P. v. Espinoza
Filed 6/19/13 P. v. Espinoza CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWN MICHAEL ESPINOZA,
Defendant and Appellant.
G046206
(Super. Ct. No. 10ZF0085)
O P I
N I O N
Appeal from a judgment
of the Superior Court
of
County, David A. Hoffer, Judge. Affirmed in part, reversed in part.
Nancy Olsen, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr.,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant
Shawn Michael Espinoza was convicted of attempted
murder, attempted robbery, assault with a semiautomatic firearm and street
terrorism after the shooting of Brian Roundy. Defendant argues a number of issues on
appeal, including evidentiary error, a lack of
error, and improper coercion of a jury verdict on the first three counts. We find none of these arguments
persuasive. We agree with defendant,
however, that his conviction for street terrorism was improper because there
was no evidence he was acting with any other gang member. We therefore reverse the street terrorism
count and affirm the rest of the judgment.
I
FACTS
A few
years before the instant crime took place, Brian Roundy was involved in a
business relationship with Edith Haskins, whom Roundy knew as Didi. The relationship involved Roundy moving
appliances from a Long Beach apartment demolition to a building project in
Utah. A year or so later, a dispute
arose regarding money Roundy owed Haskins.
Roundy thought he owed her somewhere from $600 to $800, but Haskins
thought it was more like $1,000. Haskins
had some of Roundy’s equipment, and he thought the debt had been paid. Haskins disagreed, and according to Roundy,
“continued to dwell on it.†One of his
friends, Steven McDaid, who also knew Haskins, reminded Roundy that he owed
Haskins money.
On the
evening of December 4, 2009, Roundy was leaving his Huntington Beach home when
he was approached by a man and a woman he did not recognize. Roundy later identified the man who
approached him as defendant.
Defendant
was carrying a semiautomatic handgun and asked Roundy if he was “Brian.†When Roundy said that he was, defendant said
something to the effect that Roundy owed someone $1000, and defendant wanted
the money that was owed. Roundy asked
who he owed money to, as he did not recognize this encounter as being related
to his dispute with Haskins. Defendant
did not provide a name, but instead demanded Roundy’s wallet. Roundy refused his repeated demands, and
defendant shot him in the upper leg. The
bullet smashed through his femur.
Defendant had been brandishing the gun up in the air and pointed
sideways with his left hand,
name="_ftnref1" title="">[1] and Roundy thought defendant had been aiming
at his midsection. Defendant and the
woman with him walked back towards their vehicle.
Roundy’s
roommate, Rod Stigar, was inside when he heard what sounded like an argument
followed by a “pop.†He heard Roundy
yelling for help. He went to the door
and saw a man standing next to a black truck, which was parked across the
street. A few seconds later, a car drove
up and stopped near the man, the car’s occupants spoke to him, and then the car
left. The man got into the truck and
drove away.
Stiger saw
Roundy on the ground and called 911.
Stiger asked Roundy who shot him.
Roundy appeared to be in a tremendous amount of pain, but he mentioned
something about a girl who owed him some money.
Police and paramedics arrived shortly thereafter. On the way to the hospital, while in
considerable pain, Roundy described defendant as a “Caucasian, stocky male,
between 30 and 40 years of age†with a mustache, between five foot seven and
five foot nine, who weighed approximately 200 to 220 pounds.
Roundy was
in the hospital for 17 days. He had a
severe bruise on the side of his body.
As a result of the bullet wound, he has a metal rod in his leg and a
nine-inch scar between his hip and knee.
A few days
after the shooting, an investigating officer showed Roundy a photographic
lineup that included defendant’s photo.
Roundy told the officer that the person who shot him was either
defendant or the person in one other photo, but defendant looked the most like
the person who shot him. When shown a
photographic lineup that included a year-old picture of defendant’s wife,
Jessica Espinoza, he was not able to identify the woman who had been at the
scene. When shown a photo taken
recently, however, he identified defendant’s wife.
In
March 2010, a detective took Roundy to a courtroom and asked him to look around
and see if anyone resembled the gunman.
A number of people were present.
Roundy saw defendant and identified him as the gunman.
Police
surveillance was conducted at defendant’s home a few days after the
shooting. The officers saw defendant,
his wife, and Edith Haskins meet together for about 10 minutes in a nearby
restaurant’s parking lot. They were
observed at the same location on a later date, and the officer also saw Haskins
at defendant’s home after a search warrant was served. At trial, McDaid testified he had seen
defendant and Haskins together on two occasions several weeks before the
shooting.
Among other things, the police had collected a
right-hand black knit glove from the street across from Roundy’s home and an
expended .45-caliber shell casing near the location of the shooting. Defendant could not be excluded as a
contributor of the DNA found on the glove.
A search of defendant’s home revealed ammunition of the same caliber and
model as the shell casing.
In
January 2010, an undercover law enforcement task force conducted a program to
purchase weapons from Orange County gang members. One of the weapons purchased was a
.45-caliber semiautomatic handgun from a member of the Public Enemy Number 1
(PEN1) street gang named Eric Derby. A
ballistics test was conducted, revealing this gun had the same grooves and
lands as the bullet taken from Roundy, and it also had the chamber marks of the
spent round found at the scene.
In
April 2010, the grand jury indicted defendant for attempted murder (Pen. Code,
664, subd. (a), § 187, subd. (a), count one); attempted second degree robbery
(§ 664, subd. (a), §§ 211/212.5, subd. (c), count two); assault with a
semiautomatic firearm (§ 245, subd. (b), count three) and street terrorism (§
186.22, subd. (a), count four). As to
counts one and two, it was alleged that defendant personally discharged a
firearm causing great bodily injury (§ 12022.53, subd. (d)). Enhancements for inflicting great bodily
injury (§ 12022.53, subd. (d)) and personal use of a firearm (§ 12022.7, subd.
(a)) were alleged as to count three.
Four prior convictions were alleged.
(§ 667.5, subd. (b).)
At
trial, a gang expert, Deputy Sheriff Ashraf Abdelmuti, testified that defendant
was an active member in PEN1, a point defendant’s counsel conceded during
closing argument.
Michael
Price, defendant’s father-in-law, testified at trial. As of December 2009, Price lived with
defendant and his daughter Jessica, along with Price’s mother, Alma Vosyka, and
Price’s girlfriend, Maryann Palmer.
Price testified that his deceased stepfather had been a gun collector,
and that eight or nine of his guns and ammunition were still in the house. He said the ammunition the police had found
was from Price’s bedroom closet, along with other ammunition. On the night of the shooting, Price and
Palmer had left home around 6:00 p.m., and at the time defendant was home, sick
in bed, and Jessica was with him. Palmer
testified similarly and said that when she and Price retired at around 1:00
a.m., defendant and Jessica were still there.
Roundy’s
attending physician, Mohamed El-Nachef, also testified. He reported that a hospital drug screen showed
that Roundy had cocaine, amphetamines and opiates in his system, and while the
opiates may have been introduced at the hospital, the cocaine and amphetamines
would not have been. Roundy showed drug
withdrawal symptoms after a few days at the hospital. Under cross-examination, the doctor agreed no
quantitative analysis had been conducted, and he agreed that when Roundy was
admitted, he was alert and oriented and had no sensory limitations.
Defense
witness Max A. Schneider, a medical doctor who reviewed Roundy’s chart, opined
that Roundy was under the influence of methamphetamine and cocaine. He said that those who ingest those drugs
have decreased short-term memory and that recollections after an event would be
less accurate. During cross-examination,
Schneider testified he did not talk to Roundy or any hospital staff before
reaching his conclusions. He stated that
to render an expert opinion regarding Roundy’s state of intoxication or
withdrawal, a blood analysis would be required.
Roundy testified that sometime in December 2009, he used methamphetamine
which may have had cocaine mixed into it.
In
rebuttal, Patrick Ellis, the Huntington Beach police detective, testified that
when he spoke to defendant about his activities on the date of the shooting, he
did not mention being sick. He said he
was at home and watched a movie. Price’s
trial testimony was the first time Ellis had heard defendant was home sick on
the night of the shooting.
With
respect to Roundy’s condition, Ellis saw Roundy at the hospital on December
4th, 5th and 8th. Although he had
training and experience regarding narcotic use, he did not see Roundy exhibit
any narcotic withdrawal symptoms.
At
the conclusion of trial, defendant was found guilty on all counts, and the jury
returned true findings on all enhancements.
Defendant waived jury trial on the prior convictions, and the
prosecution dismissed two of the prior prison term allegations. The remainder were stricken for sentencing
purposes. Defendant was sentenced on
count one to the middle term of seven years, plus a consecutive term of 25
years to life on the firearm enhancement.
Sentence on all other counts was either stayed or concurrent. Sentence on count two was a concurrent term
of two years, plus 25 years to life on the firearm enhancement. On count three, sentence was stayed pursuant
to section 654. On count four, defendant
was sentenced to two years, concurrent to count one. Thus, defendant’s total prison term was seven
years, plus an indeterminate term of 25 years to life. Defendant now appeals.
II
DISCUSSION
A. Gang Expert’s Comments
1.
Background
Prior to
trial, the court granted defendant’s motion in limine bifurcating trial of his
prior convictions. The prosecutor did
not object. Nothing in the motion in
limine mentioned witness testimony with respect to prior convictions. Later, during Abdelmuti’s testimony,
counsel and the court met outside the presence of the jury. Defense counsel said that “hopefully
[Abdelmuti] is not going into [defendant’s] felony convictions.†The court noted the difference between
mentioning law enforcement contacts and arrests or convictions, and directed
the prosecutor to advise the witness of that.
The court made this observation with respect to a defense objection
about any connection between PEN1 and any prison gang. The court noted that although there was some
potential for prejudice, it was also important for the jury to understand
PEN1’s history and background to determine if it was a gang.
Back
in court, the prosecutor asked Abdelmuti about defendant’s past acknowledgement
to law enforcement about being a member of PEN1. Abdelmuti replied that defendant told a
Huntington Beach police officer that he was a PEN1 member “while in prison,â€
and he associated with older members of the gang.
Defense
counsel objected outside the presence of the jury, asking the court to grant a
mistrial on the basis that the witness mentioned defendant being in
prison. The prosecutor did not think the
witness’s use of the word “prison†was intentional and the answer only repeated
defendant’s admission. After further
argument, the court decided to strike the statement, but denied the motion for
a mistrial on the grounds it did not prejudice defendant. Defense counsel did not wish any further
admonition to be provided. Back in the
jury’s presence, the court struck the witness’s answer that included the word
“prison.â€
Examination
of Abdelmuti continued. Defense counsel
questioned the witness extensively as to why a Stanton traffic officer would
prepare a field information card on defendant, who had been a passenger in a
car stopped for a traffic offense. When
asked if it was common practice for an officer conducting a traffic stop to
take pictures of and otherwise document a car’s passengers, Abdelmuti initially
responded such actions would be “common with field interviews and STEP
notices.†Counsel asked if a field
interview extended beyond writing a traffic citation, and Abdelmuti responded
that “if there was any probation or parole associated it could.†When asked if the patrol officer had any
knowledge of probation or parole as to the particular stop, Abdelmuti said
no. Defense counsel next asked: “And it doesn’t appear on the [field
interview] card either; right?†Abdelmuti responded, “On the F.I. card for
[defendant], I believe it documents he was a former parolee but not
current.â€
Again
outside the presence of the jury, defense counsel asked the court to direct the
witness not to answer questions not asked of him. The court stated: “Let me just say I was listening to the
questioning here in absolute amazement because it seemed to me counsel was
inviting responses about why these individuals were singled out for more than a
simple traffic stop. Counsel asked over
and over why this was treated differently than an ordinary traffic ticket. And the reason is that these are people who
were formerly on probation or parole.â€
While the court agreed to strike the comment and instructed the witness
to refrain from any further mention of defendant’s prior convictions or parole
status or prison time, the motion for mistrial was denied. The court noted that counsel’s line of
questioning put the witness in a difficult position, and the court did not
believe the prejudice to defendant justified a mistrial. Later, after reviewing the transcript, the
court observed that the question immediately prior to Abdelmuti’s answer was
ambiguous. The court believed that
counsel may have intended to ask whether defendant was currently on probation
or parole, but that was not in fact what he asked, and the way in which he did
pose the question opened the door to Abdelmuti’s answer.
Mistrial Motions
“‘A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction.
[Citation.] Whether a particular
incident is incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on mistrial
motions. [Citation.]’ [Citation.]â€
(People v. Collins (2010) 49 Cal.4th 175, 198.) We review the trial court’s denial of a motion for a mistrial under the
deferential abuse of discretion standard.
(People v. Williams (1997)
16 Cal.4th 153, 210.)
“‘Although
most cases involve prosecutorial or juror misconduct as the basis for [a
mistrial] motion, a witness’s volunteered statement can also provide the basis
for a finding of incurable prejudice.’
[Citation.]†(People v. Williams, supra, 16 Cal.4th at p.
211.) But “‘[u]nder ordinary
circumstances the trial court is permitted to correct an error in admitting
improper evidence by ordering it stricken from the record and admonishing the
jury to disregard it, and the jury is presumed to obey the instruction.’ [Citations.]â€
(People v. Gurrola (1963) 218
Cal.App.2d 349, 357.) A motion for a mistrial should be granted only
when “‘a party’s chances of
receiving a fair trial have been irreparably damaged.’ [Citation.]â€
(People v. Welch (1999) 20 Cal.4th 701, 749.)
In
this case, the court could reasonably find that any prejudice was not
incurable. The witness’s first statement
referred to defendant’s associations “while in prison,â€
been on parole. Both statements implied
that defendant had previously been arrested, convicted, and incarcerated, and
although not in explicit violation of the court’s order, the statements
arguably violated its spirit and intent.
We do not find, however, that either statement was elicited in bad
faith. The first statement was not
responsive to the question the prosecutor had been asking, and the second was
elicited by defense counsel after
intense questioning on the issue of why a traffic stop had turned into a field
interview.
Neither
statement, however, which essentially adduced the same information, caused
incurable prejudice. The jury did not
learn the nature of any prior conviction, the proximity or remoteness in time
of any prison term, or any other fact.
Defendant’s case citations and arguments address situations where the
jury has learned immaterial details of a defendant’s personal history and
criminal record in some detail and/or uncharged offenses and arrests. (See People
v. Cruz (1978) 83 Cal.App.3d 308, 326-329; People v. Richardson (1946) 74 Cal.App.2d 528, 537.) They are inapposite in this case. Here, the jury merely learned that defendant
had been incarcerated at some point.
That is insufficient to establish prejudice on its own.
Further,
in both cases, the statements were stricken and the jury was instructed to
disregard them. Defense counsel
specifically did not want any further admonition on the first statement (and
presumably felt the same about the second), which was a valid tactical
decision. At the beginning of trial, the
jury was instructed that if the court struck a witness’s answer, the jury was
to disregard it and not consider it for any reason or purpose. (CALCRIM No. 222). “Jurors are presumed able to
understand and correlate instructions and are further presumed to have followed
the court’s instructions.
[Citation.]†(People v.
Sanchez (2001) 26 Cal.4th 834, 852.)
There is no evidence here that the jury did not follow this instruction;
any contention to the contrary is pure speculation. Defendant has not established even a strong
possibility that “incurable prejudice†occurred (People v. Williams,
supra, 16 Cal.4th at p. 211), and we therefore find the trial
court did not abuse its discretion in denying defendant’s motions for mistrial.
B. Sufficiency of the Evidence
Defendant
next argues that his convictions on all counts should be reversed for lack of
evidence. He contends Roundy’s
identification of defendant was unreliable because Roundy was under the
influence of drugs, and his description of the shooter at the time varied
significantly with his trial testimony.
He further argues a lack of evidence of intent to kill.
1. Standard of Review
When
a defendant calls into question the sufficiency of the evidence, our review is
a very limited one. “‘“When the
sufficiency of the evidence is challenged on appeal, the court must review the
whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence—i.e., evidence that is credible and of solid
value—from which a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.â€â€™
[Citations.]†(People v. Hill (1998) 17
Cal.4th 800, 848-849.) We presume the
existence of every fact the trier of fact could have reasonably deduced from
the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Further, before we
reverse a judgment for insufficiency of evidence, it must be clear there is no
hypothesis under which we could find sufficient evidence. (People
v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) “In deciding the sufficiency of the evidence,
a reviewing court resolves neither credibility issues nor evidentiary
conflicts. [Citation.]†(People
v. Young (2005) 34 Cal.4th 1149, 1181.) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]†(People
v. Maury (2003) 30 Cal.4th 342, 403.) This standard applies even “when the
conviction rests primarily on circumstantial evidence.†(People
v. Kraft, supra, 23 Cal.4th at p. 1053.)
Roundy’s Identification
In
his introduction to this argument, defendant argues that Roundy’s
identification was unreliable because Roundy was under the influence of cocaine
and methamphetamine. Defendant does not
go on to develop this argument further, or to offer any legal argument or
authority in its support. We therefore
need not consider it further. (People
v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)
That
is probably just as well for defendant, however, because his next argument is
somewhat contradictory. He argues that
Roundy’s description of the shooter immediately after the incident was
sufficiently credible that the jury should have relied on that description,
which was somewhat inconsistent with defendant’s appearance, over Roundy’s
later identification. On the way to the
hospital, Roundy described defendant as
a “Caucasian, stocky male, between 30 and 40 years of age†with a mustache,
between five foot seven and five foot nine, who weighed approximately 200 to
220 pounds. He also described the shooter
as holding the gun in his left hand.
Roundy said the shooter was wearing a T-shirt and a heavy flannel
jacket.
At
the time of the crime in December 2009, defendant was 39 years old. He was right handed. At the time the probation report was written,
in December 2011, his reported weight was 170 pounds.
and stocky male across the street after the shooting. Defendant also claims he did not have a
mustache, pointing to the photo used in the photographic lineup as
evidence. While defendant does not have
a clearly defined mustache in this photograph, he also does not appear to be
clean shaven. Defendant also has
extensive tattoos on his neck, arms and body, which Roundy did not
mention. At trial, Roundy testified that
the shooter was wearing a hooded sweatshirt rather than the T-shirt and flannel
jacket he reported to police. Defendant
argues the description of the shooter was more consistent with Derby, the
individual in possession of the gun.
There
are definitely inconsistencies between Roundy’s initial description and
defendant’s appearance. There are also
discrepancies between Roundy’s initial statements and trial testimony. But there is also the fact that two days
after the shooting, Roundy told the officer showing him a photographic lineup
that defendant looked most like the person who shot him. He identified a recent photo of Jessica
Espinoza in another photographic lineup.
Roundy also identified defendant in a courtroom several months
later and again at trial.
Unless it is physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a
conviction. (
1181.) No inherent improbability is
present here. The jury was aware
of all of the facts. They heard
testimony about Roundy’s purported intoxication, his initial description of the
shooter, and his subsequent identifications.
Based on all of the testimony, a reasonable jury was free to conclude,
for example, that questioning the victim of a shooting during a painful
ambulance ride is perhaps not the most effective method of eliciting highly
reliable information.
Roundy’s
first identification of defendant was only two days later, confirmed by his
in-person identification several months later. This identification was
sufficiently reliable and credible to constitute substantial evidence. Defendant essentially asks us to reweigh the
evidence and judge Roundy’s credibility, and that we cannot do. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Moreover, reversal is not warranted just
because the evidence might also be reconciled with a different verdict. (People v. Albillar
Further,
defendant focuses completely on the physical identification while ignoring
other evidence before the jury, such as defendant’s relationship with Haskins,
Roundy’s prior dispute with her, and the statements the shooter made at the
scene regarding Roundy owing someone money. All of these facts are
consistent with defendant’s guilt, and support the conclusion that the verdict
was based on substantial evidence. We
find no error.
Intent to Kill
Alternatively,
defendant argues that count one must be reversed because there was insufficient
evidence of defendant’s intent to kill.
Defendant argues that a single gunshot at close range, which resulted in
a wound to Roundy’s leg, followed by his departure from the scene, does not
support an intent to kill. The jury was
instructed with CALCRIM No. 600, which states that to establish attempted
murder, the prosecution was required to prove that “1) the defendant took at
least one direct but ineffective step toward killing another person, and 2) the
defendant intended to kill the person.â€
Viewing
the evidence in the light most favorable to the judgment, as we must, the facts
demonstrated that defendant confronted Roundy and brandished a weapon at
him. When Roundy refused to give
defendant his wallet, defendant held the gun over his head and pointed the gun
at Roundy from about three to six feet away, and eventually fired. When asked where the gun appeared to be
pointing, Roundy testified: “He seemed
to be pointing [at] what I thought was around my midsection, or whatever, from
where he was and the gun was and where I was.
So I turned kind of to the side and hit the window, and it wound up
hitting me in the leg instead of the stomach I think.â€
Defendant
argues that shooting Roundy in the leg, then leaving while Roundy was on the
ground, shouting, does not support an inference that defendant intended to kill
him. Defendant contends he could see
after the shooting that Roundy was not dead, and would have shot him again if
he wanted to kill him. He claims the
only reasonable inference is that he intended to scare or injure Roundy.
We
disagree. Whether a defendant intended
to kill is, of course, a question of fact.
(People v. Lashley (1991) 1 Cal.App.4th 938, 946.) “The act of shooting a firearm toward a
victim at close range in a manner that could have inflicted a mortal wound had
the shot been on target is sufficient to support an inference of an intent to
kill. [Citation.]†(People v. Houston (2012) 54 Cal.4th
1186, 1218.) Further, “[t]hat defendant
may have fired once and then abandoned his efforts does not compel the
conclusion he lacked the intent to kill in the first instance. [Citation.]â€
(Ibid.) Here, the permissible inferences, along with
Roundy’s testimony regarding defendant’s aim, were sufficient evidence for the
jury to conclude that defendant harbored the requisite intent to kill.
C. Jury’s Verdict
Defendant
next argues the court “coerced the jury’s verdict†on the attempted murder
charge when it directed the jury to continue deliberating without asking if
further deliberations would be helpful in arriving at a verdict.
Background
After
deliberating for about four hours over two days, the jury sent the court a
note: “We are not in agreement on Count
1, all other counts have been agreed upon.
What do we do now?†The minutes
reflect that “Counsel were notified†but the record does not reflect any
discussion between counsel and the court, or any objections to a proposed
course of action. The court sent the
following note in reply: “Please
continue deliberations on Count 1.â€
Approximately an hour later, the jury informed the court it had reached
a verdict.
2. “Coercion†of the verdict
Defendant asks us to
infer from this record that the jury “deadlocked†on count one and any verdict
was reached as a result of the court’s “subtle insistence†that a verdict must
be reached. First, we note that the
Attorney General argues the lack of objection should result in this issue being
waived, but we need not invoke the waiver doctrine here.
Nor
do we need to consider this issue at great length. Section 1140 states: “Except as provided by law, the jury cannot
be discharged after the cause is submitted to them until they have agreed upon
their verdict and rendered it in open court, unless by consent of both parties,
entered upon the minutes, or unless, at the expiration of such time as the
court may deem proper, it satisfactorily appears that there is no reasonable
probability that the jury can agree.â€
The court, without coercing the jury, must exercise its discretion to
determine whether there is a reasonable probability of agreement. (People
v. Neufer (1994) 30 Cal.App.4th 244, 254.)
The trial court has broad discretion in making this determination. (§
1140.)
Defendant’s
arguments assumes facts not present in the record, starting with the notion
that the jury was, indeed, deadlocked.
Neither this word nor any synonymous word is included in the jury’s
note, which simply said “We are not in agreement on Count 1.†A reasonable judge could decide that
disagreement did not necessarily mean deadlock or impasse, and the proper
course was to direct that deliberations continue, particularly given the short
duration of deliberations thus far. The
court could reasonably conclude that in light of the lack of agreement, further
deliberations could help. There is
nothing from the circumstances that creates an inference that a juror would
feel coerced to change his or her mind.
Further, there is nothing magical about questioning the jury about
whether further deliberations could help.
In light of the short duration of the deliberations and the language of
the jury’s note, the court could reasonably conclude that further deliberations
would indeed help. We find no error.
D. Hearsay Evidence and Jury
Instruction
Defendant
next argues the court erred by admitting a recorded telephone conversation
between defendant and his wife, Jessica, and by instructing the jury regarding
consciousness of guilt.
Background
Defendant
was arrested several days after the shooting.
After his arrest, one of the detectives told him his wife, Jessica, had
been interviewed by the police.
Defendant then spoke to his wife on the phone, in a call that was
recorded. Among other things, the
conversation included defendant’s statements that Jessica needed to “clean upâ€
her statements to the police, and to say she might have made prior statements
because she was coerced.
Prior to
trial, defense counsel moved to exclude the recording because it was irrelevant
and inadmissible hearsay. Counsel argued
the recorded conversation took place after the police told defendant what
Jessica allegedly said to them about the assault on Roundy. Essentially, counsel argued, without knowing
what Jessica said to the police, the jury would not have any context to
understand the conversation, and therefore it was irrelevant.
The court
denied defendant’s motion. The court
stated this was exactly the kind of evidence that CALCRIM No. 371
(consciousness of guilt) was directed toward.
From reading the transcript, the court believed the prosecution could
reasonably argue that there was an attempt to hide evidence or discourage
someone from testifying or create false evidence. The court therefore felt the evidence was
extremely relevant, even without the context of what Jessica told the police. Thus, the motion was denied.
During
the testimony of one of the detectives involved in the case, the prosecutor
asked if the detective had informed defendant that he had interviewed
defendant’s wife. The detective said
yes, after which he was asked about the conversation between Jessica and
defendant, and the tape was played for the jury.
The
court instructed the jury on consciousness of guilt as follows: “If the defendant made a false or misleading
statement before this trial relating to the charged crime knowing the statement
was false or intending to mislead, that conduct may show you that he is aware
of his guilt of the crime and you may consider it in determining his guilt. [¶]
If you conclude that the defendant made the statement, it is up to you to
decide its meaning and importance.
However the evidence that the defendant made such a statement cannot
prove guilt by itself.â€
Admissibility
The
standard of review for evidentiary issues is well-settled. “Broadly speaking, an appellate court reviews
any ruling by a trial court as to the admissibility of evidence for abuse of
discretion.†(People v. Alvarez (1996) 14 Cal.4th 155, 201.) Even where evidence has been erroneously
excluded or admitted, the judgment or decision shall not be reversed unless the
reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, §§
353, 354.)
Defendant
claims the court erred in two ways by admitting the phone call. First, that the statements to “clean upâ€
Jessica’s testimony were ambiguous and insufficient to create a reasonable
inference that defendant tried to create false evidence or obtain false
testimony. Second, he argues that the
admission of the phone call invited the jury to speculate about the statements
Jessica made. Neither of these arguments
falls into a particular category of evidence law. In his reply
brief, defendant argues that it was not reasonable to infer that any
statements Jessica made to the police were true. The reply brief then notes the motion in
limine was based on hearsay and relevance.
We
are unsure what analysis defendant wishes us to undertake. To the extent the argument is relevance, we
agree that only relevant evidence is admissible. (Evid. Code, § 350.) “‘The
test of relevance is whether the evidence tends “logically, naturally, and by
reasonable inference†to establish material facts . . . .’†(People
v. Harris (2005) 37
Cal.4th 310, 337.) Here, the material
fact to be established is that defendant wanted Jessica to “clean up†her
statements, which creates an inference, whether Jessica’s statements were true
or false, that they were harmful to defendant.
Thus, the evidence was relevant.
With
respect to hearsay, Evidence Code section 1200,
subdivision (b) states: “hearsay evidence is inadmissible.â€
Hearsay evidence is defined as “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).)
But the evidence here was not offered for its truth, but as evidence
that defendant intended to manipulate the evidence. The hearsay objection was properly overruled.
We
interpret all of defendant’s other arguments as falling under Evidence Code
section 352.
title="">[6] That section gives the trial court discretion
to exclude evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.†We will only
disturb an exercise of the court’s discretion under Evidence Code section 352
“‘on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ [Citation.]â€
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125; People v.
Cain (1995) 10 Cal.4th 1, 33.)
The
court here did not abuse its discretion.
The evidence was highly probative of defendant’s intent to manipulate
Jessica’s statements to the police. We
do not find that any prejudice to defendant outweighs the probative value of
this evidence. Therefore, the trial
court did not abuse its discretion under Evidence Code section 352.
Instruction
We
review jury instructions de novo. (
1048, 1089, overruled on other grounds in People
v. Hill, supra, 17 Cal.4th at p.
823, fn.1.) If the record contains “some
evidence†that, if credited by the jury, would support an inference of
consciousness of guilt, an instruction is appropriate. (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Here, the statements during defendant’s phone
call with Jessica could be interpreted by a reasonable jury as an attempt to
persuade her to change her statement to the police. Thus, an instruction on this point was appropriate.
E. Street Terrorism
Defendant
argues that his conviction on count four, street terrorism (§ 186.22, subd.
(a)) must be reversed because there was no evidence that the assault on Roundy
was committed with PEN1 gang members or that there was any connection between
the assault and the gang.
Section
186.22, subdivision (a) states: “Any
person who actively participates in any criminal street gang with knowledge
that its members engage in or have engaged in a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang, shall be punished by imprisonment in
a county jail for a period not to exceed one year, or by imprisonment in the
state prison for 16 months, or two or three years.â€
“The
elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal
street gang, in the sense of participation that is more than nominal or
passive; second, knowledge that the gang’s members engage in or have engaged in
a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal
conduct by members of that gang.
[Citation.]†(
v. Rodriguez (2012) 55
Cal.4th 1125, 1130 (Rodriguez).)
briefing in this case was complete, held that a gang member does not
violate section 186.22, subdivision (a) if he or she “commits a felony, but
acts alone[.]†(Rodriguez, supra, 55 Cal.4th at p. 1128.) In order to violate section 186.22,
subdivision (a), the requisite “felonious criminal conduct†(§ 186.22, subd.
(a)) must “be committed by at least two gang members.†(Rodriguez, supra, 55 Cal.4th at
p. 1132.)
We
requested supplemental briefing on Rodriguez. Defendant argues, and respondent concedes,
that Rodriguez compels reversal on
this count. We agree. The
defendant in Rodriguez was a gang member who committed an attempted
robbery. “There was no evidence that
[the] defendant acted with anyone else.†(Rodriguez, supra, 55 Cal.4th at p. 1129.) He contended that he could not be convicted
of violating section 186.22, subdivision (a) because he did not “promote[],
further[], or assist[]†any felonious criminal conduct by members of the
gang. (§ 186.22, subd. (a).) The California Supreme Court agreed, holding
that the plain meaning of the word “members†mandates that “felonious criminal
conduct be committed by at least two gang members, one of whom can include the
defendant if he [or she] is a gang member.
[Citation.]†(Rodriguez, supra, 55 Cal.4th at p. 1132.)
The
evidence does not show that defendant acted alone here. But if we presume (for the sake of argument
only) that Jessica was the woman with defendant at the scene of the assault,
there was no evidence of her affiliation with or membership in PEN1, or any
other gang, for that matter. Indeed, the
gang expert testified that PEN1 does not typically have female members. Without proof that the assault on Roundy was
“committed by at least two gang members†(Rodriguez, supra,
55 Cal.4th at p. 1132) there is insufficient evidence to support
defendant’s conviction on count four.
Because we are reversing defendant’s conviction on that count, we need
not consider his claim that the trial court should have stayed sentence on
count four.
Cumulative Error
Finally,
defendant argues that the “sequence of errors†in the instant case require
reversal under the cumulative error doctrine.
We do not find the three errors he points to (denying the motions for mistrial,
ordering the jury to continue deliberating on the attempted murder charge, and
admitting evidence of the phone call) were errors at all. The only “error,†which was the result of a
change in the law, was defendant’s conviction on street terrorism. In defendant’s supplemental brief on
he argues that the admission of the “highly inflammatory gang evidenceâ€
rendered his trial unfair. At the time
of trial, however, the gang evidence was primarily admitted because of the
street terrorism count, which was properly presented to the jury based on the
law at the time. Defendant offers no
authority for the proposition that evidence properly admitted at the time of
trial becomes a due process violation, if, after the trial is concluded, the count
that made such evidence relevant becomes legally untenable. We find no cumulative error.
III
DISPOSITION
Defendant’s
conviction on count four is reversed.
Because sentence on count four was imposed concurrently, defendant’s
total prison sentence has not changed and resentencing on the other counts is
unnecessary. Accordingly, the clerk of
the superior court is directed to issue a new abstract of judgment and to
forward a copy to the Department of Corrections
and Rehabilitation. In all other
respects, the judgment is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
name="_ftn1" title="">[1]
At trial, the prosecution and defense stipulated that defendant is right
handed.
name="_ftn2" title="">[2]
Subsequent statutory references are to the Penal Code unless otherwise
indicated.
