P. v. Lopez

Filed 5/2/08 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.

Deborah L. Hawkins, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Noe Ramon Lopez, a West Fresno Norteo, fired several shots from a revolver into a car where Angelo Gonzales, an Eastside Fresno Bulldog, and Farrah Brown were sitting. Gonzales died. Brown suffered serious injuries. A jury found Lopez guilty of first degree murder (Pen. Code, 187, subd. (a))^[1]of Gonzales and guilty of attempted murder ( 187, subd. (a), 664, subd. (a)) of Brown. In each count, the jury found true a criminal street gang allegation ( 186.22, subd. (b)(1)) and a personal and intentional discharge of a firearm causing great bodily injury or death allegation ( 12022.53, subd. (d)). The court imposed a 25-to-life term on the murder plus a 25-to-life term on the firearm enhancement and a consecutive seven-year (middle) term on the attempted murder plus a 25-to-life term on the firearm enhancement for an aggregate seven-year determinate sentence and an aggregate 75-to-life indeterminate sentence.

On appeal, Lopez raises five issues. (1) The gang experts reliance on hearsay violated his rights to confrontation and cross-examination. (2) The gang experts reliance on jail classification as evidence of gang membership violated his privilege against self-incrimination and his right to due process. (3) Buttons worn at trial by Gonzaless family members showing Gonzaless photograph violated his right to due process. (4) Denial of Lopezs motion to admit exculpatory hearsay of child eyewitnesses to show third-party culpability and to refute key prosecution identification of him as the shooter violated his rights to confrontation and due process. (5) Imposition of consecutive terms on the murder and the attempted murder violated his rights to due process and jury trial.

DISCUSSION

1. Gang Experts Reliance on Hearsay

Lopez argues that the gang experts reliance on hearsay violated his rights to confrontation and cross-examination. The Attorney General argues the contrary.

Before trial, Lopez filed a motion in limine objecting to the gang experts use of hearsay as violative of his rights to confrontation and cross-examination and requesting an order requiring the gang expert to divulge the source of any hearsay statements upon which his opinion rests. At a hearing outside the presence of the jury, the gang expert testified, inter alia, to the ten-point system the Department of Justice establishes for determining gang membership, to the ways in which gang members gain stature within the gang, and to the dynamics of rivalries between different gangs. The court denied relief on the ground that relevant case law imposed no limitations like those Lopez requested. At trial, he again objected, but the court, after hearing additional argument, let the original ruling stand.

At trial, the gang expert testified, inter alia, that Lopez was an active West Fresno Norteos criminal street gang member who was known to correspond with other gang members while in custody and who was identified by several other reliable sources. Gang experts validate people as gang members through document research and reliance on [p]olice reports, field identification cards, and materials maintained by MAGEC [Multi-Agency Gang Enforcement Consortium] that are [c]onsidered reliable information. Court records, too, help gang experts determine gang membership. With reference to Lopez, the gang expert was able to obtain additional points based upon the ten-point criteria after having done additional research and contacted other people.

The crux of Lopezs argument is that the gang experts reliance on testimonial hearsay violated his rights to confrontation and cross-examination as articulated by a line of cases from the United States Supreme Court. (See, e.g., Davis v. Washington (2006) 547 U.S. 813 (Davis); Crawford v. Washington (2004) 541 U.S. 36 (Crawford); Tennessee v. Street (1985) 471 U.S. 409 (Street).) The crux of the Attorney Generals argument is that nothing in the high courts line of cases prohibits a gang expert from relying on hearsay as a basis for his or her opinions identifying a person as a gang member. (See, e.g., People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez); People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).)

The Attorney Generals argument, not Lopezs, is persuasive. The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay. (Thomas, supra, 130 Cal.App.4th at p. 1209, citing People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, 801, subd. (b).) Consistently with the settled rule, Lopez questioned the gang expert, and the gang expert testified, about the hearsay information and sources he now challenges on appeal. Since a gang expert is subject to cross-examination about his or her opinions and the materials on which the expert bases his or her opinion are not elicited for the truth of their contents but rather are examined to assess the weight of the experts opinion, no denial of Lopezs rights to confrontation and cross-examination occurred. (Thomas, supra, at p. 1210.)

As Thomas observes, Crawford states that the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Thomas, supra, 130 Cal.App.4th at p. 1210, quoting Crawford, supra, 541 U.S. at p. 59.) Lopez argues, however, that the prosecutor introduced the hearsay information and sources on which the gang expert relied to prove the truth of the gang experts opinions. (Cf. Davis, supra, 547 U.S. at pp. 821-832; Crawford, supra, 541 U.S. at pp. 51-52; Street, supra, 471 U.S. at p. 414.) But any experts opinion is only as good as the truthfulness of the information on which it is based. Thus in Thomas, the experts opinion that the defendant is a member of a gang has value only if the jury believes the hearsay on which the expert relied. Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned. (Ramirez, supra, 153 Cal.App.4th at p. 1427, citing Thomas, supra, 130 Cal.App.4th at p. 1210.)

2. Gang Experts Reliance on Jail Classification

Lopez argues that the gang experts reliance on jail classification as evidence of gang membership violated his privilege against self-incrimination and his right to due process. The Attorney General argues the contrary.

Before trial, Lopez filed a motion in limine objecting to the gang experts use of his admissions of gang membership for jail classification as violative of his privilege against self-incrimination and his right to due process. At a hearing outside the presence of the jury, the gang expert testified that jailers request gang membership information to preclude problems that might arise from housing members of different gangs together. Lopez twice admitted gang membership in response to requests by jailers.

Acknowledging that MAGEC officers took advantage of gang membership information that jailers acquired from those interviews, the gang expert testified that he did not know whether jailers advised inmates of their constitutional rights before requesting gang membership information and that he did not instruct jailers how to conduct jail classification interviews. The court denied relief on the ground that relevant case law imposed no limitations like those Lopez requested. At trial, he again objected, but the court, after hearing additional argument, let the original ruling stand.

At trial, the gang expert testified, inter alia, that among the ways in which gang experts validate people as gang members are document research and reliance on jail classification forms and materials maintained by MAGEC that are [c]onsidered reliable information. Admissions during jail classification interviews help gang experts determine gang membership.

A four-justice plurality opinion in Pennsylvania v. Muniz (1990) 496 U.S 582 (Muniz) recognized the existence of a routine booking question exception which exempts from Mirandas[^[2]] coverage questions to secure the biographical data necessary to complete booking or pretrial services. (Id. at p. 601 (plur. opn. of Brennan, J.).) The plurality opinion noted that recognizing a booking exception to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspects Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions. (Id. at p. 602, fn. 14.)

Citing Muniz, the Attorney General seeks refuge in the plurality opinion with the comment, Routine booking information is not incriminatory. Lopez acknowledges a post-Muniz California Supreme Court holding that neither a detectives casual comment to a defendant during booking that he looked like a traffic ticket nor his ensuing question, Is it just a warrant?, constituted an interrogation. (People v. Bradford (1997) 14 Cal.4th 1005, 1034 (Bradford).) Neither the detectives statement nor his question was reasonably likely to [elicit] an incriminating response, the court emphasized. (Id. at p. 1035, quoting Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis).) Citing out-of-state cases, however, Lopez argues that Bradford is distinguishable.

Since a pre-Muniz case from our court resolves the issue in reliance on Innis, no need arises to look beyond our borders. In People v. Morris (1987) 192 Cal.App.3d 380 (Morris), a jailer asked a defendant during booking, Who are you accused of killing?, and received the answer, I killed my sister-in-law. (Id. at p. 388.) The jailer insisted his question was solely for the purpose of jail security and not to elicit information from defendant that might be used against him. (Ibid.) Morris observed, The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspects responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda admonishments. (Id. at pp. 389-390.)

Since the jailer in Morris knew or should have known that his inquiry was reasonably likely to elicit an incriminating response, the admission of the suspects response was error but, on the record in that case, harmless beyond a reasonable doubt. (Id. at pp. 390-393, citing Chapman v. California (1967) 386 U.S. 18.) Likewise, the jailers here knew or should have known that inquiring about Lopezs gang membership was reasonably likely to elicit incriminating responses, and the courts admission of his booking admissions was error, but the record is replete with other evidence of his gang membership (1) his admissions of gang membership on other occasions; (2) his admission of the placement of his gang moniker and gang graffiti on a wall; (3) gang tattoos on his body such as 1 and 4 for the 14th letter of the alphabet (the N in Norteo), W and S for WS (Westside), and WSN for West Fresno Norteo; (4) a photograph of him socializing with gang members and making a W (Westside) gang sign with his hand; and (5) his correspondence with other gang members while in custody. On that record, the courts error in admitting his answers to inquiries by jailers about his gang membership was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 289, 309-310, citing, e.g., Chapman, supra, at p. 23, fn. 8.)

3. Buttons with Murder Victims Photograph

Lopez argues that buttons worn at trial by Gonzaless family members showing Gonzaless photograph violated his right to due process. The Attorney General argues the contrary.

During a noon recess at trial, Lopezs attorney brought to the courts attention his observation that spectators he assumed were members of Gonzaless family were wearing buttons bearing a photograph of a person he assumed was Gonzales. He requested that the court issue an order barring the wearing of those buttons in court. The prosecutor countered that to grieve and to deal with this tragedy those spectators had a right to wear those buttons. On a record showing that three spectators among five or six sitting together were wearing those buttons, which were about three inches in diameter, the court noted the absence of any attempts to draw attention to themselves, or to display emotions to the jury, opined that the buttons did not brand [Lopez] with any unmistakable mark of guilt but instead showed nothing other than the normal grief occasioned by the loss of a family member, and denied the defense request in the absence of a showing of prejudice.

Candidly acknowledging there is no controlling United States Supreme Court precedent on the issue, Lopez submits that, at this point, it is an open question whether private-actor conduct in a courtroom can be inherently prejudicial and argues for a rule that spectator displays of the victims likeness before the jurys verdict is rendered [are] inherently prejudicial. (See Cary v. Musladin (2006) 549 U.S. 70, __ (Musladin) [166 L.Ed.2d 482, 488-489; 127 S.Ct. 649, 653-654] [disclaiming federal habeas corpus jurisdiction since high court never established test for inherent prejudice applicable to spectator courtroom conduct].) Such a rule, he argues, would balance the interests of the prosecution, the defense, and spectators alike. He cites no authority showing that such a rule exists, however, and we are aware of none.

In the absence of such a rule, both parties discuss People v. Houston (2005) 130 Cal.App.4th 279 (Houston), a pre-Musladin prosecution for the murder of a defendants estranged wife. (Id. at p. 283.) At trial in Houston, certain spectators wore buttons measuring two and one-quarter inches in diameter and placards measuring about three inches wide and four and one-half inches long, all bearing his estranged wifes likeness. (Id. at p. 294.) The trial court denied the defendants request for an evidentiary hearing to develop evidence of grounds for a new trial on the basis of spectator misconduct. (Id. at pp. 310-311.) The trial court stated that the buttons and placards were merely an innocent means of remembrance of [his estranged wife], that he had twice admonished the jury not to consider them, that no misconduct had occurred, and that even if there had been misconduct, it wasnt of such a character as to prejudice the defendant or influence the verdict in this case. (Id. at p. 311.)

Here, as in Houston, Nothing in the record indicates that the jury was actually prejudiced by the buttons and placards. (Houston, supra, 130 Cal.App.4th at p. 311.) So Houston analyzed whether the trial courts admonitions cured any inherent prejudice from the displays of buttons and placards and held in the affirmative. (Ibid., italics added.) However, two cases prominent in Lopezs argument and Houstonsanalysis alike are no longer good law. (Id. at pp. 311-316, citing Musladin v. Lamarque (9th Cir. 2005) 427 F.3d 653 (spectators wearing buttons visible to jury with photographs of deceased at murder trial violate due process), vacated by Musladin, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 487; 127 S.Ct. at p. 652]); Norris v. Risley (9th Cir. 1990) 918 F.2d 828 (spectators wearing buttons visible to jury bearing words Women Against Rape at sexual assault trial violated due process), overruled in part by Musladin, supra, at p. __[166 L.Ed.2d at p. 489; 127 S.Ct. at p. 654].)

Lopez nonetheless argues that Houston is distinguishable on the ground that the trial court in that case admonished the jury but the trial court here did not. (Houston, supra, 130 Cal.App.4th at pp. 316-318.) That is a distinction without a difference since, on a record of strong evidence of Lopezs guilt, no inherent prejudice requiring an admonition arises. Brown told a homicide detective that Lopez approached the car where she and Gonzalez were sitting, said something about Bulldogs, and positioned himself near the open door of the car just as shots were fired when no one else was in the immediate vicinity. She did not see the gun but told the detective that Lopez was the only person right there by the car, that he was a big man who filled up the area by the car, and that no one else was close enough to have reached around him to fire the gun. Adriana Valencia, a passenger in the car in which Lopez arrived just before the shooting, testified that Lopez stepped out of the car and yelled something about Bulldogs, that she heard gunshots, and that Lopez got back into the car and said he killed him and shot the girl, too. Dont say nothing, he told her. On that record, spectator misconduct, if any, was harmless beyond a reasonable doubt.^[3] (Cf. Houston, supra, at p. 320, citing Chapman, supra, 386 U.S. at p. 24.)

4. Motion to Admit Exculpatory Hearsay

Lopez argues that denial of his motion to admit exculpatory hearsay of child eyewitnesses to show third-party culpability and to refute key prosecution identification of him as the shooter violated his rights to confrontation and due process. The Attorney General argues the contrary.

Over the prosecutors hearsay objections during cross-examination of the gang expert, Lopez elicited some of the evidence at issue. A girl spending the night at the home of a relative who lived near the scene of the crime told an officer after the shooting that she heard three shots, looked outside, and saw a male with spiky hair and a black jacket standing in the street outside. A boy living near the scene of the crime told an officer after the shooting that he heard a car approach, looked outside, saw Hispanic males in the drivers and front passengers seats of a car, and saw a driver with spiky hair and a black jacket get out, pull a small handgun out of his pocket, point the gun through the window of another car, and say, Whats up, homey. A girl visiting a relative who lived near the scene of the crime told an officer after the shooting that she saw four Hispanic males in a car and saw one in his twenties wearing a gray sweatshirt get out, point a gun toward the drivers side of another car, yell, Whats up fool, and begin shooting.

Lopez asked the gang expert if he had considered the information in each of the reports about which he had testified on the issues of whether the crime was gang-related and whether other people might have been responsible. He replied in the affirmative. At that juncture, during a colloquy outside the presence of the jury about the basis for gang expert testimony, Lopez filed the motion at issue arguing that the admission of the exculpatory hearsay was a constitutional and statutory imperative. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 690; Evid. Code, 1240.)

Over various defense objections during redirect examination of the gang expert, the prosecutor elicited additional testimony. Children living in a gang neighborhood feel pressure to run with a gang and fear pointing the finger at a gang member even after witnessing the commission of a crime. A boy living near the scene of the crime told an officer after the shooting that the victim was a Bulldog gang member who had gotten into an altercation with some West Fresno Norteo gang members about three blocks away. A girl who apparently knew of the gang nature of the neighborhood identified the victim as a Bulldog gang member.

After careful review of the authorities on which Lopezs motion relied, the court ruled the proposed exculpatory hearsay evidence inadmissible. Here he argues that hearsay evidence about a person with spiky hair who drove the suspect car implicated a known suspect on third-party culpability theory since Lopez neither had spiky hair nor drove the car and that hearsay evidence about four Hispanic males in the car refuted Valencias testimony that she saw the shooting from inside the car.

First, we address the statutory ground of Lopezs challenge to the courts ruling. (Evid. Code, 1240 [Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Italics added.)].) To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), italics added.) By showing only that officers arrived minutes after the shooting and that officers took the statements at issue sometime on the night of the shooting, but by not showing that the statements at issue met the statutory requirements of spontaneity and stress of excitement, Lopez fails to discharge his burden on appeal of showing that the courts ruling was an abuse of discretion. (Id. at pp. 318-319.)

Second, we address the constitutional ground of Lopezs challenge to the courts ruling. Although few rights are more fundamental than that of an accused to present witnesses in his or her own defense, the accused and the prosecution alike nonetheless must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. (Chambers v. Mississippi [1973] 410 U.S. 284, 302.) (People v. Ayala (2000) 23 Cal.4th 225, 269.) Specifically, the accused does not have a constitutional right to the admission of unreliable hearsay statements. (Ibid.)

To the contrary, since the right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions, the accuseds interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process like the broad latitude lawmakers have to establish rules excluding evidence from criminal trials. (United States v. Scheffer (1998) 523 U.S. 303, 308, italics added.) Rules so established do not abridge an accuseds right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. (Ibid.) Evidence Code section 1240 is the codification of an established common law exception to the hearsay rule. (Poggi, supra, 45 Cal.3d at p. 318.) Without a showing that the statements at issue met the statutes reasonable requirements of spontaneity and stress of excitement,Lopez fails to establish that the courts ruling violated his rights to confrontation and due process.

5. Imposition of Consecutive Terms

Lopez argues that imposition of consecutive terms on the murder and the attempted murder violated his rights to due process and jury trial. The Attorney General argues the contrary.

The California Supreme Court has held that neither Cunningham v. California (2007) 549 U.S. 270 nor the relevant prior high court decisions apply to the imposition of consecutive terms. (People v. Black (2007) 41 Cal.4th 799, 806 (Black).) With commendable candor, Lopez argues that he challenges Black solely to preserve the issue for federal review. Duly noted. The doctrine of stare decisis obliges us to reject his argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Wiseman, J.

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^[1]Later statutory references are to the Penal Code except where otherwise noted.

^[2]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

^[3]The defendants trial attorney in Houston filed a declaration stating he asked the trial court for orders that the displays be removed or, if the court was not so inclined, for admonitions to the jury, but the reviewing court noted, Any such discussions between the court and counsel outside the presence of the jury are not contained in the record. (Id. at p. 310 & fn. 7.) Here, Lopez requested an order requiring removal of the buttons, not an admonition. In light of our holding, the difference, if any, between the record here and the record in Houston is immaterial.