P. v. Contreras
Filed 1/29/13 P. v. Contreras CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
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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.
ESEQUIEL CONTRERAS et al.,
Defendants and Appellants.
B233109
(Los Angeles
County
Super. Ct.
No. TA107579)
APPEALS
from judgments of the Superior Court
of
County.
Larry Knupp, Judge.
Affirmed.
Donna L.
Harris, under appointment by the Court of Appeal, for Defendant and Appellant
Esequiel Contreras.
Paul
Richard Peters and Lawrence R.
Young for Defendant and Appellant Victor M. Zermeno.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
>
A jury
found defendants Esequiel Contreras and Victor M. Zermeno guilty of
Penal Code section 187, subdivision (a).
for the benefit of, at the direction of, and in association with a criminal
street gang, within the meaning of section 186.22, subdivision (b)(1)(C). In Contreras’s case the jury found that a
principal personally and intentionally discharged a firearm in the commission
of the murder, causing great bodily injury or death within the meaning of
section 12022.53, subdivisions (b), (c), and (e)(1). With respect to Zermeno, the jury found that,
in the commission of the murder, Zermeno personally and intentionally
discharged a firearm causing great bodily
meaning of section 12022.53, subdivisions (b), (c) and (d). The trial court sentenced both Contreras and
Zermeno to state prison for 25 years to life plus 25 years on the firearm use
enhancement.
Zermeno
appeals on the grounds that: (1) there
was insufficient evidence that he was guilty of first degree murder; and (2)
the testimony of the gang expert was hearsay and should have been
suppressed. Contreras appeals on the
ground that the trial court’s erroneous admission of hearsay evidence of a jail
phone call infringed upon his right to due process and a fair trial. Contreras also joins in the arguments made by
Zermeno to the extent those arguments apply to him and affect the judgment in
his case. (Cal. Rules of Court, rule
8.200(a)(5).)
FACTS
Prosecution Evidence
In March
2008, a prosecutor from the Los Angeles
County district attorney’s hardcore
gang unit in Compton was assigned
to a murder case in which Kenny Taylor, an African-American, was the
victim. In May 2008, a
resulted in Richard Dominguez and Ubaldo Lozano
murder. Raul Gonzales, the shooting
victim in the instant case, testified at that preliminary hearing. Gonzales identified Dominguez and Ubaldo as
the shooters.
Karla
Briones worked at the Nueva Italia Bar in Compton
on September 6, 2008, the
night of Gonzales’s shooting. She
remembered Gonzales entering and exiting the bar at least once that night after
he first arrived. At one point, Briones
heard the sound of firecrackers and saw Gonzales enter the bar and fall on the
floor.
Deputy
Sheriff Timothy Lee responded to an “illegal shooting†call on September 6, 2008, at 1:16 a.m. at the Nueva Italia Bar. He observed the victim lying face-up on the
floor, bleeding from the mouth, chest, and the back of his head. Paramedics pronounced the victim dead shortly
thereafter. Gonzales died of multiple
gunshot wounds. His autopsy revealed he
suffered four such wounds.
Detective
Martin Rodriguez recognized Gonzales at the shooting scene. He knew Gonzales had been a witness at the
preliminary hearing in the case against Dominguez and Ubaldo, in which
Detective Rodriguez had been one of the lead investigators. At that hearing, Detective Rodriguez saw that
there were Compton Varrio Tijuana Flats (CVTF) gang members in the
audience. One of them was Ramiro Lozano,
Ubaldo’s brother, and a CVTF gang member.
Detective Rodriguez had arrested Ramiro on September 1, 2008, for making threats to Gonzales. The threats were made at the Nueva Italia Bar
approximately a month before Gonzales was shot (on August 10, 2008).
Ramiro was still in custody at the time of Gonzales’s shooting.
Detective
Rodriguez arranged to have Ramiro’s phone calls recorded while he was in
custody. One of the recorded calls was to
a person Detective Rodriguez identified as Jesus Cortez. Cortez was an admitted member of the CVTF
gang. Cortez and Zermeno had been
stopped together by police in the past.
In the phone call, Ramiro complained that the police had arrested him
for intimidating a witness in the bar.
Ramiro said he “guessed†it was someone from the bar, and Cortez told
Ramiro, “we’ve got to get this mother’ fool.
Who was it the homie?†A
recording of the phone call was played for the jury.
The Nueva
Italia’s owner employed two security guards to check people from top to bottom
for weapons before entering. Deputy Lee
determined that the two security guards, Juan Hernandez and Freddy Agreda, were
witnesses to the shooting, and he spoke with them by means of an interpreter. Hernandez testified that his job was to
direct patrons where to park, to walk around inside and out when possible, and
to check people for weapons before they entered. He remembered a black pickup truck arriving
around 11:00 p.m. that night. One of the four individuals who got out of
the truck was carrying a Corona
beer bottle. Hernandez later identified
this man as Zermeno. Hernandez
personally searched Zermeno for weapons before he entered the bar. Hernandez told Zermeno that he could not drink
the beer there and he had to throw it away or finish it. Hernandez saw Zermeno put the bottle down on
the ground.
Hernandez
described Zermeno as short with a shaved head.
He was Hispanic, neither heavy nor skinny, and was between 25 to 30
years old. He wore a white T-shirt and a
white shirt. Hernandez saw that the
driver of the black pickup was a light-skinned Hispanic who was a few inches
taller than five feet five. He was not
heavy, and he wore a moustache. He was
between 25 and 30 and wore a blue baseball cap and a hooded sweatshirt. Hernandez later identified the driver as
Contreras. Hernandez remembered that the
other two occupants were Hispanic males but could not remember anything about
them.
During the
evening the four men went in and out of the bar, some of them to smoke. Finally, three of them got back in the
truck. Zermeno got a beer from the truck
and started drinking it near the trash can close to their parking space. The same driver, Contreras, began driving the
truck out of the lot. Hernandez stepped
out of the gate and looked down the street to make sure there were no cars
coming. Hernandez motioned to Contreras
to pull out, and the black truck exited and parked along the street beside the
fence.
After the
black truck pulled out, Hernandez began walking back toward the entrance of the
bar. As he was doing so, the person who
had left the Corona beer bottle in
the lot, Zermeno, was coming out. He was
walking side-by-side with “the person that got shot.†Hernandez heard some “bangs†and looked back
towards the black truck because the bangs came from that side of the lot. Hernandez saw Zermeno run toward the truck
and get in the open passenger door. The
truck then drove away “very fast.â€
Hernandez saw the person who was shot running toward him and toward the
bar. Hernandez went into the bar and the
bleeding victim came in right after him and fell. Hernandez did not see who shot the victim. Hernandez pointed out to the police the
Corona beer bottle he had seen the man from the black truck put down.
The
Sheriff’s crime scene investigator, Susannah Baker, responded to the shooting
scene at approximately 3:40 a.m. She
collected a beer bottle that had been pointed out to her in the parking lot. It was a 12-ounce Corona bottle and the only
one in the lot. The Nueva Italia’s owner
testified that the parking lot was swept clean every night and every day. Baker also developed 14 latent fingerprint
lift cards from inside the bar.
Freddy Agreda, the other security
guard, saw the black Ford truck drive into the parking lot. There were three or four people in the truck
who went into the bar. He and Hernandez
checked them. Agreda said he did not see
them that well. Later, Agreda saw two
men from the truck leave the bar and walk to the truck and get in. The truck left the lot and turned right and
parked on Rosecrans Avenue near the parking lot entrance.
After
Agreda saw the truck stop, Agreda saw the victim leave the bar. The victim was walking between two other
people. One of the three took the truck
out of the parking lot. The other
two—the one who got shot and a second person—went toward the side of the
wall. According to Agreda, this was
where the black Ford truck was parked on Rosecrans Avenue. Then the victim got shot. One of the men who was with him shot
him. Just before the shooting, the
victim was with just one person. After
the shooting, Agreda saw the shooter step into the truck, and the truck left.
At trial,
Agreda did not recall if he told police the shooter was wearing a white
T-shirt. Agreda’s recorded interview was
played for the jury. On the recording,
Agreda said the shooter had a light complexion, was about 20 years old, and was
short and stocky with no facial hair and no hair on his head. He wore a white T-shirt and black baggy
pants. The four men from the truck had
Corona beer in the parking lot, but Modelo beer inside the bar. The shooter held the gun in his right hand
and shot towards the victim. The victim
began to run. Agreda heard four shots.
On March 25
and October 8, 2008, Hernandez viewed photographic lineups (six-packs). Hernandez identified defendants Contreras
and Zermeno in the six-packs shown to him by the police. He also identified them in court. Hernandez feared for his safety because of
his testimony. He identified Contreras
as the truck’s driver and Zermeno as the man with the Corona beer bottle. Hernandez also identified the black truck
from photos the police showed him.
DNA
recovered from the Corona beer bottle matched that of Zermeno. DNA recovered from a Modelo beer bottle
located inside the bar also matched Zermeno.
Agreda identified photograph No. 3
(Contreras) in one six-pack he was shown (Peo.’s exh. No. 135), but at trial he
insisted he did not know “exactly if that is or is not the person.†On cross-examination by Contreras’s attorney,
Agreda was asked who told him to circle picture No. 3, and he answered. “No
one. No one.†Shortly thereafter, he was asked if the
officers told him to circle No. 3, and he answered “Yes. Yes.†In another six-pack (Peo.’s exh. No. 133), he admitted that he identified “one person,
but no, no. I don’t know.†He denied looking at another six-pack (Peo.’s
exh. No. 115).
With respect to the six-pack in People’s exhibit No. 134, Agreda denied
that he pointed at someone before expressing fear for his safety. He testified that he did fear for his
safety. Agreda identified a photograph
of a black pickup from a photographic lineup.
He chose a truck and said it looked similar. He pointed out features of the truck that he
recalled.
Sergeant
Jorge Valdez acted as a Spanish interpreter during Agreda’s viewing of
six-packs on October 6, 2008. He noticed
that Agreda became fixed on the right-hand corner of the six-pack numbered
People’s exhibit No. 135. Sergeant
Valdez asked Agreda what he was looking at in People’s exhibit No. 135, and
Agreda replied, “No. 3.†Agreda said No.
3 looked like one of the four (or was one of the four) that entered the bar on
the night of the shooting. Agreda
circled the photograph. He wrote a
statement in Spanish on the six-pack and signed it.
Gilbert
Carrillo, a retired Sheriff’s homicide detective, served as interpreter for
Agreda on March 26, 2009. He showed
Agreda a photo lineup (Peo.’s exh. No. 134) and Agreda placed his finger on No.
3. Agreda then asked, “what happens if I
identify him?†Agreda was concerned
about his safety if he identified anyone.
After Deputy Carrillo explained Agreda’s options, Agreda did not make
identification from that lineup. Agreda
identified photo No. 2 in exhibit 133 as one of the four males who got into a
Ford F-150 and left. This person was
neither of the defendants. He was
identified as another self-admitted CVTF member, Jesus Gonzalez, and his DNA
was found inside the Nueva Italia Bar.
Lydia
Alvarez, Contreras’s girlfriend and the mother of his child, owned a black Ford
F-150 truck. She identified the truck in
People’s exhibit Nos. 118 and 119 as hers.
She let Contreras drive it sometimes.
She and Contreras would go to Compton to visit Contreras’s mother. Alvarez denied that Contreras was a member of
a gang. She knew he had tattoos and
identified photographs of them in court.
Contreras would not talk about them and told her they were from his
past. Contreras was about 5’ 9†tall and
weighed about 185 pounds. Alvarez said
that she downloaded her telephone bills in December 2008 or January 2009, and
they refreshed her memory that she and Contreras were playing scrabble on her
telephone on the night of the shooting from 10:50 p.m. to 11:17 p.m. Deputy Robert Gray testified that Contreras
was not informed that he was a suspect in the murder until March 9, 2009.
Deputy Max
Fernandez arrested Contreras on October 3, 2008, when Contreras was driving his
girlfriend’s truck. Contreras admitted
being a member of the Compton Varrio Tortilla Flats (CVTF) gang. He had CVTF tattoos and a tattoo of his gang
moniker, “Pirate.â€
Detective
Albert Carrillo was a gang investigator assigned to the Sheriff’s Department task
force targeting the CVTF gang. He had
personally investigated CVTF gang crimes and spoken with hundreds of CVTF
members. He had prepared and executed
hundreds of search warrants on CVTF gang members. He testified about the criminal activities
engaged in by gang members and the importance of respect and fear in the gang
culture. He said that “snitching,†is a
very disrespectful act to the gang. He
stated that CVTF is a territorial gang with approximately 500 members. The Nueva Italia Bar was within the CVTF gang
boundaries and a hangout for the gang’s members.
The primary
activities of the CVTF gang are murder, assaults, robbery, carjacking,
extortion, drug sales and hate crimes against Blacks. Carrillo believed Contreras was a CVTF gang
member because he had self-admitted it to arresting officers. He was arrested in a CVTF area and had gang
tattoos. Carrillo knew Zermeno, who also
admitted to CVTF membership. Zermeno has
CVTF tattoos all over his body, including the words “Tortilla Flats†on his
stomach.
Detective
Carrillo identified certified dockets in two cases where admitted CVTF gang
members were convicted of certain felonies.
Detective Carrillo investigated both crimes personally. In the case of Kenneth Taylor, Taylor and
Gonzales were confronted by Richard Dominguez and Ubaldo. Taylor was killed. Based upon Detective Carrillo’s numerous
contacts and Ubaldo’s admission of gang membership, it was the detective’s
opinion that Ubaldo was a CVTF gang member.
Dominguez was also a CVTF member.
Relying on
his experience and training, and after being posed a hypothetical paralleling
the facts of this case, it was Detective Carrillo’s opinion that Gonzales’s
murder was committed for the benefit of the CVTF gang. There was no evidence that Gonzales was a
member of any gang.
Defense Evidence
Zermeno
called Martin Flores to give gang expert
testimony. Flores testified that
some people leave the gang life. He
believed that the Nueva Italia Bar was not exclusively a CVTF hangout. Flores was aware that the owner of the Nueva
Italia Bar was paying “taxes†to the CVTF gang.
I. Sufficiency of the Evidence
Zermeno’s Argument
Zermeno argues that there was no witness at trial who
could demonstrate that Zermeno committed murder. There was no evidence that he did anything
other than be present on the night of the murder. We presume Contreras joins in this argument
with respect to his role in the murder.
In reviewing
a challenge to the sufficiency of the evidence, we review the whole record in
the light most favorable to the judgment, presuming in support of the judgment
the existence of every fact the jury could reasonably deduce from the evidence. (People
v. Proctor (1992) 4 Cal.4th 499, 528.)
Although a reviewing court “may not ‘go beyond inference and into the
realm of speculation in order to find support for a judgment’†(
695, disapproved on another point in People
v. Gaines (2009) 46 Cal.4th 172, 181), “[i]f the circumstances reasonably
justify the jury’s findings, the reviewing court may not reverse the judgment
merely because it believes that the circumstances might also support a contrary
finding.†(People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The standard of review is the same in cases
where the prosecution relies primarily on circumstantial evidence. (People
v. Bloom (1989) 48 Cal.3d 1194, 1208.)
“Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’†(People v. Bolin (1998) 18 Cal.4th 297, 331.)
Before trial,
Zermeno’s counsel filed a section 995 motion, arguing there was insufficient
evidence of Zermeno’s involvement. The
trial court denied the motion. After
trial, Zermeno’s counsel filed a new trial motion and argued that there was
“absolutely zero evidence†Zermeno did the shooting. Contreras also filed a new trial motion based
in part on insufficiency of the evidence.
D. Evidence Sufficient
We believe the
evidence was sufficient to sustain Zermeno’s conviction as the shooter and
Contreras’s conviction as an aider and abettor.
Although the convictions were clearly based on circumstantial evidence,
‘““[c]ircumstantial evidence may be sufficient to connect a defendant with the
crime and to prove his guilt beyond a reasonable doubt.â€â€™â€ (
792–793.)
First,
security guard Hernandez identified Zermeno as the man he saw getting out of
the black F-150 truck with a beer bottle.
He saw Zermeno put it down on the ground. Hernandez testified that the same man who had
the Corona bottle, Zermeno, left the bar with the other occupants of the black
truck, but he did not get in the truck with them. The truck drove out of the lot and parked
beside the street while Zermeno remained in the lot drinking a beer that he
took from the pickup.
Hernandez
guided the truck out of the parking lot and turned to see Zermeno walking away
from the bar with the victim. They were
the only two people in the parking lot.
Hernandez then heard three or four loud bangs and saw the victim run toward
Hernandez. Hernandez saw Zermeno run to
the truck and get in the open passenger door
Based on
this evidence, it was reasonable for the jury to conclude that Zermeno was the
person who shot the victim. There were
no other people in the parking lot, and Zermeno was actually walking beside the
victim when the shots rang out. The fact
that Zermeno then ran to the truck that was waiting for him with an open
passenger door was further circumstantial evidence that Zermeno was the
perpetrator.
The
evidence showed that Hernandez identified Zermeno’s photograph in a six-pack
and said he was the man whom he saw with the Corona beer bottle and with the
victim. He also identified Zermeno in
court. Analysis of DNA found on the
Corona bottle matched Zermeno’s DNA.
It is true
that there were some discrepancies between the evidence from Agreda and that of
Hernandez. Agreda said the victim left
the bar with two men and that they all went toward the black truck. Agreda did say, however, that just before the
shooting, the victim was with just one person and that person was the one who
shot him. It is obvious even from the
cold record that Agreda was a reluctant witness and attempted to avoid saying
anything definitive. There was evidence
that his statements to police prior to trial differed from his trial
testimony. He described the shooter to
police and even told them that he had searched the shooter and the driver. He identified Contreras in a six-pack and
wrote that he was one of the four who entered the bar. At trial he claimed he did not know what his
written comments on the six-pack meant.
The jury was instructed on facts for evaluating a witness’s testimony,
including how well the witness was able to remember and describe the events,
the witness’s behavior while testifying, the witness’s attitude regarding
testifying, and whether the witness made a prior consistent or inconsistent
statement. (CALCRIM No. 226.) The jury presumably evaluated Agreda’s
testimony in accordance with these criteria.
With
respect to Contreras, there was sufficient and substantial evidence that he was
the driver of the truck and thus an aider and abettor in the shooting. Hernandez identified Contreras as the driver
in court and in a six-pack. Agreda also
identified Contreras. There was evidence
that the exit from the parking lot was difficult, and Hernandez actually helped
the driver exit by signaling when the traffic was clear. The evidence showed that Contreras not only
drove the shooter to the bar, he prepared the shooter’s getaway by driving the
truck out of the lot and parking it alongside the road. Instead of driving away, Contreras waited
with the passenger door open for Zermeno.
These circumstances clearly show that Contreras possessed the required
intent for his conviction as an aider and abettor. (CALCRIM No. 401.)
The jury
was properly instructed with CALCRIM No. 223 that both direct and
circumstantial evidence are acceptable to prove or disprove the elements of a
charge. The jury was told that
circumstantial evidence does not directly prove the fact, but is evidence of
another fact or group of facts from which it could reasonably conclude the
truth of the fact in question. (
The jury was instructed with CALCRIM No. 224 that it had to accept only
reasonable conclusions and choose the one pointing to innocence over one
pointing to guilt. And, “[a]lthough it
is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests
guilt and the other innocence, it is the jury, not the appellate court that must
be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]â€
(People v. Kraft (2000) 23
Cal.4th 978, 1053-1054.) The credibility
of witnesses and the weight to be accorded to the evidence are matters within
the purview of the trier of fact. (
785, 790.) The jury’s verdicts are
supported by substantial evidence, and defendants’ arguments are without merit.
II. Gang Expert Testimony
A. Zermeno’s Argument
Zermeno
contends that the gang expert’s testimony regarding the predicate offenses used
to support the gang allegation violated the confrontation clause of the United
States Constitution and Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). According to Zermeno, the witness “is
required to base his opinions from his own knowledge of the facts of the
predicate crimes and not based [sic]
them on records. He must base his
opinions on testimonial hearsay or statements made during police
interrogation.â€
In what
appears to be a claim of prejudice, Zermeno also argues that there is no
substantial evidence that he committed the crimes with which he was charged for
the benefit of the gang absent the testimony of the gang expert. The testimony led the jury to believe he
would be the kind of person likely to have committed the crime. Therefore, the testimony should have been
stricken. Presumably, Contreras joins in
this argument.
To prove a
gang enhancement allegation under section 186.22, the prosecution must prove
that the crime for which the defendant was convicted had been “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.†(§ 186.22,
subd. (b)(1).) “In addition, 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. (§ 186.22, subds. (e) and
(f).)†(People v. Gardeley (1996) 14 Cal.4th 605, 617.) The testimony of an expert witness and
documentary evidence may provide a basis from which a jury could reasonably
find that the requirements of section 186.22, subdivision (f) were met. (Gardeley,
at p. 625.)
Detective
Albert Carrillo testified as a gang expert.
During direct examination, the prosecutor introduced three certified
court dockets. The first (Peo.’s exh.
No. 173) showed that Omar Morales was convicted of violating section 246,
shooting at an inhabited dwelling, on September 6, 2008. Detective Carrillo testified that he
investigated Morales’s case and that Morales admitted to him that he was a CVTF
gang member. Detective Carrillo next
testified that the court dockets in People’s exhibit Nos. 174 and 17 showed
that Richard Dominguez and Ubaldo Lozano were charged with murder. People’s exhibit No. 174 showed that
Dominguez was convicted of murder.
Exhibit No. 175 showed that Ubaldo was also convicted of murder. Detective Carrillo was familiar with that
case because he had assisted the investigators.
Detective Carrillo testified that he knew Ubaldo and Dominguez were
members of CVTF because they had admitted their gang membership to him.
D. No Confrontation Clause Violation
Zermeno’s
arguments are groundless. The
convictions of the CVTF gang members were properly proved through the certified
court documents and were relevant to prove a “pattern of criminal gang
activity.†(Evid. Code, § 452.5;
1448, 1460 (Duran) [“Evidence Code
section 452.5, subdivision (b) creates a hearsay exception allowing admission
of qualifying court records to prove not only the fact of conviction, but also
that the offense reflected in the record occurred.â€].)
does not limit the statute’s purview to computer-generated court records, but
broadly includes ‘an official record of conviction’ certified as specified in
Evidence Code section 1530.†(
Carrillo had personal knowledge of all of the convictions and of the
perpetrators’ gang affiliations. (See
minute order, coupled with the expert’s testimony based on his field
experience, discussions with the defendant and the information in the minute
order was sufficient to prove the predicate offense].)
In
addition, we agree with respondent that the issue was forfeited by defense
counsel’s failure to object to Detective Carrillo’s evidence on hearsay
grounds. (People v. Williams (2008) 43 Cal.4th 584, 626.) Finally, the court records did not constitute
testimonial evidence as described in Crawford. (Crawford,
supra, 541 U.S. 36, at pp. 51-52,
68.) They were admissible as official
records and hence not a confrontation clause violation. (See id.
at p. 56.)
III. Admission of Telephone Call Evidence
A. Contreras’s Argument
Contreras
argues that the trial court erred in admitting evidence of a jail telephone
call under the hearsay exception of statements of coconspirators. He claims the prosecutor failed to establish
the existence of a conspiracy or that Contreras was a participant in any such
conspiracy at the time the call was recorded.
Reversal is required because the evidence was irrelevant, and its
probative value was outweighed by its inherent prejudicial effect.
Detective
Martin Rodriguez testified that Ramiro was arrested on September 1, 2008, for
threatening Gonzales on August 10, 2008.
Detective Rodriguez told Ramiro about Gonzales’s accusations and then
arranged for Ramiro’s telephone calls to be monitored while in custody. The detective captured and recorded a call
made by Ramiro to another man on the day of Ramiro’s arrest. Later, after consulting with Detective
Carrillo, Detective Rodriguez identified the male speaking with Ramiro as Jesus
Cortez. A field information card showed
that Cortez was contacted by police while with Zermeno and others on February
15, 1999. Cortez and Zermeno admitted
being active “T-Flat†members and signed an FI card to that effect.
Before the
prosecutor could play the recording of the telephone conversation, defense
counsel asked for a sidebar. The
prosecutor told the court that the evidence was admissible under the
coconspirators exception to the hearsay rule, Evidence Code section 1223. The defense argued that no conspiracy was
shown and the evidence was unduly prejudicial.
The prosecutor argued that the gang evidence, which had not yet been
heard, would substantiate the conspiracy theory. The trial court stated that it understood the
People’s theory and it found that the probative value of the evidence
outweighed its prejudicial effect. The
recording was played for the jury.
In the
conversation, Ramiro said to Cortez, “Some fool got intimidated and they’re
trying to put me in that place, fool.â€
When Cortez asked who it was, Ramiro said, “I don’t know—just some fool
. . . .†Cortez said, “you got to fight
it though.†Cortez asked who it could
be, “somebody in the bar?†Ramiro said,
“I guess. That’s what they said, they
said that I’d be at the bar, man, I’ve been at no fucking bar.†Cortez said,
“Oh man, we’ve got to get this mother’, fool.
Who was it the homie?†Ramiro
warned him, “Hey . . . don’t say nothing, fool.
Don’t say nothing, fool.†Later,
Cortez said, “It’s not even gonna go in front of the judge. They ain’t got to go to court.†And, “No.
They ain’t going nowhere with this, fool.â€
C. Relevant Authority
“‘Hearsay
evidence’ 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.†(Evid. Code, § 1200,
subd. (a).) Evidence Code section 1223
provides: “Evidence of a statement
offered against a party is not made inadmissible by the hearsay rule if: [¶]
(a) The statement was made by the
declarant while participating in a conspiracy to commit a crime or civil wrong
and in furtherance of the objective of that conspiracy; [¶]
(b) The statement was made prior
to or during the time that the party was participating in that conspiracy;
and [¶]
(c) The evidence is offered
either after admission of evidence sufficient to sustain a finding of the facts
specified in subdivisions (a) and (b) or, in the court’s discretion as to the
order of proof, subject to the admission of such evidence.â€
“A
conspiracy is an agreement between two or more persons, with specific intent,
to achieve an unlawful objective, coupled with an overt act by one of the
conspirators to further the conspiracy.
[Citation.] The conspiracy itself
need not be charged in order for
Evidence Code section 1223’s hearsay exception to apply to
statements by coconspirators.
[Citations.]†(
994, 1005.) “In order for a
declaration to be admissible under the coconspirator exception to the hearsay
rule, the proponent must proffer sufficient evidence to allow the trier of fact
to determine that the conspiracy exists by a preponderance of the
evidence. A prima facie showing of a
conspiracy for the purposes of admissibility of a coconspirator’s statement under
Evidence Code section 1223 simply means that a reasonable jury could find it
more likely than not that the conspiracy existed at the time the statement was
made.†(People v. Herrera (2000) 83 Cal.App.4th 46, 61, 63.) No particular order of proof is required. The trial court has the discretion to admit
the hearsay statement before the foundation has been established, subject to
the prosecutor’s offering evidence of the conspiracy. (Evid. Code, § 1223, subd. (c).)
“[T]he
conspiracy may be shown by circumstantial
evidence and the agreement may be inferred from the conduct of the
defendants mutually carrying out a common purpose in violation of a penal
statute. [Citations.]†(People
v. Gann, supra, 193 Cal.App.4th
994, 1005-1006; People v. Jeffery
(1995) 37 Cal.App.4th 209, 215.) We
review a trial court’s admission of evidence under Evidence Code section 1223
for abuse of discretion. (
725.)
D. Sufficient Evidence of Conspiracy
The prosecution
told the trial court its theory was that the moment Gonzales testified against
Tortilla Flats, the conspiracy was born within members of that gang, the goal
being to kill Gonzales for his act of “betrayal†against Tortilla Flats. When proffering the audio of Ramiro’s phone
call, the prosecutor urged that the gang evidence that had yet to be presented
would show that all of the “actors†were part of the same gang, and there was
evidence of regular gang meetings The
prosecutor said it was up to the jury to decide whether there was sufficient
evidence of a conspiracy. The prosecutor
pointed out the dates of Gonzales’s testimony at the preliminary hearing (May
14, 2008), Ramiro’s phone call on September 1, 2008, and Gonzales’s return to
the Nueva Italia Bar, where he was shot on September 6, 2008. The trial court exercised its discretion to
admit the hearsay statements before the foundation had been established,
subject to the prosecutor’s offering evidence of the conspiracy. (Evid. Code, § 1223, subd. (c ).)
The gang
testimony was provided by Detective Carrillo.
The prosecutor asked him if cooperating with police about having
witnessed a murder committed by a gang member would be considered snitching. Detective Carrillo said it would, and so
would going to court and testifying in a preliminary hearing—identifying a gang
member as the person the witness saw murdering someone. Detective Carrillo said that “snitches get
stitches,†which meant the witness would be sent to the hospital or the
morgue. He testified that the Nueva
Italia was located in the territory of the CVTF. The CVTF is a subset of the Tortilla Flats
gang, which has approximately 500 members.
The prosecutor elicited that Ubaldo and Dominguez were Tortilla Flats
gang members convicted of killing Kenneth Taylor, who was in the company of
Gonzales when killed. Ramiro is also a
Tortilla Flats member.
Detective
Carrillo identified Cortez’s voice on the jail telephone call recording. He performed a parole search of Cortez’s
residence and noted that Esther Lozano, the mother of Ubaldo and Ramiro, was
present in the Cortez home. Carrillo
also testified that the CVTF gang held regular meetings. In these meetings the gang talked about,
inter alia, who is snitching, putting in work, and going out on missions. They corroborate who is snitching by getting
paperwork from the court or attending court proceedings. CVTF members, among them Ramiro, attended the
preliminary hearing where Gonzales testified.
The prosecutor
presented Carrillo with a hypothetical in which a person named Raul Gonzales
witnessed two self-admitted Tortilla Flats gang members kill Kenny Taylor. The hypothetical assumed that on May 14,
2008, Gonzales testified in a preliminary hearing against these two gang
members and identified them as the killers.
In addition, while at the Nueva Italia Bar, a Tortilla Flats gang member
threatened Gonzales. Carrillo was to
also assume that on September 6, 2008, a black Ford truck with four male
Hispanic occupants got out of the truck at the bar, three of them being
self-admitted Tortilla flat gang members.
After that, Carrillo was asked to assume the facts surrounding
Gonzales’s shooting and the truck’s departure.
Carrillo was of the opinion that the shooting of Gonzales benefitted the
gang most obviously because it prevented Gonzales from testifying in Ubaldo’s
jury trial.
The trial
court instructed the jury with CALCRIM No. 418 that it could not consider the
statements made by Ramiro and Cortez during their phone call unless the People
proved by a preponderance that there was “some evidence other than the
statement itself†that established a conspiracy to commit a crime when the
statement was made, that Ramiro and Cortez were participating in the conspiracy
when they made the statement, they made it to further the goal of the
conspiracy, and that the statement was made before or during the time Contreras
and Zermeno were participating in the conspiracy.
We conclude
that the gang evidence provided by Detective Carrillo provided the jury with
the means to decide if there was some evidence in support of a conspiracy in
existence at the time Ramiro and Cortez had their telephone conversation. As noted, circumstantial evidence is a proper
method to establish a conspiracy. (
In particular, the conspiracy can “‘be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy.
[Citations.]’†(
v. Rodrigues (1994) 8 Cal.4th
1060, 1135.) It is not necessary to show
the party was a member of the conspiracy at the time the declaration was
made. A party subsequently joining the
conspiracy adopts previous declarations in support thereof. (Evid. Code, § 1223, subd. (b).) Even if it cannot be shown that the
statements were made during
defendants’ participation in the conspiracy, it is a logical conclusion that
the statements were made prior to defendants’
participation in that the statements preceded defendants’ execution of their
role in the conspiracy—the elimination of Gonzales. (Evid. Code, § 1223, subd. (b).) The criminal act at issue clearly did not
occur before the statements were made or before defendants’ participation. Thus, Detective Carrillo’s testimony provided
a sufficient foundation for admission of the evidence under Evidence Code
section 1223. “The court should exclude
the proffered [hearsay] evidence only if the ‘showing of preliminary facts is
too weak to support a favorable determination by the jury.’†(People
v. Lucas (1995) 12 Cal.4th 415, 466.)
Whether the foundational evidence is sufficiently substantial is a
matter within the trial court’s discretion.
(Ibid.) We conclude there was no abuse of discretion,
and the trial court correctly ruled that the probative value of the evidence
outweighed its prejudicial effect.
In any
event, we agree with the Attorney General that any error in the admission of
this challenged evidence was harmless.
The jury was properly instructed, and the prosecutor emphasized, that
motive did not have to be proved.
(CALCRIM No. 370.) The prosecutor
told the jury during final argument that it did not have to find whether or not
the defendants were guilty of a conspiracy even though it was instructed on the
conspiracy theory. The prosecutor stated
that Zermeno was charged because it was alleged that he fired the shot, and
Contreras was charged because he was alleged to have aided and abetted
Zermeno. As we have observed, there was
sufficient evidence to support their convictions without the evidence of
conspiracy. Contreras’s arguments are
without merit.
DISPOSITION
The
judgments are affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] All further references to statutes are
to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] We
will refer to Ubaldo Lozano and his brother, Ramiro Lozano, by their first
names to avoid confusion.
