P. v. Pequeno
Filed 8/14/13
P. v. Pequeno CA2/8
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 EIGHT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff
and Respondent,
v.
JOSE PEQUENO,
Defendant
and Appellant.
B245734
(Los
Angeles County
Super. Ct.
No. KA094928)
APPEAL
from a judgment of the Superior Court
of
County.
George Genesta, Judge.
Affirmed.
H. Russell
Halpern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Jose
Pequeno appeals from the judgment entered after he was convicted of
a minor, assault with a firearm, and shooting at an occupied vehicle. We reject his contentions that the trial
court erred by denying his motion to either release juror contact information
or conduct an evidentiary hearing regarding juror
court erred by admitting certain gang evidence and that he received ineffective
assistance of counsel. We therefore
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On
the morning of February 21, 2011,
Michael Vargas was a passenger in a car stopped at an intersection in Long
Beach. Vargas
saw a man wearing a dark baseball cap and dark clothing, whom he later
identified as Jose Pequeno, staring at him from across the street. Vargas was having “a rough day†and wanted to
“start a problem,†so he yelled out to Pequeno, “Do you know who I am?â€, then
got out of the car and walked toward him.
Pequeno yelled out
“Eastside Long Beach,†which Vargas, who was not a gang member, believed to be
the name of a gang in the area. Vargas
said “I don’t care about your gang†but stopped walking toward Pequeno when he
saw that Pequeno had pulled out a gun and pointed it at him. Vargas asked, “That’s what you need?†and
turned back toward the car. Pequeno
fired twice as Vargas got back into the car.
One round struck Vargas’s arm and the other shattered a window of the
car. The driver sped away as soon as
Vargas entered the car.
Joaquin
Aguilar lived nearby and witnessed the shooting. Aguilar heard a loud argument coming from
outside, looked out his window, and saw a man with his back to him who was
wearing a baseball cap and dark clothing.
The man was standing on the sidewalk and had his arms outstretched and
hands clasped together. It looked to
Aguilar as if the man was using his outstretched hands to track a car as it
began to turn. Aguilar heard two
gunshots, saw the passenger window of the car shatter, and then saw the car
drive off as the shooter ran away.
Aguilar did not see the gun in the man’s hands and could not identify
the shooter.
After
Vargas identified Pequeno from a photographic lineup, a search warrant was
issued for Pequeno’s apartment, which was .10 miles from where the shooting
took place. In a bedroom at the
residence officers found 231 bullets, a .32 caliber magazine clip, and a gun
cleaning kit, but no gun. Sixty-nine of
the bullets were .32 caliber semiautomatic bullets, and the .32 caliber
magazine was for a semiautomatic handgun.
Pequeno’s school identification card was found in the same bedroom,
along with plastic bags containing a white powdery substance. The evidence was photographed and later shown
to the jury.
Pequeno
was charged with two counts of attempted murder, three counts of assault with a
firearm, possession of narcotics, possession of a firearm by a minor, and
shooting at an occupied vehicle. He pled
no contest to the possession of narcotics charge. In addition to the testimony of Vargas and
Aguilar, the jury saw photos of the items seized from Pequeno’s bedroom. Pequeno did not put on a defense. He was found guilty of one count each of
attempted murder, possession of a firearm by a minor, assault with a firearm,
and shooting at an occupied vehicle, but was acquitted of the other counts.
Pequeno
raises five issues on appeal:
(1) the trial court abused its discretion by choosing not to
hold an evidentiary hearing regarding juror misconduct; (2) the
trial court abused its discretion by not releasing juror names and contact
information; (3) the trial court erred by allowing Vargas to testify
about the gang name he believed Pequeno shouted at him; (4) he
received ineffective assistance of counsel because his lawyer did not call an
expert witness to testify regarding the reliability of eyewitness
identification testimony; and (5) he received ineffective assistance
of counsel because his lawyer did not object to the introduction of evidence
regarding the bullets found in Pequeno’s bedroom.
1.
The Trial
Court Did Not Err By Denying Pequeno’s Juror Misconduct Motions
A.
Background Facts
Pequeno
brought a posttrial motion requesting either the disclosure of juror names and
contact information or an evidentiary hearing regarding juror misconduct. The motion was based on the declaration of a
defense investigator recounting statements made by juror J.P. The investigator set forth several
allegations made by J.P. concerning statements made by other jurors during
their deliberations. The court denied
the motion without prejudice because there was no declaration from juror J.P.
Pequeno
renewed his motion, this time with a declaration by J.P. detailing the
following statements made by jurors during deliberations that she felt amounted
to misconduct: (1) a juror
said that Pequeno’s arrest was evidence of his guilt and was sufficient
evidence for him to convict; (2) a juror commented on the
photographs taken during the search of Pequeno’s bedroom showing plastic bags
that could have contained drugs, and said Pequeno was probably a drug dealer;
(3) another juror brought up the subject of gangs several times and
speculated that Pequeno belonged to a gang; (4) a juror noted that
the bullets found in Pequeno’s bedroom showed he possessed a gun in order to
kill someone, not for hunting; (5) a juror questioned why defense
counsel did not call appellant’s girlfriend to testify when he mentioned her in
his opening remarks; and (6) a juror commented that she wished
appellant would have testified.
J.P.
concluded her declaration by stating that “the discussion in the jury room
seemed to me to infer that the Defendant was a drug dealing, gang member, who
had a propensity for violence and that even if not guilty of this charge, he
was a danger to society and should be locked up anyways. The comments described previously, along with
pressure I felt from other jurors to come to a decision, had a sufficient
influence on me to change my previous position of not guilty to guilty. Once outside of the influence of the other
jurors, I realized the detrimental influence the discussions regarding, gangs,
bullets, drugs, missing witnesses and the Defendant not testifying had on me.â€
The
trial court denied both motions. The
court first noted that the jury acquitted Pequeno of some counts, which
indicated it had not been influenced by improper considerations. The court then turned to the statements in
juror J.P.’s declaration. Concerning the
gang evidence, the court said there was evidence that Pequeno shouted out a
gang-type name, noting that the jury was told the evidence was limited to
showing how it affected Vargas’s state of mind and that there were no gang
allegations in the case. Regarding the
search warrant photos that showed not just ammunition but plastic bags
containing what looked like drugs, those bags were alongside the ammunition and
“it was clear what they were seeing.â€
There was no problem with the juror who said the ammunition showed
Pequeno possessed a gun for defense, not for hunting, because it was proper to
consider whether Pequeno owned a handgun.
The trial court saw no problem with the juror who wondered why Pequeno’s
girlfriend had not been called as an alibi witness because her supposed
testimony had been raised by defense counsel during opening statements. Finally, as to the juror who wished Pequeno
had testified, the trial court saw no misconduct because wishing for a defendant
to testify is not the same as punishing him for the failure to do so.
B.
The Denial of An Evidentiary Hearing Was Not
Error
The
trial court conducts a three-part inquiry when deciding whether to grant a new
trial based on juror misconduct. First,
the court determines whether the evidence presented to support the motion is
admissible. Second, if the court finds
the evidence is admissible, it considers whether the facts establish
misconduct. Third, if it finds that
misconduct occurred, the court must determine whether the misconduct was prejudicial. (People
v. Sanchez (1998) 62 Cal.App.4th 460, 475.)
As
a component of the second step, the trial court has discretion to grant an
evidentiary hearing to resolve material disputed issues of fact. (People
v. Avila (2006) 38 Cal.4th 491, 604.)
“The hearing . . . should be held only when the defense has come forward
with evidence demonstrating a strong possibility that prejudicial misconduct
has occurred. Even upon such a showing,
an evidentiary hearing will generally be unnecessary unless the parties’
evidence presents a material conflict that can only be resolved at such a
hearing.†(Ibid.)
Pequeno contends
the trial court erred by denying this motion.
Respondent contends the trial court did not err because the declaration
of juror J.P. did not contain admissible evidence of misconduct.
The admissibility
of evidence to show juror misconduct is governed by Evidence Code section 1150,
subdivision (a), which provides: “Upon
an inquiry as to the validity of a verdict, any otherwise admissible evidence
may be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly. No evidence is admissible to show the effect
of such statement, conduct, condition, or event upon a juror either in
influencing him to assent to or dissent from the verdict or concerning the
mental processes by which it was determined.â€
Only evidence of
“objective facts†is admissible to prove juror misconduct. Evidence Code section 1150 “may be violated
not only by the admission of jurors’ testimony describing their own mental
processes, but also by permitting testimony concerning statements made by
jurors in the course of their deliberations.â€
(People v. Hedgecock (1990)
51 Cal.3d 395, 418-419.) If during
the course of deliberations a juror “gives the reasons for his or her vote, the
words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence
of those processes is barred by Evidence Code section 1150.†(Id.
at p. 419.)
Each of the five
statements that J.P. attributed to her fellow jurors falls into this
category. For instance, the juror who
supposedly said that Pequeno’s arrest was sufficient evidence to convict was
only uttering his own internal thought processes when he made that statement (
59 81 [assertion that juror privately considered a particular matter in
arriving at his verdict concerned his mental processes and was inadmissible])
and the same is true as to the other statements. This also applies to J.P.’s statements
concerning how the other juror’s statements affected her decision-making
process. (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on
another ground in People v. Gainer
(1977) 19 Cal.3d 835, 844, disapproved on another ground in
82, 163.) Because there was no
admissible evidence of misconduct, the trial court did not abuse its discretion
by denying the motion for an evidentiary
hearing.
C.
No Error For Refusing to Disclose Juror
Information
Similarly, the
court did not abuse its discretion by denying Pequeno’s alternative request to
disclose juror names and contact information so that he could obtain more
information regarding the alleged juror misconduct.
Code
of Civil Procedure section 206, subdivision (g), states that a criminal
defendant may apply for access to juror identifying information when such
information is “necessary for the defendant to communicate with jurors for the
purpose of developing a motion for new trial or any other lawful purpose.†Such a petition must include a declaration
that includes facts sufficient to show good cause for the release of the
information. (Code Civ. Proc.,
§ 237, subd. (b).) To
establish good cause, defendant must make a sufficient showing “to support a
reasonable belief that jury misconduct occurred†(People v. Jones (1998) 17 Cal.4th 279, 317;
163 Cal.App.4th 978, 990-991), and the misconduct must be “of such a
character as is likely to have influenced the verdict improperly†(
63 Cal.App.4th 1314, 1322). The
California Supreme Court has stated that a juror’s thought processes are
“immaterial and of no jural consequence†to an attempt at impeaching a verdict
and are irrelevant to the determination of “any legal issue.†(People
v. Steele (2002) 27 Cal.4th 1230, 1264.)
In
the preceding section we held that Pequeno presented no admissible evidence
that misconduct occurred. As a result,
there is no basis for a reasonable belief that misconduct occurred and the
trial court did not err by denying the motion to release juror contact information.
2.
The Trial
Court Did Not Err By Allowing Gang-Related Evidence
A.
Background Facts
Vargas testified
that he heard Pequeno call out “Eastside Long Beach†as Vargas approached him,
and that he replied, “I don’t care about your gang.†According to Pequeno, the trial court erred
by allowing the jury to hear this gang evidence in a case where there were no
gang allegations because it was unduly prejudicial under Evidence Code section
352. Pequeno also contends that this
error violated his constitutional due process rights.
The issue arose
before trial when the trial court recounted an off-the-record discussion
concerning this evidence. According to
the court, Vargas and other witnesses heard Pequeno use a gang name with which
they were unfamiliar, but there was a gang with a similar sounding name.
the issue and that the prosecution wanted to introduce the evidence “not as a
gang allegation, but simply that it’s spoken to victims and witnesses as a
means of intimidation so they would not be later cooperating or willing
witnesses . . . .†The trial court then
asked if defense counsel had an objection.
Defense counsel replied, “I’m just objecting for the record. I know where the court’s coming from, and
just as long as I object for the record, I think it’s clear it’s coming
in. I know you have the limiting
instruction, the general one, in there.â€
During the trial
the court instructed the jury that Vargas’s testimony on this point was not
offered to prove that Pequeno was a gang member but was instead relevant to
only Vargas’s state of mind. Later on
the trial court admonished the jury again, stating that even though the jury
heard evidence that Pequeno shouted out Eastside Long Beach, “the court
received that for the limited purpose not that the defendant is a member of any
criminal street gang, not for the evidence that Eastside Long Beach is, in
fact, a criminal street gang or the defendant is a member of a
was offered only for the limited purpose of how it was taken by those who
overheard it and explain their state of mind and actions thereafter, and that’s
the limited purpose for which it’s offered or considered by you. There are no gang allegations in this
particular case.â€
title="">[3]
B.
The Issue Was Waived
Respondent
contends the issue was waived by defense counsel’s failure to make a proper and
timely objection. We agree.
A judgment will be
reversed due to the erroneous admission of evidence if an objection or motion
to strike was “timely made and so stated as to make clear the specific ground
of the objection.†(Evid. Code,
§ 353, subd. (a).) Even “placeholderâ€
objections on grounds such as relevance are insufficient if the appellant later
asserts some other ground for challenging the evidence. (People
v. Demetrulias (2006) 39 Cal.4th 1, 22.) Pequeno did not even make such a placeholder
objection to the gang evidence. Instead,
his lawyer objected “for the record,†which was insufficient to allow for
either an appropriate response from the prosecution or the trial court to make
a fully informed ruling. (
891, 924.)
C.
The Trial Court Did Not Err By Allowing the
Gang Evidence
We alternatively
hold that even if the objection had not been waived, there was no error in
admitting the evidence.
Evidence Code
section 352 gives the trial court discretion to exclude evidence if its
probative value is substantially outweighed by the probability that its
admission will create a substantial danger of undue prejudice. This provision gives the trial court “broad
discretion in assessing whether the probative value of particular evidence is
outweighed by concerns of undue prejudice, confusion, or consumption of
time. Where, as here, a discretionary
power is statutorily vested in the trial court, its exercise of that discretion
‘must not be disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.â€
(People v. Rodrigues (1994)
8 Cal.4th 1060, 1124, citations omitted.)
The admission of such evidence is only a violation of due process if
there are no permissible inferences the jury may draw from such evidence. (People
v. Albarran (2007) 149 Cal.App.4th 214, 229.)
The
California Supreme Court has noted the prejudicial effect of gang membership
evidence on juries. (
660, disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [condemning the
introduction of “evidence of gang membership if only tangentially relevant,
given its highly inflammatory impact.â€].)
However, evidence that a defendant was afraid to testify because he
feared defendants and their gang is relevant to that witness’s
credibility. (People v. Gonzales (2011) 52 Cal.4th 254, 317.)
Vargas testified
that when Pequeno called out Eastside Long Beach he thought Pequeno was
associated with a gang by that name.
Vargas said he had reservations about testifying because he did not know
Pequeno or whether he had family members such as brothers or cousins. Vargas testified, “you guys pretty much
showed him where I live, where my grandfather lives, and now he can just tell
anyone, you know. And I felt like my
life is at risk.â€
title="">[4] Because the evidence was relevant on this
issue and the jury was properly instructed to limit its use of the evidence, we
hold that its admission did not violate Evidence Code section 352 or Pequeno’s
due process rights.
title="">[5]
3.
Defense
Counsel Was Not Ineffective
Pequeno
claims he received ineffective assistance of counsel because his trial lawyer
did not present an expert witness
about the psychological factors that can make eyewitness testimony unreliable
and did not object to evidence concerning the ammunition found in his bedroom.
To
establish a claim of ineffective counsel, Pequeno must show that “counsel’s
representation fell below an objective standard of reasonableness . . . under
prevailing professional norms†resulting in prejudice such that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would be different.â€
(People v. Ledesma (1987)
43 Cal.3d 171, 216-218, quoting Strickland
v. Washington (1984) 466 U.S. 668, 688.) The reviewing court should “indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and . . . can be explained as a matter of sound trial
strategy.†(People v. Carter (2003) 30 Cal.4th 1166, 1211.) Further, “if the record sheds no light on why
counsel acted or failed to act in the challenged manner, we must reject the
claim on appeal unless counsel was asked for an explanation and failed to
provide one, or there could be no satisfactory explanation for counsel’s
performance.†(People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
As
to the first contention, although expert testimony on the nature and pitfalls
of eyewitness testimony is proper (People
v. McDonald (1984) 37 Cal.3d 351, 377),
that does not mean defense counsel’s failure to call such a witness amounts to
ineffective assistance of counsel (People
v. Datt (2010) 185 Cal.App.4th 942, 952 (Datt)). The
raised here because the defendant in that case failed to show that his trial
counsel could have presented any favorable expert testimony. (Id.
at pp. 952-953.) On appeal here
Pequeno fails to make the same showing.
We therefore reject his ineffective assistance of counsel claim.
As for defense
counsel’s failure to object to evidence regarding the large amounts of
ammunition found in appellant’s room did, we conclude this did not amount to
ineffective assistance of counsel because such an objection would have been
futile. (People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.)
Although no gun or
ballistics evidence was recovered from the scene of the shooting, it is
apparent that Pequeno used a handgun of some type: Vargas testified that Pequeno pulled a gun
out from his pocket and pointed it at him with both hands. “When the specific type of weapon used to
commit a homicide is not known, it may be permissible to admit into evidence
weapons found in the defendant’s possession some time after the crime that
could have been the weapons employed.
There need be no conclusive demonstration that the weapon in defendant’s
possession was the murder weapon.†(
566, 577, overruled on other grounds in People
v. Morse (1964) 60 Cal.2d 631, 648-649 and People v. Chapman (1959) 52 Cal.2d 95, 98.) We believe this rule extends to the facts of
this case. The discovery of a large
cache of ammunition in Pequeno’s bedroom – including bullets and a magazine
that fit a handgun – was highly probative of the fact that Pequeno owned or had
access to the type of gun that could have been used during the shooting. Combined with the fact that Pequeno lived
only .10 miles, this evidence showed he had the ability and opportunity to
commit the crime.
As a result, we
conclude that any objection to the evidence would have been futile and reject
this claim of ineffective assistance of counsel as well.
DISPOSITION
The judgment is
affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
name="_ftn1" title="">[1] Even
though the trial court’s stated reasons for denying the motion did not directly
address this point, we can affirm on any valid basis. (People
v. Jones (2012) 54 Cal.4th 1, 50.)
name="_ftn2" title="">[2] According
to the record, there is no Eastside Long Beach gang, but there is one called
Eastside Longos.
