P. v. Gonzalez

Filed 12/3/08 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant was not denied his right to confrontation by the admission of gang expert testimony which included the experts reliance on police records such as field interviews in forming his opinion. The court did not err in admitting a recording of defendants conversation with another man in the back of a patrol car, or in admitting photographs of the victims wounds. We affirm.

I

FACTS

A jury found defendant Ricardo Jiovanny Gonzalez not guilty of attempted murder as charged in count one of the information, and not guilty of attempted voluntary manslaughter, a lesser offense necessarily included within the offense charged in count one. The jury found him guilty of aggravated assault as charged in count two of the information, found it to be true that he inflicted great bodily injury in committing count two, and found it to be true he committed count two for the benefit of a criminal street gang. The jury also found defendant guilty of street terrorism as charged in count three of the information, and felony intimidation of a witness as charged in count four. The jury found it true that defendant committed count four for the benefit of a criminal street gang. The court sentenced defendant to state prison for seven years to life.

Lazaro Ocampo testified that on April 27, 2004, he kick[ed] back with the Los Crooks gang. He said defendant kicks back with a rival gang called Bario Brown Revolution (B.B.R.).

The previous January 3, Ocampo had an altercation with Stomper who is one of the leaders of B.B.R. On that occasion, Stomper approached Ocampo as he sat in front of his mothers house and asked Ocampo if he was from Los Crooks. Ocampo said no, and Stomper slashed a Corona beer bottle on Ocampos head. Stomper ran away, saying B.B.R. Stomper.

On April 27, while Ocampo attended the Boys and Girls Club in Tustin, a police investigator came to the school and told him he would have to testify regarding the January 3 assault. Later that day, Ocampo was walking down the street with two school mates outside the Boys and Girls Club, and defendant was walking toward them from the opposite direction. As they got closer, defendant threw a sign at Ocampo. Ocampo and the other two walked a little bit faster. As they cut through a parking lot, Ocampo saw a green van. The driver was Mario, another member of B.B.R., and defendant was in the passenger seat. Both Mario and defendant got out of the van and walked toward Ocampo. Ocampo said defendant got close to my face, like close to me and asked if he was from Los Crooks. Ocampo told him that [he] didnt gangbang no more. Defendant cursed at Ocampo and took out the knife and just slashed me. He passed out in the street waiting for the ambulance to arrive, and woke up in the hospital. Ocampo later told the police defendant said, this is B.B.R. were not going to let your hood take over Tustin.

Photographs show him on a hospital gurney covered in blood. There is an oval-shaped gouge in the side of his face. After the wound was stitched, it measured about three quarters of an inch. A scar on his face remains.

Laura De Alba is the girlfriend of Mario Chavezs cousin. On the day of the incident, Chavez and defendant came to her boyfriends house in a van. Defendant gave her a kitchen knife and asked her to throw it away. She threw the knife away in a trash can outside the kitchen.

Charles Celano is a police officer with the City of Tustin. On the day of the stabbing, he was assigned to the Tustin Police Department gang unit. He and another officer arrested defendant and Chavez nearby a green mini-van. Their conversation in the patrol car was video and audiotaped. During that conversation, defendant said: He threw a rat on Stomps. He later added: Its like Stomper they want to give him 15 years, fool. Just for a little breaking bottle shit. This faggot is going to want to do

it . . . . Defendant expanded: That fool better drop the charges or else Im not going to give a [expletive] if I shoot him. He also said: But Im going to put the blame on myself. Im going to tell them, He wasnt there. Im going to tell them, He just picked me up.

Defendant gave a statement to the police on the day of the incident. In it, he said he was on probation after being convicted of possession of a kitchen knife five years earlier. Regarding the instant crime, defendant said he did smack the victim but had nothing in his hand. He explained, if I had a knife, you guys would have found it one meeither on me or on Mario or in the van.

Defense counsel made an oral pretrial motion: With regard to the expert testimony of the officer with regard to the STEP notices and the F.I. cards, I have read the preliminary transcript, and within that transcript, they indicate that the STEP notices are more or less collected for the purpose of charging people further on down the line when that day comes. In and of that fact, the STEP notice itself would be testimony under the broad definition of Crawford [Crawford v. Washington (2004) 541 U.S. 36], but more specifically under Taulton [People v. Taulton (2005) 129 Cal.App.4th 1218] which is directly after that. [] So because it was offered or because the notice was actually collected for the purpose to be used at trial in some undetermined date in the future, but with the particular mind set of using it at trial, that in and of itself makes it testimonial under Taulton . . . .

Upon a request by the court, the prosecutor clarified the expert who reviewed the STEP notice [will] testify. [] . . . [] That hes an active participant in the criminal street gang. The court summed up the issue: So the minute order is going to reflect that the defense has objected to the STEP notices and the defendants admission of membership under confrontation. The court ruled: The court will overrule the objection. The court does not find that its in violation of the confrontation clause.

At trial, Sean Whiteley, a police officer with the Tustin Police Department, said he is familiar with the Barrio Brown Revolution or B.B.R. criminal street gang. He said: Ive investigated crimes involving Barrio Brown Revolution as the victim and as the suspect. Ive contacted several Barrio Brown Revolution gang members. Ive conducted probation searches and parole searches on Barrio Brown Revolution gang members, spoken to them about their history. Ive interviewed, under Miranda [Mirandav.Arizona (1966) 384 U.S. 436], B.B.R. gang members about their gang and their history. [] . . . [] That gang, as we know it, has been in existence probably since 1995, 1996.

Whiteley explained to the jury what a STEP notice is and further testified: The first contact that I believe was important was on April 23rd of 2001 where Mr. Gonzalez was actually contacted during a fight with a rival gang member from Nonstop Killers, N.S.K., which also at one time claimed turf on Pasadena Street. . . . And that was the first contact that just the process of it, that we had two rival gang members mad-dogging each other in school.

Whiteley related another contact with defendant on July 8, 2001: The defendant was arrested with a knife in his pocket, I believe it was a kitchen knife, and he was arrested with Anthony Zendejas . . . who goes by the moniker of Dogger . . . from the Barrio Brown Revolution criminal street gang.

On January 5, 2003, there was a STEP notice issued as a result of a contact with defendant. He was contacted with Luis Lopez, Stomper, Jose Lopez, who goes by the moniker of Oso, which is bear, Angel Chavez, who goes by the moniker of Midget, and Juan Arrelanes . . .who goes by the moniker of Shady.

II

DISCUSSION

Confrontation

Defendant contends the trial court erred and violated his federal and state confrontation rights. He explains the gang expert testified that he had personal knowledge that [defendant] was a member of the B.B.R., having had reviewed documents, including the issuance of a STEP order.

The court has discretion to permit reference to inadmissible hearsay as a partial basis for an experts opinion. (People v. Coleman (1985) 38 Cal.3d 69, 91; Evid. Code 802.) Out of court testimonial statements are inadmissible unless the declarant is unavailable and the accused has had an opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at pp. 68-69.) Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawford itself states that the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citations.] (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)

Here, Whiteley based his opinions on his experience, his interactions with gangs and gang members and items he reviewed. Defendants lawyer cross-examined him. There was no error.

Aranda/Bruton

Defendant next argues the court erred when it admitted the tape of the conversation between him and Chavez in the back of the patrol car. He says: The trial court committed prejudicial error on all counts under the federal Constitutional Aranda-Bruton doctrine and under state hearsay law in receiving codefendant Chavezs out-of-court statement to [defendant] implicating [defendant].

A defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confessionmade by that co-defendant. This prejudice cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice. (Bruton v. United States (1968) 391 U.S. 123, 132.)

When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible. (People v. Aranda (1965) 63 Cal.2d 518, 530-531, fn. omitted.)

The Aranda/Bruton rule addresses the situation in which an out-of-court confession of one defendant . . . incriminates not only that defendant but another defendant jointly charged. [Citation.] The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendants confession that is powerfully incriminating as to a second defendant when determining the latters guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant. (Ibid., italics added.) In this case, [declarant] was not jointly charged or tried with defendant, but was separately tried and convicted of murder. Accordingly, the Aranda/Bruton rule does not preclude admission of [declarants] extrajudicial statements against defendant. [Citation.] (People v. Combs (2004) 34 Cal.4th 821, 841.) Here, Chavez was not jointly charged or tried with defendant either. Neither the Aranda/Bruton doctrine or the right of confrontation are implicated here.

A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.] (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth. (Evid. Code 1221.)

Here defendant listened to Chavezs statements and adopted them in his interaction with him in the back of the patrol car. Under these circumstances, we conclude the court did not abuse its discretion in admitting them.

Photographs

Defendant next argues he was denied his constitutional right to a fair trial by the admission of gory photographs. The Attorney General contends the photographs were not prejudicial.

The fundamental premise of due process requires that a party be afforded an opportunity to examine and respond to evidence, which may deprive him or her of life, liberty, or property. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, 15.) When we speak of administering justice in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected. [Citations.] (People v. Sarazzawski (1945) 27 Cal.2d 7, 11.)

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except 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.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.)

For purposes of analysis, prejudicial is not synonymous with damaging, but refers instead to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. [Citations.] (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial courts ruling under section 352 will be upset only if there is a clear showing of an abuse of discretion. [Citations.] (People v. Stewart (1985) 171 Cal.App.3d 59, 65-66.)

Thus, as the Supreme Court has repeatedly and recently reaffirmed, when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352. [Citation.] (People v. Jennings(2000) 81 Cal.App.4th 1301, 1315.)

The record reflects the trial court carefully considered defendants arguments regarding the admission of the photographs. In fact, the court found some of the marked photographs to be inadmissible for the reasons argued by defendant. The court noted the People had the burden of proof to show the fact this is not a trivial injury. Several of the pictures were allowed into evidence, and the court explained its decision: The court has looked at the prejudicial effect of that evidence, and the court cannot conclude that the probative or the prejudicial effect substantially outweighs the probative value.

The photographs of the victim do show him covered in blood. Without the photographs illustrating how much blood a relatively small wound can generate, a trier of fact might not be able to put the three-quarter inch wound into perspective when deciding whether or not the victim suffered a great bodily injury. The court denied admission of some of the photographs and permitted only those which were not duplicative and were not more prejudicial than probative. Under these circumstances, we cannot conclude either that the court erred or that defendant was denied his right to a fair trial.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com