P. v. Carranza
Filed 7/2/13 P. v. Carranza CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS LAZARO CARRANZA et al.,
Defendants and Appellants.
B239697
(Los Angeles
County
Super. Ct.
No. TA116321)
APPEALS
from judgments of the Superior Court
of
County.
Patrick Connolly, Judge.
Affirmed.
Dan Mrotek,
under appointment by the Court of Appeal, for Defendant and Appellant Luis
Lazaro Carranza.
Jennifer A.
Mannix, under appointment by the Court of Appeal, for Defendant and Appellant
Miguel Cota.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
Luis Lazaro
Carranza (Carranza) and Miguel Cota (Cota) were convicted of the murder of Jose
Vera (Vera) and the attempted murders
of David Garcia (Garcia) and Jose Loza (Loza).
Carranza argues that the trial court committed prejudicial state and
federal constitutional error when it excluded his third party culpability
defense. Cota joins in that
argument. In addition, Cota argues that
his Sixth Amendment right to confrontation was violated when the trial court
allowed the prosecutor to rely on certified minute orders to prove predicate
offenses for purposes of a gang enhancement, and when it allowed the People’s
gang expert to express opinions based on testimonial
hearsay. Beyond that, Cota contends
that his right to a jury trial and proof of guilt beyond a reasonable doubt
were violated when the trial court made findings of fact and imposed victim
restitution fines that were punitive.
We affirm.
FACTS
The Prosecution’s
Case
The
shooting
On January 17, 2011, at around 9:00
p.m., Garcia, Vera and Loza were parked in a vehicle in front of
Garcia’s home. Garcia was in the
driver’s seat, Vera was in the front passenger seat, and Loza was sitting in
the backseat directly behind Vera. As
Garcia rolled a “joint,†he looked in the rearview mirror and saw two men
behind the car. Then he saw them
approach the car on the driver’s side.
Garcia recognized one of the men as Carranza. Carranza looped around to the front of the
car, went to the passenger side of the vehicle, peeked inside and returned to
the front of the car. He said “[s]omething
about 18th Street gang.†The second man
stood in front of the driver’s side of the vehicle and was wearing a “bright
colored shirt from the inside, and the sleeve
was . . . darker in color.â€
Loza heard the second man say “where you guys from†and “18th
Street.â€
Carranza
and the second man aimed guns and fired into the vehicle. Vera was shot in the head and killed. Garcia and Loza suffered multiple gunshot
wounds. Afterwards, Carranza and the
second man ran east on 98th Street
and crossed Figueroa Boulevard.
shooter
Garcia testified that at the time
of the shooting, he had known Carranza for seven or eight years and also knew
his brother, Adrian Carranza (Adrian). Prior to the shooting, Garcia was outside of
his parent’s house where he was living.
Carranza approached and asked if Garcia knew who had beaten up
Carranza’s brother. Garcia said, “I
don’t mess with little kids. I don’t
want no problems.†In response, Carranza
said, “Well, this is my hood.†Garcia
said, “I don’t like problems. Don’t
disrespect my house.â€
On January 18 or 19, 2011,
Detective Scott Teubert of the Los Angeles Police Department showed Garcia two
photo line-ups, one with Carranza’s photo and one with Adrian’s photo. Garcia circled Carranza’s photo but not the
one of Adrian. According to Garcia, he did not circle Adrian’s
photo because he was not present during the shooting. In court, Garcia identified Carranza as the
person who was circled in the first photo line-up, and also as one of the men
in a surveillance video taken just after the shooting of two men approaching
the OK Market from the direction of the shooting.
Detective Douglas Simpson responded
to the crime scene, saw Carranza standing on the corner of Figueroa and 98th
Street and spoke to him for about a minute. Eventually, Detective Simpson reviewed the
video from the surveillance cameras operated by the OK Market. In the video, he watched two males walk south
on Figueroa Boulevard, cut across the OK Market parking lot and head in a
southwesterly direction toward the market’s south driveway. The time stamp on the video was 9:13 p.m.
Detective Simpson immediately recognized one of the males on the video
as Carranza.
From in and around the vehicle
where the shooting occurred, Detective Gerardo Vejar recovered spent
nine-millimeter bullet casings. Six bore
the head stamp “S and B,†three bore the head stamp “FC,†and one bore the head
stamp “PMC.†Detective Vejar testified
that an “FC†bullet and a “PMC†bullet can be fired from the same gun.
There was a two-story, rear house
at 420 West 98th Street. During a search of the rear house, Sergeant
Andrew Moody recovered spent nine millimeters casing from a dresser on the
ground floor where Carranza and Adrian lived.
One casing was marked “S and B.â€
Detective Teubert recovered the shirt worn by the second shooter in a
dryer in the backyard.
Andre M. knew Carranza and lived in
the neighborhood around 98th and Figueroa.
On January 17, 2011,
at 9:00 p.m., Andre M. heard
gunshots. Soon after, while taking a
shower, he heard Carranza through the bathroom window call out “Dre,†which is
Andre M.’s nickname, and then ask, “Can I stash something?†Andre M. looked out the window and said,
“Yeah, whatever.†The next morning,
Andre M. went to a shed to feed his dogs.
He saw a gun inside the shed.
When he was interviewed by the
police, Andre M. said that the person outside the window said “it was Luis†and
asked to “stash†something. Andre M.
told the person to “put it in the shed.â€
The person outside said, “It’s locked,†but Andre M. told him the window
was open. Andre M. took the police to
Carranza’s house and said “that’s where Luis lives.â€
Criminalist
Allison Manfreda (Manfreda) opined that the six spent shell casings found near
the passenger side of Garcia’s vehicle, another spent shell casing found inside
Garcia’s vehicle under the front passenger seat, and the spent shell casings
recovered from Adrian’s dresser drawer were fired from the gun recovered from
Andre M.’s shed, a semi-automatic Glock nine-millimeter pistol. As to a bullet and three pieces of a bullet
jacket removed from Vera’s body by the coroner, Manfreda testified that it was
possible that they had been fired from the Glock.
The evidence
establishing Cota as a shooter
At the hospital, Loza described one of the suspects who
shot at the car as a male Hispanic wearing a yellow and blue shirt and a
cap. Loza did not identify anyone from
photo line-ups. At the preliminary
hearing and trial, however, Loza identified Cota as a shooter.
While on
the stand at trial, Garcia and Loza were shown a long sleeve, pullover shirt
marked as an exhibit. They identified it
as the same shirt that the second shooter wore on the night of the
shooting. Garcia identified Cota as the
second man with Carranza in the surveillance video from the OK Market. On the video, Cota was wearing the same shirt
that Garcia had seen the second shooter wearing.
Security officer Michael Calloway
(Calloway), an ex-police officer, heard gunshots. As he drove to the intersection of Figueroa
and 98th Street, he saw a
male Hispanic cross Figueroa in a “fast trot†from west to east. The male had to jump back to avoid being hit
by Calloway’s car. In doing so, the male
turned his face to the side, as if hiding it.
Calloway followed the male to 420 West 98th
Street and watched him walk down the driveway to
the rear of the house. Later, the male
reemerged after having changed clothes, and approached a parked Ford
Explorer. Calloway asked who had walked
to the back. The male said that no one
had. Calloway then asked where the male
was going, and he said that he was not going anywhere. The male went back into the house and
Calloway alerted the police. They
arrived and ordered the occupants of the house to come outside. Cota was one of the people who exited the
house. Detective Teubert recovered the
shirt worn by the second shooter in a dryer located in the backyard.
Sergeant Moody obtained buccal
swabs from Carranza, Cota, Andre M., and Adrian. Cota’s DNA profile matched the major DNA
profile developed from the shirt worn by the second shooter.
A neighbor discovered a gun in a
yard near the back of 420 West 98th Street.
The gun was a nine-millimeter semi-automatic High Point. It had a “feedway stoppage,†meaning that a
casing that was supposed to have been ejected after having been fired failed to
eject and was stuck inside the chamber.
There were three bullets and one spent casing inside the gun. One of the bullets was marked “Fiocchi,†one was
marked “PMC†and the last was marked “FC.â€
The spent casing was marked “FC.â€
Manfreda, the criminalist, opined that the High Point pistol fired a
spent bullet and four spent shell casings found outside on the front driver’s
side of the vehicle.
Adrian’s arrest and
release
Adrian was
one of the people who came out of 420 West 98th Street.
person he had followed from the crime scene to the house after hearing
gunshots. Calloway identified Adrian as
that person. The police arrested
Adrian. At the time, Adrian had four
different types of bullets in his pocket for a nine-millimeter gun. Respectively, the bullets were labeled
“Winchester,†“Spear,†“S and B,†and “I.â€
The police located shell casings for nine-millimeter bullets in Adrian’s
dresser drawer. Subsequently, the police
reviewed the video from the OK Market and determined that the second person
with Carranza was not Adrian. Based on
witness statements and the OK Market video, Adrian was eventually released.
The
gang exert
A gang expert testified regarding
the gang allegations.
name="_ftnref2" title="">[2]
Defense
Carranza testified that he has
several “South Central L.A.†tattoos that represent the place he grew up. He lived in the upstairs portion of the back
house at 420 West 98th Street with his wife and three children. Adrian lived downstairs with his wife and
five children. Carranza was 12 or 13
years old when he met Garcia—who was five years older—at school. Garcia supplied marijuana and they would
smoke together.
In sixth grade, Carranza was in a
tagging crew called “No Control†or “NC.â€
Garcia was from a gang called “Krip Locals†or “Krazy Latinos†or
“KLS.†The members of No Control were
supposed to be recruited into KLS during the sixth, seventh and eighth
grades. Carranza refused to be recruited
because he “didn’t want to start banging.â€
While in No Control, Carranza had
cousins who were in the 18th Street gang and began hanging out with them. Garcia did not like it, and Carranza and
Garcia began “bumping heads.†When he
was 16 years old, Carranza was arrested for tagging. His mother reacted by sending him to
Atlanta. He stayed for three months.
While there, he was concerned about Adrian being pushed into the 18th Street
gang. As a result, Carranza advised Adrian
to stay away from gangs. But Adrian did
not follow Carranza’s advice. Adrian was
beaten up by KLS. Then he got kicked out
of high school, put on probation and sent to a camp.
When Carranza returned from
Atlanta, he started working. His
girlfriend got pregnant. He had no more
interactions with the 18th Street gang.
When he was arrested for the shooting, Carranza had a job working at a
place that provided daycare and boarding for pets. Carranza denied being a member of the 18th
Street gang at the time of the shooting.
Carranza knew Cota, but they were not good friends. Cota was closer to Adrian.
Carranza thought that Adrian hung
out with members of the 18th Street gang but was not sure. Garcia told Carranza that Garcia and Adrian
had been “bumping heads†and had a “beef.â€
On the day of the shooting,
Carranza was working around the house, and Cota and Adrian helped clean the
garage. Later, Carranza and Cota bought
beer at a liquor store. Cota was wearing
a yellow shirt at the time. During that
trip, Carranza saw an unknown man who also was wearing a yellow shirt. He had curly hair and a cap. Like a pimp, the unknown man was always
present in the area. Around 9:00 p.m.,
by himself, Carranza headed back to the liquor store for more beer. He saw the unknown man again. Before going into the store, Carranza
urinated in the parking lot. He heard
gunshots, looked up and saw the unknown man in the yellow shirt running. At that point, Carranza ran up 98th Street
toward Hoover Street. He called Adrian
to come pick him up because of the gunshots but did not get an answer. Later, Carranza went back toward his house
and watched the police from the corner of 98th Street. Soon after, he was arrested. He did not know how the yellow shirt ended up
in his backyard dryer.
After Adrian was released, he was
deported to Mexico. At the time of
trial, he was still in Mexico.
The convictions
Following
trial, the jury convicted Carranza and Cota of murder in the first degree, in
violation of Penal Code section 187, subdivision (a),
and attempted premeditated, willful and deliberate murder in violation of
sections 664, subdivision (a) and 187, subdivision (a). The jury further found that the crimes were
committed for the benefit of a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C), and that Carranza and Cota personally
discharged firearms within the meaning of section 12022.53, subdivisions (b)
through (d).
The sentence; the
restitution orders
Carranza and Cota were sentenced to
state prison for a total of 130 years
to life. Among other fines, fees, and
assessments, they were ordered to make restitution to the victims pursuant to
section 1202.4, subdivision (f) by paying $10,437.80, plus 10 percent interest
to the state victim compensation board and $413.11, plus 10 percent interest to
Rogacion Vera Varela. Also, the trial
court imposed a $240 restitution fine pursuant to section 1202.4, subdivision
(b).
These appeals followed.
DISCUSSION
I. The Third Party Culpability Defense.
Carranza
contends that the trial court erred when it precluded third party culpability
evidence regarding Adrian based on relevance and hearsay.
We
disagree.
A. The applicable law; standard of review.
Third-party culpability evidence is
admissible if it is capable of raising a reasonable doubt as to the defendant’s
guilt. But evidence of a third party’s
mere motive or opportunity to commit the crime does not “raise a reasonable
doubt about a defendant’s guilt: there
must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime.†(People
v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) Hearsay “is evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered
to prove the truth of the matter stated.â€
(Evid. Code, § 1200, subd. (a).)
Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).) We review the exclusion of third party
culpability evidence and hearsay for an abuse of discretion. (People
v. Lewis (2001) 26 Cal.4th 334, 372–373; People v. Cudjo (1993) 6 Cal.4th 585, 607; Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154,
168.) State law error is reviewed under
836 to determine whether “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.â€
The federal Constitution guarantees
a criminal defendant a meaningful opportunity to present a complete
defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690.) If that right has been violated, we must
reverse a defendant’s conviction unless the constitutional error was harmless
beyond a reasonable doubt. (
24 (Chapman).)
B.
The ruling.
Before
Detective Teubert was called by the People as their last witness, the trial
court asked whether there were any admissibility issues pursuant to Evidence
Code section 402, subdivision (b).
Carranza’s counsel, Samuel Ziselman, stated that he planned to
cross-examine Detective Teubert about other suspects that the police had, one
of those being Adrian. There was a
videotaped interview of Adrian conducted by Detective Teubert and Sergeant
Moody. Mr. Ziselman intended to show the
first portion of the interview—about three minutes—to the jury.
The trial
court inquired about the relevance of the interview. Mr. Ziselman stated the he wanted to ask
why the police suspected Adrian. In
addition, counsel wanted to show and ask about Adrian’s display of gang
tattoos. Counsel for Cota, Michael
Clark, joined in the argument made by Mr. Ziselman. The prosecutor objected based on relevance
and hearsay. In response to the
objection, the trial court stated that the issue fell under
not going to come in, in this trial, unless there is more of a showing than
what you’ve said. [¶] Mere motive and opportunity is not enough. There has to be some direct link to that
individual, as far as the murder. Just
because someone has been arrested for a crime and then released is not
enough. [¶] So if you want to put forward more of an argument
than that, I’d be willing to listen.â€
The
following colloquy ensued.
“Mr. Ziselman: It’s not a question of just the fact he’s
been arrested. Arrested is neither here
nor there, and that’s not an indication of the facts. They had plausible reasons to believe that
[Adrian] had participated in the crime.
There was evidence at the time he was pulled out of the location,
where—there are witnesses that have been tendered by the prosecution that he
ran into—he was identified by one of the witnesses they put in. [¶] In
addition to that, we’ve heard testimony of nine millimeter bullets. We know from testimony and from physical
evidence that this—that these things were found upon [Adrian] shortly after the
shooting, when he was extracted by law enforcement. [¶] In
addition to that, we have 18th Street [gang] allegations in this matter. I believe there is good reason to believe
that [Adrian] is an 18th Street gang member.â€
“The [trial] court: No doubt about that. [¶] I
think that just from what we’ve heard, I think that [it is] proper to presume
that he is 18th Street. There was also
the collection of the two live rounds, multiple live rounds from his pants
pocket. But the simple fact of the
matter is that you have witnesses here who not only do not identify [Adrian] as
being involved, you have the first witness in this entire case, Mr. Garcia, who
is one of the victims, who states that [Adrian] was not a part of this
crime. [¶] Regardless of the investigation that was done
by the detectives and not to disparage the detectives, anyone can be
wrong. This is a situation where they
took it, whatever the filing situation was.
But it does not meet the threshold under [Hall] and its progenies, and the court will not allow anything
going to any conversation with [Adrian] or as to [Adrian] being one of the
shooters in this case.
“Mr.
Ziselman: Understood.
“The
[trial] court: Okay. But I’ve made a record, and I think you have
also—so if I’m wrong and there is an appellate record, we’ve made that. [¶]
. . . [¶] All right. So with that, is there anything further?
“Mr.
Ziselman: Just one for the
purpose of clarity.
“The
[trial] court: Sure.
“Mr. Ziselman: No references to [Adrian] as having—when
speaking to Detective Teubert, regarding having—the possibility of having
committed a crime, or you’re just excluding the video.
“The
[trial] court: As to anything as to
him being involved in the crime at all. . . . Now,
there is going to be some—there may be some touching of [Adrian], because let’s
be honest here, we’ve heard a lot about him and such. But as to any interview, first of all, it’s
hearsay. But, second of all, there
is—again, I think this comes under third party culpability, and the case law is
very specific as to that. [¶] All right.
“Mr. Ziselman: Understood.â€
C. Scope of the ruling.
Carranza argues that the trial court
precluded third party culpability as a defense theory of acquittal. That contention is belied by the record.
The only issue presented to the
trial court for a ruling was the admissibility of Detective Teubert’s
anticipated cross-examination testimony about his interview with Adrian, three
video minutes of the interview, Adrian’s display of gang tattoos, and the
reasons why the police thought Adrian was a suspect in the shooting. The trial court precluded the defense from
going into those areas with Detective Teubert, or from showing three minutes of
the video. At no time did the trial
court preclude the defense from eliciting third party culpability evidence from
other witnesses called by the People, or from any witnesses that the defense
offered. Nor did the trial court preclude
the defense from arguing third party culpability to the jury.
D. Admissibility of Detective Teubert’s
anticipated testimony and the video.
Detective Teubert’s personal
opinion about Adrian’s involvement in the shooting does not qualify for
admissibility under Hall because it
would not create a reasonable doubt as to Carranza’s guilt. Even if Adrian had been involved in some
fashion, there is no reason to conclude that Carranza would therefore be
excluded as a shooter. There was no
offer of proof that Adrian and Carranza looked alike or that Garcia
misidentified Carranza as a shooter. Nor
was there an explanation as to how Detective Teubert’s opinion would nullify
either the OK Market video placing Carranza near the crime scene with the
second shooter, Cota, or the testimony of Andre M. establishing that Carranza
stashed the Glock in Andre M.’s shed. In
addition to the foregoing, Detective Teubert’s opinion regarding Adrian’s
potential guilt is not direct or circumstantial evidence linking Adrian to the
crime.
We note that the trial court’s
ruling had the effect of precluding Detective Teubert from testifying about
statements made by third persons insofar as they would have been offered to
prove the truth of the matters stated.
That aspect of the ruling was proper.
The statements of third persons qualified as hearsay, and Mr. Ziselman
advanced no argument as to why a hearsay exception applied. Indeed, he did not explain what statements by
third persons he might have wished to elicit.
It is supposable that if Detective Teubert at one point believed Adrian
was involved in the shooting, his opinion was based on Calloway’s
identification of Adrian as a person who was trotting away from the crime scene
while trying to hide his face, the bullets in Adrian’s pocket and the spent
casings from his dresser drawer. Mr.
Ziselman did not explain why that evidence needed any confirmation by
hearsay.
The only remaining issue is
Adrian’s gang tattoos witnessed by Detective Teubert and presumably on display
in the videotaped interview, and that is the evidence that Carranza focuses on
in his arguments.
Carranza
argues that evidence of Adrian’s gang tattoos—and therefore his gang
affiliation—would have suggested that he killed Vera when that evidence was
coupled with the gang statements of the shooters, the bullets found in Adrian’s
pocket, the shell casings found in his dresser drawer and Calloway’s
testimony. But, at most, this evidence
suggests that Adrian may have had some nonspecific connection to the crime. More importantly, this evidence does not tend
to preclude Carranza as being one of the two shooters. (People
v. Brady (2010) 50 Cal.4th 547, 559, fn. 5 [third party culpability
evidence was speculative because it did not create “a lingering doubt by suggesting
someone other than defendant was responsible for the murderâ€].) Thus, we conclude that the trial court did
not err.
Cota joins
in Carranza’s argument. Because Carranza
argues that the evidence shows that Adrian, and not Carranza, killed Vera, the
argument does not inure to Cota’s benefit.
In any event, even if Adrian was the first shooter, that does not
exclude Cota as the second shooter.
E. Harmless error.
Supposing
that the trial court committed error, the error was harmless under either the
state or federal standard.
The evidence of guilt was
overwhelming. Garcia identified Carranza
as a shooter and Loza identified Cota as a shooter. Both Garcia and Loza identified the yellow
and dark shirt worn by the second shooter, and that shirt contained Cota’s
DNA. The video from the OK Market showed
Carranza and Cota approaching the market soon after the shooting occurred, and
Cota was wearing the shirt identified as the one worn by the second shooter. Andre M.’s testimony established that Carranza
stashed the Glock in Andre M.’s shed.
The police located Cota’s shirt in the dryer in the backyard of 420 West
98th Street. Cota was at 420 West 98th
Street on the night of the shooting when the police told the occupants to come
outside. The High Point was discovered
in a nearby backyard. The ballistics
evidence established that the Glock and High Point fired bullets at the scene
of the crime. The shooters made gang statements
regarding the 18th Street gang, and the evidence favorable to the prosecution
established that both Carranza and Cota were members of that gang. All of this evidence strongly established
that Carranza and Cota were the shooters.
Though Carranza suggests that the
jury was deprived of third party culpability evidence, that is not true. The jury also heard Calloway’s testimony that
Adrian was the person he had followed to 420 West 98th Street. Also, the jury heard that Adrian had
nine-millimeter bullets in his pocket, and that spent shell casings fired by
the Glock were recovered from Adrian’s dresser drawer. Finally, the jury heard Carranza’s testimony
in which he stated that he believed that Adrian hung out with the 18th Street
gang members and that Adrian had a “beef†with Garcia. Thus, the jury essentially heard all the
evidence necessary to conclude that Adrian was an 18th Street gang member with
opportunity and a motive to shoot at Garcia.
Despite all that, the jury nonetheless concluded that Carranza and Cota
were the shooters. Evidence of Adrian’s
tattoos and gang affiliation would not have changed the verdicts for two
reason. First, the evidence of
Carranza’s and Cota’s guilt was strong and the evidence that Adrian was one of
the shooters was speculative. Second, as
acknowledged by Carranza, the defense did not argue third party culpability to
the jury.
II. The Certified Minute Orders; the Gang Expert.
Cota contends that his right to
confrontation was violated when the trial court allowed the prosecutor to
present certified minute orders of convictions to prove predicate offenses by
the 18th Street gang members. But those
certified minute orders were nontestimonial in nature. As a result, they do not give rise to
confrontation clause concerns under the current state of the law.
Next, Cota argues that he was denied
his right to confrontation when the prosecutor relied on the gang expert’s
testimony to prove motive, intent and knowledge of the shooting, and also to
prove the gang motive behind the shooting, the 18th Street gang’s primary
activities, and the 18th Street gang’s predicate offenses for the gang
allegation. According to Cota, the gang
expert’s testimony was supported only by testimonial hearsay. We conclude that even if a gang expert is not
entitled to rely on testimonial hearsay when forming an opinion, there is no
basis to reverse because the record fails to establish that the foundation for
the gang expert’s various opinions was impermissible.
A. The
applicable law; standard of review.
Any person
who is convicted of a felony committed for the benefit of, at the direction of,
or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members, is subject
to a sentence enhancement. (§ 186.22,
subd. (b)(1).) But first, “the
prosecution must prove that the gang (1) is an ongoing association of three or
more persons with a common name or common identifying sign or symbol; (2) has
as one of its primary activities the commission of one or more of the criminal
acts enumerated in the statute; and (3) includes members who either
individually or collectively have engaged in a ‘pattern of criminal gang
activity’ by committing, attempting to commit, or soliciting
(the so-called ‘predicate offenses’) during the statutorily defined
period. [Citations.]†(People
v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley);
§ 186.22, subds. (e) & (f).)
An expert may offer an opinion if
the subject is sufficiently beyond common experience and the opinion would
assist the trier of fact. (Evid. Code, §
801, subd. (a).)
In general, the testimony of a gang expert meets this
test. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Beyond the foregoing, expert opinion must be
“[b]ased on matter (including his special knowledge, skill, experience,
training, and education) perceived by or personally known to the witness or
made known to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates[.]†(Evid. Code, § 801, subd. (b).) Under the Evidence Code, an expert may rely
on hearsay such as conversations with gang members and information gained from
law enforcement colleagues and agencies.
(People v. Thomas (2005) 130
Cal.App.4th 1202, 1209–1210 (Thomas).) But the ability of an expert to rely on
hearsay without implicating the confrontation clause concerns is in flux.
As is relevant here, there are two
broad categories of hearsay evidence:
testimonial and nontestimonial.
Not long ago, the United States Supreme Court explained the distinction
in the context of police questioning.
“Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.†(Davis
v. Washington (2006) 547 U.S. 813, 822; Michigan
v. Bryant (2011) 562 U.S. ___ [131 S.Ct. 1143, 1155, 179 L.Ed.2d 93] (
in which the [confrontation clause] restricts the introduction of out-of-court
statements are those in which state actors are involved in a formal,
out-of-court interrogation of a witness to obtain evidence for trialâ€].)
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the court held that when nontestimonial hearsay is at
issue, the confrontation clause does not bar it. Nor does the confrontation clause “bar the
use of testimonial statements for purposes other than establishing the truth of
the matter asserted. [Citation.]†(Id.
at pp. 59–60, fn. 9.) But
testimonial hearsay to prove the truth of the matter asserted is not
permissible unless the declarant is unavailable and the accused has had a prior
opportunity to cross-examine the declarant.
(Id. at pp. 59–60,
fn. 9, p. 68; Thomas,
p. 1208.) The Thomas court stated that “Crawford
does not undermine the established rule that experts can testify to their
opinions on relevant matters, and relate the information and sources upon which
they rely in forming those opinions.
This is so because an expert is subject to cross-examination about his
or her opinions and additionally, the materials on which the expert bases his
or her opinion are not elicited for the truth of their contents; they are
examined to assess the weight of the expert’s opinion.†(Thomas,
supra, 130 Cal.App.4th at
p. 1210; People v. Sisneros
(2009) 174 Cal.App.4th 142, 153–154 [citing Thomas
with approval]; People v. Hill (2011)
191 Cal.App.4th 1104, 1127–1128 [the court reluctantly followed
precedent of Gardeley].)
Subsequent developments in the law
require us to examine the continuing precedential value of the
In Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221, 183
L.Ed.2d 89] (Williams), “the
prosecution called an expert who testified that a DNA profile produced by an
outside laboratory . . . matched a profile produced by the state
police lab using a sample of the [defendant’s] blood.†(Id.
at p. 2227.) In the plurality
opinion, Justice Alito stated that “[o]ut-of-court statements that are related
by the expert solely for the purpose of explaining the assumptions on which
[an] opinion rests are not offered for their truth and thus fall outside the
scope of the Confrontation Clause.†(
confrontation clause concerns were not implicated because the profile was “very
different from the sort of extrajudicial statements, such as affidavits,
depositions, prior testimony, and confessions, that the Confrontation Clause
was originally understood to reach.†(
suspect was identified and it was “sought not for the purpose of obtaining
evidence to be used against [the defendant], who was not even under suspicion
at the time, but for the purpose of finding a rapist who was on the loose.†(Ibid.) According to Justice Alito, the profile was
not “inherently inculpatory.†(
Also, the use of DNA evidence to exonerate people who have been
wrongfully accused or convicted is well known.
“If DNA profiles could not be introduced without calling the technicians
who participated in the preparation of the profile, economic pressures would
encourage prosecutors to forgo DNA testing and rely instead on older forms of
evidence, such as eyewitness identification, that are less reliable. [Citation.]
The Confrontation Clause does not mandate such an undesirable
development. This conclusion will not
prejudice any defendant who really wishes to probe the reliability of the DNA
testing done in a particular case because those who participated in the testing
may always be subpoenaed by the defense and questioned at
trial.†(Ibid.)
Justice Thomas also concluded that
the confrontation clause was not violated, but he offered a separate,
concurring analysis. He concluded that
the disclosure of the outside laboratory’s out-of-court statements by means of
the expert’s testimony did not violate the confrontation clause because it
“lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’â€
for purposes of the confrontation clause.
(Williams,
opn. of Thomas, J.).) He opined that
“there was no plausible reason for the introduction of [the] statements other
than to establish their truth.†(
dissent authored by Justice Kagan and rejected the idea that the expert’s
testimony was not offered for its truth.
(Id. at pp. 2265, 2268
(dis. opn. of Kagan, J.).) Due to
Justice Thomas’s concurring opinion, Justice Kagen asserted that “[f]ive
justices specifically reject every aspect of [the plurality’s] reasoning and
every paragraph of its explication.†(
J.).)
After Williams, the California Supreme Court analyzed
Rutterschmidt (2012) 55 Cal.4th 650 (Rutterschmidt). All three cases involved witnesses who
testified about technical reports that they did not prepare. (Lopez,
supra, 55 Cal.4th at p. 573 [a
laboratory analyst testified regarding a blood-alcohol level report prepared by
a colleague]; Dungo,
pathologist testified regarding the condition of the victim’s body as recorded
in an autopsy report prepared by another pathologist]; Rutterschmidt, supra, 55
Cal.4th at p. 659 [a laboratory director testified that his analysts had
detected the presence of alcohol and sedatives in the victim’s blood].) In Lopez,
the court found no confrontation clause violation because the critical portions
of the report regarding the defendant’s blood-alcohol level were not made with
“the requisite degree of formality or solemnity to be considered
testimonial.†(Lopez, supra, 55 Cal.4th
at p. 582.) The
confrontation clause violation because the “criminal investigation was not the
description of the condition of [the victim’s] body; it was only one of several
purposes. . . . The autopsy report itself was simply
an official explanation of an unusual death, and such official records are
ordinarily not testimonial.†(
The confrontation clause issue in Rutterschmidt
was not reached because the court concluded that the evidence of guilt was
overwhelming and any error was harmless beyond a reasonable doubt. (Rutterschmidt,
supra, 55 Cal.4th at
p. 661.)
Our Supreme Court synthesized the
fractured Williams opinion and
explained that “all nine high court justices agree that an out-of-court
statement is testimonial only if its primary purpose pertains in some fashion
to a criminal prosecution.†(
But this rule sheds no light on whether a gang expert can provide an
opinion that is based on hundreds of different bits of information, especially
given the reality that gang experts often rely on a mixture of personal
knowledge, nontestimonial hearsay and testimonial hearsay. In other words, a gang expert’s opinion is
likely based at least in part on matter that raises no confrontation clause
concerns. Moreover, there is a practical
distinction between a scientific or medical expert relying on a report versus a
gang expert relying on multiple sources.
With respect to a report involving DNA, blood-alcohol levels or an
autopsy, the prosecution could simply call the person who prepared the report
to testify. But in a gang case, it is a
safe assumption that the prosecution could not call all the sources of
testimonial hearsay to the stand to lay the foundation for the expert’s
opinion. Moreover, if a defense attorney
must inquire into every bit of information relied upon by a gang expert, and if
a trial court must then determine whether the expert’s opinion is adequately
supported by personal knowledge and nontestimonial hearsay, every gang
allegation would result in a time-consuming trial within a trial. Because of these considerations, it is not
clear whether our Supreme Court will disapprove of the Thomas line of cases.
All that said, for purposes of this
opinion, we will assume that the gang expert was not entitled to rely on
testimonial hearsay.
Whether the trial court violated
Cota’s right to confrontation is a constitutional issue subject to our de novo
review. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.) Error is subject to Chapman analysis. (
B. The evidence.
The trial court admitted into
evidence two certified minutes orders.
They showed that Juan Pablo Murillo (Murillo) and Leslie Ivon Aguirre
(Aguirre) were convicted of predicate offenses.
The People called Officer Mario
Cardona of the Los Angeles Police Department as an expert on the 18th Street
gang. At the time of trial, he had been
a police officer for more than 14 and a half years, and had been working in the
gang unit with the 77th Division for five years.
Officer Cardona testified that the
primary activities of the 18th Street gang included battery, vandalism,
robberies, narcotics sales, possession of weapons, attempted murders, and
murders. He also testified that Murillo
and Aguirre are members of the 18th Street gang.
The prosecutor asked Officer
Cardona how he formed the opinion that the 18th Street gang was a criminal
street gang. He testified that he had
done hundreds of investigations pertaining to suspects and victims in that
gang; interacted with witnesses, suspects and confidential informants; listened
to wire taps pertaining to the gang; and collected information on gang members
with whom he had contact. As a result,
Officer Cardona was familiar with the way the 18th Street gang members dressed,
the type of tattoos they have, their culture and their slang. It was his job to know “who their associates
were, who their parents [were], where their residence[s] were, what type of
cars they drove, their girlfriends, [and] their wives[.]†He reviewed reports regarding other cases and
investigations regarding the gang.
Officer Cardona testified that in
gang terminology, “putting in work†means committing crimes or going on
missions. When a gang member puts in
work, his reputation is bolstered. A
gang member yells out his gang affiliation before a shooting to promote the
gang, let the victims know whose turf they are in and intimidate the community. If a community is intimidated, no one will
call the police when there is a crime.
That benefits the gang.
Officer Cardona was asked a
hypothetical question based on the facts of the shooting in the case. He opined that the crime was committed for
the benefit of a criminal street gang.
As a gang officer, Officer Cardona
had come into contact with Cota on various occasions. Cota had several gang-related tattoos,
including an “E†for “18th Street†on the back of his head, the number “18†on
his chest, “BEST†on his back, which stands for Barrio 18th Street, and “18th
Street†tattooed across his knuckles.
Officer Cardona opined that Cota was an 18th Street gang member, based
on Cota’s self-admission to Officer Cardona during numerous contacts, Cota’s
association with other admitted gang members, the gang areas where Officer
Cardona has stopped Cota, and his tattoos.
C.
Motive.
Cota argues that Officer Cardona’s
testimony regarding the possible motive for a gang member to commit a murder
was based on classic testimonial hearsay—police interviews with suspected gang
members and informants, often in the form of police-initiated field
detentions.
To establish his assertions, Cota
cites the following testimony: Officer
Cardona graduated from the Los Angeles Police Department Academy where he
received block instruction on gangs. He
worked in a gang unit for five years and twice attended Cal Gang Investigators
Association seminars. In addition, he
received training from senior detectives and read books. Students doing their thesis on gangs have
interviewed him. Time Magazine wrote
about Detective Cardona’s unit after doing a ride-a-long. He interviewed gang members who have written
books, and undercover officers who have written books. Beyond that, Officer Cardona testified as a
gang expert regarding five different gangs.
None of this testimony establishes
that Officer Cardona formed an opinion about the motive for the shooting by
relying on hearsay statements made for the primary purpose of a criminal
prosecution. As a result, we perceive no
confrontation clause issues. Indeed,
based on the cited evidence, much of Officer Cardona’s knowledge about gangs
comes from his training, reading and interviews with people who have written
books, none of which can be characterized as testimonial hearsay. And later in his testimony, he stated that he
has listened to wiretaps. We fail to see
how statements on a wiretap can qualify as testimonial insofar as the
statements were not responsive to police interrogation and the declarants had
no idea that their statements were being recorded. Also, Officer Cardona said that he spoke to
various people—confidential informants, gang members, fellow officers—but the
context of those conversations is not revealed in the record. We therefore cannot determine whether any
related statements were testimonial.
Finally, when Officer Cardona
testified regarding the reasons why gang members put in work by committing
crimes, and when he testified that a hypothetical shooting based on the facts
of the case would benefit a gang, he was not asked to lay a foundation. Thus, we do not have a sufficient record for
evaluating whether he relied on testimonial hearsay, or for evaluating whether
his opinion would have been supported by nontestimonial hearsay and personal
knowledge.
D.
Primary activities.
Officer Cardona opined regarding
the 18th Street gang’s primary activities.
Cota tells us that it is unclear what the foundation for his opinion
is. However, per Cota, Officer Cardona
testified that: Most of his information
and expertise on gangs came from investigating gang crimes, reviewing
investigation reports, and talking to gang members. Also, he gathered information from
informants, as well as from law enforcement agencies and other police
officers.
Cota refers us to Officer Cardona’s
testimony regarding his background and training, and also to his statements
that the 18th Street gang is a criminal street gang; he has done several
hundred investigations that pertain to the 18th Street gang; he has “sat with
witnesses;†he has “sat in with suspects, interviews, also confidential
informants;†“I’ve listened to wire taps regarding this gang;†“I have gathered
information on its gang members that I’ve come in contact with;†“I am familiar
with the way they dress, the type of tattoos that they don on their body, the
culture and slang;†and “[i]t was my job to know†their families and who they
associated or socialized with. Officer
Cardona spoke to suspects and victims he believed were the 18th Street gang
members, and he reviewed reports regarding other investigations into the
gang. The 18th Street gang has common
signs or symbols. He testified regarding
the gang’s primary activities and gang territory.
None of this testimony establishes
whether Officer Cardona’s opinion regarding the 18th Street gang comes from
testimonial or nontestimonial hearsay, or whether it comes from personal
knowledge.
E.
Aguirre’s membership in the 18th Street gang.
According
to Cota, Officer Cardona’s opinion that Aguirre was a member of the 18th Street
gang was based on testimonial hearsay.
That assertion is not established by the record. Officer Cardona testified that he was familiar
with Aguirre and believed her to be a member of the 18th Street gang. Though he stated that he spoke to other
officers about Aguirre, at no point did Officer Cardona state the basis for his
opinion. For all we know, his opinion
could be sufficiently based on facts that Officer Cardona witnessed, such as
Aguirre’s tattoos, her use of gang signs, her presence in gang strongholds,
etc. As a result, we cannot conclude
that Officer Cardona’s opinion violated the confrontation clause.
F. Predicate offenses.
Cota
complains that the certified minutes
orders of the convictions of Aguirre and Murillo were testimonial. This argument was waived because Cota did not
object to the certified minute orders. (
832, 837 (Larson).) In any event, the minute orders were not
prepared to establish or prove a fact at trial.
Instead, they were prepared for the nontestimonial, administrative
purpose of documenting criminal proceedings as a matter of court business and
public record. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 324 [documents
created for the administration of an entity’s affairs and not for the purpose
of establishing or proving some fact at trial are not testimonial];
801, 803 [copies of prison packets are nontestimonial and therefore do not
implicate the confrontation clause]; People
v. Moreno (2011) 192 Cal.App.4th 692, 710–711 [same]; Larson, supra, 194
Cal.App.4th at pp. 836–837 [certified records of prior convictions do not
violate the confrontation clause].)
Consequently, we easily conclude that the certified minute orders did
not raise confrontation clause concerns.
Officer
Cardona testified that he spoke to an Officer Hernandez about Aguirre’s
conviction for robbery and read Officer Hernandez’s report. As Cota suggests, any information Officer
Cardona obtained from Officer Hernandez might be testimonial hearsay. But Officer Cardona’s reliance on it to
establish a predicate offense was harmless error under Chapman. The certified
minute order of Aguirre’s conviction also established a predicate offense.
III. The Restitution Orders.
According
to Cota, he had a right to a jury trial on the facts pertinent to the victim
restitution orders under section 1202.4, subdivision (f). We disagree.
Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (
can impose based on facts reflected in the jury verdict or admitted by the
defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 (
rule has been extended to criminal fines.
(Southern Union Co. v. United
States (2012) 567 U.S. ___ [132 S.Ct. 2344, 2348–2349, 183 L.Ed.2d. 318] (
Lower federal courts have held that
Apprendi does not apply to
restitution orders. (
700 F.3d at p. 732; United States v.
Wolfe (7th Cir. 2012) 701 F.3d 1206, 1217; U.S. v. Wooten (10th Cir. 2004) 377 F.3d 1134, 1144,
fn. 1.) So, too, has the California
Court of Appeal. In People v. Pangan (2013) 213 Cal.App.4th 574, 585, the court
held: “[N]either Southern Union, Apprendi
nor Blakely have any application to
direct victim restitution, because direct victim restitution is not a criminal
penalty. As explained in
1049, 1054, direct victim restitution is a substitute for a civil remedy so
that victims of crime do not need to file separate civil suits.†Prior to that, People v. Millard (2009) 175 Cal.App.4th 7, 35 held that victim
restitution does not constitute increased punishment for a crime and therefore
does not trigger the right to a jury trial.
Despite the tide of authority
against him, Cota argues that the trial court violated Apprendi/Blakely/
restitution orders that increased his penalty beyond the statutory
maximum. In essence, Cota asks us to
swim against the tide. We decline. In our view, the federal and homegrown cases
declining to apply Apprendi to
restitution hearings were properly decided.
DISPOSITION
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
FERNS
name="_ftn1" title="">[1]
Adrian was sometimes referred to as Adrian Lazaro.
name="_ftn2" title="">[2]
summarize the substance of this testimony in part IIB of the Discussion.
