P. v. Ochoa

Filed 8/21/08 P. v. Ochoa CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant Marcus Antonio Ochoa.

Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Ochoa.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

In this consolidated appeal, brothers Marcus and Jesse Ochoa appeal from the judgments entered following their conviction by jury after a joint trial.[1] Both were convicted of two counts of willful, deliberate, and premeditated attempted murder. (Pen. Code, 187, subd. (a), 664, subd. (a).)[2] Marcus was also convicted of making a terrorist threat and using a firearm during the commission of that offense. ( 422, 12022.5, subd. (a).) Jesse suffered three additional convictions, two for shooting at an occupied vehicle and one for being a felon in possession of a firearm. ( 246, 12021, subd. (a).) In addition, the jury found that he used and discharged a firearm during the commission of one of the attempted murders. ( 12022.53, subds. (b) and (c).) After the verdict, Jesse admitted that he had served a prior prison term within the meaning of section 667.5, subdivision (b).

Jesse contends: 1) the evidence is insufficient to support a finding that the attempted murders were premeditated; 2) the court erred by allowing the prosecution to present evidence of a gun that was unconnected to the shootings; 3) the sentence for being a felon in possession of a handgun should have been stayed; 4) the court violated his right to a jury trial by imposing the upper term for the firearm possession; and 5) the imposition of two consecutive life terms for his convictions for attempted murder constitutes cruel and unusual punishment.

Marcus joins with Jesse and argues the gun should not have been allowed into evidence. He also contends he was deprived of his right to confrontation, due process, and a fair trial by the admission of two recordings of conversations in the county jail involving his codefendants and the cumulative effect of the erroneous evidentiary rulings.

After the appeals were consolidated, each defendant joined in the arguments raised by his codefendant.

As to Jesse, we find no error. As to Marcus, we conclude one of the audio recordings should have been redacted. However, we determine that the error was harmless. Accordingly, we affirm the judgments.

FACTS

Sesar Lomeli testified that at approximately 8:00 p.m. on May 7, 2006, he and Jonathan Aguilar dropped off a friend on 137th Street in Compton. As Aguilar stood outside of Lomelis truck, Lomeli saw a male carrying a rifle coming toward the back of his vehicle. Aguilar left the location. Lomeli saw the male getting closer, causing him to drive away. As he did so, he heard approximately six or seven gunshots strike his truck. The trucks back window was shattered. Bullets struck the radio, the front window, and the bumper. Another went through the air conditioner and exited through the hood.

Lomeli described the male with the rifle as chunky, not that tall, and wearing a black hooded sweater. He guessed the male was Hispanic based on his complexion. Lomeli did not see where he came from. He said that no one else approached his vehicle.

Lomeli drove home from the scene of the shooting and contacted police about a half hour after the incident. After he told police what had occurred, officers took a video of his truck. Later, Lomeli was taken to 137th Street and Wilmington for a field showup. After being admonished that the suspects might or might not be present, he saw five individuals. He recognized the person who had approached his truck with a rifle. Lomeli identified him based on his build, and noted that at the time of the showup he was no longer wearing the black hooded sweater. At trial, Lomeli did not recognize any of the defendants.

Lomeli denied telling police at the showup that he was able to identify two individuals. He testified he did not see any one in a wheelchair at the scene of the shooting or at the showup.[3] He denied telling police he saw a person in a wheelchair on the street at the time of the shooting.

Lomeli recounted that he learned about two threats. He was with Aguilar when Aguilar received a phone call and was told not to appear in court because they would come after him if he did. When Lomeli arrived at home shortly thereafter, his mother informed him that a caller told her the people in jail had family. The caller warned that if the witnesses appeared in court their families would be in danger. Lomeli admitted the threats caused him to fail to appear in court even though he had been subpoenaed and that a warrant for his arrest was issued to procure his appearance.

Jonathan Aguilar stated that on May 7, 2006, he was on 137th Street in Compton. At about 8:30 p.m., he was sitting in Sesar Lomelis Blazer. Lomeli had dropped off a friend and had turned the vehicle around. Lomeli asked Aguilar to close a window near the back of the truck. Aguilar got out of the vehicle and saw someone wearing all black and carrying a long rifle run toward the drivers side of the Blazer. As Aguilar stood on the passenger side of the truck, he could hear the man with the rifle and Lomeli screaming, but Aguilar did not pay attention to what they were saying. Aguilar heard a female (or females) say, Its okay[.] [N]o, they are friends, no, Lee, no Jesse. Lomeli drove the truck away, and as Aguilar ran toward some apartments he heard seven to eight gunshots. Aguilar believed he heard two different guns firing based on the sound and repetition of the gunshots. He did not see anyone in a wheelchair in the vicinity of the shooting.

About a half hour later, Aguilar spoke to police officers. They took him to a location and conducted a field showup. After being admonished that he might or might not see the suspects, he was able to recognize one person because of his long hair. Aguilar saw that person approach Lomelis truck carrying a small gun. Aguilar did not see that man shoot his weapon. He denied telling officers that he was able to recognize any other suspect at the showup. In court, Aguilar did not recognize any of the defendants as having been present on the night of the shooting.

Aguilar testified that on one occasion he was at a family members house when his phone rang. The person on the line said they knew where he lived, so he should not appear in court. The caller said that if he came to court, they would come and get him. Aguilar was scared and worried by the call.

Los Angeles County Deputy Sheriff Anthony Meraz spoke to Aguilar and Lomeli after receiving a call reporting a shooting. Aguilar reported that he and Lomeli had driven to a party at 137th Street and Wilmington Avenue in Lomelis sport utility vehicle. Lomeli parked and Aguilar exited the passenger side. Two male Hispanics approached on foot and shot at them with either rifles or shotguns. Aguilar told Meraz that just prior to the shooting he heard a female voice say, No, its okay, theyre our friends[.] [N]o, Jesse. No, Lee. Meraz testified that Lomeli gave him the same information regarding the shooting as Aguilar had.

After speaking to the two men, Meraz and his partner videotaped Lomelis vehicle. The tape was played for the jury. Meraz pointed out two bullet holes in the vehicle, one in the tailgate and another in the rear window. Meraz said that two bullets traveled through the passenger compartment. One struck the center of the dashboard and the other hit the front windshield.

Meraz was present when Aguilar and Lomeli participated in a field showup. He told them they were under no obligation to identify anyone and that it was equally important to identify the guilty suspects and to exonerate those who were innocent of any wrongdoing. Each identified Jesse and Lee Ochoa as a shooter.

That same day, Ivan Jimenez drove his friends Jorge Garcia and Ricardo to Wilmington Avenue in the City of Compton. After his passengers got out of the car, Jimenez parked. A Hispanic male wearing what Jimenez called a hooded sweater approached and told Jimenez to move his car because it was blocking the driveway. Jimenez performed a U-turn and parked on the opposite side of the street.

As Jimenez sat in the parked car, a female and a male carrying a large rifle approached on the drivers side of his vehicle. They walked in front of his car and toward a truck parked across the street. Jimenez said the male could have been the same person who told him to move his car, as he was also Hispanic, seemed to have the same build, and appeared to be wearing the same black hooded sweater. Jimenez was not sure what kind of rifle the man had, although he acknowledged he might have told police the rifle was an AK-47 with a banana clip.

The man stood behind the truck and began firing at the vehicle. The female ran back in Jimenezs direction, stood in front of his car, and called for somebody to shoot him. He looked in the rear view mirror and saw two or three men coming at him with guns. He was unable to describe the men because they were too far away. As soon as Jimenez heard the first shot, he ducked and left the scene. He stated that he might have hit the female who was standing in front of his car. As Jimenez drove away, he was struck in the left lower back. However, nothing penetrated the skin.

He testified that with the exception of the front windshield, all of the windows in his car were broken and bullet holes were everywhere in his vehicle. When Jimenez was about a block from the scene of the shooting, he stopped and called Jorge Garcia (one of the people Jimenez had dropped off) with his cellular phone. He picked up Garcia, who told him to contact the police. Jimenez did so.

Police officers took Jimenez to look at some individuals. He could not remember what the officers said to him before he viewed the people but he knew they wanted to determine if he could identify the suspects. He told police he did not recognize any of the people he was shown. They were wearing different clothes from those he remembered from the scene of the shooting. He denied telling police that he recognized the man with the shaved head, the man with the long ponytail, and the man in the wheelchair.

Jimenez testified he did not see a man in a wheelchair shoot at him with a shotgun, and denied saying that to police. He claimed he told police that his friend had mentioned that a man in a wheelchair was passing around a shotgun. At trial, Jimenez did not recognize any of the defendants. He admitted he received a phone call from a person who said they knew where his family lived and told him not to come to court. He acknowledged he felt threatened and was concerned about testifying.

Los Angeles County Sheriffs Sergeant Robert Gray spoke to Jimenez on the night of the shooting. Jimenez said he was parked in front of the driveway at 825 137th Street. A male Hispanic wearing a black hooded sweatshirt came out of the yard at that location and approached him. Jimenez told Gray the male was about 20 to 25 years old and had a shaved head, goatee, and a tattoo on his neck. The male told Jimenez to move his vehicle, and he complied by making a U-turn and parking on the other side of the street. Jimenez said the same male came toward him armed with an AK-47 type rifle and began firing. Jimenez reported that a female ran in front of his car, blocked his exit, and began yelling for someone to bring the guns over. Jimenez saw a person in a wheelchair with a shotgun and another male with a ponytail exit the yard at the 825 address. He saw the male with the ponytail grab the rifle from the man in the sweatshirt. The man with the ponytail and the man in the wheelchair shot at Jimenez, who stepped on the accelerator and left the location.

Gray testified that at the field showup, Jimenez identified Jesse Ochoa as the man with the ponytail and Lee Ochoa as the man with the shaved head. Gray told the jury Lee had three tattoos on his neck. Gray said Jimenez later identified Marcus Ochoa as the man in the wheelchair.

Maria Garcia testified that on May 7, 2006, she was in the back seat of a car with some friends on 137th Street when she heard gunshots. She ducked down to avoid being shot. A man in a wheelchair approached the drivers side of the vehicle carrying a large pistol. He told her to [g]et the hell out of here or Im going to shoot you. The man broke out the rear window of the car. Garcia jumped into the front seat and tried to drive away but she could not locate the keys. She asked the man how he expected her to leave if she did not have the keys to the car, and he told her to get out and leave. Garcia exited the car and walked away. She said the man did not shoot at her. Garcia spoke to police about five minutes after the incident. They took her to a location and conducted a field showup. She told officers that she recognized Marcus. In court, she identified Marcus as the man with the gun who approached in the wheelchair, told her to leave, and threatened to shoot her.

On the evening of the shooting, Deputy Larry Ordinario responded to 137th Street. He had received information that one of the suspects was a male Hispanic in a wheelchair. When Ordinario arrived, he saw Marcus traveling in the wheelchair and detained him. He swabbed Marcuss hands for the presence of gunshot residue.

Deputy Alejandro Gonzalez arrived at the scene of the shooting on 137th Street at about 9:35 p.m. He spoke to Maria Garcia, who told him that three males walked up to the vehicle she was in and began shooting. She said that one of the three shooters was in a wheelchair. Garcia told the deputy that the man in the wheelchair told her to get the hell out of there or they would kill her. She said the man in the wheelchair had a shotgun and the other two had handguns. Garcia was able to get out of her car and take cover when the shooters noticed two other vehicles parked nearby. She saw the three men, two running and one rolling in a wheelchair, chase after the two vehicles and fire at them. The men then went into the residence at 825 137th Street.

After Gonzalez spoke to Garcia, the house at 825 137th Street was contained. All of the residents of the home were instructed to come out to allow the deputies to determine whether the suspects were still inside. Approximately eight to 10 people came out of the house. Gonzalez identified Lee and Jesse Ochoa as two of the people who exited the residence. He did not see Marcus at the location, nor did he see a person in a wheelchair leave the residence.

Gonzalez saw the vehicle Maria Garcia was in at the time of the shooting. He observed that the rear window was shattered. The deputy recovered live bullets and casings from shotgun shells and high powered rifle rounds along the street and sidewalks of 137th Street. Later testimony established that the rifle rounds and casings were of the caliber commonly used in assault rifles, such as an AK-47.

After the witnesses were interviewed and the field showups were conducted, deputies searched the home at 825 137th Street pursuant to a warrant. No rifles or shotguns were found in the house. In a trash can on the west side of the house, Sergeant Gray found a small locked safe lying on top of the garbage in the can. Inside the safe, he found a nine-millimeter handgun and three magazines that fit the gun. Gray acknowledged that no nine-millimeter shell casings were found on the street where the shootings took place.

Christine Pinto, a criminalist with the Los Angeles County Sheriffs Department, analyzed the gunshot residue test sample taken from Marcus Ochoas hands and discovered one particle unique to gunshot primer residue and one particle consistent with gunshot residue. She informed the jury that a person who had gunshot residue particles on his hands could have fired a gun, touched a gun or other surface containing gunshot residue, or been in close proximity to a fired weapon. She was unable to tell the jury how Marcus came to have gunshot residue particles on his hands.

Three audiotapes were played for the jury. The first was a 911 call that lasted approximately seven minutes. The second was a three-minute recording of a conversation at the county jail between Jesse Ochoa and his sister Marie. The third was an 11-minute recording of a conversation at the county jail between Lee Ochoa and his girlfriend Elizabeth Estrada.

During the conversation between Jesse and Marie, Jesse claimed he knew the names of five witnesses who had spoken to the police. During the conversation between Lee and Elizabeth, Lee spoke about trying to dissuade witnesses from appearing in court. Other portions of the conversations will be discussed when we address Marcuss claim that he was prejudiced by the introduction of the two tapes.

Neither defendant called any witnesses.

DISCUSSION

I. Sufficiency of the Evidence

Jesse contends the evidence is insufficient to support the finding he committed willful, deliberate, and premeditated attempted murder. Relying on the principle set forth in People v. Anderson (1968) 70 Cal.2d 15 (Anderson) that premeditation is established by evidence of prior planning, motive, or the manner of killing, he argues there was no proof of planning activity, a prior relationship indicating a motive to kill and a weighing of considerations rather than impetuous or rash impulse hastily executed.[4] Marcus joins in this claim.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Although we generally look for evidence of planning, motive, and method of killing when determining whether a murder is premeditated, the factors set forth in Anderson are descriptive, not normative. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. (Ibid.) The factors are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. (Ibid.)

Reviewing the evidence in the light most favorable to the judgment, we conclude there is sufficient evidence to support the verdict. The motive for the shooting is evident. Defendants wanted to get individuals they considered undesirable off their street. However, the reason was not, as Jesse suggests, because they feared the strangers. Jimenez readily moved his vehicle when he was asked. Prior to the gunfire directed at Lomeli, Aguilar heard a female tell Lee and Jesse that Aguilar and Lomeli were friends. Marcus threatened a lone unarmed female sitting in a car.

Nor do we accept Jesses claim that the shootings were the product of rash impulse. He asserts the incident proceeded so quickly there was no time to premeditate, implying that the process of deliberation is a protracted one. He is incorrect. The act of planninginvolving deliberation and premeditationrequires nothing more than a successive thought[] of the mind. [Citation.] (People v. San Nicolas (2004) 34 Cal.4th 614, 648.) The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.] (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

Here, the evidence established that the requisite thought and planning occurred. Jimenez told police that before anyone exhibited a weapon, Lee approached and told him to move his car. Lee ascertained Jimenez did not belong in the neighborhood, and we infer he reached the same conclusion as to Lomelis Blazer, which was parked across the street. Lee did not immediately take action. Instead, he went back to the house to get weapons and reinforcements. Defendants sized up the situation after Lee delivered the news that strangers were on the street and conceived their plan. The three brothers armed themselves and returned with an unarmedfemale (the evidence suggested this was their sister, Maria), whose part in the scheme was to stand in front of Jimenezs vehicle in order to delay his departure and allow defendants to concentrate their firepower on both vehicles. They fired at Lomeli and then collectively directed their attention to Jimenez. Credible evidence supports the conclusion that the assault was a planned ambush, not a haphazard impulsive attack.

Substantial evidence supports the jury finding that defendants committed willful, deliberate, and premeditated attempted murder.

II. The Admission of the Gun

Defendants assert the trial court erred by allowing the prosecution to present the handgun Sergeant Gray found in the safe. They claim the evidence should have been excluded under Evidence Code section 352 because it was more prejudicial than probative. Marcus urges that its admission deprived him of due process and a fair trial.

Prior to admitting the evidence, the trial court held a hearing pursuant to Evidence Code section 402. The prosecution argued the discovery of the gun was relevant, as it tended to show that defendants knew police would be arriving at their home and discarded the gun in an attempt to destroy evidence. Defendants pointed out that the witnesses claimed the shooters used either rifles or shotguns, not handguns. They argued there were no nine-millimeter rounds or casings found on the street. They complained that the admission of a gun unconnected to the shootings was unduly prejudicial, especially in light of the fact that no weapons were located in the house. Finally, defendants urged that even if the gun was relevant, there was no evidence they were responsible for throwing it out. The court ruled the gun was circumstantial evidence of consciousness of guilt in that defendants knew the police were coming and attempted to hide incriminating evidence. The court noted that if the defense had an innocent explanation due to the presence of the safe in the trash can, it was free to present it.

We apply the deferential abuse of discretion standard when reviewing a trial courts ruling under Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, 351.) One such exception is found in Evidence Code section 352, which gives the court the power to exclude evidence whose prejudicial effect outweighs its relevance. For this purpose, prejudicial is not synonymous with damaging, but refers instead to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. [Citations.] (Kipp, supra, at p. 1121.)

We agree with the trial court that the gun was relevant to show consciousness of guilt. It stands to reason that a person who believes witnesses will lead police to his or her home to investigate a shooting will take the necessary steps to dispose of all firearms. Defendants argue the prosecutions theory that the gun was thrown out after the shooting is nothing more than speculation. Further, they claim there is no evidence either was responsible for discarding the gun. Not so. The facts support the inference the gun was discarded after the shooting. Whoever threw out the gun did not take the time to get it out of the safe or attempt to cover the safe with other trash located in the can. While there may be other explanations for the presence of a safe on top of trash in a can, certainly one rational conclusion is that someone hastily attempted to dispose of the firearm after becoming aware the police were certain to arrive. It is equally reasonable to infer that one of the defendants who was arrested at the houseeither Lee or Jessewas responsible for placing the safe in the trash can or directing someone to do so.

Defendants fail to explain why the admission of the gun was unduly prejudicial. Each discounts the potential relevance of the firearm. Jesse argues, There is no proof anything relevant to the charges was being hidden, and testimony about the mere presence of another weapon near the house seems designed to create an emotional bias against appellant. Likewise, Marcus claims the prosecution was allowed to draw the impermissible conclusion that defendants attempted to suppress incriminating evidence. We have already determined the gun was relevant. Thus, it is defendants task to show its probative value is substantially outweighed by the probability that its admission . . . [created] substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.) They have failed to do so.

The trial court did not abuse its discretion by allowing the gun into evidence.

III. Jesse Ochoas Sentence for the Violation of Section 12021

Jesse contends his sentence for being a felon in possession of a firearm violated the prohibition against multiple punishment in section 654, as there is no evidence he possessed the weapon either before or after the commission of the offenses. Thus, he alleges his possession of the gun was part of a continuous course of conduct with the single objective of forcing the victims to leave his neighborhood. In the event we determine section 654 does not bar his sentence for possession of the weapon, he claims the trial court violated his Sixth Amendment right to trial under Cunningham v. California (2007) 549 U.S. 270 by imposing the upper term.

Section 654 precludes multiple punishment for acts which violate more than one statute but were committed as a means of accomplishing one criminal objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) However, if defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

Multiple punishment has been deemed improper where the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense . . . . (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 (Ratcliff); see, e.g., People v. Bradford (1976) 17 Cal.3d 8 (Bradford) [defendant who took officers revolver away and shot him with it could not be punished for assault with a deadly weapon and being a felon in possession of a firearm].) On the other hand, it is clear that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent. (People v. Jones, supra, 103 Cal.App.4th at p. 1144 [approved separate punishment for being a felon in possession of a firearm and shooting at an inhabited dwelling where defendant fired at the location from a moving car].) When a felon arrives at the scene of the crime with a gun, he or she has violated section 12021 before the weapon is used. Thus, in Ratcliff, the court concluded it was appropriate to sentence the defendant for being a felon in possession of a firearm and robbery because the defendants intent to possess the weapon did not import or include the intent to commit the robberies. (Ratcliff, supra, at p. 1414.)

Jesse argues there is no evidence that he possessed a firearm either before or after he fired the weapon. He points to Jimenezs statement to Sergeant Gray that the man with the ponytail (Jesse) grabbed the rifle from the man with the shaved head (Lee) and began firing. Thus, Jesse contends his case falls within the holding of Bradford. We disagree.

Substantial evidence supports the trial courts implied finding that Jesse came to the scene armed. Jimenez testified, contrary to his statement to Sergeant Gray, that he saw one man with an AK-47 shoot at Lomelis vehicle and then observed two or three men running toward his vehicle with guns. Aguilar stated that prior to the shooting of Lomelis vehicle, he heard a female say, [N]o, Lee, no Jesse. Lomelis and Aguilars statements suggest the two men came upon the truck already armed and that Jesse did not take the weapon from his brother. In addition, Maria Garcia told Deputy Gonzalez she saw three armed men, two running and one in a wheelchair, chase after the victims vehicles and shoot at them.

Moreover, even were we to conclude that Jesse took the firearm from Lee, this would not preclude punishment for his possession. It is reasonable to infer that he possessed the rifle after the shooting. The police were unable to locate any of the weapons after the attack. Jesses acts of possessing the weapon and disposing of it after the crime had been committed exhibit an intent separate and apart from the shooting. (See Ratcliff, supra, 223 Cal.App.3d at p. 1414.) Section 654 does not bar Jesses sentence for violating section 12021, subdivision (a).

Jesse claims the trial court erred when it imposed the upper term for the violation. The court cited a number of circumstances in aggravation to support the upper term sentence, and Jesse argues each factor had to be either admitted or found true by a jury. Jesse admits the court properly considered that he had served a prior prison term due to his admission and acknowledges our Supreme Court held in People v. Black (2007) 41 Cal.4th 799 that a single aggravating factor authorizes an upper term sentence. He also concedes we are bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial courts imposition of the upper term was proper.

IV. Cruel and Unusual Punishment

Jesse urges that two consecutive life sentences for attempted murder are grossly disproportionate to the offenses and the offender and constitute cruel and unusual punishment under the United States and California Constitutions. He contends neither the circumstances of appellants participation in the incident nor his personal characteristics establish a danger to society grave enough to justify two consecutive, indeterminate life-maximum sentences, particularly when coupled with a mandatory, additional 20 years for the discharge of a firearm.[5]

A. The Eighth Amendment of the United States Constitution

Under the federal standard for cruel and unusual punishment, a sentence will not be set aside unless it violates the gross disproportionality principle. The Supreme Court has described that principle, whose precise contours are unclear, as one that is applied only in the extreme case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. (Rummel v. Estelle (1980) 445 U.S. 263, 272.)

In Harmelin v. Michigan (1991) 501 U.S. 957, the Supreme Court upheld a sentence of life without possibility of parole for the possession of 672 grams of cocaine, rejecting the petitioners argument that the sentence was cruel and unusual within the meaning of the Eighth Amendment. By comparison, defendants life sentence with the possibility of parole for the crime of premeditated attempted murder is a lesser sentence even though his conduct was violent and more serious than drug possession. We find that defendants sentence is not the exceedingly rare case that violates the Eighth Amendments prohibition against cruel and unusual punishment.

B. Article I, Section 17 of the California Constitution

Punishment violates the California Constitution where it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) In determining whether a penalty is grossly disproportionate, we evaluate three factors. First, we examine the nature of the offense and the offender, paying particular attention to the degree of danger both present to the community. Second, we compare the sentence for the crime with that imposed in this state for more serious crimes. Third, we compare the challenged sentence with that imposed for the same offense in other jurisdictions. (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389.) In analyzing the nature of the offense and offender, [w]e must examine the circumstances of the offense, including the defendants motive, the extent of the defendants involvement in the crime, the manner in which the crime was committed, and the consequences of the defendants acts. The court must also consider the defendants age, prior criminality and mental capabilities. (People v. Cox (2003) 30 Cal.4th 916, 969-970.)

Jesse does not offer any analysis of the second and third prongs of the test, thus we address only the nature of the offense and the offender. We acknowledge that Jesses age, 22, and the fact he had only one prior felony conviction at the time of the offense are mitigating factors. However, they are outweighed by the nature of the crime. Although Jesse characterizes the shooting as an impulsive response to a threat from outsiders, as we have discussed, the facts belie his claim. At the time defendants opened fire, the victims were sitting in their vehicles. They had not attempted to communicate with defendants in any way. Defendants had ample evidence that the strangers posed no danger. Lee asked Jimenez to move his truck and he immediately complied without incident. Prior to shooting at Lomelis truck, Jesse and Lee were told that Lomeli and Aguilar were friends. Even though the victims did nothing provocative to suggest they posed a threat, Jesse and his brothers responded by unleashing a barrage of gunshots. We have also explained that the offense was a planned attack. The circumstances establish the shooting was neither impulsive nor an act taken in self-defense.

The fact that the consequences of Jesses crime were not more dire does not diminish the wanton disregard he had for the potential bloodshed that could have easily resulted from his actions. The damage to the victims vehicles showed that the shots were aimed at the passenger compartments. The victims were fortunate they were not injured or killed by the bullets that struck the dashboard and windshield of their vehicles. The callous shooting at unarmed individuals on a city street during early evening hours also posed a significant threat to innocent bystanders. It was virtually a miracle no one was injured. Finally, there is no evidence that Jesses participation was minor or that it was coerced in any manner.

In the final analysis, the nature of the offense and offender suggest that Jesses sentence is appropriate for his attempt to take two lives. He has not attempted to show his sentence is unfair when compared to sentences imposed for lesser crimes in this state or similar crimes in other jurisdictions. Recognizing that Jesse has a heavy burden to show that his sentence is so out of proportion to the offense that it shocks the conscience (Lynch, supra, 8 Cal.3d at p. 424), we conclude he has not demonstrated that his punishment offends our states proscription against cruel or unusual punishment.

V. The Admission of the Recorded Jail Conversations

Marcus argues that the admission of a recording of a jail conversation between Lee and his girlfriend and another between Jesse and his sister Maria violated his right to confront the witnesses against him, due process, and a fair trial. Marcus claims he was prejudiced by their admission, notwithstanding admonitions to the jury advising that it could not consider Lees or Jesses statements as evidence against Marcus.[6]

The jury heard Lee tell his girlfriend that they said there was a guy in a wheelchair and they got somebody in a wheelchair. So thats, thats a problem for us, you understand? When she asked why, Lee answered, Because hes in a wheelchair. Theyve got a statement with a guy in a wheelchair, and theyve got somebody in a wheelchair, and it happens that he lives in that house. When she still did not understand the significance of that fact, Lee observed, Because its all the same case.

Marcus contends he was denied his right to confront his accusers because Lee did not take the stand. He asserts the highly incriminating evidence that linked [him] directly to the shooting was never challenged by means of vigorous cross-examination.

Marcus also complains the jury heard Lee telling his girlfriend to make certain the witnesses were warned not to come to court. During another conversation, Jesse told his sister that he knew the names of the witnesses who had spoken with police, suggesting there would be no difficulty contacting them prior to their court appearance. Marcus notes that a number of witnesses testified they were threatened by unknown individuals. He asserts that because the defendants were brothers and Lee spoke of how we needed to keep the witnesses quiet, the jury would infer he, Marcus, was in on the plan of intimidation. At the very least, the jury would conclude he benefitted from the threats.

Citing Bruton v. United States (1968) 391 U.S. 123 (Bruton),[7] Marcus contends the admonitions to the jury had no hope of success, as the defendants were inextricably tied to one another. He urges that the conversations should not have been admitted in his trial.[8]

The Attorney General argues the references to Marcus were indirect and not incriminating on their face. He contends Lee was merely repeating what witnesses had said about the crime and asserts no reasonable juror would have perceived that Lee was saying Marcus was a participant. We are not persuaded. There can be little question that the jury understood the guy in a wheelchair was Marcus. If, as the Attorney General contends, Lees statement regarding Marcus was exculpatory rather than inculpatory, Lee would have had no reason to tell his girlfriend the identification of Marcus was a problem for us, because it was all the same case. Lee pointed out that the man in the wheelchair happened to live in the same house where Lee and Jesse were arrested. In the context of the entire conversation, during which Lee stressed the importance of silencing the witnesses, we conclude there was considerable danger the jury would draw the conclusion that Lee was acknowledging the witnesses were correct when they said Marcus was present at the crime scene. The trial court should have redacted that portion of the transcript or, if the prosecution desired to present that evidence to the jury, severed the trial.

With regard to Marcuss claim that he was unduly prejudiced by the conversations relating to witness intimidation, we disagree. In addition to the other instructions already cited, the court told the jury, If you conclude that a defendant tried to hide evidence or discouraged someone from testifying, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty.

Unlike Lees statement concerning Marcuss presence at the crime scene, neither Lee nor Jesse directly or indirectly implicated Marcus in the attempt to dissuade the witnesses. In fact, Marcuss name was not mentioned in connection with the scheme. Lee specifically directed his girlfriend to tell another Ochoa brother to take care of the problem. Jesse merely told his sister that he, Jesse, knew the names of the people who had spoken to the police. Under these circumstances, we assume that the jurors followed the courts limiting instruction. (See People v. Anderson (2007) 152 Cal.App.4th 919, 938.)

We now examine whether the admission of Lees statements that inferred Marcus was at the crime scene constituted prejudicial error. Aranda-Bruton error is not reversible per se; because it implicates a constitutional right, it is scrutinized under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18. (People v. Song (2004) 124 Cal.App.4th 973, 981.) Where the properly admitted evidence of guilt is overwhelming and the improperly admitted evidence is merely cumulative, the error is harmless. (Harrington v. California (1969) 395 U.S. 250, 254.)

The evidence against Marcus is indeed overwhelming. Although Lomeli, Aguilar, and Jimenez refused to identify anyone at trial, they each explained how they had been threatened and warned not to come to court. On the night of the shooting, Lomeli and Aguilar identified Lee and Jesse as being shooters and Jimenez identified Lee, Jesse, and Marcus. Maria Garcia identified Marcus in the field and in the courtroom. Several witnesses connected the three defendants with the house on 137th Street. Marcuss codefendants were arrested and a gun was found in the trash can at that same house. As we have discussed, Marcuss use of a wheelchair is uniquely compelling evidence that he was the guy in a wheelchair who the witnesses observed at the crime scene and Maria Garcia saw fleeing with the codefendants. Shortly after being detained, Marcuss hands were swabbed for the presence of gunshot residue. A test of the sample was positive for a particle unique to gunshot residue and one consistent with such residue.

We determine that Lees statement placing Marcus at the scene of the shooting was merely cumulative. Marcuss presence was firmly established by other evidence. The Attorney General correctly states that Lee did not say or imply that Marcus either had a weapon or fired one. Thus, Lee did not provide evidence relating to Marcuss conduct at the scene. That testimony was provided by witnesses who were subject to cross-examination. The admission of Lees statement was harmless beyond a reasonable doubt.[9]

VI. The Evidence of Threats

Marcus argues the victims testimony regarding the threats against them from unknown sources should have been excluded. He correctly cites case law that evidence of an attempt to suppress testimony is admissible to show consciousness of guilt of a defendant only if the attempt can be connected to the defendant. He asserts there was no evidence tying him to the anonymous threats. Accordingly, the evidence of the call[s] and the fear they engendered was inadmissible [as to him].[10] We disagree.

Evidence that the witnesses were threatened and feared offering testimony was relevant on the issue of credibility. Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) Here, the jury was properly instructed that when weighing a witnesss credibility it could consider the witnesss attitude about a case or about testifying. We find the court did not abuse its discretion by allowing the witnesses to testify about threats received over the telephone and the fear those threats spawned, even though the prosecution did not prove Marcus was responsible for the calls.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] A third brother, Lee, was convicted in the same trial. He is not a party to this appeal.

[2] All further undesignated statutory references are to the Penal Code.

[3] Marcus Ochoa is confined to a wheelchair.

[4] The test for determining whether there is sufficient evidence of premeditation is the same whether the crime is murder or attempted murder. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.)

[5] Although Marcus sought to join and adopt Jesses claims of error, the question whether a sentence constitutes cruel and unusual punishment depends on characteristics unique to each defendant. Having failed to offer any argument on the issue, we find Marcus has forfeited this claim.

[6] Before the recordings were played the court instructed the jury as follows. Ladies and Gentlemen, while theyre getting set up with these conversations, theres just something I want to tell you, and its a limiting instruction. I will repeat it to you at the end of the case when I read you all the instructions on the law. But for now I want to tell you that taped conversations or statements are going to be played of Lee Ochoa and Jesse Ochoa. These conversations or statements must only be considered as to the individual that is making the statement. In other words, the Lee Ochoa conversation is only admitted as to Lee Ochoa. The Jesse Ochoa statement, the conversation, is only admitted as to Jesse Ochoa. Neither of these statements is to be considered or admitted as to Marcus Ochoa. Okay? Everyone understand that? I see you nodding your heads. And I will advise you again when I read you the instructions at the end of the case.

At the close of trial, the court instructed: You have heard evidence that each defendant made a statement before trial. You may consider that evidence only against the defendant that made the statement.

[7] In the trial court, Marcus also relied on People v. Aranda (1965) 63 Cal.2d 518.

[8] As we address Marcuss claim on the merits, we do not discuss his contention that his trial counsel provided ineffective assistance by failing to ask that Lees statement be redacted.

[9] Our discussion of the prejudicial effect of the only erroneous ruling in the trial disposes of Marcuss claim of cumulative error.

[10] Marcus concedes his attorney did not object to the testimony concerning the threats and argues counsel was ineffective by failing to do so. Again, as we address the merits of Marcuss claim, we do not address his ineffective assistance contention.