession violated his right to
due process because the redaction was not adequate and its admission violated
his right to cross-examine as it was a testimonial statement under
36.
A.
Redaction
Prior to
trial, the court denied Blanco’s motion to sever. Gonzalez’s extrajudicial statement was
introduced by the testimony of Deputy O’Neill, who stated that Gonzalez told
him (O’Neill) that he (Gonzalez) was the driver and that the front passenger
fired the weapon. Blanco asserts that
was not an effective redaction as Brewer subsequently identified Blanco as the
front passenger.
An
extrajudicial statement by a defendant which implicates a codefendant may be
introduced in a joint trial if all parts implicating the codefendant are
effectively deleted without prejudice to the declarant. (People
v. Aranda (1965) 63 Cal.2d 518, 528-530.)
California courts follow the practice suggested in Aranda of editing the confession “so that all statements that
identify or implicate the nondeclarant defendant are deleted and replaced with
neutral language.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1045-1046.) The extrajudicial statement may be admitted
if all references, direct or indirect, are deleted. (Id.
at p. 1046.)
In
277, the California Supreme Court cited to a case in which the United States
Supreme Court determined that “the use of a blank space or the word ‘deleted’
in the confessing defendant’s statement” was an insufficient deletion. The court reasoned: “The deletion, in
context, was plainly a name of a person involved with the confessing defendant
in the charged crime; jurors in all likelihood would have filled in the blank
space with the name of the nonconfessing codefendant present in court. Here, the blank portions of the transcript
were far more lengthy, extending for several sentences or half a page. The content of the deleted material was not
readily discernable.” (
front passenger was not readily discernable noting the number of codefendants
(one) did not match the number of other people in the car (two). However, because Brewer and Alvarez identified
Blanco as the front passenger, the jury would have had no trouble knowing whom
Gonzalez identified as the killer. The
reference to the shooter was also brief.
Accordingly, we agree the “redaction” was inadequate.
B.
Cross-examination
“The
principle is well established: ‘[A] nontestifying codefendant’s extrajudicial
self-incriminating statement that inculpates the other defendant is generally
unreliable and hence inadmissible as violative of that defendant’s right of
confrontation and cross-examination, even if a limiting instruction is given.’” (Italics deleted.) (People
v. Hill (1992) 3 Cal.4th 959, 994, disapproved on another point in
Cal.4th 1046, 1069, fn. 13.) The holding
that admission of a nontestifying defendant’s extrajudicial statement implicating
a codefendant violates the codefendant’s rights under the confrontation clause,
“extends only to [extrajudicial statements] that are not only ‘powerfully
incriminating’ but also ‘facially incriminating’ of the nondeclarant
defendant.” (People v Fletcher (1996) 13 Cal.4th 451, 455 & fn. 1.) Gonzalez’s statement was facially and
powerfully incriminating as he impliedly identified Blanco as the shooter.
“Under the
evidence against defendant is overwhelming and the improperly admitted evidence
is merely cumulative. To find the error
harmless we must find beyond a reasonable doubt that it did not contribute to
the verdict, that it was unimportant in relation to everything else the jury
considered on the issue in question. We
employ the same analysis for Crawford
error since the Chapman test also
applies.” (Citations omitted.) (People
v. Song (2004) 124 Cal.App.4th 973, 984-985; accord People v. Burney (2009) 47 Cal.4th 203, 232.)
Gonzalez’s
statement was cumulative. Alvarez
identified the front passenger as the shooter.
Alvarez and Brewer identified Blanco as the front passenger. Both Alvarez and Brewer identified Gonzalez’s
black Mustang. Police found an article
about the shooting in Blanco’s room.
Blanco complains the statement was used to satisfy the gang allegation.
i.e., that the crime was perpetrated in concert with other gang members against
rivals. Jimenez, Alvarez, Miranda,
Barretto and Gonzalez all established that fact. Accordingly, any error in admitting the
statement was harmless beyond a reasonable doubt.
V. Standing Mute
A.
Background
Deputy
O’Neill testified that he interviewed Blanco after Blanco’s arrest. O’Neill advised Blanco of his
understood his rights. Upon being asked
whether he wanted to speak without an attorney being present, Blanco stated he
wanted to speak with O’Neill. At the
outset of the interview, Blanco revealed his tattoos. When O’Neill asked Blanco what the tattoos
meant, Blanco said they stood for Brown Familia, his “barrio” (gang). O’Neill asked Blanco whether he still went by
the moniker “Shorty,” and Blanco said he still used that name.
O’Neill
told Blanco that Gonzalez had been arrested.
When O’Neill said he had already spoken with Gonzalez, Blanco asked what
Gonzalez had said; O’Neill refused to answer.
The prosecutor then asked, “After that, Detective O’Neill, did Pablo
Blanco tell you anything about what had happened in the afternoon of January
8th, 2008” Without objection from the
defense, O’Neill replied, “No.”
B.
Forfeiture
Blanco
contends the prosecutor’s solicitation from O’Neill that Blanco stood mute
violated his constitutional rights and constituted prosecutorial
misconduct. (See Griffin v. California (1965) 380 U.S. 609, 614-615 [it is
impermissible to penalize an individual for exercising his Fifth Amendment
privilege]; see also People v. Hardy
(1992) 2 Cal.4th 86, 154 [the prosecutor may not directly or indirectly urge
the jury to infer guilt from a defendant’s failure to testify].)
Blanco
“forfeited this claim [of violation of a constitutional right] because he
failed to object.” (People v. Valdez (2004) 32 Cal.4th 73, 127.) In addition, a failure to object and request
an admonition forfeits a claim of prosecutorial misconduct on appeal unless an
objection would have been futile or an admonition ineffective. (People
v. Arias (1996) 13 Cal.4th 92, 159.)
We disagree with Blanco that an objection would have been futile because
the “cat was out of the bag.”
In
addition, “A defendant has no right to remain silent selectively. Once a defendant elects to speak after
receiving a Miranda warning, his or
her refusal to answer questions may be used for impeachment purposes absent any
indication that such refusal is an invocation of Miranda rights. (
1084, 1093.) The prosecutor did not
comment on Blanco’s exercise of a constitutionally protected right or suggest
the failure to respond evidenced guilt; he simply established, that after
answering other questions by O’Neill, upon learning O’Neill had spoken to
Gonzalez, Blanco did not tell O’Neill what had happened on the 8th.
VI. Cumulative Error
Blanco
contends the cumulative effect of Gonzalez’s statement that the right front
passenger fired the shot and O’Neill’s comment that Blanco remained mute was
prejudicial. In addition, Blanco lists
five other alleged errors. It appears
Blanco only objected to two of these errors -- to Alvarez’s telling Deputy
Hodge that “some fools rolled up and shot me” and one of the shooters yelled
out “Brown Familia” and to Barretto’s opinion that witnesses tended to be less
honest when testifying in cases involving gang members. Even assuming arguendo overruling those
objections was erroneous, Blanco presents no argument as to how he was
prejudiced by those minor statements.
(See People v. Stanley (1995)
10 Cal.4th 764, 793.) There was no
cumulative error as any error was inconsequential. (See People
v Hines (1997) 15 Cal.4th 997, 1075.)
VII. Juror Misconduct/Juror Information
Appellants
contend they were denied their right to an impartial jury when the trial court
failed to insure the panel was not tainted by the misconduct of a discharged
juror.
A.
Background
During
deliberations, the jury foreperson sent a note to the court indicating that one
of the jurors, Juror No. 3, had expressed concern for the safety of herself and
her family and had prior knowledge of gangs in the area. The court conducted an inquiry in chambers
with counsel.
Juror No. 3
explained that when Deputy O’Neill testified, she realized she knew him in
connection with an experience she had years earlier; Juror No. 3 stated she had
not known him by name when the list of witnesses was called. Juror No. 3 explained that 10 years earlier
she had been at a party with her brother and a friend of her brother when they
were approached by some Canones gang members and that she had not realized the
same gang was involved until after she was selected as a juror. After the friend was stabbed, Juror No. 3’s
brother testified. Two days after the
perpetrator got out of jail, a “cocktail bomb” was thrown into her brother’s
car while it was parked in her driveway.
Deputy O’Neill asked Juror No. 3 and her brother questions and wanted to
know if her brother was associated with any gang.
The court
asked Juror No. 3 why she failed to disclose during voir dire that a relative
had been the victim of a crime. Juror
No. 3 stated she did not want to bring up or discuss her past experiences. Juror No. 3 explained that when other jurors
noticed she was not feeling well and said something to her, she told them,
“‘I’m scared because of that that happened with my brother.’” Juror No. 3 stated she could still decide the
case fairly and impartially.
The court
then met with counsel in open court outside the presence of Juror No. 3. The court repeatedly stated Juror No. 3
intentionally concealed something in voir dire.
With the agreement of all counsel, the court decided Juror No. 3 should
be removed.
After
Blanco’s counsel expressed some concern the information Juror No. 3 shared with
the other jurors might have tainted the whole jury, the court noted it had
discretion to hold such a hearing, but a hearing should be held only if the
defense came forward with evidence demonstrating a strong possibility that
prejudicial misconduct had occurred and the evidence presented a material
conflict which could only be resolved by such a hearing. Neither defense counsel asserted any such
conflict existed. The court found there
was insufficient evidence to conduct an evidentiary hearing as it did not see
any taint of the jury because Juror No. 3 “just told them why she was
upset.” The court said it would admonish
the jury to disregard anything it was told and instructed the jury to disregard
prior deliberations.
B.
Misconduct
“A
defendant accused of a crime has a constitutional
jurors.” (People v. Nesler (1997) 16 Cal.4th 561, 578.) Juror misconduct may establish juror
bias. (Ibid.)
“‘As a
general rule, juror misconduct “raises a presumption of prejudice that may be rebutted
by proof that no prejudice actually resulted.”’
In determining whether misconduct occurred, ‘[w]e accept the trial
court’s credibility determinations and findings on questions of historical fact
if supported by substantial evidence.
Whether prejudice arose from juror misconduct,
however, is a mixed question of law and fact subject to an appellate court’s
independent determination.’” (Citations
omitted.) (People v. Majors (1998) 18 Cal.4th 385, 417.)
“A juror
who conceals relevant facts or gives false answers during the voir dire
examination thus undermines the jury selection process and commits
misconduct.” (In re Hitchings (1993) 6 Cal.4th 97, 111.) The court reasoned that “false answers or
concealment on voir dire also eviscerate a party’s statutory right to exercise
a peremptory challenge and remove a prospective juror the party believes cannot
be fair and impartial.” (
In Hitchings and some of the
other cases cited by appellants, the issue was whether a particular juror could
be impartial or should be removed. Juror
No. 3 committed misconduct because she concealed the incident involving her
brother during voir dire. The failure to
reveal her brother’s experience during voir dire questioning constituted
misconduct, but appellants do not explain how withholding information in voir
dire tainted the jury. In addition,
Juror No. 3 was removed and deliberations begun anew, which rebutted any
presumption of prejudice from the concealment.
(See People v. Tafoya (2007)
42 Cal.4th 147, 193.)
The
question is whether anything Juror No. 3 said tainted the other jurors. “‘“When a trial court is aware of possible
juror misconduct, the court ‘must “make whatever inquiry is reasonably
necessary”’ to resolve the matter.”
Although courts should promptly investigate allegations of juror
misconduct “to nip the problem in the bud,” they have considerable discretion
in determining how to conduct the investigation.’” (Citations omitted.) (People
v. Virgil (2011) 51 Cal.4th 1210, 1284.)
“The trial
court has the discretion to conduct an evidentiary hearing to determine the
truth or falsity of allegations of jury misconduct, and to permit the parties
to call jurors to testify at such a hearing.
Defendant is not, however, entitled to an evidentiary hearing as a
matter of right. Such a hearing should
be held only when the court concludes an evidentiary hearing is ‘necessary to
resolve material, disputed issues of fact.’
‘The hearing should not be used as a “fishing expedition” to search for
possible misconduct, but should be held only when the defense has come forward
with evidence demonstrating a strong possibility that prejudicial misconduct
has occurred. Even upon such a showing,
an evidentiary hearing will generally be unnecessary unless the parties’
evidence presents a material conflict that can only be resolved at such a
hearing.’” (Citations omitted.) (People
v. Avila (2006) 38 Cal.4th 491, 604.)
The court here chose to hold an in-chambers hearing with Juror No. 3
followed by discussion in open court; both out of the presence of the other
jurors.
Blanco
claims the court abused its discretion by not holding a hearing with each
individual juror to determine if the juror was frightened by Juror No. 3’s experience. Gonzalez asserts that Juror No. 3 committed
misconduct by introducing extraneous information into the deliberations. Gonzalez posits that by claiming personal
knowledge of the gangs in the area, Juror No. 3 was claiming personal knowledge
of a fact at issue, i.e., that Brown Familia was a gang in the area and a rival
of Canones. That is speculation; there
was no indication Juror No. 3 said anything about Brown Familia. Moreover, that fact was established by
Barretto and Alvarez. Gonzalez speculates
that because of what Juror No. 3 told them, there was a possibility the jurors
either might fear retaliation if they convicted appellants. (See People
v. Wilson (1996) 43 Cal.App.4th 839, 852 [speculation about how jurors
might have arrived at their verdict does not show good cause].) Gonzalez concludes the court should have held
a full hearing because there was a factual dispute if the rest of the jury was
aware of the misconduct, and if it was, if the misconduct influenced
deliberations.
In ruling
on the new trial motions, the court stated it had found the juror had not
committed misconduct. We interpret that
comment to mean it found there was no misconduct in what Juror No. 3 said to
the other jurors. Thus, we disagree with
Gonzalez’s claim the court implicitly found Juror No. 3 had interjected an
inflammatory personal account. In
302-303, the Supreme Court, which extensively discussed the analysis of a claim
of juror misconduct, noted:
“However,
‘[t]he introduction of much of what might strictly be labeled “extraneous law”
cannot be deemed misconduct. The jury
system is an institution that is legally fundamental but also fundamentally
human. Jurors bring to their
deliberations knowledge and beliefs about general matters of law and fact that
find their source in everyday life and experience. That they do so is one of the strengths of
the jury system. It is also one of its
weaknesses; it has the potential to undermine determinations that should be
made exclusively on the evidence introduced by the parties and the instructions
given by the court. Such a weakness,
however, must be tolerated. “[I]t is an impossible standard to require . . .
[the jury] to be a laboratory, completely sterilized and freed from any
external factors.” Moreover, under that
“standard” few verdicts would be proof against challenge.’ ‘The safeguards of juror impartiality . . .
are not infallible; it is virtually impossible to shield jurors from every
contact or influence that might theoretically affect their vote.’” (Citations
omitted.)
Moreover,
“a trial court’s inquiry into possible grounds for discharge of a deliberating
juror should be as limited in scope as possible, to avoid intruding
unnecessarily upon the sanctity of the jury’s deliberations.” (People
v. Cleveland (2001) 25 Cal.4th 466, 485.)
Juror No. 3 informed the court that she told the other jurors that she
was scared because of what happened to her brother. Despite the juror’s reassurances that she
could be fair, all agreed she should be removed. As noted by the court, all Juror No. 3 did
was tell the others that she was scared; the court did not inquire as to
exactly what Juror No. 3 said to the other jurors. Even if Juror No. 3 related the facts of the
prior incident, it is common knowledge that gangs commit crimes. (See People
v. Yeoman (2003) 31 Cal.4th 93, 162 [no misconduct when several jurors
recounted personal experiences involving drugs].) We conclude that the court did not abuse its
discretion by declining to inquire further of the other jurors as to what Juror
No. 3 said and its effect on them as that would involve an invasion of the
jurors’ thought processes. (See Evid.
Code, § 1150.) Given the gang evidence
properly adduced in this case, the likelihood of juror bias was not
substantial. (See People v. Danks, supra,
32 Cal.4th at pp. 303-304.)
To the
extent appellants claim the court erred in denying their new trial motions
based on a claim of juror misconduct, the motions were supported by the unsworn
report of a defense investigator who spoke to one juror. The court did not abuse its discretion by
denying the new trial motions. (
810 [“[O]rdinarily a trial court does not abuse its discretion in declining to
conduct an evidentiary hearing on the issue of juror misconduct when the
evidence proffered in support constitutes hearsay. Moreover, a trial court does not abuse its
discretion in denying a motion for new trial based upon juror misconduct when
the evidence in support constitutes unsworn hearsay.” (Citation omitted.)].)
C.
Release of Juror Information
Pursuant to
Code of Civil Procedure section 206, subdivision (g), a defendant may petition
the court for access to juror identifying information “for the purpose of
developing a motion for new trial.” Code
of Civil Procedure section 237, subdivision (b) provides, “The petition shall
be supported by a declaration that includes facts sufficient to establish good
cause for the release of the juror’s personal identifying information.”
At the
hearing on their new trial motions, appellants sought release of juror
information. The motion was also based
upon the investigator’s report. The
court found appellants had failed to show good cause for the disclosure and
denied the motion. Blanco contends the
court abused its discretion in denying the motion because two jurors expressed
fear of gang retaliation.
name="_ftnref4" title="">[4] Blanco makes no argument as to why that
constituted good cause for the release of juror information.
Decisional
and statutory law protect jurors from unwanted postverdict intrusions. (People
v. Barton (1995) 37 Cal.App.4th 709, 716.)
Although a defendant may request personal juror information, he has no
absolute right to such information; absent a sufficient showing of good cause
or need for the request, a trial court may properly deny the request. (Ibid.)
First, the
motion did not include a declaration, only an unsworn report from the defense
investigator. In denying the motion, the
court impliedly found it was based on hearsay.
The investigator’s report contained hearsay as to what the one juror the
investigator interviewed told the investigator.
Second, even considering the report, nothing the questioned juror said
indicated the other jurors were fearful of retaliation. The court was aware Juror Nos. 3 and 9 had
expressed fear of retaliation.
Contacting the other jurors to determine if they feared retaliation or
were influenced by the alleged introduction of extrinsic material would invade
the jurors’ thought processes. The court
did not abuse its discretion by denying the request. (People
v. Jones (1998) 17 Cal.4th 279, 317.)
The
judgments are affirmed.
WOODS,
J.
We concur:
PERLUSS, P. J. JACKSON,
J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all statutory references are to the Penal Code.
name="_ftn2" title="">[2]
