Ledesma
Filed 4/10/12 P. v. Ledesma CA1/5
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK
LEONARD LEDESMA, JR. et al.,
Defendants and Appellants.
A125441
(Alameda County
Super. Ct. No. CH39529)
On
the night of March 11,
2005, Sergio Dueñas was shot and killed, and Carlos Castañeda was wounded, in a
drive-by shooting in Hayward. Frank
Ledesma, Sr. (Ledesma Sr.), his son Frank Ledesma, Jr. (Ledesma Jr.),
and José Mesaramos (collectively, appellants) were arrested shortly after a police
pursuit. Mesaramos was identified as the
driver of the suspect vehicle, and the Ledesmas were identified as the
shooters.
After
a joint trial lasting more than a month, all three were convicted by a jury of the
Code, § 187, subd. (a); Count 1),
finding that the murder was intentional
and committed by shooting from a vehicle at a person outside it with intent to
inflict death (§ 190.2, subd. (a)(21)). Appellants were also convicted of two counts
of attempted murder (§§ 187,
664; Counts 2 and 3). Mesaramos was
convicted of unlawful driving or taking of a vehicle (Veh. Code, § 10851,
subd. (a); Count 4), and Ledesma Sr. was convicted of
(former § 12021, subd. (a)(1); Count 5). The jury also found that, inter alia,
appellants committed the murder and attempted murders for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)) and that all three appellants
personally and intentionally discharged a firearm proximately causing great
bodily injury or death, within the meaning of former section 12022.53,
subdivision (d). Each appellant was
sentenced to life without the possibility of parole for the murder, two
consecutive determinate terms of seven years on the attempted murders, and
two consecutive terms of 25 years to life, plus a 20-year term, for the firearm
enhancements. Ledesma Sr. and
Mesaramos were each sentenced to an additional two-year term, to run
concurrently, on Counts 4 and 5.
Appellants
seek reversal of their convictions on a number of grounds. We affirm.
I. Factual and Procedural Background
Witnesses to the Shooting
Oscar
Martinez testified through a Spanish interpreter. In March 2005, Martinez lived in Hayward at
1067 Inglewood Street, between Gading and Underwood Streets. Many members of the Norteño street gang lived
in Martinez’s neighborhood. Before
moving to Hayward, Martinez had lived in Los Angeles for four years and was a
member of Tortilla Flats, a Sureño gang.
Martinez has the number one tattooed on his left elbow and the number
three on his right elbow. Martinez got
the tattoos in Hayward and often wore blue because he wanted people to know he
was a Sureño.
On
March 11, Martinez and his friends, Castañeda and Dueñas, were at Dueñas’s
apartment. At around 9:00 p.m.,
Martinez asked Castañeda for a ride home.
Castañeda drove Martinez home in a small black four-door car. Castañeda parked the car in front of
Martinez’s house, facing toward Underwood Street. Martinez and Castañeda got out of the
car. Martinez asked Castañeda to return
a car stereo he had loaned him.
help remove the cables, and then sat back down in the driver’s seat. Dueñas remained seated in the front passenger
seat. Martinez was standing at the open
driver’s door, talking to Castañeda, when he saw a small red two-door car with
its headlights on, driving toward Gading Street at about 10 miles per
hour. Three men were in the car.
Martinez
next saw the red car approaching with its headlights off, driving toward
Underwood Street. The car stopped next
to Castañeda’s car, and Martinez noticed a person in the front passenger seat
and someone sitting behind him in the back seat. The person in the front passenger seat was “a
little bit chubby,” had short hair and a mustache, and was wearing a white
hooded long-sleeved sweater. He was
older than his companions. The front
passenger was also holding a shotgun, which was about two feet long, in both
hands. The shotgun was pointed through
the red car’s open window at Martinez and at Castañeda’s car. The man in the backseat was 18 or
19 years old, “a little bit chubby,” wearing a white shirt, and had short
hair and a “little bit of a mustache.”
The driver was around 18 or 19 years old, thin, and had “long hair
with a tail.” Martinez described the
hairstyle as the “Norteños Mongola.”
Martinez
heard a shot and glass shattering. He
ran towards the back of the car and then the house. As he ran, he heard another shot. The red car was stopped for about three
seconds and then drove away “very fast.”
Martinez, Castañeda, and Dueñas ran inside the house. Both Castañeda and Dueñas had been shot. Dueñas had been shot in the chest and
immediately fell down. Martinez tried to
stop the bleeding from Castañeda’s head.
After 911 had been called, the police and an ambulance arrived.
Martinez
gave a statement to police the same night.
used in the shooting and identified appellants as its occupants. At trial, Martinez identified
Ledesma Sr. as the man he had seen holding the shotgun. Martinez identified Mesaramos as the driver
of the red car. He also identified
Ledesma Jr. as the rear passenger.
Martinez nor his two friends yelled, flashed gang signs, gestured, or said
anything to the men in the car. Neither
Martinez nor his two friends had any weapons.
painted on the sidewalk in front of Martinez’s house, but Martinez did not know
when.
Castañeda
testified that he lived in Hayward in March 2005. Before that he lived in Los Angeles. Castañeda is a member of the 18th Street
gang, a Sureño gang. Castañeda has
Sureño tattoos, including “L.A.” on his arm and “18” on his finger. He has three dots below his left eye. He also has “Sur” and “18” tattooed on his
stomach. He did not have a nickname, but
Dueñas and Martinez called him “18” because he is “a member of the
18 gang.” Castañeda was not sure
whether Martinez was a Sureño or had any tattoos, but he had a nickname,
“Smiley.” He did not know whether Dueñas
was a Sureño or had tattoos.
name="_ftnref6" title="">[6]
On
the night of March 11, Castañeda met Martinez and Dueñas at Dueñas’s
apartment. Castañeda drove them to
Martinez’s house in his black four-door Toyota Corolla. Castañeda testified that they parked in front
of Martinez’s house and had planned to install a stereo that Castañeda was
buying from Martinez. Martinez got out
of the car on the passenger side.
Martinez was standing outside next to Dueñas, who remained in the front
passenger seat of the Toyota.
A red
car, facing in the opposite direction, pulled up beside the Toyota and the
occupants started shooting. At the time,
the hood of the Toyota was up and Castañeda was bending down in the driver’s
seat, using a screwdriver and pulling out wires to install the stereo.
shots. Castañeda felt pain on his left
side and in his neck. No one said
anything before or after the shots.
Castañeda did not see who was in the car. Castañeda did not hear anyone yell before the
shooting. Nor, was there any fight. Neither Castañeda, Martinez, or Dueñas made
any gesture or displayed weapons.
At
the time of trial, Castañeda was in custody because he had been convicted of
felony carjacking.
The Police Pursuit
Around
10:12 p.m. on March 11, 2005, Sergeant Roger Keener
responding to the reported shooting at 1067 Inglewood. They stopped for a red light at the
intersection of Santa Clara and Jackson, going southbound, and heard that a red
car had been seen leaving the scene.
Keener and Lunger simultaneously saw a red car approaching. When they got closer to the red car, Keener
could see the right rear passenger, who was in his late teens or early 20’s and
wearing a white baseball cap. The rear
passenger turned around and looked directly at Keener and Lunger for a few
seconds. Another responding officer had
seen a red Saturn that matched the vehicle description at the intersection of
Santa Clara and Jackson. The officer saw
three people in the car and recognized Mesaramos, from prior police contacts,
as the driver.
Keener
and Lunger followed the car and were able to move behind the red car, which
took the northbound Highway 880 on-ramp.
Keener and Lunger activated their red and blue lights, and the red car
immediately moved to the right. The red
car first slowed down and then “took off.”
It drove on the shoulder past other cars and got onto 880. Keener and Lunger activated their siren and
pursued the car at speeds up to 90 miles an hour, but were unable to keep
up with it. Keener and Lunger lost sight
of the car between Lewelling and Marina Boulevards.
Officer
Craig Fovel found a red Saturn crashed on the Marina Boulevard off-ramp. The vehicle was facing westbound when it
should have been pointing eastbound and had “front-end damage.” Fovel confirmed that nobody was inside and
notified police dispatch. He noted the
car had two doors and both windows were rolled down. Keener and Lunger went to the Marina
Boulevard exit and identified the Saturn as the vehicle that they had been
pursuing.
Based
on information he received from witnesses, Fovel also notified police dispatch
and the responding units that two people were seen “running from the area of
the red vehicle in an eastbound direction, one person was seen running in a
southbound direction.”
name="_ftnref9" title="">[9] One of the witnesses said he saw someone drop
a long gun along the fence line. Three
guns were ultimately found in the bushes—a loaded shotgun, a .45 caliber
pistol, and a revolver with “an emblem of Goofy” on the handle. The revolver’s cylinder contained four live
rounds, one expended round, and had one empty chamber. One live round was in the pistol, and its
magazine was empty.
Keener
and Lunger drove down Marina Boulevard and turned right on Teagarden, going
southbound. Keener saw a single
pedestrian on Teagarden. The pedestrian
was “casually” walking back toward Marina Boulevard. Lunger recognized Mesaramos. When Keener and Lunger approached Mesaramos,
he claimed that his name was José Meza.
Keener
noticed that Mesaramos was “breathing heavy.”
Keener asked Mesaramos where he was coming from, but got no
response. Keener put his hand on
Mesaramos’s chest and asked him why his heart was beating so fast. Mesaramos did not respond. Mesaramos was detained and later
taken to the Department, where his tattoos were photographed. Mesaramos had one dot and four dots on his
elbows.
Around
midnight, Keener went to the nearby Ford dealership because a witness said he
had seen a person removing a white sweatshirt as he walked from Marina Square
toward the dealership. Ledesma Sr.,
whom Keener recognized, was found hiding in the left rear wheel well of a
pickup truck. Ledesma Sr. was
wearing blue jeans and a white long-sleeved hooded sweatshirt that was turned
inside out. A black glove was found
about 100 feet from Ledesma Sr.
Around
10:00 p.m. on March 11, Officer David Cerruti drove into the parking lot
of the Marina Square Shopping Center and heard a description of the suspects’
clothing, which included a white T-shirt.
Cerruti noticed a man, wearing a white T-shirt, “walking briskly”
through a pedestrian breezeway. The man
was breathing heavily, had an injury to his eye, and appeared to be
sweating. After Cerruti and the man made
eye contact, the man “shot across” the parking area. Cerruti got out of his car and detained the
man, Ledesma Jr., at gunpoint. A
light-colored truck pulled up and someone said: “ ‘He’s the one that ran
from a car accident’ ” and “ ‘he hid something in a
bush.’ ” A pair of black gloves
were found in the bushes.
The Police Investigation at
1067 Inglewood
Around
10:12 p.m. on March 11, 2005, Officer Ryan Cantrell was dispatched to
1067 Inglewood Street. He observed
a black Toyota Corolla parked in front of the house. The car was facing Underwood and on the north
side of the street. The driver’s side
door was open. The windshield was
damaged and the driver’s side and rear driver’s side windows were “broken
out.” The windshield and doors had
bullet holes and damage consistent with a shotgun blast. Cantrell found wadding from a shotgun shell
on the dashboard. Five bullet casings
from a .45 caliber semiautomatic weapon, bullet fragments, and a pellet
from a shotgun shell were found in the street.
One bullet fragment was under a vehicle parked in the driveway, and
another bullet fragment was found on the floorboard, under the steering wheel,
of the Corolla.
name="_ftnref10" title="">[10]
Medical Evidence
On
March 11, 2005, Dr. Ramon Snyder, a trauma surgeon, treated Castañeda and
Dueñas. Castañeda had three penetrating
wounds. He had a neck wound that was
consistent with buckshot. Castañeda also
had two larger, round wounds on the left upper back and left back or arm or
shoulder region that were consistent with gunshot wounds.
Dueñas
was pronounced dead on arrival, at approximately 10:45 p.m. Dueñas had a penetrating, circular wound in
his left upper arm that was consistent with a gunshot wound. There was no exit wound. An autopsy determined that he died from a
bullet wound to the chest. A bullet was
removed from his right pleural cavity.
Evidence Processing of the Two Cars
Around
10:53 p.m. on March 11, 2005, Crime Scene Technician Rommel Soriano
responded to the location where the Saturn had crashed. Soriano processed the car’s exterior, but was
unable to obtain any fingerprints. He
also photographed and searched the interior.
He found a black puffy jacket and a baseball cap in the back seat. A red expended shotgun shell was found under
the baseball cap. The Saturn was then
taken to a secured area in the back lot of the Department.
On
March 14, 2005, Crime Scene Technician Jennifer Kell processed, for evidence,
the red Saturn and the black Toyota, which were parked in the police
department’s rear lot. Kell noticed that
the Toyota’s windows were damaged and a tire was flat. There was a hole above the handle on the
driver’s-side rear passenger door and small holes or dents in the door frame
between the driver’s and rear passenger’s doors. Damage to the interior indicated that the
rear passenger door was open during the shooting. “[S]mall little pellets” were used. Interior damage in a “cluster shape” on the
passenger side of the windshield indicated “the path of where the pellets
landed.” There were “small round
pellets” on the dashboard below the cluster.
There were also holes consistent with pellets on the right side of the
windshield. Kell also found pellets
under the passenger seat, on the front floorboard and on the driver’s
side. There was broken glass on the
dashboard and driver’s side floorboard.
Shotgun
wadding was found on the Toyota’s rear passenger floorboard and the front
passenger dashboard. A
through-and-through hole was located just above the handle of the rear door on
the driver’s side. A trajectory rod
indicated that the bullet would have passed in between the two front seats.
half long, inside the hood area “near the front passenger tire wheel-well
area,” which indicated the hood was up when the damage occurred.
floorboard, the pellets from different areas of the car, and the plastic
shotgun wad.
Kell also processed the red
Saturn. She noticed that the windows
were down, a key was stuck in the ignition, the passenger side of the car was
undamaged, but the front-end of the driver’s side had damage. A through-and-through hole was in the glass
of the sunroof, which was at a 30 degree angle, and the metal portion of
the roof had another hole, which was at a 14 degree angle. After peeling back some of the interior
metal, a bullet fragment was recovered resting at the top of the car on the
right passenger side, with scraping from the hole toward the passenger side
where the bullet rested.
name="_ftnref14" title="">[14] Kell collected the bullet fragment from the
Saturn and tested the steering wheel and driver’s side roof for gunshot
residue.
title="">[15]
The
gloves, guns, bullet fragments, shotgun shells, and casings were taken to the
crime lab for examination. Gunshot
residue kits were used to collect samples from appellants and the victims,
which were tested. Deoxyribonucleic acid
(DNA) reference samples were also obtained from appellants.
Loss of the Cars
At
the end of March 2005, both cars were moved from the back police lot and
released to an auto dismantler called Pick-n-Pull. Inspector Robert Coffey, the lead
investigator in this case, was aware of the release and initially authorized
it. He did not know whether he notified
the district attorney about authorizing the release. To Coffey’s knowledge, at the time of the
release, no defense attorneys or inspectors had sought to inspect the cars.
Coffey
did not recall why the cars were not retained.
One reason he did not want the cars in the rear lot was because it had a
limited number of spaces and was also used for employee parking. In July 2005, after Ledesma Sr.’s
attorney attempted to inspect the cars and learned they had been released,
Judge Alfred Delucchi signed an order directing the Department to preserve the
two cars. At that time, the vehicles
were no longer in the Department’s possession but were located, within a few
days, at Pick-n-Pull. A few days later,
Judge C. Don Clay also signed an order directing that the cars be returned
to the Department.
name="_ftnref16" title="">[16]
The
vehicles were recovered and transported to a police facility located on Barnes
Court, where Ledesma Sr.’s defense attorney and investigative team viewed
the vehicles. In April 2008, one of
Coffey’s supervisors told him the cars had disappeared again. He did not authorize a second release. He last saw the cars at the Barnes Court
facility. The wheels were missing at the
time. He did not know what happened to
the cars after he saw them. They were
never found again.
Firearms Examination
Michelle
Dilbeck, the supervising criminalist at the Alameda County Sheriff’s Office
Crime Lab, testified as an expert in firearms and toolmark identification. Dilbeck examined the shotgun recovered from
the area where the Saturn had crashed and determined that it used 12-gauge
shotshells. Dilbeck also examined a .357
magnum caliber Arminius revolver. The
revolver contained one fired Winchester Western .357 magnum cartridge case,
three unfired copper-washed Winchester Western .357 magnum cartridges, and one
unfired copper-jacketed Fiocchi .357 magnum cartridge. Dilbeck also examined a Llama .45 auto
caliber semiautomatic pistol. There was
one unfired Remington-Peters Golden Saber .45 caliber brass-jacketed
hollow-point cartridge and an empty .45 caliber magazine with the gun. Dilbeck test-fired the shotgun and the
pistol, which functioned normally.
Initially, Dilbeck was unable to test-fire the revolver because the
cylinder lock was not functioning properly.
Later, the laboratory received two remote firing devices and Dilbeck was
able to test-fire the gun.
Dilbeck
examined five fired Remington-Peters .45 auto cartridge cases recovered from
the shooting scene and concluded that all five had been fired from the Llama
pistol. Dilbeck also examined five
bullet fragments, including one recovered from the roof of the Saturn. They were all fragments from brass-jacketed
.45 caliber hollow‑point bullets.
All five fragments had been fired from the Llama pistol.
Dilbeck
examined an expended shotshell from the back seat of the Saturn. She compared it to the test-fired shells and
the results were inconclusive. However,
the expended shell was the same type as the unfired shells that were with the
shotgun, Winchester Xpert steel shot 12-gauge shotshells.
Dilbeck
determined that the bullet removed from Dueñas was a nominal .38 caliber
copper-washed bullet with six lands and grooves and a right-hand twist. She compared the bullet with a test-fired
bullet from the revolver and the results were inconclusive. However, Dilbeck determined that the class
characteristics, the rifling, the size, and the number of lands and grooves
were all the same. The revolver was the
only gun that “was chambered to fire . . . .38 caliber ammunition.”
Dilbeck
examined another bullet fragment that had been removed from the left side of
Castañeda’s upper torso. When she
compared the fragment with the bullet test-fired from the Llama pistol, the
results were inconclusive. However, she
determined that the class characteristics of the fragment, “six lands and
grooves with a right-hand twist,” were consistent with those of the
.45 caliber semiautomatic pistol.
The Llama pistol was the only one of the three guns that was “chambered
to fire a .45 auto ammunition.” Dilbeck
collected “trace” DNA swabs from each of the three guns.
Gunshot Residue Evidence
Laurie
Kaminski, a forensic scientist, testified as an expert in gunshot residue (GSR)
examination. She tested the GSR kits
from the steering wheel and interior passenger door of the Saturn. Both were positive for GSR. Kaminski opined that both surfaces may have
been “in close proximity to a firearm as it was discharged, or the particles
could have resulted from a transfer.”
Kaminski
also examined GSR kits taken from appellants.
At least one hand sample from each appellant was positive for GSR. Kaminski concluded that each “[e]ither
. . . fired a firearm, was in close proximity to a firearm as it was
discharged, or the particles resulted from a transfer.” She could not conclusively say whether any of
the three fired a gun.
Kaminski
also examined GSR samples taken from Martinez, Dueñas, and Castañeda. At least one hand sample from each victim was
positive for GSR.
name="_ftnref17" title="">[17] Kaminski concluded that each victim “either
. . . fired a firearm, was in close proximity to a firearm as it was
discharged, or the particles resulted from a transfer.” If a person was standing within up to
15 feet of blasts from a shotgun, a .45 caliber gun and a .357 gun,
all pointed in his direction, and that person either suffered a bullet wound,
placed his hands on a wound, or put his hands up to his face as multiple shots
were fired, it would not be unusual to find gunshot residue on that person’s
hands or clothes. If there is contact,
gunshot residue on a person’s hands can transfer to clothing or another person.
Because
in this case, firearms were involved and people were shot, Kaminski did not
think that “a finding of gunshot residue on anybody is that unusual.”
DNA
Expert Testimony
Jumana
Latif, a criminalist with the Alameda County Sheriff’s Office Crime Laboratory,
testified as an expert in forensic DNA examination and analysis.
tandem repeat (STR) method, on several pieces of evidence: a single black glove, a pair of black gloves,
and swabs collected by Dilbeck from the three firearms. For each swab analyzed, Latif looked at
either nine or 13 loci, depending on the quantity of DNA extracted. Latif also developed DNA profiles from DNA
samples obtained from appellants.
The
DNA profile developed from the inside of the single glove indicated a mixture
of two individuals, which included a major profile and a minor profile. She compared those profiles with those of
appellants and concluded that the major profile was consistent with Ledesma Sr.’s
DNA profile. Latif testified that the
probability of identifying a random person with the same profile was “1 in
36.21 quadrillion Caucasians, 1 in 116.9 quadrillion African Americans,
and 1 in 3.041 quadrillion southwest Hispanics.” Latif eliminated Ledesma Jr. and
Mesaramos as contributors to the mixture.
When
Latif analyzed DNA obtained from the inside of the pair of gloves, she
developed a DNA profile with a mixture of at least two individuals, with a
major and minor profile. Following a
comparison with appellants’ profiles, Latif concluded that Ledesma Jr.
“cannot be eliminated, so he’s included as a contributor to this mixture
. . . .” Latif was asked
“how rare is this profile in the population”
She responded: “[T]he numbers are
1 in 275.6 quadrillion Caucasians, 32.5 quadrillion African
Americans, and 164 quadrillion southwest Hispanics.” Ledesma Sr. and Mesaramos Jr. were
eliminated as contributors.
Latif
analyzed five swabs taken from the shotgun and found that four were
“complicated mixtures from at least three individuals.” She noted:
“Some of the DNA at some locations was consistent with all three
suspects, but at other locations it was not consistent, and I was not able to
come up with any definitive conclusions.”
She could not eliminate or include appellants as contributors.
small amount, trace DNA,” which was not useful.
Latif
also analyzed two swabs from the revolver.
The profile developed from the swab labeled 2-1, which came from
cartridges from the cylinder, indicated a mixture of two individuals. Neither Ledesma Sr. or Ledesma Jr.
could be eliminated as contributors, but Mesaramos was eliminated as a
contributor.
name="_ftnref20" title="">[20] Latif did not compute statistics on this
mixture profile. She developed a
separate DNA profile for a swab from the grip of the revolver and concluded
that it was consistent with Ledesma Sr.’s profile. Ledesma Jr. and Mesaramos were
eliminated as contributors. This profile
occurred in “1 in 4.261 trillion Caucasians, 1 in 10.61 trillion African Americans,
and 1 in 1.436 trillion southwest Hispanics.”
Latif
conducted a DNA analysis of two swabs from the semi-automatic pistol. Both profiles developed indicated a mixture
of two individuals. The mixture included
a minor female component.
Ledesma Sr. and Ledesma Jr. were eliminated, but Mesaramos
“cannot be eliminated.” As to one swab,
Latif concluded that “the probability of including a random person to this
mixture profile is estimated to be 1 in 157,300 Caucasians, 1 in 420,000
African Americans, and 1 in 157,300 southwest Hispanics.” For the other swab, “the probability of
including a random person is estimated to be 1 in 181,900 Caucasians, 1 in
249,600 African Americans, and 1 in 186,300 southwest Hispanics.”
Search of Appellants’ Residences
Ledesma Jr.’s
mother is Ana Maria Herrera.
of Herrera’s townhouse, in Walnut Creek, where Ledesma Jr. sometimes
stayed. Herrera lived with two other
sons, ages 10 and 13, and their father.
Schwartz testified that Herrera identified the “southern-most” bedroom
as the youngest son’s and Ledesma Jr.’s room. In that bedroom and an upstairs hall closet,
Schwartz found a 12-gauge Remington shotgun shell under the bed, a business
card for the Alamo-Lafayette Cemetery where Ledesma Jr. worked, and
several items with gang writing.
Schwartz searched downstairs and found a backpack containing several
baseball caps and several homemade compact disks (CDs) with gang writing. When asked, Herrera said the hats and CDs
belonged to Ledesma Jr. and that she was “just going to get rid” of them.
At
trial, Herrera testified that her two younger sons each had his own bedroom and
that Ledesma Jr. slept on the couch downstairs. She also denied having previously told
Schwartz that the south bedroom was her youngest son’s and Ledesma Jr.’s
room. She denied telling Schwartz that
the baseball hats were Ledesma Jr.’s.
Herrera did not recall anything about the CDs.
Alameda
County Sheriff’s Office Sergeant Colby Staysa served a search warrant, at 22236
Main Street, apartment F, in Hayward.
Individuals affiliated with Norteño gangs were found inside the
home. Staysa searched a bedroom
Ledesma Sr. shared. Staysa found
Ledesma Sr.’s ID card and some letters either to or from Ledesma Sr. Staysa also found various Norteño gang
drawings throughout the house. One of
the drawings was signed, “Artwork by Spanky Ledesma.”
A
search warrant was also served at Mesaramos’s sister’s residence where he had
been known to reside at one time. Mesaramos’s
sister told the officers that Mesaramos spent time with other gang members in
the “west addition” or “back side” of the house. Inspector John Lage went to that area and saw
Norteño graffiti on the walls. Lage
searched a garage that had been converted into a bedroom and found gang
indicia, including photographs, belts, and a wood carving. He also found a letter from a Southside
Hayward gang member to Mesaramos that included references to the gang
lifestyle, gang graffiti, and monikers.
Gang Expert’s Testimony
Lage
testified as an expert in the area of gang investigation and gang-related crime
in the Hayward area. Lage testified that
there are Norteño gangs in Hayward.
Norteño is Spanish for Northerner and refers to “a wide allegiance of
gangs that identify with the No. 14, which represents the letter N, but it
means more for just Nuestra Raza, Nuestra Familia.” Norteños also identify with the color
red. Nuestra Familia, a prison gang, is
at the top of the gang hierarchy with Nuestra Raza as its subordinate. All of the other Norteño criminal street
gangs are subordinate to Nuestra Raza.
Lage
testified that the Sureños were the “common adversary or enemy” of the
Norteños. Sureños identify with the
number 13 and wear the color blue.
The 13th letter of the alphabet is the letter M, which represents the
Mexican Mafia, a prison gang. “Sureño[s]
or Southerner[s]” are “the collection of criminal street gangs that subordinate
themselves to the Mexican Mafia, again, through the symbol of 13.” Tortilla Flats and 18th Street are active and
violent gangs in Los Angeles.
Southside
Hayward is an informal Norteño gang with over 300 members and several subset
gangs. DGF, which stands for “Don’t Give
a Fuck,” Latin Crew, East Las Palmas, Hogs, and Donald Block Gangsters are
subset gangs within Southside Hayward.
Southside Hayward’s turf is not precise, it claims “a turf of generally
the south portion of [Hayward],” from approximately Harder Road south. However, the gang members are present
throughout Hayward and other cities and counties. Lage has investigated “a couple hundred or
more” crimes committed by Southside Hayward gang members. The gang engaged in a pattern of violent felony
conduct, including homicide, manslaughter, and assault. Several of its members were recently convicted
of felonies, including attempted murder, murder, and assault with a deadly
weapon.
Northside
Hayward is similar to Southside Hayward.
It is an informal Norteño gang with more than 200 members. The gang identifies with the color red and
the number 14. Some gang members claimed
individual subset gangs, such as A Street Locos and Campo Ramos Locos. Northside Hayward’s turf was generally north
of Harder Road. Lage has investigated
over 300 crimes committed by Northside Hayward members. He opined that the Northside gang’s primary
activities include the sale of drugs, unlawful homicide, and assault. Several of its members were recently
convicted of felonies, including murder, assault, and possession of
methamphetamine for sale.
Ledesma Sr. was a Northside Hayward member convicted, in January
2004, of possession of methamphetamine for sale.
Traditionally
Northside Hayward and Southside Hayward were rivals, but in recent years there
has been a truce and they focused their enmity on Sureño gangs. Lage testified that turf or territory was
very important to the local Norteño gangs.
Norteños aggressively seek out rivals, or people they believe to be Sureños,
who are on their turf and consider it an affront that they are there. Lage also testified that for gang members
respect “is very much centered on intimidation and putting the fear in other
people so that they will essentially defer to you, avoid you, be afraid of
you.” This gives “a great sense of power
to the gang members.” If a Norteño
believed a Sureño was living in Southside Hayward on Norteño turf, it would be
taken as an act of disrespect. Lage
testified that Venture Market, located a block from the shooting at Gading and
Inglewood Streets, was a popular hangout for Southside Hayward gang members.
Lage
opined that appellants were gang members and testified in detail concerning the
bases of his opinion, which included:
admissions by appellants; field identification cards indicating gang
association or involvement; items obtained in searches, such as letters,
drawings, clothing, and photographs; microwriting seized while appellants were
in custody; graffiti at their residences and on personal belongings and
clothing; tattoos and nicknames; and statements to the police and Department of
Corrections and Rehabilitation.
Ledesma Sr. was a Norteño gang member, affiliated with Northside
Hayward, A Street, and Nuestra Raza, which is also known as Northern Structure
Prison Gang. In Lage’s opinion, on March
11, 2005, Ledesma Jr. was a Norteño gang member, affiliated with Southside
Hayward. In Lage’s opinion, on March 11,
2005, Mesaramos was a Norteño gang member, affiliated with Southside Hayward.
Lage
was asked several hypothetical questions regarding a drive-by shooting committed
by hypothetical gang members, which we discuss in detail post (part II.B.1.). In
Lage’s experience, drive-by shootings were a common method of criminal activity
for Southside Hayward gang members. It
was common to have multiple people in a car.
Lage testified: “Even if there’s
only one shooter, everyone in that car garners a certain added status now
because they took part in the crime, [it] tests their bonds and mutual loyalty
not to inform, not to cooperate with the police, and . . . they’re sharing
the mutual risks not just of retaliatory violence . . . but [also]
possible arrest by law enforcement.
Lage
testified that it was not unusual that Ledesma Jr. was affiliated with
Southside Hayward and his father with Northside Hayward. Moreover, there was no conflict because both
men were Norteños.
Defense Evidence
Loss of the Two Cars
In
August 2005, Officer Steven Kidwell met a tow truck at Pick-n-Pull in Newark to
retrieve the Toyota and Saturn and return them to the Department’s storage
facility at Barnes Court. Kidwell signed
a document indicating the vehicles were being released to the Department, which
was responsible for them until the case was complete.
In
August 2005, Sergeant Mark Mosier was contacted by John Jacobson, an
employee of Forensic Analytical, who said he was hired by the public defender’s
office to perform investigative analytical work on the cars. Mosier called Jacobson and facilitated his
examination of the cars at Barnes Court.
from the vehicles. Mosier wrote a
supplemental report “acknowledging that and forwarding that to the D.A.” Mosier had seen one court order, obtained by
Ledesma Sr.’s counsel, dated July 27, 2005. Mosier understood that the cars were to be
retained for the duration of the case.
Mosier had no further contact with the cars and did not authorize anyone
to release them.
In
March 2008, a lawyer for Pick-n-Pull contacted the Department about the status
of the cars. A search was made for the
cars, but they could not be found.
Sergeant Wydler, the property and evidence supervisor until
July 2007, believed that he had released the vehicles. No paperwork could be located.
The Defense Firearms Expert
Patricia
Fant, testifying as an expert in forensic firearms examination, said she was
usually unable to determine bullet trajectory from a photograph. Looking at a photograph of the Toyota, Fant
testified that she saw a hole that might be a bullet hole on the driver’s-side
rear door. She also could not determine
whether two holes in the Toyota’s right front fender were bullet holes. If she had the opportunity, she might have
done a sodium rhodizonate test, a chemical test for lead, on the holes to
determine whether they were, in fact, bullet holes. Fant testified that she would need to see the
car, rather than a photograph, to determine trajectory. Kell had improperly taken photographs of the
trajectory rods from an angle. It was not
clear that Kell had placed the trajectory rods correctly. Fant also could not determine from the
photographs whether any of the holes in the Toyota could have been made by
someone sitting in the back seat of the Saturn.
Fant was asked: “[I]f you were
able to see everything, both cars, you might have been able to tell whether or
not that person in the back seat could have fired a gun out that window and
. . . inflicted any of the holes in that Toyota. Right”
She answered: “Yes, I could.”
The
Defense Gang Expert
James
Hernandez, a professor of criminal justice at Sacramento State University, was
called by Ledesma Jr. to testify as an expert on street gangs in
California. Hernandez testified that
drive-by shootings vary greatly. In his
experience, they could be both organized, with a specific objective in mind,
and spontaneous.
Hernandez
was asked the following hypothetical question:
“You’ve got a car with three people that are associated with a Norteño
gang, all right [¶] . . . [¶] They are not members but they
definitely got ties with a Norteño thing . . . An eyewitness is
involved and sees it happen just a few feet away, sees a person pointing a
shotgun out the window that is shooting right into him, he sees a person on the
same side of the car sitting in the backseat with the window up and sees him do
nothing, no gun, no firing of gun, sees him doing nothing, and the person in
the backseat is someone that just turned 18 or close to it, and a person that
we just talked about has familial ties, maybe, let’s say he’s got a relative in
the car . . . a father figure or whatever, is there any possibility
that he’s in that car other [than] a gang-related reason” Hernandez replied: “Certainly.”
Search at 1067 Inglewood
On
March 11, 2005, Sergeant Chad Olthoff assisted in a search at
1067 Inglewood. He found a wooden
box, containing .22 caliber rounds, on the mantel in the living room. He also found a pump-action BB rifle, with a
layer of dust on it, behind a dresser in one of the bedrooms. Olthoff searched for evidence that the
victims used a gun during the incident, but did not find any.
Ledesma Jr.’s DNA Expert
Thomas
Fedor, a forensic DNA analyst at the Serological Research Institute, testified
as an expert in DNA and DNA analysis.
Fedor reviewed the DNA report prepared by Latif. Fedor said that Latif’s finding, that
Ledesma Sr. and Ledesma Jr. could not be eliminated as contributors
to the mixture profile obtained from a cartridge in the revolver, did not
necessarily mean that Ledesma Jr.’s DNA was on the cartridge. Fedor testified that Ledesma Jr.’s DNA
might appear to be on the cartridge because his father’s DNA was there and they
are related. Fedor said: “It’s possible that a better sample from the
cartridge would have allowed a discrimination between the father and the
son. And that’s because, again, the father
and son aren’t exactly the same as each other.
They are not identical twins. The
son does have some features that he inherited from his mother. Those features are absent from the test
result for [the revolver cartridges].
But had there been a more complete result for that item, it’s possible
that if Ledesma Jr.’s DNA is there, we would have seen some of his
maternal traits as well. As it happens,
we don’t.” Fedor was asked: “And the way that this report is
characterized, I seem to read it at first reading that it looks like a mixture
of both of them on there. That’s not the
case, is it” Fedor responded: “It need not be a mixture of both of
them. It’s possible that it’s a mixture
of both of them, and indeed a third person, because there’s clearly something
on that cartridge that could not have come from either father or son. But it’s possible that there is only the
mystery man and Ledesma, Sr., and that Ledesma, Jr.’s potential appearance
there is related to the fact that his father is there. . . . It may
be that [Ledesma Jr.’s maternal traits] are absent because he was never
there. It may be they are absent because
the sample wasn’t sufficient. And, unfortunately,
we can’t tell which is which on the basis of the testing.”
Fedor
was asked: “So in some reports they give
you a number, one in 426 quadrillion, is that stronger evidence than, for
example, saying somebody can’t conclusively be eliminated” Fedor responded: “I would think that would be much stronger
evidence, yes.” Fedor testified, on
cross-examination, that only nine loci were analyzed with respect to the swab
from the cartridge. The other four loci
“don’t appear to have a result.” Fedor
was asked, by the prosecutor: “But
nowhere was the conclusion made that absolutely these two individual’s DNA
profile is found on this DNA sample, right”
He answered: “No, of course
not. That would have been outrageous.” The prosecutor asked: “There was certainly no conclusions that
seemed to indicate that the profile for [Ledesma Jr.] on this evidence
sample was one in some large number”
Fedor responded: “No, that was
absent, and I expect correctly so. I
don’t expect . . . that any statistic would approach the strength of
a matching statistic that we often hear in . . . these cases.”
Martinez’s Prior Witness Statement
Officer
Marco Ayala testified that, on the night of the shooting, he interviewed
Martinez in Spanish. Martinez told Ayala
that two friends, Dueñas and Fernando Perez, dropped him off at home. Perez’s car would not start and he was doing
something to the battery. Martinez did
not tell Ayala anything about a car stereo.
Martinez said that he saw the front passenger of the red car with his
arm extended, but he did not see the shooter’s gun. Martinez also said the front passenger was
wearing a white hooded sweatshirt and that all three passengers were around 18
or 19.
Ayala
took Martinez to the police department and from there to an area where possible
suspects had been detained. Martinez
identified Ledesma Jr., saying, “That’s him, that’s him” and “something to
the effect that he was the shooter.”
Martinez looked at Mesaramos and also identified him as one of the
people in the car. Martinez identified
Ledesma Sr. as the third passenger in the red car.
Ledesma Sr.’s Testimony
Ledesma Sr.
was the only defendant who testified. He
said that he went by the nickname Spanky, which was given to him when he was a
child. He grew up in the A Street area
of Hayward and associated with some guys who called themselves “A Street.” He did not consider it a gang. He did some of the drawings that were shown
to the jury. The references on the
drawings to A Street referred to where he grew up.
Ledesma Sr.
admitted he had several felony convictions and had spent time in Mule Creek Prison. But, he denied ever telling anyone at Mule
Creek that he was a member of the Northern Structure or otherwise admitting
gang membership. Ledesma Sr.
admitted that he has “Norte,” “Hayward,” “A Street,” “14,” and huelga bird
tattoos. He testified: “I put a lot of tattoos on me that I really
didn’t know what they meant, and I probably kind of regret it now, you
know.” Ledesma Sr. had a drug
problem, but testified that he had used methadone clinics and counseling to
stay off drugs.
Ledesma Sr.
testified that, on
March 11, 2005, he drove to a park in the afternoon. He was there about 10 minutes. He “drank a couple of beers, maybe a beer”
and then left. Later in the day,
Ledesma Sr. was “getting high” with “Tweaker Tommy.” Then, “Tweaker Tommy” dropped
Ledesma Sr. back near the park. He
wasn’t selling drugs, on March 11, 2005, but was “doing a lot.” Ledesma Sr. didn’t stay at the park
long. He “drank a couple of beers, a
beer, maybe,” as well as one on the way to the park. He then ran into Mesaramos, who “might have
been partying; he might have been doing nothing.” About 10 minutes later, while still at
the park, Ledesma Sr. bought a .357 revolver and a shotgun from a man he had
never met before.
name="_ftnref23" title="">[23] The guns were loaded. Ledesma Sr.
said he “was buzzed” at the time.
Ledesma Sr. was asked: “How
many beers did you have” He
responded: “All day I don’t know.
Maybe one. I don’t know. Two. I
don’t know. I like to drink.”
Ledesma Sr.
asked Mesaramos for a ride home. They left the park and were
going to stop to get more beer. They
picked up Ledesma Jr., about two blocks from the park, because he
called Ledesma Sr. and said “ ‘Dad, pick me up. I’m drunk.’ ” When Ledesma Jr. got in the car, he
said: “ ‘Oh man, dad, I’m
buzzed.’ ” Ledesma Sr. was in the front passenger seat with
the revolver on his lap and the shotgun between his legs. They drove up Inglewood and went to Venture
Market, but it was closed. They made a
U-turn and drove back down Inglewood.
Ledesma Sr. saw four guys in front of a house. They drove past the house, and
Ledesma Sr. asked Mesaramos to slow down because one of his friends lived
on the street. Ledesma Sr. saw
someone heading toward the passenger side of the car, holding what looked like
a long revolver, and he thought the person was going to shoot him. He was afraid. He fired the revolver and “it got
stuck.” He then fired the shotgun and
ducked in the car. No one outside the
car had said anything or made any gang signs.
Ledesma Sr.’s ears were ringing and he did not know if anyone else
fired a gun. He never saw the .45
automatic pistol. Ledesma Sr.
testified that he “didn’t want to hit nobody.”
The
car drove off and crashed at the Marina Boulevard exit. Ledesma Sr. grabbed the shotgun and
ran. He told the others to grab “the
guns” and get rid of them. Both he and
Ledesma Jr. were wearing gloves. On
cross-examination by Ledesma Jr.’s counsel, Ledesma Sr. testified
that Ledesma Jr. did not participate in the shooting. On cross-examination by the prosecutor,
Ledesma Sr. testified that he was not happy to see the police. He was asked:
“Why not” He responded: “We just shot weapons, man.”
The
parties stipulated that:
(1) Ledesma Sr. has previously been convicted of a felony;
(2) Counsel for Ledesma Jr. made an appointment with the prosecutor
to examine the Saturn and the Toyota Corolla with a private investigator. The prosecutor arranged an examination date
of January 6, 2009. The prosecutor was
to provide the address for the cars’ location to counsel, who would then relay
the information to his private investigator.
Counsel telephoned the prosecutor on January 5, and was told that the
Department could not locate the cars.
The prosecutor had no prior knowledge that the cars were missing;
(3) In December 2007 or early January 2008, Ledesma Jr.’s attorney
notified the previous prosecutor that he wished to view both the Saturn and the
Toyota Corolla with his investigator and/or expert. The prosecutor told counsel that he should
call Inspector Coffey and gave counsel his telephone number.
Closing Arguments
The
prosecutor argued that Ledesma Sr. fired the shotgun, Mesaramos fired the
automatic pistol, and Ledesma Jr. fired the fatal bullet from the
revolver. She contended that each
appellant acted with intent to kill, as evidenced by their motive to kill
Sureños and the fact that multiple guns were fired, multiple times, at the
victims. In his closing argument,
Ledesma Sr. asserted that the killing was justifiable homicide (defense of
self or another). Mesaramos conceded
that he was driving the Saturn and fired the .45 automatic pistol. He argued, nonetheless, that he was guilty
of, at most, voluntary manslaughter because “he was not shooting at [the
victims] or the Toyota, he was . . . just basically shooting off
rounds in reaction to what events are unfolding in front of him.” Ledesma Jr. argued that he did not fire
a gun and, although he grabbed a gun and ran from the Saturn, he did not know,
in advance, that Ledesma Sr. intended to commit any crime. “[H]e was just in the car with his father.”
Jury Instructions and Deliberations
The jury was instructed on first
degree murder, second degree murder, justifiable homicide (defense of self or
another), and on voluntary manslaughter
based on imperfect self-defense (CALCRIM Nos. 500, 505, 520, 521, 522,
571). The court declined to give a
requested defense instruction on heat of passion voluntary manslaughter. The jury was also instructed on attempted
murder and attempted voluntary manslaughter based on imperfect self-defense
(CALCRIM Nos. 600, 604).
The jury began deliberations on May
26, 2009. On May 27, 2009, the court
considered a jury note requesting the “DNA Report,” the “GSR Report,” and Ayala’s
report of Martinez’s witness statement.
The judge informed the jurors that these documents had not been
admitted into evidence and could not be provided. The jury reached its verdict later that
day. After sentencing, timely notices of appeal were filed
by all three appellants.
II. Discussion
Appellants
present numerous claims of error on appeal. Each appellant has largely joined in
the arguments made by the others.
name="_ftnref24" title="">[24] We address each argument in turn, and find no prejudicial error.
A. Admission
of DNA Evidence Without Statistics
Ledesma Jr.
contends that the trial court erred by refusing to strike Latif’s testimony
that he could not be eliminated as a possible contributor to the mixed sample
of trace DNA found on the revolver cartridges.
inadmissible without statistical evidence.
He also argues that admission of the disputed DNA evidence
violated his right to due process.
“ ‘A
person’s individual genetic traits are determined by the sequence of base pairs
in his or her DNA molecules. That
sequence is the same in each molecule regardless of its source . . .
and is unique to the individual. Except
for identical twins, no two human beings have identical sequences of all base
pairs. . . .’ [Citation.]
[¶] ‘Because there is no practical way to sequence all three billion base
pairs in a person’s DNA, forensic scientists seek to identify individuals
through variations in their base-pair sequences at polymorphic DNA locations
(loci) [, where the sequence of base pairs varies from person to person]. Each variation in a [base-pair] sequence
. . . is called an “allele.” . . . In the absence of a
nonmatch that conclusively eliminates the suspect as the source of the crime
scene sample, each match between alleles from the suspect and from the crime
scene may be accorded statistical significance.’ [Citations.]”
(People v. Cua (2011)
191 Cal.App.4th 582, 592–593.) To
do so, “the DNA profile of the matched samples is compared to the DNA profiles
of other available DNA samples in a relevant population database or databases
in order to determine the statistical probability of finding the matched DNA
profile in a person selected at random from the population or populations to
which the perpetrator of the crime might have belonged.” (People
v. Soto (1999) 21 Cal.4th 512, 518.)
1.
Latif
testified that the profile developed from the swab taken from cartridges in the
revolver’s cylinder indicated a mixture of two individuals. Neither Ledesma Sr. or Ledesma Jr.
could be eliminated as contributors, but Mesaramos was eliminated as a
contributor. Latif did not compute
random match probability statistics for this mixture profile and was not sure
why she had not.
Approximately
two weeks after the prosecution’s DNA expert had given the above testimony, and
a week after his own expert had testified, Ledesma Jr. moved to strike
this portion of Latif’s testimony, on the ground that her conclusions were
inadmissible without any accompanying statistical information. In his moving papers, Ledesma Jr.
argued: “The danger of allowing this
testimony to stand is readily apparent.
The jury may easily conclude from testimony that Mr. Ledesma Jr.
‘cannot be eliminated,’ that his DNA is in fact on these items.” At the hearing on the motion,
Ledesma Jr.’s counsel argued: “I’m
saying this is a [Evidence Code section] 352 situation. It’s so prejudicial, and the fact that it’s
clear that my client’s DNA may not be on the items, but, because of the way she
testified, the way that her report was written, it comes across to the jury as
the danger of inferring that he’s on those items, when he could just as well
not be on the items . . . . [¶] . . . [¶]
. . . All these cases hold [that DNA conclusions] mean little or
nothing without statistical reference provided . . . . [¶]
. . . [¶] I think it’s really, really harmful to put that in front of
a jury and let them make their own inferences.”
The prosecutor argued in response that the absence of statistics went to
the evidence’s weight, not its admissibility.
Ledesma
Jr.’s motion was denied. The trial court
noted: “I’m not going to strike the
testimony. It is not required that each
and every piece of the prosecution case prove absolute total guilt, completely
in and of itself . . . .
That’s not required for it to be admissible. [¶] In thinking about
this, I was thinking, in the old days when all we had was the A-B-N-O, that we
would frequently have testimony concerning that even though vast parts of the
population had one of those things, but it was not that jurors needed to hear
about what testing was done to keep them from speculating about what might have
been done or might not have been done, and it was important that in some
instances somebody could be excluded. [¶] I frankly don’t think that
anyone with a high school science education and reasonable intelligence will
have any difficulty understanding the significance or the lack of significance
of this particular testimony . . . . [¶] As a practical
matter, in fact, the DNA has little or nothing to do with whether these
firearms were in possession of the [appellants], given the location that they
[were] obtained, given the ballistics from the scene where the shooting
occurred. [¶] Frankly, it’s a little bit like most of the gunshot residue
testimony, which in this case, as in a couple others I’ve seen recently, has
little or nothing to do with proving anything; it’s more a matter of showing
that tests were done and that—frankly, it doesn’t mean much.”
2. Analysis
Ledesma
argues that Latif’s testimony was inadmissible without statistical
evidence. He relies on
798 (Barney), in which Division Three
of this district held that DNA evidence, obtained using the restrictive
fragment length polymorphism (RFLP) method, was inadmissible. At the time, a scientific debate was ongoing
regarding the effect of population substructuring on probability calculations
made using the unmodified product rule.
Because of the unresolved debate, the court concluded that the methods
used to statistically evaluate a match were not generally accepted in the
scientific community. (Id. at pp. 802,
806, 819–822.) In deeming the DNA match
evidence inadmissible, the court reasoned:
“The error infects the underlying match evidence, which is incomplete
without an interpretation of its significance.
[Citation.]” (
requirement of general scientific acceptance applied to the statistical
calculation step of DNA analysis,
“The statistical calculation step is the pivotal element of DNA
analysis, for the evidence means nothing without a determination of the
statistical significance of a match of DNA patterns. [Citation.]”
(Id. at p. 817.)
Unlike
the defendant in Barney, Ledesma Jr.
has never argued that the methods used by Latif were not generally accepted by
the scientific community. No
case. The question is not whether
Latif’s failure to perform statistical computations renders the disputed DNA
evidence inadmissible under Kelly’s
third prong. Rather, as noted by
Ledesma Jr.’s trial counsel, the issue is properly framed as a question of
whether the trial court should have excluded Latif’s testimony because its probative
value was substantially outweighed by its potential for undue prejudice. (See Evid. Code, § 352.) “ ‘[A]n appellate court applies the abuse of discretion
standard of review to any ruling by a trial court on the admissibility of
evidence, including one that turns on the relative probativeness and prejudice
of the evidence in question [
| Description | On the night of March 11, 2005, Sergio Dueñas was shot and killed, and Carlos Castañeda was wounded, in a drive-by shooting in Hayward. Frank Ledesma, Sr. (Ledesma Sr.), his son Frank Ledesma, Jr. (Ledesma Jr.), and José Mesaramos (collectively, appellants) were arrested shortly after a police pursuit. Mesaramos was identified as the driver of the suspect vehicle, and the Ledesmas were identified as the shooters. After a joint trial lasting more than a month, all three were convicted by a jury of the first degree murder of Dueñas (Pen. Code, § 187, subd. (a); Count 1),[1] with a special circumstance finding that the murder was intentional and committed by shooting from a vehicle at a person outside it with intent to inflict death (§ 190.2, subd. (a)(21)). Appellants were also convicted of two counts of attempted murder (§§ 187, 664; Counts 2 and 3). Mesaramos was convicted of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); Count 4), and Ledesma Sr. was convicted of possession of a firearm by a felon (former § 12021, subd. (a)(1); Count 5). The jury also found that, inter alia, appellants committed the murder and attempted murders for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that all three appellants personally and intentionally discharged a firearm proximately causing great bodily injury or death, within the meaning of former section 12022.53, subdivision (d). Each appellant was sentenced to life without the possibility of parole for the murder, two consecutive determinate terms of seven years on the attempted murders, and two consecutive terms of 25 years to life, plus a 20-year term, for the firearm enhancements. Ledesma Sr. and Mesaramos were each sentenced to an additional two-year term, to run concurrently, on Counts 4 and 5. Appellants seek reversal of their convictions on a number of grounds. We affirm. |
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