P. v.
Filed 3/29/13 P. v. McKinney CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT HAROLD McKINNEY,
Defendant and Appellant.
E053233
(Super.Ct.No. FSB701325)
OPINION
APPEAL from the Superior
Court of
County. Bryan Foster,
Judge. Affirmed.
Patricia A. Scott, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and Melissa Mandel and Meredith S. White,
Deputy Attorneys General, for Plaintiff and Respondent.
Two teenage boys
affiliated with the Delmann Heights
gang were walking down a street in San Bernardino
when a man pulled up next to them in a car and fired two shots. One of the boys was struck and killed. The other boy hopped a wall and escaped; he
gave a series of three statements to the police, in which he claimed that he
could not identify the shooter, then gave a fourth statement, identifying
defendant as the shooter. Defendant was
a member of the rival 18th Street
Maze gang.
Almost a year later, in Louisiana,
defendant and his girlfriend, LaToya Thompson, were arrested for selling
marijuana. Thompson told the Louisiana
police that defendant had told her about a shooting he had committed in San
Bernardino. At
the preliminary hearing, she claimed that she lied to the police, because they
threatened to arrest her and to take her children away. She did not testify at trial; the trial court
found that she was unavailable. Thus,
her preliminary hearing testimony was read into the record, and her statement
to the police was then admitted as a prior inconsistent statement.
Defendant’s first two trials resulted in hung
juries. In his third trial, the jury
found defendant guilty on one count of first
degree murder (Pen. Code, §§ 187, subd. (a), 189) and one count of
willful, deliberate, and premeditated attempted
murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)). On both counts, the jury found a firearm
enhancement (Pen. Code, § 12023.53, subds. (c) [as to attempted murder]
& (d) [as to murder]) and a gang enhancement (Pen. Code, § 186.22,
subd. (b)) true.
Defendant was sentenced to a total of 85 years to
life in prison, plus the usual fines and fees.
Defendant now contends that:
1. The
trial court erred by admitting the surviving victim’s identification of him as
the shooter, because it was the product of an impermissibly suggestive
identification process.
2. The
trial court erred by finding that Thompson was unavailable.
3. The
trial court erred by admitting Thompson’s statement to the Louisiana police,
because it was coerced.
4. The
trial court erred by admitting printouts of what was allegedly defendant’s
MySpace page.
5. There
was insufficient evidence of the “primary activities†element of the gang
enhancements.
We find no error.
Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Shooting.
On April 11, 2007, victims Donta Brooks
girlfriend at the Dorjil apartment complex (known as the Dorjils) in San
Bernardino. Both of them were associated
with the Delmann Heights gang.
Around noon or 1:00 p.m., they left and
started walking east on 19th Street.
Ojomoh was wearing a red jacket or sweatshirt.
Two cars pulled up next to them, one behind the
other. The car in front was a gold
Honda. The car in back was black; the
windows were rolled up and tinted, so Brooks could not see inside.
Brooks could see into the gold car, however. He recognized the driver as defendant. He knew defendant from school. He was aware that defendant was associated
with the 18th Street Maze gang. However,
he believed that he and defendant were “cool,†because two weeks earlier, they
had shaken hands.
Then Brooks saw a handgun next to the driver’s
seat. Defendant said, “What’s up?†and
lifted his head in a certain way. At
that point, Brooks knew he was going to “get shot at.†He said, “Oh, shit†and started running
east. Looking back, he saw Ojomoh
running west. Brooks jumped over a wall. As he hit the ground, he heard two
shots. He then ran to a nearby school.
The police found Ojomoh’s dead body inside an
apartment in the Dorjils. He had died of
a single bullet wound in the lower right side.
Sergeant Darryl Scott, a school police officer,
interviewed Brooks at the school. Brooks
told him about being shot at, but, he admitted at trial, he lied about the
circumstances. He explained that it was
the “code of the street [that] you just don’t give up information†to the
police. That would be snitching, and a
snitch “might get beat up [or] killed . . . .†In addition, he did not want to give Ojomoh’s
name, because Ojomoh had been carrying some “weed.†At that point, he did not know that Ojomoh
had been hurt.
Brooks told Sergeant Scott that he and a friend
had been walking along when a white car pulled up next to them. There were two men inside, one White and one
Black. One of the two men, he was not
sure which, pointed a gun at him.
Officer Johnny Macias of the San Bernardino
Police Department also interviewed Brooks at the school. Brooks told Officer Macias that he had been
walking with a friend named Tommy. There
were two cars, one white and one black.
A Black male, in his late teens or early 20’s, pointed a gun at him; it
looked like a TEC‑9. Brooks heard
a shot, then ran. He said he did not
think the shooting was gang related.
Later that day, at the police station, Detective
Pete Higgins of the San Bernardino Police Department interviewed Brooks a third
time. Brooks still did not know that
Ojomoh had been hurt. Thus, he continued
to lie.
Once again, Brooks said his friend’s name was
Tommy. He said the shooter was a Black
male, but he did not see his face; he only saw his hand on the gun. However, he also said the shooter was aged 18
to 25. He claimed he saw the shooter
point the gun at him and his friend. He
identified the gun as a TEC‑9.
At the end of the interview, Detective Higgins
told Brooks that Ojomoh was dead. Brooks
became “visibly shaken and upset.â€
Detective Higgins interviewed Brooks a fourth
time at “Trevia’s house†in Canyon Lake.
truth. He gave a statement that was
essentially consistent with his testimony at trial.
defendant, and he identified it as the shooter.
B. Defendant’s Arrest and
Thompson’s Statement.
In March 2008, police in Monroe, Louisiana
arrested defendant for selling marijuana.
Initially, defendant identified himself as “Montae Taylor.â€
The Louisiana police interviewed defendant’s
girlfriend, LaToya Thompson. A tape of
the interview was played at trial.
Thompson told police that she knew defendant as
Robert Johnson.
title="">[4] She had met him in July 2007 at a club in
Monroe. He told her that he was wanted
for murder in San Bernardino, California.
One night, when they were alone in bed, he
admitted to her that he had killed someone.
He said he was from the Blackrag Mafia Maze gang; “they had been beefing
and . . . he had killed the dude.â€
He explained that, one night, he was in a car,
and “two dudes [were] walking down the street . . . .†He got out of the car and told them, “[C]ome
[h]ere.†“[W]hen they turned around and
looked at him[,] they started running and they jumped over the wall. One of the dudes did not make it [’]cause he
got shot.†He got rid of the gun. He then took a bus to Louisiana.
The morning after he told her this, she told him
he had no conscience. He agreed, adding,
“I’m not a normal human being.â€
Thompson’s testimony at defendant’s
record. In it, she stated that she met
defendant at a club in Monroe in December 2006.
She denied that defendant ever talked to her about killing anybody. She admitted telling the Louisiana police
that he did, but only because they “threatened to take [her] kids away and take
[her] to jail for 25 years to life . . . .â€
Thompson claimed that everything that she told
the police came from an article in a local Monroe newspaper that she read after
defendant was arrested. However, her
statement to the police included facts that were not in the article, such as
that defendant was in the Maze gang and that he called the victims over to the
car. She also said that there were two
victims, although the article had mistakenly said that there were three. On the other hand, her statement also included
facts that differed from Brooks’s testimony — she said that the shooting
happened at night and that defendant got out of the car.
C. Gang Evidence.
According to Sergeant Travis Walker, a gang
expert, defendant was a member of the 18th Street Maze gang. His moniker was “Lil Gotti.†He had tattoos on his right and left arms
reading “Maze†and “Life,†respectively.
His MySpace page included photos of 18th Street Maze members, some
throwing gang signs. It also included
18th Street Maze slogans. Sergeant
Walker admitted, however, that he did not have any field interview cards for
defendant.
According to Sergeant Walker, the primary
activities of 18th Street Maze included murder, attempted murder, assaults with
a deadly weapon, witness intimidation, and drug sales.
A pattern of gang activity was shown by the
following predicate offenses:
1. In May
2006, two members of 18th Street Maze committed a drive-by shooting; they fired
over 30 rounds and succeeded in killing the intended victim.
2. In
January 2007, the same two members of 18th Street Maze committed a shooting and
attempted murder; the intended victim was believed to be responsible for a
previous shooting of a member of 18th Street Maze.
Originally, 18th Street Maze was affiliated with
the Crips, so it used the color blue.
After about 2004, however, younger members started using the neutral
color black and the name “black rag.†A
few even aligned with a Blood set and used the color red.
18th Street Maze and Delmann Heights were rival
gangs. Delmann Heights is a Blood gang,
so it used the color red. The graphics
on defendant’s MySpace page included the letters “DHBK,†which stood for
“Delmann Heights Blood killer.â€
In addition, Edward “Lil 9†Griffin and Michael
“Lil Mike†Johnson, who were members or associates of 18th Street Maze, had
been shot and killed by members of the Little Zion Manor gang. In their memory, defendant got tattoos
reading “RIP Edward†and “RIP Michael.â€
Defendant sent emails stating that he was going to “put it down
for . . . Lil 9†and “put it down for Lil
Mike . . . .†The
Little Zions were a Blood gang; they claimed the area just across 19th Street
from the Dorjils.
In Sergeant Walker’s opinion, a shooting of a
rival gang member in a rival gang’s territory would “benefit not only the
status of the gang member himself but the gang . . . .â€
II
BROOKS’S IDENTIFICATION OF
DEFENDANT
Defendant contends that the trial court erred by
admitting Brooks’s identification of him as the shooter, because it was the
product of an impermissibly suggestive identification process.
A.
The following facts are taken from the factual
statements in defendant’s motion in limine and the prosecution’s
opposition. (Those statements were
apparently based on the evidence at the first trial, which is not before us.)
When the police first interviewed Brooks, he said
he did not get a good look at the shooter and could not identify him. Next, when Detective Higgins interviewed him,
Brooks likewise said that he could not identify the shooter, although he did
give an age range. At that point, Brooks
did not yet know that Ojomoh had been struck and killed.
The next day, Ojomoh’s mother contacted Detective
Higgins. She said that Brooks had told
her that the shooter was “Rob,†who had attended San Bernardino High School
with him in 2004-2005, who was a member of the Maze gang, and whose mother’s
name was Ann Johnson. Detective Higgins
discussed this information with another detective, who said that Brooks’s
description matched defendant.
Detective Higgins checked the high school’s
records, which indicated that defendant had attended the school in 2004-2005
and that his mother’s name was Angela Johnson.
The school records included a photo of defendant. In the background of the photo, there was a
palm tree.
Detective Higgins then reinterviewed Brooks at
Ojomoh’s mother’s home. At first, Brooks
maintained that he did not see the shooter.
Ojomoh’s mother, however, took him aside and talked to him. Brooks then told Detective Higgins that he
did see the shooter. He confirmed that
the shooter was “Rob,†who had attended San Bernardino High School with him in
2004-2005 and who was a member of the Maze gang.
At that point, Detective Higgins showed Brooks
the photo of defendant. Brooks
identified it as a photo of the shooter.
Detective Higgins explained that he used the single photo instead of a
“six-pack†because Brooks had indicated that he knew defendant and also because
the palm tree would have made the photo suggestive in any event.
B. Additional Procedural
Background.
1. The second trial.
Prior to the second trial, defendant filed a
motion in limine to exclude evidence that Brooks had identified him or would
identify him as the shooter, arguing that “the prior identification . . .
was . . . unduly suggestive . . . and . . . any subsequent in[‑]court
identification is based on that unduly suggestive identification
. . . .†The prosecution
filed a written opposition.
After hearing argument, the trial court ruled
that the evidence was admissible. It
explained: “[T]he witness knew the
defendant or a[t] least indicated that he knew the defendant and
. . . the photograph was obtained through information obtained from
the witness . . . .
Actually it was for purposes of confirming the identification that
previously had been made by the witness himself . . . .â€
2. The third trial.
Before the third trial, defense counsel stated
that he wanted to “incorporate†certain previous motions in limine,
specifically including the motion to exclude Brooks’s identification. However, there was no argument on the motion,
and the trial court never ruled on it.
C. Analysis.
1. Forfeiture.
Defendant’s contention stumbles out of the gate
because defense counsel forfeited it by failing to obtain a ruling on it at the
third trial.
“‘[A]bsent a ruling or stipulation that
objections and rulings will be deemed renewed and made in a later trial
[citation], the failure to object bars consideration of the issue on
appeal. . . . A defendant
may not acquiesce in the admission of possibly excludable evidence and then
claim on appeal that rulings made in a prior proceeding render objection
unnecessary.’ [Citation.]†(People
v. Richardson (2008) 43 Cal.4th 959, 1002.)
Here, defense counsel arguably did object by asking
to “incorporate†the prior motions in limine.
However, he failed to press for a ruling or to obtain one. “In order to preserve an issue for review, a
defendant must not only request the court to act, but must press for a
ruling. The failure to do so forfeits
the claim. [Citations.]†(People
v. Ramirez (2006) 39 Cal.4th 398, 472-473.)
2. Merits.
We also reject this contention on the merits.
“In order to determine whether the admission of
identification evidence violates a defendant’s right to due process of law, we
consider (1) whether the identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was nevertheless
reliable under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the suspect at the time of
the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of time between
the offense and the identification.
[Citations.]
“The defendant bears the burden of demonstrating
the existence of an unreliable identification procedure. [Citations.]â€
(People v. Cunningham (2001)
25 Cal.4th 926, 989-990.) A claim that a
pretrial identification procedure was unduly suggestive is subject to our
independent review. (
609, disapproved on other grounds in People
v. Williams (2010) 49 Cal.4th 405, 459.)
“[A]lthough a one-person showup may pose a danger
of suggestiveness, such showups ‘are not necessarily or inherently unfair. [Citations.]
Rather, all the circumstances must be considered.’ [Citation.]â€
(People v. Medina (1995) 11
Cal.4th 694, 753.) Indeed,
“single-person show-ups for purposes of
in-field identifications are encouraged, because the element of
suggestiveness inherent in the procedure is offset by the reliability of an
identification made while the events are fresh in the witness’s mind, and
because the interests of both the accused and law enforcement are best served
by an immediate determination as to whether the correct person has been
apprehended. [Citation.]†(In re
Carlos M. (1990) 220 Cal.App.3d 372, 387.)
Here, Detective Higgins showed Brooks the photo
shortly after the shooting.
name="_ftnref5" title="">
identification from Brooks, if possible, while the shooting was still fresh in
his mind. Moreover, in light of the
description that Brooks had given the victim’s mother, defendant was already
under suspicion; it was important to rule him in or out. The fact that Brooks was apparently familiar
with defendant, because they had gone to the same school, made the identification
less suggestive. (See
944, 958-959 [where witness had seen both defendants a number of times in her
neighborhood, courtroom identification was not an impermissibly suggestive
one-person showup].)
Moreover, Brooks had not yet given the police any
description of the shooter (except for an age range). Thus, the police were not in a position to
prepare a standard six-pack of persons who all matched a certain general
description. The best that Detective
Higgins could have done would have been to prepare a six-pack of people who
matched defendant’s description. However, because Brooks evidently already
knew defendant, that would, in itself, have been suggestive.
As defendant notes, there is no evidence that
Detective Higgins gave (or did not give) a cautionary admonition before showing
Brooks the photo. However, the burden of
proving that the procedure was
suggestive is on defendant. Thus, absent evidence to the contrary, we may
presume that the police did not present the photo in a suggestive manner. (See In
re Carlos M., supra, 220
Cal.App.3d at p. 386 [“[t]he record is devoid of any indication that
police told the victim anything to suggest the people she would be viewing were
in fact her attackersâ€].) We conclude
that the procedure was not impermissibly suggestive.
Finally — and again, separately and alternatively
— even assuming the procedure was suggestive, the identification was
nevertheless reliable under the totality of the circumstances. Brooks knew defendant. By stating that the shooter was “Rob,†a
member of the Maze gang, who had gone to San Bernardino High School in
2004-2005, and whose mother’s name was Ann Johnson, Brooks essentially
identified defendant as the shooter before even seeing his photo. There was no evidence of any other person who
met this description. While Brooks had
failed to identify defendant in previous interviews, that was most likely due
to intimidation, not a genuine failure of recollection. Brooks identified the photo within days after
the shooting.
We therefore conclude that the trial court did
not err by admitting Brooks’s identification of defendant.
III
THOMPSON’S UNAVAILABLILITY
Defendant contends that the trial court erred by
finding that Thompson was unavailable.
A. Additional Factual and
Procedural Background.
1. The first trial.
Before the first trial, defense counsel objected
to Thompson’s preliminary hearing testimony based on Crawford v. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354, 158
L.Ed.2d 177). The trial court ruled that
the testimony was admissible, provided the prosecution made a foundational
showing that Thompson was unavailable.
Thus, on February 4, 2009, the trial court held
an evidentiary hearing under Evidence Code section 402. The only witness was Jose Guzman, an
investigator for the district attorney’s office.
According to Guzman, Thompson was living in
Louisiana. She had testified at the
preliminary hearing only after a warrant had been issued for her arrest. After the preliminary hearing, Guzman told
Thompson that she would have to return for the trial. She told him she would cooperate, because she
did not want “to go through the arrest . . . and warrant processâ€
again.
On January 20, 2009, the prosecutor asked Guzman
to contact Thompson. Thus, he spoke to
her on January 20 and again on January 26.
Both times, she was very cooperative.
Sometime between January 26 and 30, Guzman
learned that Thompson was going to avoid returning to California for
trial. He then spoke to her mother, her
grandmother, her sister, her niece, and her nephew.
On January 30, he obtained a warrant for her
arrest. The local Louisiana sheriff’s
department sent surveillance teams to Thompson’s home, her workplace, and her
relatives’ workplaces, but they were unable to locate her. Meanwhile, Guzman tried to phone her “every
day, about two, three times a day . . . .â€
The trial court ruled that the prosecution had
exercised due diligence.
2. The second trial.
On October 7, 2009, prior to the second trial,
the trial court held a new Evidence Code section 402 hearing with regard to
Thompson’s unavailability. Once again,
the only witness was Guzman.
Guzman testified that, after the first trial, he
continued to try to locate Thompson. He
did “want/warrant checks, driver’s license [checks], [and] FBI checks,†but found
nothing.
He also enlisted the aid of the local Louisiana
sheriff’s department, which “spent over two weeks, 100 man hours, contacted
over 15 family members, [and] checked approximately 10 different locations
. . . .†The local
deputies learned that there were several local warrants for Thompson’s
arrest. They were “99 percent sure†that
Thompson was staying at her mother’s house.
For example, her welfare checks were being sent to that address and were
being cashed. However, they were never
able to find her there.
One day before the hearing, the deputies told
Guzman that Thompson may have fled to Alabama.
A relative provided two possible addresses in Alabama. Guzman immediately contacted the local
Alabama district attorney’s office. The
chief investigator there checked out the two addresses and found that they were
not valid; however, he identified a third address where Thompson might be
staying with a relative.
Once again, the trial court ruled that the
prosecution had exercised due diligence.
3. The third trial.
On February 14, 2011, prior to the third trial,
the trial court held yet another Evidence Code section 402 hearing with regard
to Thompson’s unavailability. This time
the only witness was Mark Cordova, an investigator with the district attorney’s
office who had taken over the case from Guzman.
Cordova testified that, from Guzman’s notes, he
understood that Thompson was either in Monroe, Louisiana or in Alabama.
On February 2, he contacted Thompson’s
grandmother. She said that Thompson was still
in Monroe, and she would have Thompson contact him. However, Thompson never did.
He also checked on Thompson’s California driver’s
license and learned that it had been surrendered in Georgia.
On February 4, Cordova contacted the local
Louisiana sheriff’s office. Local
deputies were sent out to contact Thompson four times over the next 10
days. They checked her grandmother’s
house, her mother’s house, and a third possible location,
Cordova admitted that he did not check any welfare
records or use any “skip trace methods.â€
Yet again, the trial court ruled that the
prosecution had exercised due diligence.
Accordingly, at trial, Thompson’s preliminary hearing testimony was read
into the record, and her statement to the police was admitted as a prior
inconsistent statement.
B. Analysis.
“‘“The confrontation clauses of both the
guarantee a criminal defendant the right to confront the prosecution’s
witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is
unavailable and, at a previous court proceeding against the same defendant, has
given testimony that was subject to cross-examination. Under federal constitutional law, such
testimony is admissible if the prosecution shows it made ‘a good-faith effort’
to obtain the presence of the witness at trial.†[Citations.]
“‘“In California, the exception to the
testimony is codified in [Evidence Code] section 1291, subdivision (a), which
provides: ‘Evidence of former testimony is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness and: [¶]
. . . [¶] (2) The party against whom the former
testimony is offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which he has at the hearing.’ A witness is unavailable if ‘[a]bsent from
the hearing and the proponent of his or her statement has exercised reasonable
diligence but has been unable to procure his or her attendance by the court’s
process.’ [Citation.] Although [this] refers to ‘reasonable
diligence,’ th[e Supreme Court] court has often described the evaluation as one
involving ‘due diligence.’â€
[Citation.]’ [Citation.]
“‘ . . . [T]he term “due
diligence†is “incapable of a mechanical definition,†but it “connotes
persevering application, untiring efforts in good earnest, efforts of a
substantial character.â€
[Citations.] Relevant
considerations include “‘whether the search was timely begun’†[citation], the
importance of the witness’s testimony [citation], and whether leads were
competently explored [citation].’
[Citation.] ‘When, as here, the
facts are undisputed, a reviewing court decides the question of due diligence
independently, not deferentially.
[Citation.]’ [Citation.]†(People
v. Fuiava (2012) 53 Cal.4th 622, 674-675.)
“‘The proponent of the evidence has the burden of
showing by competent evidence that the witness is unavailable.’ [Citation.]â€
(People v. Valencia (2008) 43
Cal.4th 268, 292.)
Defendant argues that the search started too
late, particularly as it was become clear that Thompson was trying to avoid
testifying. Ten days, however, was
plenty of time to find a witness who was not trying to avoid being found. Reasonable diligence findings have been
upheld when the search for the witness started seven days, six days, four days,
and even as little as one day before trial.
(People v. Saucedo (1995) 33
Cal.App.4th 1230, 1238-1239, disapproved on other grounds in
901, fn. 3.)
And if Thompson was trying to avoid being found, starting earlier would not
necessarily help. Before the second
trial, when she heard the prosecution was looking for her, she fled to
Alabama. Moreover, even if she were
located some weeks or months before trial, the prosecution would have to either
subpoena her or have her arrested as a material witness. (Pen. Code, § 1334.3, subd. (a).) If she were subpoenaed but not arrested, she
could disregard the subpoena and flee.
(See People v. Louis (1986) 42
Cal.3d 969, 992, fn. 6 [“[i]n light of [the witness’s] undisputed and
indisputable unreliability, mere service of process does not and cannot satisfy
the requirement of due diligence hereâ€], disapproved on other grounds in
672, fn. 9.) And if she were arrested,
she could argue that she was being detained for an unreasonable period of time
before trial. (Cal. Const., art. I,
§ 10; In re Francisco M.
(2001) 86 Cal.App.4th 1061, 1077.) In
other words, the prosecution was damned if it started too early and damned if
it started too late.
In People
v. Fuiava, supra, 53 Cal.4th 622,
the Supreme Court held that the prosecution showed due diligence, even though
it first began searching for a witness approximately two weeks before
trial. (Id. at pp. 674-677.) It
observed:
“ . . . ‘[W]e could not properly impose upon the
People an obligation to keep “periodic tabs†on every material witness in a
criminal case, for the administrative burdens of doing so would be
prohibitive. Moreover, it is unclear
what effective and reasonable controls the People could impose upon a witness
who plans to leave the state, or simply “disappear,†long before a trial date
is set.’ [Citation.]†(Id.
at p. 676.) This reasoning applies
here.
Defendant relies on People v. Avila (2005) 131 Cal.App.4th 163. There, however, the witness had willingly
testified at a previous trial. The
prosecution did not attempt to recontact her until the day the retrial was to
begin; an officer went to her only known address but was unable to find or
contact her there. (Id. at p 167.) The
appellate court stated: “Waiting until
the morning a trial begins to try to locate a witness after being out of touch
for several months is generally not prudent or reasonable, and certainly is not
an untiring effort to secure a witness’s presence at trial. [Citation.]
Witnesses have jobs, they plan vacations [citation], they have
child-care responsibilities, they leave town for a few days. A party who wanted to ensure a witness was
available to testify would usually plan ahead, and not wait a day or two before
the testimony was needed.†(
she might be uncooperative and refuse to appear, then waiting until the morning
the trial began arguably had merit. [Citation.]
But if the People had no reason to think she would try to avoid service,
then waiting until the ‘11th hour’ to contact her the morning trial started was
not due diligence. [Citations.]†(Id.
at p. 170.)
Here, the prosecution allowed enough time to deal
with vacations and child care responsibilities.
However, because there was reason to think that Thompson might be
uncooperative and refuse to appear, there was a risk in starting too early.
Next, defendant argues that leads were not
competently explored. He faults Cordova
for relying on the local sheriff’s office.
However, inasmuch as Thompson was in Louisiana, there was not much else
he could do. Somewhat inconsistently,
defendant complains about the fact that Cordova checked California driver’s
license records. Admittedly, this was
not likely to be fruitful, but it makes our point — that Cordova acted
reasonably in delegating most of the legwork to the officers in Louisiana. Defendant does not specify anything that
those officers supposedly should have done but did not do.
Defendant also complains that Cordova failed to
use skip-tracing or welfare databases.
However, as the Supreme Court has also stated, “the circumstance that
‘additional efforts might have been made or other lines of inquiry pursued does
not affect th[e due diligence] conclusion.
[Citation.] It is enough that the
People used reasonable efforts to locate the witness.’ [Citations.]â€
(People v. Fuiava,
omitted.)
Defendant argues that Thompson’s testimony was
very important. We may so assume. Nevertheless, the prosecution’s efforts to
locate her were reasonably commensurate with her importance to the prosecution’s
case. In the end, the prosecution failed
to find her because she was determined to avoid testifying, not because it
conducted an inadequate search.
Finally, defendant argues that the prosecution
did not do enough to prevent Thompson from going missing. He cites People
v. Roldan (2012) 205 Cal.App.4th 969, which stated: “[T]he requirement of due diligence is not
limited to situations in which the prosecution is trying to find a witness who
has gone missing. ‘[N]o less important
“is the duty to use reasonable means to prevent
a present witness from becoming absent.â€
[Citation.] If the prosecution
fails in this latter duty, it does not satisfy the requirement of due
diligence. [Citation.]’ [Citations.]â€
(Id. at p. 980.)
The prosecution, however, is not required to
assume that a witness will become unavailable.
The prosecution has a duty to prevent a witness from becoming absent
only if it is on notice that this is reasonably likely. For example, in Roldan, when the witness testified at the defendant’s preliminary
hearing, he was on an immigration hold; after the preliminary hearing, he was
released to federal authorities and deported.
(People v. Roldan,
p. 976.) The court held that the
prosecution failed to exercise due diligence to prevent the witness from
becoming absent. (Id. at pp. 980-985.)
Similarly, in People
v. Louis, supra, 42 Cal.3d 969,
the witness was in custody on felony charges; he refused to testify against the
defendant’s alleged coperpetrators unless, after he testified, he was released
for a weekend on his own recognizance. (
“habitually failed to make court appearances and had to be arrested to compel
his attendance . . . .†(
“ . . . ‘In my mind there was a very real possibility that
the man would boogie, that he wouldn’t show up. . . . I thought there was a real risk that he would
not.’†(Id. at p. 992, fn. omitted.)
Nevertheless, the prosecution agreed to his release. The witness “promptly disappearedâ€; thus, he
was not present to testify at the defendant’s trial. (Id.
at p. 978; see also id. at
p. 990.) The Supreme Court
concluded that the prosecution had failed to exercise due diligence to prevent
the witness from becoming absent. (
Here, by contrast, after Thompson testified at
defendant’s preliminary hearing, the prosecution reasonably believed that she
was going to cooperate. Admittedly, she
had not cooperated prior to the preliminary hearing; the prosecution had had to
have her arrested. After the preliminary
hearing, however, she assured Guzman that she would cooperate in the future,
because she did not want to be arrested again.
Moreover, when he spoke to her on January 20 and again on January 26,
2009, to arrange for her to testify at the first trial, she seemed
cooperative. Thus, the prosecution had
no reason to do anything out of the ordinary to prevent her from becoming an
absent witness.
We therefore conclude that the trial court did
not err by ruling that the prosecution showed due diligence.
IV
THE VOLUNTARINESS OF
THOMPSON’S STATEMENT
TO THE LOUISIANA POLICE
Defendant contends that the trial court erred by
admitting Thompson’s statement to the Louisiana police, because it was coerced.
A.
At the beginning of the interview, Louisiana
Sheriff’s Deputy Waggoner Mirandized
Thompson. After obtaining some
background information from her, including the fact that defendant was her
boyfriend, he asked her to confirm that defendant was selling marijuana. She responded, “That’s a lie.†She said she would not have allowed that,
“cause I have a baby. Why I want to put
my life and my son life in jeopardy and I knew if y’all come running in, I’m
going to jail and my son going to the state.â€
The deputy claimed that defendant had already
admitted selling marijuana. He
continued, “I’m not looking to do harm to your kids.†“My business is not with them.†“But there’s certain things that you’re
telling me and that he told me something completely the opposite.
. . . I’m not saying that he’s
not capable of lying because I very much believe that he is, but what I’m
having a problem with is the things that he’s telling me are things that he
didn’t have to tell me. Things that
really kind of hurt him worse than it did help.
And so it makes me think that maybe you’re trying to cover
. . . .â€
Thompson continued to insist that she did not
know that defendant was selling marijuana.
The deputy then stated: “[Y]ou’re
going to make this hard on yourself. . . . I’m not in the habit of breaking up happy
homes, but I can prove that you knew what was going on and . . . if
we choose to put you in jail for this, you can go. You could have gone without me ever
questioning you. . . . That is
not my primary objective, but I will tell you this, I’m not going to sit here
and let you continue to lie to me.â€
He went on:
“I’m not that person that you need to lie to. I’m that person that you need to spill your
soul to. . . . Because I control
whether you go to jail or not. . . .
I can prove that you knew what was going on there
. . . . If I want you in
jail that’s where you’ll go. You’re not
the primary person I want to put there.
I don’t care what you tell me about him, but it by God better be the
truth, because if it’s not, I will put you in jail . . . .â€
Thompson then admitted knowing that defendant was
selling marijuana. There was some
discussion of that, which segued into a discussion of what Thompson knew about
defendant’s family, friends, and background.
Thompson admitted hearing “people†say that defendant was wanted in “San
Ardino†in California.
The deputy then said:
“Q: Well,
I’m going to tell you everything that’s already been in the paper. H[i]s name is Robert McKinney and he was
wanted by San Bernardino Police Department for a homicide. Okay.
Now I’m going to reintegrate this one more time to you. You keep leaving stuff out and you keep
telling me lies and I’m fixing to put you in jail. . . . [H]im going to jail the other night is
something that’s been on the news, this is how big of a deal it is, it’s
something that’s been on the news from Monroe, Louisiana to California, okay.
“A: Uh
huh.
“Q: This
is some serious shit. This isn’t some
old bull shit . . . , this is pretty serious. You lying right now during an investigation
is a crime and I’m telling you again, you’re fixing to force me to put you in
jail cause you’re telling me shit that I know to be a lie because I’ve already
had this same conversation with him. I
know what you know. Now if this is the
road that you want to go down that’s fine, but you go to jail and you’re
getting taken away from your kids, okay.
You’ve been harboring a fugitive for several months now. He’s in jail and he’s not getting out[,]
okay. This guy had a whole another [
wanted. Just listen.
“A: Okay.
“Q: I know
you knew he was wanted. I know that you
do know about certain family members. I
know that you do know about some money and I know that you don’t know about
certain other things in his life cause there are certain things that he told me
that he didn’t tell you but those things I just mentioned along with a couple
of other things, I’m not buying the shit I don’t know, I don’t know, I don’t
know. The answers that you answer right
now are either going to put you back in handcuffs or let you walk out of
here. But I’m really trying hard, it’s
really getting to me, having to sit here and decipher through the bull shit
that you’re trying to throw at me whenever I know the truth. I’m not going to ask you a question I don’t
know the answer to. So far you lied to
me eight times. I’m not going to ask you
a question unless I already know the answer to it. . . . So one more time, the next time that I mark
another mark down here that you’ve lied to me, I’m gonna get up I’m going to
turn that tape recorder off, I’m gonna put you back in
OCC.[
title="">[8]] And maybe when you’re walking from the
booking desk back to the door, because you want [sic] have a bond, because it’s felony charges, you can wave at
it. Okay. If that’s what you want, then let’s stay on
this path of lying to me. He’s not on
your side, period. He’s not on your
side. [¶] . . . [¶]
“ . . . He is done.
The du[d]e will be lucky if he ever sees the light of day. He’s through.
Don’t go down with him. That’s
crazy. You got kids, but you, you’re
heading that way. So are we going to
start being honest with each other, or do we just need to go to OCC now and be
done with this?
“A: I’m
gonna be honest with you.â€
name="_ftnref9" title="">[9]
Thompson then told the police that defendant had
admitted shooting and killing someone in San Bernardino.
B. Additional Procedural
Background.
1. The first trial.
Before the first trial, defendant filed a motion
in limine to exclude Thompson’s statement to the Louisiana police, on the
ground that it was involuntary and coerced.
In support of the motion, he provided the court with a copy of the transcript
of the interview.
name="_ftnref10" title="">[10]
The trial court denied the motion. It explained that the deputy basically told
Thompson that he wanted her to tell the truth; “[o]ther than that he doesn’t
tell her what he wants her to say.â€
“ . . . I don’t think there’s anything wrong with the
police . . . saying look, you got to tell us the truth here; if you
don’t tell us the truth, you’re going to go to jail and tell[ing] them what the
consequences of them going to jail [are]; that it might affect your family
life. I don’t see there’s anything wrong
with that under the circumstances.â€
“There’s nothing in the transcript . . . that indicates they
were coercing a particular statement from her.â€
2. The second trial.
Before the second trial, defendant filed an
essentially identical motion in limine to exclude Thompson’s statement as
involuntary and coerced. After hearing
argument, the trial court denied the motion, for essentially the same reasons
as at the first trial.
3. The third trial.
Before the third trial, as mentioned earlier,
defense counsel stated that he wanted to “incorporate†certain previous motions
in limine, including the motion to exclude Thompson’s statement. However, there was no argument on the motion,
and the trial court never ruled on it.
C. Analysis.
1. Forfeiture.
Once again (see part II.C.1, ante), defense counsel forfeited this contention by failing to
obtain a ruling on it before the third trial.
(People v. Richardson,
2. Merits.
And once again, we also reject this contention on
the merits.
“The coerced testimony of a witness
. . . is excluded in order to protect the defendant’s own federal due
process right to a fair trial, and in particular, to ensure the reliability of
testimony offered against him.†(
444, italics omitted.)
“The statement of a . . . witness is
coerced if it is the product of police conduct which overcomes the person’s
free will.†(People v. Lee (2002) 95 Cal.App.4th 772, 782, fn. omitted.) “‘“The question posed by the due process
clause in cases of claimed psychological coercion is whether the influences
brought to bear upon the [witness] were ‘such as to overbear [the witness]’s
will to resist and bring about confessions not freely self-determined.’ [Citation.]â€
[Citation.] In determining
whether or not [a witness]’s will was overborne, “an examination must be made
of ‘all the surrounding circumstances — both the characteristics of the
[witness] and the details of the interrogation.’ [Citation.]†[Citation.]’
[Citation.]†(
404.) “In evaluating the voluntariness
of a statement, no single factor is dispositive. [Citation.]â€
(People v. Williams,
“[W]hen a defendant makes a motion to exclude
coerced testimony of a third party on due process grounds, the burden of
proving improper coercion is upon the defendant. [Citation.]â€
(People v. Badgett (1995) 10
Cal.4th 330, 348.)
“On appeal, we independently review the entire
record to determine whether a witness’s testimony was coerced, so as to render
the defendant’s trial unfair.
[Citation.] In doing so, however,
we defer to the trial court’s credibility determinations, and to its findings
of physical and chronological fact, insofar as they are supported by
substantial evidence.†(
Admittedly, the deputy was deceptive about some
things. For example, he claimed that
defendant had already told him the answers to the questions he was asking; as
he admitted at trial, this was not true.
Defendant, however, does not complain that this made the interview
coercive. It did not. “Deception does not undermine the
voluntariness of a defendant’s statements to the authorities unless the
deception is ‘“‘of a type reasonably likely to procure an untrue
statement.’â€â€™ [Citations.]†(People
v. Williams, supra, 49 Cal.4th at
p. 443.) Here, the deception
actually tended to procure a true statement.
Defendant argues that the deputy promised
Thompson leniency. With regard to the
a confession is involuntary and therefore inadmissible if it was elicited by
any promise of benefit or leniency whether express or implied.’ [Citation.]â€
(People v. Tully (2012) 54
Cal.4th 952, 993.) However, “case law
fails to support defendant’s premise that a third party witness’s statements
are rendered inadmissible against a defendant if induced by improper offers of
leniency. [Citations.]†(People
v. Ervin (2000) 22 Cal.4th 48, 83.)
In People
v. Badgett, supra, 10 Cal.4th
330, according to the defendants there, a police officer had communicated to a
potential witness that she would be released from custody if she
cooperated. The defendants argued that
the witness’s statements to police “were involuntary because they were the
product of a promise of leniency.†(
quid pro quo, usually an offer of leniency.
We have never held, nor has any authority been offered in support of the
proposition, that an offer of leniency in return for cooperation with the
police renders a third party statement involuntary or eventual trial testimony
coerced. . . . [T]estimony
given under an immunity agreement does not violate the defendant’s right to a
fair trial, if the grant of immunity is made on condition the witness testifies
fully and fairly.†(Id. at pp. 354-355.)
“If an offer of immunity is not considered coercive, then an offer of
release from custody in return for cooperation likewise should not render a
witness’s statement coerced.†(
Defendant tries to distinguish
a formal offer of immunity. Not so. As noted, Badgett
actually involved one police officer’s offer to release the witness from
custody. Badgett relied on earlier cases involving formal immunity offers,
but it then extended the same principles to an informal offer of release from
custody.
We recognize that “[a]n immunity agreement that
requires the witness to testify consistently with a previous statement to the
police is deemed coercive, and testimony produced by such an agreement is
subject to exclusion from evidence.†(
However, “[i]t is . . . well established exhortations directed
to the suspect or witness to ‘tell the truth’ are not objectionable.†(People
v. Lee, supra, 95 Cal.App.4th at
p. 785, fn. omitted.) Here, as the
trial court reasoned, the deputy was essentially urging Thompson to tell the
truth. For example, he said, “I don’t
care what you tell me about [defendant], but it by God better be the truth,
because if it’s not, I will put you in jail . . . .†He claimed that he would know whether she was
telling the truth or lying, explaining, “ . . . I’ve
already had this same conversation with [defendant]. I know what you know.†However, he also conceded that there might be
things she did not know, stating:
“ . . . I know that you don’t know about certain
other things in his life cause there are certain things that he told me that he
didn’t tell you . . . .â€
Thus, she would not have felt pressured to claim knowledge that she did
not have.
“‘In assessing allegedly coercive police tactics,
“[t]he courts have prohibited only those psychological ploys which, under all
the circumstances, are so coercive that they tend to produce a statement that
is both involuntary and unreliable.â€
[Citation.]’ [Citation.]†(People
v. Williams, supra, 49 Cal.4th at
p. 436.) The deputy’s tactics in
this case would not tend to produce an involuntary and unreliable statement.
Defendant also argues that the deputy threatened
Thompson with the loss of her children.
up the possibility of losing custody of her children; she claimed she would not
let defendant sell marijuana from her home, because that would mean “I’m going
to jail and my son [is] going to the state.â€
At that point, the deputy tried to walk a fine line; he tried to
reassure her, by saying it was not his intent to take her children away from
her, while at the same time he could not promise that they would not be taken
away, because she was a suspect in a criminal investigation. Thus, he said, “I’m not looking to do any
harm to your kids.†“My business is not
with them.†“I’m not in the habit of
breaking up happy homes, but. . . if we choose to put you in jail for
this, you can go.â€
Ultimately, however, he did say that, if she lied
to him, she would be incarcerated and, as a result, she would lose custody of
her children. He stated, “You lying
right now during an investigation is a crime . . . . Now if this is the road that you want to go
down that’s fine, but you go to jail and you’re getting taken away from your
kids, okay.†He also said, “Don’t go
down with [defendant]. That’s
crazy. You got kids, but you, you’re
heading that way.â€
Under Badgett,
however, the police could legitimately offer Thompson leniency, because she was
a witness and was not ultimately prosecuted.
It would be absurd to allow police to offer a witness leniency, yet
forbid them to mention the benefits that leniency would entail. If they can say, “Give us a statement, and we
will release you from custody,†then surely they can say, “Give us a statement,
and you’ll eat dinner at home tonight.â€
Here, one of the benefits that Thompson would gain from leniency would
be keeping custody of her children. Thompson
had already brought the subject up herself.
Thus, the deputy’s references to this benefit were not unduly coercive.
As already mentioned, even when the police
question a suspect, they can urge him or her to tell the truth. (People
v. Lee, supra, 95 Cal.App.4th at
p. 785.) Moreover, “‘[i]n terms of
assessing inducements assertedly offered to a suspect, “‘[w]hen the benefit
pointed out by the police . . . is merely that which flows naturally
from a truthful and honest course of conduct,’ the subsequent statement will
not be considered involuntarily made.
[Citation.]â€â€™ [Citation.]†(People
v. Tully, supra, 54 Cal.4th at
p. 993.) Here, by analogy, they
could also point out the benefits that flowed naturally from a truthful and
honest course of conduct. Because the
police could legitimately offer Thompson leniency in exchange for the truth,
these benefits included keeping custody of her children.
We therefore conclude that the trial court did
not err by denying defendant’s motion to exclude Thompson’s statements.
V
THE MYSPACE PAGES
Defendant contends that the trial court erred by
admitting certain pages downloaded from MySpace.
A.
1. Proceedings
in limine.
Before the third trial, there was a discussion of
“the MySpace issues . . . .†The trial court ruled, “Foundation has to be
laid that would . . . at least get over the initial hurdle of the
authenticity of the document or the website itself. And if any evidence is submitted in that
regard, I’ll make a determination as to whether or not it reaches that
foundational hurdle. Obviously raise
whatever objection you have [to] foundation at the time that the testimony
comes in . . . .â€
Defendant also objected to “hav[ing] the expert
. . . interpreting what these writings on the internet are.†He cited Evidence Code section 352.
During trial, defense counsel remarked, “[W]e
should probably put our chambers conference on the record.†He indicated that, in chambers, he had
objected to Exhibits 27 and 28 based on lack of authentication and Evidence
Code section 352. Exhibit 27 was a downloaded
copy of the home page of what was allegedly defendant’s MySpace account. Exhibit 28 was a downloaded copy of the
photos from same account.
The trial court responded, “I already made a
ruling that it’s relevant and . . . can go in. It’s just a question under 352 whether it
should be cut down in some fashion.†It
invited defense counsel to bring a motion to exclude particular “portions†or
“items†as cumulative.
The next day, defense counsel objected to the
MySpace pages in their entirety based on Evidence Code section 352. He also stated, “[T]he authenticity of these
. . . is very weak which I think goes towards their probative value
. . . .â€
The trial court ruled, “I’m going to allow
it. I think that . . . the
prejudicial nature of it does not substantially outweigh its probative
value. If there’s some areas being
brought up you feel go beyond or [are] cumulative in nature, make appropriate
objections.â€
2. Testimony
concerning the MySpace pages.
The gang expert, Sergeant Travis Walker, testified
that defendant was a member of 18th Street Maze, with the moniker “Lil Gotti.â€
Sergeant Walker had found a MySpace page under
the username “Lil Gotti.†By means of a
search warrant, he obtained records relating to the account from MySpace. The user’s last name was listed as “Maze
gang.†The user was listed as male, with
the same birth date as defendant. The
user’s email address was listed as LilgottieIEmaze@yahoo.com. The user’s welcome message addressed him as
“Robert.â€
An email sent from the account stated, “Damn
man. You still don’t know who this
is. This Lil Gottie AKA. You know me as Robert.â€
In December 2006, Michael Johnson, a/k/a “Lil
Mike,†an associate of 18th Street Maze, was shot and killed, apparently by
members of the Little Zion Manor gang.
In his memory, defendant got a tattoo reading, “RIP Michael.â€
On January 3, 2007, an email from the MySpace
account stated, “Shit right now I’m on vacation in Louisiana with my folks
. . . . [W]e got to put
it down for Lil Mike R.I.P. . . .
I’m chillin’ for a minute . . . but . . . I’ll be
out there in a few weeks dog. Stay up
and maze up.â€
On February 7, 2007, Edward Griffin, a/k/a “Lil
9,†a member of 18th Street Maze, was killed, apparently by members of the
Little Zion Manor gang. In his memory,
defendant got a tattoo reading, “RIP Edward.â€
Griffin’s funeral was held on or about February 20, 2007.
On February 23, 2007, an email from the MySpace
account to another 18th Street Maze member stated, “Tell my niggas yo boy will
be out there real soon, . . . so I can tear up some shi[t] for my
nigga Lil 9. May he R.I.P. and ooohh
whoooop in peace. . . . Tell
the homies I said oohh hoop su hoop maze gang banging
. . . . Holla 18th maze
life.â€
Sergeant Walker explained that “su whooop†is a
“hood call†used by Blood gangs. “Oohh
whooop†is the hood call of 18th Street Maze.
“[T]ear[ing] up some shit†meant putting in work for the gang, which
could include a retaliatory shooting.
Another February 23, 2007, email from the MySpace
account said, “[J]ust chilling, waiting to get on the fucking bus to come back
to the [’]dino and put it down for my young nigga, Lil 9. May he R.I.P. an[’] oohh whooop in peace.â€
In August 2007, the username on the account was
changed to “ebk lzk o5k gsk msk mk.â€
Sergeant Walker testified that this stood for “everybody killer,â€
“Little Zion killer,†“Five Times [k]iller,†“Gilbert Street killer,†“Magnolia
States killer,†and “Macon killer.â€
The MySpace pages included photos of 18th Street
Maze members, some throwing gang signs.
They also included gang slogans and other indicia of gang
membership. The top of the home page
said, among other things, “DHBK,†which Sergeant Walker testified stood for
“Delmann Heights Blood killer.†However,
the MySpace pages did not include any photos of defendant.
According to Sergeant Walker, a MySpace page can
be changed only by the creator of the account or by someone to whom the creator
gives the login name and password.
When the prosecution offered Exhibits 27 and 28
into evidence, defense counsel did not object.
B. Analysis.
1. Forfeiture.
Defense counsel forfeited any contention that the
MySpace pages were not sufficiently authenticated by failing to object on this
ground during or after Sergeant Walker’s testimony. The trial court expressly refused to rule on
this issue in limine; it told defense counsel, “[R]aise whatever objection you
have [to] foundation at the time that the testimony comes in
. . . .†Defense counsel
did not do so. Hence, this objection has
been forfeited for appeal. (Evid. Code,
§ 353, subd. (a).)
2. Merits.
We also reject on the merits the claim that the
MySpace pages were not sufficiently authenticated.
A writing must be authenticated before it can be
received in evidence. (Evid. Code,
§ 1401.) This means the proponent
must demonstrate that the writing is what “the proponent of the evidence claims
it is . . . .†(Evid.
Code, § 1400.)
“[A] writing can be authenticated by
circumstantial evidence and by its contents.
[Citations.]†(
1187.) “As long as the evidence would
support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn
regarding authenticity goes to the document’s weight as evidence, not its
admissibility. [Citations.]†(Jazayeri
v. Mao (2009) 174 Cal.App.4th 301, 321.)
We review a ruling that a writing has been
sufficiently authenticated for abuse of discretion. (People
v. Smith (2009) 179 Cal.App.4th 986, 1001; People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 5-6.)
In People
v. Olguin (1994) 31 Cal.App.4th 1355, th
| Description | Two teenage boys affiliated with the Delmann Heights gang were walking down a street in San Bernardino when a man pulled up next to them in a car and fired two shots. One of the boys was struck and killed. The other boy hopped a wall and escaped; he gave a series of three statements to the police, in which he claimed that he could not identify the shooter, then gave a fourth statement, identifying defendant as the shooter. Defendant was a member of the rival 18th Street Maze gang. Almost a year later, in Louisiana, defendant and his girlfriend, LaToya Thompson, were arrested for selling marijuana. Thompson told the Louisiana police that defendant had told her about a shooting he had committed in San Bernardino. At the preliminary hearing, she claimed that she lied to the police, because they threatened to arrest her and to take her children away. She did not testify at trial; the trial court found that she was unavailable. Thus, her preliminary hearing testimony was read into the record, and her statement to the police was then admitted as a prior inconsistent statement. |
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