P. v. Espinoza

Filed 2/6/08 P. v. Espinoza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Francisco Espinoza appeals his convictions for first degree murder (Pen. Code,  187, subd. (a)/189)[1], carjacking ( 215, subd. (a)), kidnapping to commit robbery ( 209, subd. (b)(1)), kidnapping for carjacking ( 209.5, subd. (a)), attempted second degree robbery ( 664/211) and conspiracy to commit those offenses ( 182, subd. (a)(1)). The jury found that Espinoza committed murder during a robbery ( 190.2, subd. (a)(17)), was personally armed with and discharged a firearm ( 12022.53, subd. (b)), and that a principal was armed with a firearm ( 12022, subd. (a)(1)). Espinoza was sentenced to state prison for life without the possibility of parole plus 10 years. He claims Aranda/Bruton and Crawford error in the admission of a codefendant's statement to the police, and prejudice from the redaction of his own statement to the police.[2] He also claims prosecutorial misconduct. We affirm.

FACTS

In the early morning hours of May 3, 2005, Espinoza and others attempted to hijack the cargo of a large tractor-trailer operated by Abby Inesta. The night before, Inesta drove his rig to Randall Foods where the cargo, over 40,000 pounds of meat, was to be unloaded in the morning. Inesta spent the night sleeping in the cab. Before Randall Foods opened, Espinoza and others pounded on the truck until Inesta opened its door. Espinoza, who was carrying a gun, climbed into the cab and began fighting with Inesta. During the fight, Espinoza's gun was fired twice, mortally wounding Inesta. Espinoza then fled the scene with his accomplices. Police found Inesta's beaten body inside the cab with his ankles and wrists tied. The trailer portion of the rig was found a few blocks away from the tractor.

An investigation led the police to Espinoza, Rafael Hernandez, Jorge Moreno, Irene Nunez, and one other person. Hernandez and Moreno were involved in the crimes, and Nunez was Espinoza's girlfriend.

Nunez testified at trial that she dropped Espinoza off at a gas station the evening before the murder, and that Espinoza drove off with Moreno. Between 5:30 and 6:00 a.m. on May 3, Espinoza telephoned Nunez to pick him up. Nunez observed scrapes and bruises on his body, and Espinoza told Nunez that he had been in a fight. He also told Nunez that he had fought with a truck driver over a gun and the gun went off. Espinoza called "911" on a cell phone and told Nunez he was getting help for the truck driver.

Mark Warren, a workman who unloaded trucks for Randall Foods, arrived for work at approximately 6:00 a.m. Jorge Moreno, another worker at Randall, had tagged Inesta's truck to unload but told Warren he was sick and was leaving work. Warren was surprised when the rig started to drive away. He flagged the truck and the driver said he was going to McDonald's. Warren could not identify the driver but testified that it was not Inesta. Warren saw Moreno follow the tractor-trailer in his vehicle.

Espinoza was interviewed by police on October 21, 2004. Espinoza admitted participating in the carjacking, and that Inesta was shot with Espinoza's gun while he and Inesta were fighting in the cab. Hernandez also made a statement to the police that he was hired to drive Inesta's truck away from Randall Foods so that its cargo could be stolen.

Hernandez and Espinoza were tried jointly before a single jury. The jury was unable to reach a verdict as to Hernandez as to any of the charges.

DISCUSSION

No Aranda/Bruton or Crawford Error

Espinoza contends his constitutional right to confrontation and cross-examination was violated by the admission of codefendant Hernandez's statement to the police into evidence. The version of the statement heard by the jury deleted all references to Espinoza, but Espinoza claims the redaction was inadequate. We disagree.

In Bruton v. United States, supra, 391 U.S. at pages 135-136, the United States Supreme Court held that a defendant's constitutional right of confrontation is violated when a facially incriminating confession of a non-testifying codefendant is admitted in a joint trial, even if the jury is instructed to consider the confession only against the codefendant. A few years earlier, our Supreme Court reached the same result on state law grounds in People v. Aranda, supra, 63 Cal.2d at pages 530-531. Under Aranda, however, a non-testifying defendant's statement could be admitted into evidence in a joint trial if it is effectively edited to delete "not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established." (Id., at p. 530, fn. omitted.)

The United States Supreme Court adopted a similar rule permitting admission of a statement edited to delete references to the non-declarant defendant so that the statement is "not incriminating on its face." (Richardson v. Marsh (1987) 481 U.S. 200, 208.) Such a redacted statement may be admitted at trial even if the statement may incriminate the codefendant when considered in connection with other evidence. (Ibid.) The court reasoned that express incrimination is more vivid than inferential incrimination, and a jury can be expected to obey a limiting instruction to disregard the statement in assessing defendant's guilt when the statement incriminates only by inference. (Ibid.) The admission of such a redacted statement turns on the type of inference required. If the confession made a direct reference to a perpetrator other than the speaker and the jury immediately could infer, without considering other evidence, that that perpetrator was the defendant, admission of the confession is Bruton error despite a limiting instruction. (Gray v. Maryland (1998) 523 U.S. 185, 196.)

There was no Aranda/Bruton error here. Hernandez's statement did not implicate Espinoza in the offenses, and expressly stated that no one (except the victim) was ever in the truck with him. The statement did not mention that he or any one else had been in a fight with the truck driver or that a firearm had been discharged. At one point, Hernandez referred to a man named "Frank," but stated that this person never got into the truck. To the extent the jury might have inferred that "Frank" was Espinoza, the statement was essentially exculpatory, not incriminating. In addition, Espinoza concedes that the statement could be construed as incriminating only by inference and innuendo. Hernandez's statement could only incriminate Espinoza by attenuated inference when linked to his own statement and the testimony of Nunez. (Richardson v. Marsh, supra, 481 U.S. at p. 208.)

Espinoza also cites Crawford v. Washington, supra, 541 U.S. 36, in support of his position arguing that Crawford undermines the Aranda/Bruton rule. In Crawford, the United States Supreme Court expanded a defendant's confrontation rights by holding that an out-of-court "testimonial" statement offered against an accused is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the person. (Crawford, at pp. 68-69.) There is no dispute that a statement elicited during a police interrogation is testimonial. (Ibid.; see also People v. Song (2004) 124 Cal.App.4th 973, 982.)

But Crawford does not overrule, limit or even address the rule of Bruton and its progeny. That Hernandez's statement was "testimonial" under Crawford does not help Espinoza because it did not incriminate him, and was limited both in its applicability to him and its use as to Hernandez as well. When a statement is properly redacted and the jury is instructed not to use it against the defendant, the codefendant is not a "witness against" the defendant, and the statement does not implicate the confrontation clause. (U.S. Const., 6th Amend.) The same redaction that prevents Bruton error also prevents Crawford error.(People v. Stevens (2007) 41 Cal.4th 182, 199; U.S. v. Lung Fong Chen (2d Cir. 2004) 393 F.3d 139, 150; see also People v. Song, supra, 124 Cal.App.4th at pp. 983-984.)

No Prejudice from Redaction of Espinoza's Statement

Espinoza contends that the redaction of his own statement to the police resulted in prejudice to him because the removal of references to Hernandez as a perpetrator impaired his ability to present a complete defense. We disagree.

It is established that an out-of-court statement by one defendant in a joint trial is admissible only if the portions implicating a codefendant are deleted without prejudice to the codefendant. (People v. Aranda, supra, 63 Cal.2d at p. 530.) If the deletion cannot be made without prejudice to the codefendant, the entire statement must be excluded or the defendants must be tried separately. (Id., at p. 531; Bruton v. United States, supra, 391 U.S. at p. 137.)

Here, Espinoza's statement was redacted to exclude all references to codefendant Hernandez as the perpetrator who drove Inesta's truck away from Randall Foods. During closing argument, Espinoza's counsel argued that Espinoza's admission that a bullet from his gun killed Inesta was untrustworthy because, among other things, Espinoza only implicated and "gave up" to the police accomplices that the police already considered to be suspects. In essence, counsel was attempting to convince the jury that he was attempting to divert law enforcement away from perpetrators he wanted to protect, and falsely confessed to shooting Inesta for that reason.

When it appeared that counsel might indicate that Hernandez was one of the known suspects Espinoza "gave up" to the police, the court warned counsel not to violate its order redacting Hernandez's name from Espinoza's statement.

Espinoza contends that his counsel was unable to present an effective closing argument because she had to "tip toe" around Aranda/Bruton "traps" to avoid mentioning Hernandez as one of the accomplices he "gave up" to police. He asserts that identifying Hernandez might have been enough to convince the jury to doubt his entire statement, including his admission that he shot Inesta.

We understand that the task of both trial and appellate counsel has been made difficult because of Espinoza's admission to the police that he was the person who shot Inesta. But, however far-fetched the assertion that Espinoza confessed to all elements of the crime in order to protect others, the record shows that he was not precluded from making such an argument. Counsel argued at some length regarding his implication of only known suspects, and expressly identified Moreno and a person named "Juero" as two of those suspects. Nothing in the editing of Espinoza's statement was inconsistent with, or created an impression contrary to, the unedited statement. It did not alter or distort the criminal acts admitted by Espinoza or exclude anything that prejudiced him in closing argument, or could have affected the ability of a reasonable jury to fairly evaluate his guilt or innocence. (See People v. Ervin (2000) 22 Cal.4th 48, 87; People v. Douglas (1991) 234 Cal.App.3d 273, 285-287.)

No Prejudicial Prosecutorial Misconduct

Espinoza contends that the prosecutor improperly vouched for police detective Johnny Villa's credibility by stating that Villa would be risking his career if he lied. We conclude that any error was harmless beyond a reasonable doubt.

A prosecutor may not vouch for the credibility of witnesses or otherwise bolster the veracity of their testimony by referring to information and facts that are not in evidence at trial. (People v. Ward (2005) 36 Cal.4th 186, 215; People v. Frye (1998) 18 Cal.4th 894, 971.) More specifically, several federal cases have concluded that improper "vouching" occurs when a prosecutor argues that a police officer's testimony should be given heightened credibility because the officer would face prosecution or disciplinary action if he or she lies on the witness stand. (E.g., U.S. v. Kornegay (1st Cir. 2005) 410 F.3d 89, 97; U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146; U.S. v. Combs (9th Cir. 2004) 379 F.3d 564, 574.)

Although most of it was tape-recorded, a portion of Hernandez's statement to the police was not recorded. Detective Villa testified to that unrecorded portion of the statement. Villa testified that Hernandez admitted that he heard someone in the back of the truck (Inesta) when Hernandez was driving the truck away from Randall Foods. During closing argument, the prosecutor acknowledged that it would be "reasonable" for the jury to be "suspicious" of the unrecorded portion of Hernandez's statement, but gave various reasons why Detective Villa should be believed. One of these reasons was that it made no sense for Villa to lie because lying would "risk his career." Counsel for Hernandez, but not Espinoza, objected and the objection was overruled. The prosecutor then asked the jury to consider if Villa is "willing to risk so much to put away Mr. Hernandez, do you really think that that's the best he can do?"

Respondent claims Espinoza waived his claim by not objecting, along with Hernandez, in the trial court. Generally, a misconduct claim is preserved for appeal only if the defendant makes a timely objection and requests an admonition, but there was no waiver in this case because a further objection by Espinoza would have been futile after Hernandez's objection was overruled. (People v. Hill (1998) 17 Cal.4th 800, 820.)

On the merits, we conclude that there was no prejudicial misconduct by the prosecutor. The vouching for Villa concerned his credibility regarding the portion of Hernandez's statement that was not recorded and pertained to Hernandez's involvement in the crimes, not Espinoza's. Espinoza asserts that the prosecutor was vouching for all police officers in the case, but makes no credible argument as to how the credibility of the police officers could have influenced the jury in assessing the evidence against Espinoza. Also, the "vouching" was not a significant part of the prosecutor's argument concerning Villa's credibility, and the prosecutor took pains to urge the jury to "look at the evidence and analyze it carefully and look at everything."

Even if the "vouching" runs afoul of the cited federal case law, any error was harmless. (People v. Bolton (1979) 23 Cal.3d 208, 214.) The error was harmless under both California's test of whether it is reasonably probable that a result more favorable to the defendant would have occurred without the misconduct, and the federal constitutional test requiring that the misconduct did not affect the verdict beyond a reasonable doubt. (Ibid.) There is no basis to conclude that vouching for Villa's testimony regarding Hernandez's statement could have influenced the jury in assessing the evidence against Espinoza. In addition, the jury received instructions that comments by attorneys are not evidence (CALJIC No. 1.02), and that they must decide all questions from evidence and no other source (CALJIC No. 1.03). It is presumed the jury followed these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Sam Otha, Judge

Superior Court County of Los Angeles

______________________________

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2]^{People v. Aranda(1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123; Crawford v. Washington (2004) 541 U.S. 36.}