P. v. Perez
Filed 1/29/13
P. v. Perez 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NOT TO BE PUBLISHED IN THE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This opinion has not been certified for publication or ordered published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
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTHUR PEREZ,
Defendant and Appellant.
B233296
(Los
Angeles County
Super.
Ct. No. BA358075)
APPEAL from a judgment of
the Superior Court of
County, Kathleen Kennedy, Judge.
Affirmed.
Tara K. Hoveland, 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, James William Bilderback II and Mark E. Weber,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant
Arthur Perez challenges his conviction for attempted murder on the grounds of
insufficiency of the evidence and
evidentiary error. We reject his
contentions and affirm.
On
September 18, 2009, an information was filed charging appellant with the
attempted willful, deliberate, and premeditated murder of Richard Rios (Pen.
Code, §§ 187, subd. (a), 644).
name="_ftnref1" title="">[1] Accompanying the charge were allegations that
appellant had personally used a handgun (§ 12022.53, subds. (b) - (d)) and
inflicted great bodily injury (§ 12022.7, subd. (a)).
first trial was unable to reach a verdict, the trial court declared a
mistrial. The jury in appellant’s second
trial found him guilty as charged and found the special allegations to be
true. On May 27, 2011, the trial court
imposed a sentence of life imprisonment for appellant’s conviction of attempted
murder, and an additional sentence of 25 years to life for an enhancement for
personal gun use resulting in great bodily injury (§ 12022.53, subd. (d)).
FACTS
A.
Prosecution Evidence
In June 2009, Richard Rios lived with
his girlfriend, Ileana Valenzuela, and her daughter in a four-unit apartment
building in Lincoln Heights. Close to
Rios’s apartment building was a second building fronting on Main Street
containing businesses at street level and several apartments on a second level
(Main Street building). On June 22,
2009, Rosemarie Romero and Greg Reyes, who lived in the Main Street building,
invited appellant and his family for a meal in their apartment. According to Romero, the only access to the
apartment was through a security door in front of the Main Street Building,
near a barber shop in the building.
The
prosecution’s key witness was the victim, Rios, who testified as follows: Late in the afternoon on June 22, 2009, the
smell of marijuana awoke him from a nap.
He left his apartment and entered an outdoor area, where he saw
appellant 15 to 30 feet away, smoking a marijuana cigarette in front of a
neighboring apartment in Rios’s building.
According to Rios, appellant had a slight mustache and a “fade†haircut,
and wore a white T-shirt with long khaki shorts.
When
Rios waved his hand near his nose to indicate that he smelled marijuana smoke,
appellant replied, “I fucking live here, too.â€
Rios returned to his apartment and put on his shirt and shoes, with the
intention of asking appellant to smoke elsewhere. When Rios saw that appellant had disappeared,
he walked toward the barber shop in the Main Street building, looking for
appellant.
As
Rios was about to return to his apartment, appellant emerged from a gated
security door in the Main Street building near the barber shop. Rios noticed that appellant had his hand in
his right pocket. When appellant asked,
“What’s [your] fucking problem?,†Rios answered, “I’m nobody. I don’t want any problems,†and stated,
“You’ve got to understand, . . . there’s kids that live
here.†Appellant replied, “Well, that’s
why I’m out here. My kids are eating
dinner. I have kids upstairs.†Appellant also said that he had a gun. At this point, Valenzuela appeared outside
Rios’s apartment building and called out to Rios. Fearful that appellant might shoot her, Rios
told her to return to the apartment.
Rios
continued to talk to appellant, hoping to resolve the incident peacefully. With no warning from appellant, Rios heard
popping sounds and saw a spark from what appeared to be a chrome gun in
appellant’s hand. Rios felt a bullet hit
his stomach and tried to run away, but fell to the ground and passed out. When he awoke, Valenzuela was holding his
hand. Police officers soon arrived.
Valenzuela
was determined by the trial court to be unavailable as a witness, and portions
of her prior trial testimony were presented to the jury. Accordingly to Valenzuela, at approximately
7:00 p.m. on the date of the shooting she awoke from a nap and saw Rios
standing near the apartment’s door. He
told her that he smelled something and left the apartment. Shortly afterward, Rios returned to the
apartment, put on his shirt, and said that he would be “right back.â€
Because
Rios did not return immediately, Valenzuela walked to the sidewalk in front of
the apartment building and observed Rios down the street, talking to
appellant. From her vantage point, she
saw only the left profile of appellant’s face.
Although she could not hear Rios or appellant, the conversation appeared
to be “normal.†When Rios gestured to
her to return to the apartment, she did so.
She soon heard what sounded like six or more firecrackers, ran to the
sidewalk, and found Rios lying on the street with
At
approximately 7:25 p.m., Los Angeles Police Department (LAPD) Officer Eduardo
Borges and his partner were standing in front of their patrol car, which was
parked near the Main Street building.
Borges heard a gunshot, turned around, and saw a man fire a gun at a
second man. As the officers drove toward
the shooting, Borges saw the shooter run into the Main Street building. When they stopped the car, they observed a
woman run toward the victim, who was lying in the street. The officers requested backup and watched the
Main Street building door into which the shooter had fled. Borges saw no one emerge from the door. When other officers arrived, they formed a
perimeter around the Main Street building.
Rios
was taken to a hospital. Between 8:00
and 8:15 p.m., he provided a description of the shooter to LAPD Detective
Gabriel Barboza. Officers searched the
Main Street building and detained several men, including appellant. When found in Romero’s and Reyes’s apartment,
appellant was wearing a baseball cap and a black shirt with black pants.
At
approximately 10:40 p.m., Barboza conducted in-field show-ups for
Valenzuela. She was initially shown a
group of six men from the Main Street building, none of whom she identified as
the man she saw talking to Rios. Later,
when she viewed appellant, she told Barboza that she was sure he was the man in
question. Barboza then ordered a search
of Romero’s and Reyes’s apartment, which did not disclose the white T-shirt and
khaki shorts attributed to the shooter.
The next day, LAPD Detective
Maria Luisa Arce-Dominguez spoke by telephone with Romero. Romero told the detective that appellant had
been a dinner guest in the apartment the night before. She said appellant had left the apartment to
smoke and had remained outside approximately 20 minutes. While appellant was outside, Romero heard a
shooting. Appellant then returned to the
apartment and went into the bathroom.
Following
Detective Arce-Dominguez’s telephone interview with Romero, two other
detectives interviewed Romero in person.
She reiterated the version of events she had given Arce-Dominguez, viz.,
that while dining in the apartment with his family, appellant had gone out for
a smoke, after which Romero had heard a loud bang and appellant had returned to
the apartment and gone into the bathroom.
Following
the interview with Romero, detectives went to the hospital to show Rios a
six-pack photographic lineup. After
being given a standard admonishment relating to the six-pack, Rios identified a
photo of appellant, as “the one that shot me and tried to kill me. He shot me point blank 1 or 2 feet
away.†Rios was “110 percent†certain
appellant was the shooter.
name="_ftnref4" title="">[4]
On
August 3, 2009, a man made a phone call from the jail where appellant was
incarcerated to a number appellant had given Detective Barboza as a contact
number. The man, whose voice Barboza
identified as appellant’s, spoke to an unidentified woman. An excerpt from an audio recording of the
call was played for the jury. During the
call, the following exchange occurred:
“[Appellant]: . . . [D]id he give you those
metal things or no?
“[Female]: Yeah, yeah.
Uh-huh.
“[Appellant
]: Okay.
If anything, just put those away because . . . if I do beat this, they can re-file on me any time
and . . . I don’t want them raiding the house.â€
At
trial, Romero was presented as a witness during the prosecution’s case-in
chief. She acknowledged that appellant
and his family were at her apartment for dinner on the night of the shooting,
but denied telling LAPD detectives that appellant had gone outside to
smoke or that he was outside at the time she heard a loud bang.
B. Defense
Evidence
Aurora
Navarro, appellant’s girlfriend, testified that she, appellant and their three
daughters had gone to dinner at Romero’s and Reyes’s apartment in the Main
Street building. She stated that
appellant never left the apartment until he was arrested.
Greg
Reyes testified that appellant, Navarro, and their children arrived at his
apartment shortly after 5:00 p.m., and that appellant never left the apartment
before he was arrested. On
that aside from the security door in front of the Main Street building, the
only potential exit from his apartment was by an inoperable fire escape. According to Reyes, people who used the fire
escape would probably injure themselves because they would be compelled to jump
from a considerable height to the ground.
Robert
Shomer, a Ph.D. in experimental psychology, testified that even under favorable
conditions, eye witness identification of strangers is only 50 percent
reliable. He opined that it is almost
impossible for someone who has seen only the left profile of a stranger from a
distance of 100 feet to re-identify that individual reliably. He also opined that the photographic lineup
shown to Rios was suggestive because only one individual in the lineup had a
haircut resembling appellant’s.
DISCUSSION
Appellant
contends (1) that substantial evidence
does not support his conviction, and (2) that his recorded phone conversation
was improperly admitted.
A. Substantial
Evidence
Appellant
contends the evidence was insufficient to prove he was the person who shot
Rios. We disagree.
improbability, the testimony of a single eyewitness is sufficient to support a
criminal conviction. [Citation.]†(People
v. Allen (1985) 165 Cal.App.3d 616, 623.)
Here, Rios positively identified appellant as the shooter immediately
after the incident and repeatedly did so at subsequent court proceedings,
including the instant trial. Rios’s
trial testimony was further corroborated by Valenzuela’s repeated
identification of appellant as the man she saw talking to Rios before the shooting. Upon this evidence, the jury could properly
conclude that it was appellant who attempted to murder Rios.
Appellant
maintains that Rios’s and Valenzuela’s identification testimony was inherently
improbable or physically impossible. He
argues that their initial identifications were not credible because Rios was
receiving treatment for multiple bullet wounds when he selected appellant in
the photographic lineup and Valenzuela had only a partial view of the man she
saw with Rios. Appellant also suggests
that Rio’s initial identification may have been influenced by Valenzuela, as
Rios identified appellant only after talking to Valenzuela, who had already
identified appellant in the field show-up.
Additionally,
appellant directs our attention to evidence in his favor, including the
testimony from the defense witnesses, and potential flaws in the evidence
against him. He notes that the police
never found the shooter’s clothing or gun in the Main Street apartment, that no
physical evidence -- e.g. gunshot residue -- was presented linking appellant to
the shooting, and that there was evidence suggesting that the shooter may have
been able to leave the Main Street building through a second door.
inconsistencies in Rios’s testimony, and discrepancies between Rios’s
description of the shooter and descriptions from other witnesses.
Although these aspects of the trial
evidence may suggest inferences that conflict with Rios’s and Valenzuela’s
identification testimony, they do not render that testimony insufficient to support
appellant’s conviction. As our Supreme
Court has explained, “[t]o warrant the rejection of the statements given by a
witness who has been believed by [the fact finder], there must exist either a
physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions.
[Citations.] Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the
judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.]â€
(People v. Huston (1943)
21 Cal.2d 690, 693, disapproved on another ground in People v. Burton (1961) 55 Cal.2d 328, 352.) As Rios’s and Valenzuela’s identifications
involved no physical impossibility and were not false on their face, any
potential conflicts in the evidence were properly presented to the jury, which
found no reasonable doubt regarding appellant’s guilt. We decline to displace the jury as
finder of fact.
We
note, moreover, that while the eyewitness testimony alone would be sufficient
to support the conviction, in fact, Rios’s and Valenzuela’s testimony was bolstered
by other evidence pointing to appellant as the shooter. Rios’s initial account of the incident
related that he had been shot by a man who had been smoking. Romero, who was hosting appellant and his
family in her apartment, told detectives that appellant had gone out for a
smoke and been outside when she heard shooting.
Rios also told officers that when he complained that the marijuana smoke
could be smelled by his children, the shooter replied that his own children
were eating dinner upstairs too. The
defense witnesses confirmed that appellant and his children were dining in an
upstairs apartment with Romero and Reyes.
This evidence further corroborated the accuracy of Rios’s and
Valenzuela’s identifications. In sum,
there was sufficient evidence to support appellant’s conviction.
B. Recorded
Phone Conversation
Appellant
asserts several challenges to the admission of the excerpt of the recorded
phone call that he purportedly made on August 3, 2009. Appellant argues that the phone call was
inadmissible under Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz),
that no adequate foundation and authentication was provided for the recorded
call, and that the call’s potential for prejudice exceeded its probative value
(Evid. Code, § 352). As explained below,
appellant has failed to establish reversible error.
1. Underlying
Proceedings
Prior to trial, appellant’s
defense counsel objected to the admission of the August 3, 2009 phone call,
insofar as it encompassed references to a prospective plea bargain. In reply, the prosecutor stated that he
intended to admit only the portion of the phone call during which the male
participant requested that some “metal things†be “put . . . away.†The trial court made no ruling regarding the phone
call, but remarked that the prosecutor would be required to lay a foundation
for its admission.
The
day before the pertinent portion of the phone call was admitted at trial,
defense counsel objected to the call and the accompanying transcript, arguing
that the remarks regarding “‘metal things’†were “vague†and prejudicial and
the identity of the male participant had not been properly established. The trial court overruled the objection. Later, defense counsel sought an order
directing the prosecutor to present evidence that the term “metal things,†as
used by appellant during the excerpt of the phone call, was properly translated
in the accompanying transcript. The
court rejected the request, noting that the pertinent remarks were in English.
To
lay a foundation for the admission of the pertinent portion of the phone call,
the prosecutor presented testimony from Alex Mancia, a criminalist assigned to
the Inmate Telephone Monitoring Service (ITMS), and Detective Barboza. Mancia testified that ITMS records inmate
phone calls at the request of police officers.
After a “target†phone number is provided, ITMS makes recordings of
phone calls to the target number and preserves them “in the ordinary course of
business.†According to Mancia, ITMS records
showed that on August 3, 2009, the pertinent call was placed from the facility
where appellant was incarcerated to a target number Barboza had provided.
Barboza
testified that shortly after the shooting, he talked to appellant, who gave him
a contact phone number. Barboza then
asked ITMS to record calls to the contact number. Later, ITMS provided Barboza with a recording
of the August 3, 2009 call, which had been made to the contact number. Barboza stated that he recognized appellant
as the male participant in the call on the basis of his conversation with
appellant in June 2009.
Defense
counsel’s sole objection to Barboza’s and Mancia’s testimony challenged
Barboza’s ability to identify the male participant in the call. The trial court overruled the objection and
admitted the recorded phone call. Later,
after the close of the presentation of evidence, defense counsel asserted an
objection to the recorded phone call based on a lack of foundation, which the
trial court overruled.
2.
Pointing
to Melendez-Diaz,
that the phone call constituted inadmissible
hearsay and that its presentation at trial contravened his Sixth Amendment
right to confront witnesses. However, as
he never raised these contentions before the trial court, he has failed to
preserve them on appeal. As our Supreme
Court has explained “‘[Q]uestions relating to the admissibility of evidence
will not be reviewed on appeal in the absence of a specific and timely
objection in the trial court on the ground sought to be urged on appeal
[citations].’ [Citations.]†(People
v. Belmontes (1988) 45 Cal.3d 744, 766, disapproved on another ground in
421, fn. 22.) Furthermore, the objection
before the trial court must be “on the exact ground being raised on
appeal. [Citations.]†(People
v. Bury (1996) 41 Cal.App.4th 1194, 1201.)
This principle is applicable to challenges based on the hearsay rule and
the Confrontation Clause of the Sixth Amendment. (People
v. Burgener (2003) 29 Cal.4th 833, 869.)
Furthermore,
we would reject the contentions were we to address them on the merits. In Melendez-Diaz,
the United States Supreme Court concluded that because certain laboratory
analyses prepared for trial were “testimonial statements†under the
Confrontation Clause, they were not admissible under the “business recordsâ€
exception to the hearsay rule, in lieu of testimony from the analysts who
prepared them. (Melendez-Diaz, supra, 557 U.S. at pp. 311-324.) In contrast, appellant’s statements during
the phone conversation fall within the so-called “admissions of a partyâ€
exception to the hearsay rule (Evid. Code, § 1220). (People
v. Horning (2004) 34 Cal.4th 871, 898 & fn. 5.) Furthermore, as appellant did not make his
remarks with the expectation that they would be presented at trial, the audio
recorded remarks did not constitute “testimonial statements†under the
Confrontation Clause. (
F.3d 660, 666.)
3.
Appellant
contends the recording was admitted without an adequate foundation and
sufficient authentication. He argues (1)
that the recording was not properly authenticated, (2) that Detective Barboza’s
testimony was insufficient to identify the male participant as appellant, and
(3) that there was no evidence to support the accuracy of the transcript’s
translation of remarks in Spanish.
However, as appellant asserted timely objections only to Barboza’s
testimony and the transcript’s translations, he has forfeited his contention
regarding the recording’s authentication.
(People v. Williams (1997) 16
Cal.4th 635, 661.) Nonetheless, even if
there were no forfeiture, we would find no reversible error.
Regarding
item (1), it is well established that “‘[t]o be admissible in evidence, an audio or video
recording must be authenticated.’†(
Cal.4th 932, 952.) Generally, an
audio recording is authenticated by evidence that “‘“it accurately depicts what
it purports to show.â€â€™â€ (
phone calls to designated target numbers and stores the recordings; in
addition, he testified that ITMS’s equipment “picked up†the pertinent phone
call and that the recording was provided to Barboza. In our view, this evidence was sufficient to
authenticate the audio recording. (See
693, 708-709 [jailhouse recording of conversation between the defendant and a
visitor was adequately authenticated by circumstances of the recording, even
though no witness testified that the recording accurately reproduced the
conversation].)
Regarding
item (2), there was
sufficient evidence to identify appellant as the male participant, for purposes
of admitting the recording. “[O]n the
issue of identification of the participants in [a] conversation[], testimony of
a witness who recognizes a voice and uses this identification to name the
speaker is properly admissible [citations]
any uncertainty of the recognition goes only to the weight of the
testimony.†(People v. Sica (1952) 112 Cal.App.2d 574, 586-587.) Here, Barboza testified that he recognized
appellant as the male speaker on the basis of his conversation with appellant
in June 2009. In addition, the circumstances
surrounding the call corroborated Barboza’s testimony, as the call was made
from the jail in which appellant was incarcerated to the contact phone number
he provided to Barboza. In view of this
evidence, the trial court correctly ruled that it was up to the jury to
determine whether appellant “was or wasn’t [the male speaker].â€
Finally, regarding item (3), any
error involving the translations in the transcript cannot be regarded as
prejudicial, as the recorded remarks concerning the “metal things†were spoken
in English, not Spanish. Accordingly, we
conclude that appellant has demonstrated no reversible error due to lack of
foundation or inadequate authentication.
4. Evidence
Code Section 352
Appellant
contends the trial court erred under Evidence Code section 352 in admitting the
recorded call. The crux of his argument
is that the uncertainty regarding the male participant’s identity and the
vagueness of the term “metal things†rendered the call’s probative value
“minimal compared to its likely prejudicial effect.†We find no abuse of discretion.
“Under
Evidence Code section 352, the trial court enjoys broad discretion in assessing
whether the probative value of particular evidence is outweighed by concerns of
undue prejudice, confusion or consumption of time. [Citation.]
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. [Citations.]’ [Citation.]â€
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125, italics omitted.)
No
abuse of discretion appears here. As
noted above (see pt. B.3, ante),
there was considerable evidence that appellant was the male speaker. Viewed in light of this evidence, the phone
call cannot be regarded as having merely minimal probative value, as
appellant’s desire to hide “metal things†from the police was directly relevant
to an issue in the case, namely, the failure of the police to uncover the
shooter’s gun. For this reason, the
vagueness of the remarks did not create the type of prejudice material to
rulings under Evidence Code section 352.
As our Supreme Court has explained, “‘“[t]he prejudice referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little
effect on the issues.â€â€™â€ (
638, quoting People v. Yu (1983) 143
Cal.App.3d 358, 377.) In sum, appellant
has failed to show reversible error in connection with the recorded phone
call.
The
judgment is affirmed.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
further statutory citations are to the Penal Code, unless otherwise indicated.
the information referred to subdivision (b) of section 12022.7 in connection
with the great bodily injury allegation, the jury returned a special verdict on
the allegation under subdivision (a) of section 12202.7. Appellant has asserted no contention of error
with respect to the allegation.
