P. v. Fousse
Filed 3/13/09 P. v. Fousse CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. DARLENE RENEE FOUSE, Defendant and Appellant. | F050427 (Super. Ct. No. 1063488) OPINION |
APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
Mark Farbman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a series of violent home-invasion robberies, a jury convicted Darlene Renee Fouse (Fouse) of three counts of residential robbery in concert (Pen. Code,[1] 211, 212.5, subd. (a), 213; counts 32, 33, 34), one count of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 35), two counts of attempted murder of a peace officer ( 187, 664, subd. (e); counts 36, 37), and one count of conspiracy to commit residential robbery ( 182, 212.5, subd. (a); count 38). She was sentenced to two consecutive terms of life in prison with the possibility of parole, plus a determinate term of 11 years, and ordered to pay restitution and a restitution fine. In this timely appeal, she raises numerous claims of trial and sentencing error.[2] For the reasons that follow, we will modify her sentence, but otherwise affirm.
FACTS[3]
Count 1 May 25, 2003
Shortly after midnight on May 25, 2003, three intruders broke into the home of Keyes resident Jimmy Lasater. He could see two of them; they were males and wore ski masks, dark jackets, and what appeared to be leather gloves. Each had a gun. They covered Lasaters face with his pajama bottoms and tied his hands behind his back with a rope that had been in one of the bedrooms. They then began ransacking the house. Lasater estimated they were there for an hour and a half to two hours. They stole money and a number of guns, one of which, a Browning nine-millimeter semiautomatic, was recovered by authorities following the arrests in this case.
Counts 2-4 June 26, 2003
At approximately 12:30 a.m. on June 26, 2003, multiple intruders broke into the Turlock home of P.S., his wife, Jane Doe One, and their children. Jane Doe One believed there were four to five people, all with guns; P.S. believed he saw two people with guns, although he heard footsteps elsewhere in the house. All were dressed in ski masks, dark clothing and gloves. Two people both males bound the couples hands and ankles with electrical cords cut from items in the bedroom. Jane Doe Ones head was covered with a towel, while a blanket was thrown over P.S.s upper body.
The intruders ransacked the house and terrorized the couple while demanding the receipts from their businesses and the locations of their valuables. One of the intruders pressed a sharp object against P.S.s left eye area while questioning him. Someone subsequently grabbed P.S.s penis, held a sharp object against it, and threatened to cut it off. One of the intruders then sexually assaulted Jane Doe One by penetrating her vagina with his finger.
All told, the intruders were in the home approximately an hour to an hour and a half. Among the items they took were jewelry, identification and credit cards, a digital camcorder, cash, and one of the couples cars. They cut the home telephone line and took the couples cell phones. Authorities found footprints in the orchard across the street from the residence, and tire marks going eastbound. The couples vehicle was found later that morning about a quarter to a half mile east of the residence. The camcorder was recovered from Silvas residence after the arrests in this case, and he was shown on the videotape it contained.
At approximately 4:30 a.m. on July 15, 2003, four intruders, two of whom had guns, broke into the Modesto home where Ramon Mechuca, Jose Hernandez, and Francisco Hernandez resided. The men, whose faces were covered with dark handkerchiefs, bound the wrists of Mechuca and Francisco Hernandez with black plastic ties and pulled a blanket over their heads.
One of the intruders, who spoke broken Spanish to Mechuca and the Hernandezes, demanded to know where the money and drugs were. When Mechuca said they had no drugs, the intruder threatened them and said some things in English to another person. The intruders took Mechucas money and ring, and broke the mens cell phone. They also beat Francisco Hernandez, causing the blanket to come off of Mechucas head and allowing him to see Morrisons now-uncovered face. Morrison said, He saw my face, and Lets kill him. Mechuca was then beaten until he pretended to be unconscious. Francisco Hernandez was beaten with a frying pan. The intruders overturned the couch onto Mechucas and Francisco Hernandezs backs and jumped up and down on it while laughing. They then badly beat Jose Hernandez. All told, they remained in the house for about an hour to an hour and 45 minutes.
At 8:00 a.m. on July 21, 2003, Christine Baker and her husband, Richard, entered their residence in Delhi, after working in the walnut orchard surrounding the house, to discover two men, dressed all in black and wearing ski masks, and each with a gun. Kitchen aprons were put over the Bakers heads, and their wrists and ankles were bound with black plastic straps. The men demanded the location of the Bakers money, safe, and other valuables.
Ultimately, the intruders ransacked the house, cut the telephone lines, and took cash, jewelry, and the Bakers vehicle. They remained in the house for 45 minutes to an hour after the Bakers returned from the orchard. The Bakers car was recovered later that day from an orchard about three miles from the house. Tracks from another vehicle were close by. Authorities recovered some of the couples belongings following the arrests in this case.
A little before 2:00 a.m. on July 24, 2003, three men claiming to be the police broke into the Turlock residence of Cynthia and William Gibbs and their children. At least two of the intruders had guns, and one was wearing black clothing and a ski mask. The couples hands and ankles were bound with black zip ties and their heads were covered. When Ms. Gibbs called to her children to call 911, she was punched in the face. The children were then similarly bound and covered.
The Gibbses ran a business from an office on their property, and the intruders wanted to know where Gibbs kept the money he paid his employees. They took him out to the office and had him open the safe, then returned him to the house.
The intruders remained in the home at least two to two and a half hours. Before they left, they gagged the family with socks and duct tape. They also disabled the telephones. They ransacked the place and took jewelry, a gun, other items, and the familys car. It was recovered later that day a short distance away. From shoe patterns in the dirt, it appeared three people had run from the car to where another vehicle had parked nearby. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions, and most likely were the source of one of the impressions. Authorities recovered some of the familys belongings following the arrests in this case.
In August 2003, F.G. resided in Merced with her husband, Z.M., and son. She had a small business selling jewelry to people in their homes. She kept the jewelry in a safe in her kitchen. In late July, Morrison had twice come to the house to ask about a car F.G. had for sale.
Around 3:30 a.m. on August 4, two men with guns entered the house. Both wore black clothing and ski masks. One intruder, who spoke in English, threatened to kill everyone in the house if the police came. The intruders bound F.G., Z.M., and visiting family members with black plastic bands. Z.M.s head was covered. One of the intruders pressed a knife blade to the back of Z.M.s neck and demanded money. When Z.M. responded that they had no money in the house because they had been burglarized three months earlier, the intruder began cutting Z.M.s neck and threatened to kill him.
At some point, a third intruder with a gun entered the house. F.G. heard one of the intruders talking on what she believed was a cell phone. The man asked, in broken Spanish, which one was the woman who was going to open the safe. F.G. recognized the voice that replied on the cell phone and described her as being that of a former boyfriend who knew where she lived and about her jewelry business. A short time later, she was taken to the kitchen and struck in the face, whereupon she opened the safe. Her face was then covered with a towel. After the intruders went through the safe, F.G. ended up in the living room, where her breasts and vagina were touched over her clothing. Someone tried to rip off her shorts, but desisted when she struggled and yelled.
The intruders were in the house for about 30 minutes. They ransacked it, cut the telephone lines, and took everything of value, including the jewelry F.G. had had in the safe, which was worth $80,000 to $100,000. Authorities recovered some of the jewelry following the arrests in this case. Also recovered was some of the jewelry that had been taken in the earlier burglary.
Around 12:45 a.m. on August 7, 2003, three men, wearing ski masks and dark clothing and with guns drawn, entered the Turlock residence of Renae Frye and William Cozine. The intruders tied the couples wrists and ankles with large black zip ties, and covered their heads. They pepper-sprayed Fryes small dog when it became aggressive, and demanded to know where the drugs were. When the couple told the intruders they were at the wrong house, the men started asking for big money. They had Frye open the safe.
The intruders were in the house for about 45 minutes to an hour, during which time they ransacked the premises and cut the main telephone line. They took jewelry, cash, and the couples cell phones. Authorities recovered the cell phones following the arrests in this case.
At around 3:00 a.m. on August 11, 2003, at least three men broke into the Delhi home of Vicki and Kenneth Myers. At least two had guns; all were wearing dark clothing and had their heads covered. When one of Ms. Myerss small dogs became aggressive, the intruders sprayed something at it and it fled. The intruders then covered the couples heads and bound their wrists and ankles with black zip ties. Myers was struck in the back of the head a couple of times with what felt like a fist.
The intruders demanded the locations of jewelry, money, and valuables. They also wanted information about the Myerses businesses, and threatened to hurt the couples daughter, who lived at the ministorage facility. They appeared to know this and also that the receipts for the ministorage were deposited on Mondays. At one point, one of the intruders accidentally cut Ms. Myerss finger to the bone when repositioning her hands. One of the intruders uncovered all but her head, then jerked her panties as if he was going to pull them down. He stopped, however, and just covered her back up. When the men found the safe, they put Myers on his knees, put a gun to the back of his head, and clicked the gun twice. When he told his wife that they were going to kill him and that he loved her, she begged them not to do it. They then forced Myers to open the safe, after which one of them kicked him in the back a few times with what felt like a boot.
The intruders remained in the house for approximately 45 minutes. They cut the telephone lines to the house, and took jewelry, money, a rifle and a side-by-side Browning 12-gauge shotgun, and a cell phone. It was subsequently discovered that someone apparently had parked in the orchard beyond the fence near the southwest corner of the property. There were a number of shoe prints in the area. Very shortly after the incident ended, Myers saw a car driving across the back of the property on the frontage road. Because it was still dark out, he could not ascertain its color or identify it in any way.
The following day, Ms. Myers saw a newspaper article about another home invasion. Anyone with information was asked to call Detective Campbell of the Stanislaus County Sheriffs Department. Ms. Myers called the number given to inform Campbell that such things were also occurring in Merced County. Authorities recovered some of the Myerses belongings following the arrests in this case.
At approximately 4:30 a.m. on August 11, 2003, Steve Christy, who resided in Hughson, was awakened by what sounded like an explosion and the alarm going off. He saw three people with guns entering the house. All wore dark clothes and masks, and they told him to turn off the alarm. Once he complied, they restrained his wrists with a plastic zip tie and covered his head.
One of the intruders asked where the money was, and then for the safe. When Christy insisted he did not have one, a foot or hand was placed on the back of his neck, something was pointed at the back of his head, and the intruder again asked where the safe was and threatened to kill Christy. Christy heard a click from the gun behind his head, then the intruders took him out to his shop, which was about 100 feet from the main house. Once there, the one intruder again asked the location of the safe. Someone started looking through the shop, while another intruder struck Christy near his right kidney with what felt like a fist, knocking him unconscious. When he regained his senses, one of the intruders helped him back into the house.
All told, the intruders were at the house around an hour to an hour and a half. They ransacked the premises, cut the telephone line to the house, and took jewelry belonging to Christys late wife, cash, a Browning 12-gauge shotgun, a .38-caliber revolver, and some other items. Authorities recovered the shotgun and some of the other items following the arrests in this case.
Counts 24-29 August 12-13, 2003
At approximately 3:30 a.m. on August 12 or 13, 2003, three men, all wearing black clothes and masks, entered the Ceres residence of Jane Doe Two, her husband M.J., and their two adult children, T. and M.[4] M. was in the family room, awake, when one of the intruders struck him in the head with something hard. Meanwhile, another intruder, who had a gun, awakened Jane Doe Two and M.J., struck M.J. in the head with the gun, covered the couples heads, and took them into the room where M. was. A third intruder with a gun brought T. into the room. The childrens heads were also covered. Everyones wrists and ankles were bound with cords from telephones or electric appliances.
The intruders demanded to know the location of money, jewelry, and guns. One of them held a gun to M.J.s head and threatened to kill him if he did not tell them where everything was. M.J. heard the gun click several times while it was held to the back of his head. M.J. took them to the bedroom and showed them where the jewelry and guns were. After he was returned to the other room, he was kicked in the head several times.
One intruder then took Jane Doe Two to open the safe, which was in the weight room. He then took her out to the office, where a money box was kept. At some point, another intruder joined them. Jane Doe Two opened the money box, whereupon one of the intruders cut off the underwear and bra in which she had been sleeping. The intruders then returned her to the living room, where one fondled her. One of the intruders then stuck the gun in her vagina and told her husband he would blow her up if M.J. did not tell him where the money was. When Jane Doe Two screamed, the intruder removed the gun from her vagina and put it toward her posterior, although the gun did not actually penetrate her anus.
The intruder then carried Jane Doe Two outside to the deck, where there was a hot tub. He wanted to know where the money was and stuck her head underwater in the hot tub several times. M.J. was also brought outside. The intruders demanded to know where more money was at, but there was no more money. M.J.s head was dunked underwater, then the couple was returned to the house. There, Jane Doe Two was fondled and her vagina was penetrated with a dildo.
The intruders were in the house some 45 minutes to an hour, during which time they ransacked the familys belongings. They disabled the telephones and took jewelry, cash, guns, and a knife. Authorities recovered some of their belongings following the arrests in this case.
At approximately 1:20 a.m. on August 15, 2003, Marcos Renteria was asleep in his Ceres residence when he was awakened by a loud noise coming from the attached garage. Renteria arose and managed to partially dial 911 on his cell phone, but before he could complete the call, someone kicked down the door to his bedroom. Renteria saw two men, both with guns drawn on him. The intruders were wearing dark clothing and had handkerchiefs covering the lower halves of their faces.
When the intruders entered, they turned on the bedroom light and started yelling at Renteria to get down. One grabbed the phone and threw it on the ground. When Renteria said they could have anything, one of them said, Anything? They then began to beat him and a burning liquid was sprayed at his face. One of them put a gun to his head, and Renteria tried to grab it. At some point, one intruders mask came off or Renteria pulled it off. It was Martinez. The other intruder said, Shoot him, Bro.
Renteria fled to the garage. He managed to raise the door a bit, but the intruders caught him and started punching him again. Renteria managed to dive underneath the garage door. Once outside, he started to run. He was shot four times. His injuries required prompt medical attention and surgical repair to prevent loss of limb or death. His DNA was subsequently found on Silvas boots. To Renterias knowledge, nothing was taken from the house.
Counts 32-35 September 10, 2003
In September 2003, Homer Garza, Sr., resided in Denair with his wife Virginia, 14-year-old daughter Melissa, and 23-year-old son Homero, Jr.[5] Garza, a farm manager, had an office at his residence, as well as one at his work site. An alarm system that was connected to a security company and the sheriffs department had been installed at the house on September 9.
At approximately 2:20 a.m. on September 10, Garza got up to see his wife off to work and to check on some water he had running in his orchard. Everything seemed fine. Around 3:30 a.m., he was asleep when the alarm went off. Thinking there was a problem with the installation, he was hurrying to turn off the alarm, the control panel for which was by the front door, when three intruders entered the house by breaking open the dead-bolted front door. One held a shotgun to Garzas head and said that if he did not quickly turn off the alarm, the intruder would blow [his] brains out. The intruder repeated this and banged Garzas head with the butt of the shotgun multiple times. Garza was able to tell the intruders were wearing masks. He heard three male voices.
Garza managed to turn off the alarm. The intruders took him into the living room, where he was placed face down on the floor, his hands and ankles were restrained with black plastic ties, and his head was covered. As one of the intruders ran down the hallway toward the childrens rooms, another put his foot to Garzas neck, applied pressure, and asked him where the money was. The shoe felt heavy. The intruder told Garza that his son was covered in blood, and that if he loved his son, he would tell the intruder where the money was. Garza told him that there was money in his wallet in the laundry room. The intruder then asked where the clavo was. In the Spanish culture, clavo is a slang term that means stash.[6] Garza understood it to mean money or jewelry, and he told the intruder that he did not know what he was talking about. The intruder then got angry and kicked Garza in the side of the face.
Meanwhile, Homero was awakened when his locked bedroom door was kicked in. What appeared to be a shotgun and a flashlight were pointed at him. He could hear the alarm in the background. It went off after 15 to 25 seconds. Homero was told to lie face down on his stomach, and his wrists and ankles were restrained with black zip ties and a blanket was thrown over him. Homero could hear three male voices. The intruders spoke in English, except that Homero, who understood Spanish, heard the term ese four or five times when one intruder addressed another. The two intruders in his room used the term and seemed to have Hispanic accents.
Homero heard one of the intruders tell his sister to get up and then to get on the ground. He then heard what sounded like someone being struck. Although he did not hear his sister make any sound, he yelled out not to hurt her, that she was only 14. The intruders repeatedly asked Homero where the money was; when he insisted there was no cash in the house, he was kicked a few times in the back of his head with something that felt sturdy, like a boot. At some point, Homero could hear his father insisting that there was no money. When the intruders were asking Homero where the money was, they said that if he was lying, his father was going to get hurt worse, and that Homero should look at him, that he was bleeding all over. Homero knew they were lying, because he could hear his father and had not heard him being struck or asking not to be hit.
Eventually, one of the intruders asked Garza how to turn off the front lights. Garza told him the location of the switch, then heard a car nearby that sounded like its muffler was torn up. The car was leaving. The house was quiet then. Homero, who had been left alone in his room after it was searched and items were taken, managed to free himself and then his father and sister.[7] They discovered the telephones were missing from the wall and their cell phones were in the toilet, so Homero activated the panic button on the alarm to summon help.
The incident lasted 40 to 50 minutes, during which the house was ransacked. The intruders took a number of items, including jewelry, money, and a video camera. Authorities recovered some of the items following the arrests in this case. Garza suffered cuts and bruises to his head and face from being kicked and struck with the gun butt. He also had bloody marks on his ankles from having his feet tightly bound. Melissa sustained a facial abrasion and marks on her wrists and ankles. Homero had marks on his wrists and ankles that were visible for about a month. None of the family sought medical attention.
Shoe prints were found between the residence and the road. Boots subsequently seized from Silva could not be excluded as the source of some of the impressions. Boots subsequently seized from Martinez could not be excluded as the source of other of the impressions. There were tire tracks in the orchard near the house that appeared to go from the road, into the orchard, and then out onto the road again. The shoe prints led toward the area where the tire prints were found.
Counts 36-37 September 10, 2003
Early on the morning of September 10, 2003, Stanislaus County Sheriffs Detective Nuno was assigned to be part of the arrest team, if residential robbery suspects, who were under surveillance, committed a robbery. Sergeant Allen, who was the team supervisor, was with Nuno in one vehicle, while the rest of the SWAT team and a couple of other detectives were in other vehicles. Nuno and Allen were in an unmarked car that was equipped with lights and a siren. Nuno was driving.
At approximately 4:30 a.m., Nuno and Allen were at the staging area in Hughson, when they received information that the individuals were believed to have committed a residential robbery in the area. The surveillance team reported the suspects location; Nuno had previously been informed that the suspect vehicle was brownish or golden and had the words Cold Pimpn on the back.
Nuno and Allen, who were in the lead vehicle, and the rest of the arrest team moved to intercept the suspects. Once the team was in position, Nuno activated his lights and siren. The suspect vehicle slowed down as if it was going to stop, but then accelerated. A pursuit ensued that covered seven to 10 miles and lasted approximately 10 minutes.
Nuno followed the vehicle from a rural area into a residential neighborhood in Turlock. There, the car slowed down and began making turns. The rear doors opened a couple of times, then, in the vicinity of 550 Angelus, near the intersection of Angelus and Spruce, the vehicle slowed almost to a stop. Nuno slowed down as well, and pulled toward the drivers side passenger area of the vehicle. The right rear door opened completely, and Martinez got out. He was wearing black clothing, a black beanie-type hat, black boots, and a bandolier, and had a shotgun in his hand. As he turned toward Nuno and Allen, the shotgun also turned in their direction. Allen opened his door, stepped half out of the car, which was still moving, and fired several shots at him. Because Allen was behind the door of the car and the window was not rolled down, he fired through the window, which shattered. The shots also damaged the vehicles outside mirror. The Cold Pimpn vehicle was about 10 to 15 feet in front and to the right of his and Nunos position at that point. As Martinez ran toward a residence on the south side of Angelus, Allen reacquired the target, stood up, and fired again. He was standing behind the door of his and Nunos car, which was now slightly rolling away from him.
Immediately after Allen fired the second time, he and Nuno heard loud booms, which Allen believed to be gunfire. They were coming from the suspect vehicle, toward Allen. Allen had stepped out of the car in which he had been riding, and was standing right next to it. He was still somewhat in the doorway, with the car moving away from him. When he first heard the gunshots, Nunos car had not completely cleared his position. The suspect vehicle was still in front of Nunos car, approximately four to five car lengths away. The lower drivers side portion of Nunos windshield broke, and he realized he was being shot at. Glass from the windshield cut his left cheek, and the bullet, which struck the drivers side door frame, was probably inches from his face. Nuno heard several booms. Allen heard two or three shots. Nuno was not sure which shot hit the windshield, but it was neither the first nor the last.
As this was going on, the suspect vehicle started to move. Nuno accelerated to catch up to it, and Allen followed Martinez.[8] At the intersection of Angelus and Spruce, approximately 100 yards from where Martinez had exited the vehicle, the two passenger side doors opened. As the car was either completely stopped or moving slowly, Morrison got out of the rear passenger side. Nuno did not see anything in his hands. Silva got out of the front passenger side. He was dressed in dark clothing and holding a chrome-colored handgun.
Because Silva was holding a firearm, Nuno positioned his car at an angle and began to shoot at him through the broken-out passenger window. He could not tell whether any of his shots struck Silva, who disappeared into the darkness, as did Morrison. Having lost sight of them, Nuno came around the drivers side of the suspect vehicle, at which point he saw the driver exit. It was Fouse. Nuno gave chase as she ran into a yard across the street, then took her into custody without further resistance.
Fouse was taken into custody around 4:45 a.m. A subsequent search of the vehicle revealed a number of items that the Garzas later identified as belonging to them, as well as a black baseball cap and black ski mask. The ski mask had two eyeholes, and a mouth opening that had been closed by some means. A camouflage hood was found on the rear floorboard. A shotgun was found in the front yard of the residence at 550 Angelus, where Martinez had jumped the fence into the backyard and fled from Allen. In the backyard was a bandolier with shotgun shells in it.
Ward assisted in taking Silva into custody about 5:30 or 6:00 a.m. Silva was hiding in the carport of the residence at 733 South Orange Street. When apprehended, he had a cell phone in his hand. Eight black plastic zip ties, each individually secured in a loop, were found underneath the vehicle where Silva had been hiding. Although Silva only had a pocketknife on his person, two black nine-millimeter magazines for a semiautomatic weapon were found in the backyard of the residence, about 15 to 20 feet from the carport. One contained 10 rounds and the other contained nine. A black Browning High-Power semiautomatic handgun with a magazine in it was subsequently located in the backyard of the neighboring residence at 720 Spruce. The two backyards were separated by a fence with a gap in it, and the two magazines were some six to 10 feet from the black handgun.
Although the black handgun was photographed where found and Deputy Luck, then a Stanislaus County Sheriffs Department trainee, was assigned to watch the evidence in the area, the gun was no longer there a couple of hours later when sheriffs personnel returned to collect it, and Luck was no longer in the immediate area. A resident of the house agreed to assist Deputy Reed, Lucks field training officer, in trying to recover the handgun. The following day, this person directed Reed to an apartment complex in Turlock and retrieved what appeared to be the gun. A check of the weapons serial number revealed it had been taken in the Lasater robbery. Subsequent comparison revealed that one of the unfired cartridges in the magazines found in the backyard at 733 South Orange most likely was cycled through this gun.
A silver-colored Smith and Wesson .357-caliber revolver was found in an adjacent backyard at 717 South Orange.[9] The revolver, which was capable of holding six rounds, contained six empty shell casings.
Nuno assisted in capturing David Michael Silva, who was hiding in a duplex laundry room on Spruce, near Angelus. David Michael Silva was taken into custody between 6:00 and 7:00 a.m.
Just before 8:00 a.m., Stanislaus County Sheriffs Detective Cook found Martinez hiding in the backyard of the residence at 364 South Avenue, at the corner of South Avenue and South Orange Street. A black zip tie and a loaded Mossberg 12-gauge shotgun (also known as a Moss) were recovered from the area in front of the residence at 550 Angelus.[10] A black strap containing 12-gauge shotgun rounds was found in the backyard of the residence.
Around 1:30 p.m., Morrison was taken into custody inside the residence at 653 South Avenue.
Additional Evidence[11]
Detective Campbell, who became the lead investigator on the day of the Gibbs case, began to focus on Morrison, Silva, and Martinez as potential suspects shortly after the robbery of M.J. and Jane Doe Two. On about August 13, members of the Stanislaus County narcotics task forces were asked by the Stanislaus County Sheriffs Department to assist in surveillance of the suspects.[12]
Richard Balentine, an investigator for the Stanislaus County District Attorneys Office, was part of the surveillance team for approximately 22 out of the 27 days the surveillance lasted, and also spent three days monitoring intercepted conversations in the so-called wire room. Martinez, Silva, and Morrison were three of the individuals targeted for surveillance, and were seen together on a number of occasions. During the surveillance period, certain homes and vehicles came to be recognized as being associated with them. Silva was associated with two residences, one at 20077 First Street, Hilmar, and the other at 3512 Woodglen Court, Modesto. He was seen driving a 1984 Buick Park Avenue, variously described as silver or brown, with large white letters spelling Cold Pimpn in the back window. He was also seen driving a white 1999 Mitsubishi Eclipse convertible. On a few occasions, Virginia Ellsworth was seen in Silvas company, and also in his vehicle at his residence. Martinez was seen coming from, going to, and staying the night at 733 South Orange in Turlock, and he was occasionally seen on Davis Court in Delhi, the same address on Woodglen in Modesto as Silva, and, near the end of the investigation, on South Carpenter Road. Martinez was associated with a green 1997 Dodge pickup. Morrison was seen going to, coming from, and staying the night at 16347 Davis Court, Delhi, the same address at which Martinez occasionally was seen. Morrison was associated with a gold Chrysler Intrepid. Morrison was often seen associating with Patricia Ramos.
Fouse was also under surveillance. Balentine twice saw her at the Woodglen address. On one of those occasions, August 30, she drove up and walked into the house, then came back outside with Silva and two other males. All four got into the Cold Pimpn vehicle, which was not the car in which Fouse had arrived. Fouse got into the left rear of the vehicle; a Hispanic male got into the right rear; a white male who was carrying an object that Balentine believed was a shotgun or rifle got into the right front; and the car, which was driven by Silva, left the residence. On one occasion, Balentine saw Fouse driving the Cold Pimpn vehicle.
Early on the morning of August 15, the date of the Renteria incident, Agent Vieira was surveilling the First Street residence in Hilmar when, at 2:11 a.m., he saw the Cold Pimpn vehicle drive up and park. A male dressed in dark clothing exited the drivers side of the vehicle and walked toward the front door of the residence. A minute later, a male wearing a gray shirt exited the residence and walked toward the front drivers door of the Cold Pimpn car. He pulled what appeared to be a heavy black bag out of the right rear passenger side of the vehicle and carried it into the house. At approximately 2:14 a.m., the gold Intrepid pulled up and parked just in front of the Buick. A male, dressed all in black, exited the front passenger side door and walked up toward the front of the residence. Although Vieira could not tell if this man knocked or simply let himself in, he entered the residence. He returned to the gold Intrepid about a minute later and drove away. Another male came out of the residence and drove off in the Cold Pimpn vehicle. Vieira could not tell whether this was either of the two men who previously had interacted with the Cold Pimpn car. The vehicle left at approximately 2:15 a.m.
At approximately 9:50 p.m. on August 15, Balentine and one of the surveillance teams were southbound on 99 when Balentine saw Silva driving the white Eclipse convertible southbound into Merced. Morrison and Martinez were passengers in the vehicle. The three attended a party in Merced. At approximately 11:55 p.m., SDEA Agent Hoek and other officers were conducting surveillance at a residence in the southern Merced area when they saw the white Eclipse convertible leave. Silva was driving and had two passengers. The car went to the Davis Court residence in Delhi. Two people got out. The vehicle, now containing only the driver, left after about two minutes.
At approximately 8:53 p.m. on August 18, Modesto Police Sergeant Van Diemen of the SDEA drove by the home at 733 South Orange, Turlock, and saw Martinez and Morrison in the front yard. He was aware the two were cousins.
At 11:59 p.m. on August 25, SDEA Agent Tovar was surveilling the Woodglen address in Modesto. As he drove by the residence, he saw Silva and Morrison standing in the driveway, talking to each other.
As a result of the surveillance, information was developed that caused Campbell and Hoek to obtain authorization for and initiate wiretap surveillance with respect to (209) 505-9835, for which Patricia Ramos was the subscriber but which Morrison used, and (209) 614-7098, for which Silva was the subscriber. Wiretapping was conducted from August 29 until September 10, with surveillance teams concentrating on the hours of 6:00 p.m. to 6:00 a.m. During a number of the intercepted conversations, the males referred to each other by a racially derogatory term or shortened variation thereof. Fouse became a target of the investigation when her name came up in the wiretaps.
At 6:46 p.m. on September 1, a conversation between Silva and Morrison was intercepted in which a reference was made to Silva having that black bag on him because his old lady wanted it and was supposed to show somebody in Turlock. Later in the conversation, Silva said they could just get in the tinted windows and do [their] thing.
Later that evening, at 8:45 p.m., the Cold Pimpn vehicle was followed to a Taco Bell in Turlock. At 8:48 p.m., a conversation between Silva and his mother, Terry Silva, was intercepted. There was a reference to Silva and Fouse being together at a Taco Bell, and Fouse mentioned that Silvas girlfriend was her roommate. During the course of the conversation, Terry Silva said that someone had told her there had been a lot of things in the paper about home invasions. Silva replied that there had been, which was why he had stopped for a while. Terry Silva then told him that she wanted him to take anything he had out of her house and put it in his cars or something.
At 2:47 p.m. on September 2, a conversation between Silva and Morrison was intercepted. Morrison said that he wanted to pick up the jewelry and take it, because someone wanted to check it out. About half an hour later, the gold Intrepid was seen arriving at the Woodglen residence. Approximately two minutes later, the white Mitsubishi Eclipse arrived. At 5:17 p.m., Agent Pettit, who was conducting aerial surveillance, saw the gold Intrepid meet up with a burgundy-colored car on Carlos Court. Pettit followed the Intrepid to Atlantic Street, where it met someone out front. A short time later, Pettit saw a male take a black bag out of the trunk. At 6:30 p.m., Pettit observed a male in a white shirt at the trunk of the Intrepid. Two minutes later, the Intrepid left with a green Dodge Neon. Both vehicles went to Sams Food Lot on Carver, and someone from the Dodge got out and talked to the driver of the Intrepid.
At 6:41 p.m., a conversation in which Morrison contacted Martinez was intercepted. In it, Morrison said he needed money to make a car payment, and so gave Mike a good deal. Morrison spoke of how much he received per gram, and said he gave Mike a lot of rings and things that weighed about 10 to 15 grams apiece. When Martinez asked whether Mike paid 650 for what Morrison gave him, Morrison responded affirmatively and said he got two for Martinez, two for Silva (to whom he referred by a nickname), and two for himself, and would get 50 the next day. Martinez said that sounded good. Immediately after, Morrison telephoned Silva, informed him of the deal, and said that if Silva wanted $200, to come to Turlock and get it. Silva said he would. Morrison also informed Silva that he had instructed Mike to say they only sold stuff to him one time. At approximately 7:00 p.m., Pettit saw the Intrepid go to an apartment complex in the 500 block of Angelus Street in Turlock, where it remained for about 12 minutes.
Surveillance of the Woodglen residence showed Morrison and Martinez leaving in a green truck at 2:50 a.m. on September 3. Martinez was driving. At 9:46 p.m. the next night, a conversation was intercepted in which Morrison told Martinez that he had sold some pieces of jewelry for three, and that, if Martinez wanted $100, he should come and get it.
At 3:34 p.m. on September 8, a conversation between Silva and Morrison was intercepted in which Silva said he was trying to get some stuff moved because he had to be out of his location by 6:00 the next morning. Silva said he was trying to find a storage facility, but that they called him earlier and had some people who wanted to look at the jewelry. When Morrison asked whether Silvas old lady or Shady told Silva that, Silva replied that it was his old lady.[13] Morrison asked whether Silva wanted him to go over there. When Silva said yes, Morrison said he was already on his way and had everything with him. In another conversation at 10:19 that night, Martinez and Morrison discussed the price per gram, and that if they only wanted a few small items, then the cost would be half price the tags.
At 10:32 p.m. on September 9, a conversation between Silva and Morrison was intercepted in which Morrison informed Silva that he and Anthony wanted to do some money making. Morrison asked if Silva wanted to go out with them. When Silva said he did not want to go out and window shop, Morrison again asked if he wanted to go. Silva responded, Geared up? Morrison answered affirmatively, and Silva agreed. Morrison said they were getting on the freeway in Merced, then were going to stop by Morrisons house and then go to Anthonys. He said he would call Silva when they got to Modesto. A few minutes later, at 10:36 p.m., Silva telephoned Fouse and said he might need a driver that night. He said he had called her because David had called him. Fouse asked whether David had sold all the gold; Silva responded that he did not think they sold it all, but they sold some of it the day before. Silva and Fouse then discussed when Silva would be there, and Fouse asked whether it was the same as last time, dropping him off and then coming back and getting him. He answered affirmatively and said she would not be used for anything else, as far as going with them. Fouse said she was moving slowly right then, but she could drive.[14] She said it would be kind of fun, and that she needed something interesting in her life right then. When she asked what car she would be driving, Silva said he would find out and see if they needed a driver, and would call her back. Silva then telephoned Morrison and asked if they were going to need a driver. When Morrison said yes, Silva said he would get Shady. Discussion then turned to what car they were going to use. Morrison responded that his mother had his Intrepid, his Thunderbird was all primered up, and they would not all fit in Anthonys truck. Silva agreed and said his nightmare was full of his belongings, but that he could unload it at his house. They then discussed where they would meet. It was agreed they would meet at Silvas home, and that Morrison would grab his things and get ready at Anthonys, and then he and Anthony would go to Hilmar. Silva called Fouse back at 10:47 p.m. and told her they would need a driver. Two minutes later, there was a conversation between Morrison and Silva in which Morrison asked whether Silva had the Moss at his house. When Silva said he had both of them right there, Morrison said he wanted to use the big one with the belt.
At 11:33 that night, a conversation between Silva and Fouse was intercepted in which Fouse said she saw all them cops and asked where Silva was. When Silva said the police were at a particular store, Fouse said now that they knew where all the police were, they should do something in Turlock really fast. When she asked if Silva was at home, he replied that he was on Lander, not far from you guys. Agent Pettit, who was conducting aerial surveillance, saw the Mitsubishi arrive at the First Street residence at 11:37 p.m. At 11:40 p.m., the Cold Pimpn Buick arrived. At 11:48 p.m., the officer surveilling the residence on First Street, which was a short distance west of Lander Avenue, saw a female and a male standing by the Cold Pimpn vehicle. The man was dressed in black. At 11:58 p.m., a telephone conversation was intercepted in which Silva asked Morrison where he was. Morrison replied that they were already dressed and leaving Anthonys house. Silva said he had to unpack his car.
Surveillance on Martinezs new residence on Carpenter Road in Modesto showed that the green Dodge pickup was parked out front at around 11:30 p.m. Martinez and Morrison took items from the residence to the vehicle at least twice, then they left in the truck just prior to midnight. Both were dressed in dark clothing, and it appeared they had placed something dark, like a duffel bag, in the cab of the truck. Agent Pettit began aerial surveillance of the vehicle at approximately 12:06 a.m., and followed it to the First Street residence in Hilmar.
At 12:04 a.m. on September 10, Vieira saw the female back the Cold Pimpn Buick, which was parked on the street, into the driveway, underneath the carport. At 1:05 a.m., a female and a male dressed in black got into the car. The female got into the drivers side front door, and the male got into the passenger side front door. Because the vehicle was in the carport, it could not be determined whether anyone got in through the rear passenger doors. The vehicle then left the location. This was sometime after the green pickup arrived.
From the First Street residence, the vehicle went to an AM/PM store in Turlock, where a female got out and appeared to put gas in the car. The tinting on the vehicles windows made it difficult for the surveilling officer to see inside the back.
The car was followed from the Turlock area to an area out in the country near Snelling, where it was parked, with its lights off, in an orchard across the street from a residence from 1:34 a.m. to approximately 2:27 a.m. It then left and was followed to the Hughson area.
At 3:15 a.m., Agent Pettit, who was conducting aerial surveillance, observed the Buick driving down Swanson blacked out, i.e., with its lights turned off. It pulled into an orchard in the vicinity of a residence. Because of the trees, Pettit was unable to see whether anyone got out. Officer Myers saw the vehicle at the Swanson Road location at 3:50 a.m. The car was on the east side of the roadway, facing north, and was 10 to 15 feet off of the pavement. No exterior or interior lights were on, and the area was quite dark. Myers drove southbound on Swanson. As he passed the car, he activated his high beams. It appeared there was nobody in the front seat. He was unable to see in the back.
The Buick began moving again at approximately 4:30 a.m. Myers fell in behind the car as it headed westbound. At approximately 4:38 a.m., he became aware of a panic alarm from a home in the area in which the Buick had been parked. A pursuit of the Buick ensued.[15]
At 4:52 a.m. on September 10, a telephone conversation between Silva and his girlfriend, Virginia Ginger Ellsworth, was intercepted. In it, Silva revealed that he was running from the police and was hiding on Orange, in Turlock. When Ellsworth offered to come and get him, Silva told her that he was in the backyard of his homeboy Anthonys house at Angelus and Orange, but that the police were all around. Silva stated that he had shot at them and asked her to hurry. At 5:26 a.m., another conversation between Silva and Ellsworth was intercepted, with Ellsworth confirming that Silva was in Anthonys backyard and telling him that the house was surrounded and the area blocked off, and she could not get to him. When she told Silva not to move and to cover himself up, he replied that he did not have anything to cover himself with, but was hiding behind the Blazer in the driveway between Anthonys and the neighbors houses. When Ellsworth asked if Silva had a gun on him, he replied no, that he had thrown it, but did not know where. The information on Silvas hiding place was passed from the monitor in the wire room to officers on the scene.
On September 10, search warrants were executed at the residences associated with the male defendants. M.J. and Jane Doe Two, Vicki and Kenneth Myers, Adriana F.G. and Z.M., and William Gibbs subsequently identified a number of items found at the Davis Court residence and in the gold Intrepid in the driveway as belonging to them.
F.G. and Z.M., Steve Christy, and M.J. identified items found at the Carpenter Road residence in Modesto as belonging to them. In addition to some of the stolen property, Martinezs room contained nine-millimeter, .38-caliber, and .357-caliber ammunition; shotgun shells; knives; and a camouflage mask type of head covering, similar to what a hunter would wear. Stolen property was also found in the other bedroom, along with a black ski cap.
At the First Street residence, officers found Christys Browning shotgun, as well as other items belonging to him, M.J. and Jane Doe Two, the Bakers, the Myerses, Cozine and Frye, F.G. and Z.M., the Gibbses, and Jane Doe One. Also found were a sawed-off Mossberg shotgun with pistol grips; scanners tuned to Stanislaus County Sheriffs Department frequencies; the main section of the Modesto Bee, dated August 16, 2003, which contained an article about residential robberies and referred in detail to the Renteria robbery; a red suitcase containing jewelry; gun cases and holsters; a can of pepper spray; a black magazine containing 34 rounds of nine-millimeter ammunition; a black nylon hood cap with no visible eye or mouth holes; ammunition of various calibers; a pair of black gloves; six bandannas, two of which were folded in a triangular shape with two of the corners tied in the back; and a pair of black pants, a black shirt, black shoes, and black socks in a pile on the floor of the bedroom in which paperwork bearing Silvas name was found. Also found in the house were approximately 20 large-style black plastic zip ties in a clear bag.
DISCUSSION[16]
I
Suppression of Wiretap Evidence
A. Background
In August 2003, the People sought and obtained judicial authorization for the interception of communications to and from cellular telephones with the numbers (209) 505-9835, which was subscribed to Patricia Ramos, and (209) 614-7098, which was subscribed to Silva. Silva subsequently filed a motion to suppress all evidence obtained by means of wiretaps, in which the other defendants joined. The trial court[17]determined that the interceptions were lawful and denied the motion. Consequently, the contents of intercepted cellular telephone conversations were admitted into evidence at trial, as described in the statement of facts, ante.
Fouse now says the trial court erred. She contends that SDEA Agent Hoeks affidavit in support of the application for the interceptions failed to demonstrate the requisite necessity. We disagree.[18]
B. Analysis
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 2510-2520) comprises the comprehensive federal scheme for the regulation of wiretapping and electronic surveillance.[19] (People v. Otto (1992) 2 Cal.4th 1088, 1097.) It establishes minimum standards for the admissibility of evidence procured through electronic surveillance; state law cannot be less protective of privacy than the federal Act. (Id. at p. 1098.) Thus, [i]n 1995, the Legislature enacted section 629.50 et seq. in order to expand California wiretap law to conform to the federal law. [Citation.] (People v. Leon (2007) 40 Cal.4th 376, 383.) Under section 629.50, a district attorney or other specified individual can apply to the presiding judge of the superior court (or a designee) for an order to intercept wire, electronic pager, or electronic cellular telephone communications.[20] (Id., subd. (a).) Among other requirements, the application must contain [a] full and complete statement of the facts and circumstances relied upon by the applicant to justify his or her belief that an order should be issued, including (B) the fact that conventional investigative techniques had been tried and were unsuccessful, or why they reasonably appear to be unlikely to succeed or to be too dangerous . (Id., subd. (a)(4).)
Under section 629.52, the designated judge may authorize the interception if there is probable cause to believe that an individual is committing, has committed, or is about to commit one or more of the crimes listed in the statute, including murder, a felony violation of section 186.22, or an attempt or conspiracy to commit such crimes ( 629.52, subd. (a)(2), (3), (5)); there is probable cause to believe communications concerning the illegal activities will be obtained through the interception (id., subd. (b)); there is probable cause to believe the targeted communication device is being used, or will be used, by the person whose communications are to be intercepted (id., subd. (c)); and [n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous (id., subd. (d)).
Fouse does not challenge the issuing courts finding of probable cause as to any of the interceptions. Rather, her sole assertion is that the application was not supported by an adequate showing of necessity within the meaning of section 629.52, subdivision (d), so that evidence seized as fruit of the interceptions should have been suppressed under section 629.72.
Because section 629.52, subdivision (d) and its federal counterpart, 18 United States Code section 2518(3)(c) employ virtually identical language, federal courts interpretation of the latter section necessarily informs our analysis. The California Supreme Court has summarized the applicable case law thus:
The requirement of necessity is designed to ensure that wiretapping is neither routinely employed as the initial step in criminal investigation [citation] nor resorted to in situations where traditional investigative techniques would suffice to expose the crime. [Citation.] The necessity requirement can be satisfied by a showing in the application that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case. [Citation.] As numerous courts have explained, though, it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap. [Citations.] Instead, the adequacy of the showing of nec
