P. v. Peters
Filed 1/4/13 P. v. Peters CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION FIVE
A131097
(Solano
County
Super.
Ct. No. VCR208166)
COLEY,
A132226
(Solano County
Super
Ct. No. VCR208165)
Appellants Dale Joseph Evert Coley
and Shane Austin Peters were jointly tried before a jury and convicted of
with true findings on related firearm and gang allegations. (Pen. Code, §§187, 664/187, 12022.53,
186.22.)
the gang allegations were not supported by substantial evidence; that the trial
court should have granted a motion to reveal the identity of confidential
informants who supplied information to the prosecution’s gang expert; that the
failure to order disclosure of the informants’ identities violated their
the court should have ordered the identity of the jurors disclosed under Code
of Civil Procedure sections 206 and 237.
Appellant Coley additionally agues that the court should have granted
the motion for self-representation he made at his
to additional presentence credits; and that the cumulative effect of various
errors deprived him of a fair trial.
Appellant Peters argues that he was subjected to multiple punishment for
the finding on the gang allegation, contrary to section 654. We affirm.
BACKGROUND
On the evening of January 28, 2009,
15-year-old Emmanuel Hernandez was walking along Sonoma Boulevard in Vallejo
with his friend Yusef Hussein and some other people. Hussein and Hernandez separated from the
others and continued walking. At about
8:15 p.m., after they passed an auto parts store, Hussein heard a series of gunshots
and ran, diving over a guardrail. When
he rose from the ground uninjured, he found Hernandez bleeding and slumped over
the rail. An officer who was patrolling
nearby had heard a rapid succession of gunshots and responded to find Hernandez
bleeding from his throat and mouth.
Hernandez had been shot in the back of his neck and later died of his
wound.
Eight expelled bullet casings from a
nine-millimeter semiautomatic handgun were found in the street at the site of
the shooting. A neighbor in the area who
looked out his window immediately after hearing the shots saw a small green car
leaving the area of the shooting. A
video tape from the auto parts store’s surveillance camera showed that at about
the time of the shooting, two people were walking on the sidewalk. It also showed that a vehicle, which could
not be identified, stopped at and then ran a red light at the intersection of
Sonoma Boulevard and Nebraska Street.
Hussein told police that he had seen
a green car and recognized the driver.
He did not initially identify appellant Coley when he was shown
photographic lineups containing Coley’s picture. After a detective angrily confronted Hussein
about a photo of Coley from the “My Space†website that had been circulated as
a “wanted poster†seeking the driver of the car involved in the Hernandez
shooting, Hussein identified Coley from a photocopy of his driver’s
license. Hussein wrote “NVS†on the
driver’s license picture. Hussein had
been in schoolyard fights with “[t]he Norteno,†gang and people could have
perceived him as a member or associate of the rival Sureno gang at the time.
Appellants Coley and Peters were
charged with the first degree murder of Hernandez and the
circumstance allegations that the killing was gang-related and was perpetrated
from a vehicle, and both counts included firearm and gang allegations. (§§ 190.2, subds. (a)(21) & (a)(22),
12022.53, subds. (b), (c), (d) & (e)(1); 12022.5, subd. (a)(1), 186.22,
subds. (b)(1), (f).) Appellants were
jointly tried before a jury.
At the trial, the description of the
shooting came primarily from Richard Eads and Francisco Soto, who were
originally charged with the murder but agreed to cooperate with the investigation
in exchange for the opportunity to plead guilty to the lesser crime of
accessory after the fact. Both
identified Coley and Peters as friends, and testified that the were in Coley’s
car with Coley, Peters, and (according to Eads) Alonzo Wilson when the shooting
took place. DNA evidence consistent with
both Eads and Soto was in fact found in Coley’s car.
According to Eads, he saw Coley and
Peters almost every day. He had heard
both of them refer to a gang called “NVS,†which stood for North Vallejo
Savages and was a Norteno gang. Coley’s
gang moniker was “Slumpa†and Peters’s was “Frosty.†Eads had been with Coley and Peters when they
drove around flashing gang signs and yelling at rival gang members, an activity
they called “scrap hunting,†“scrap†being a derogatory term that Nortenos used
to refer to Surenos. On one of these
“hunts,†Eads saw Peters fire a gun in the air when they came across a group of
Surenos.
On the day
Hernandez was shot, Coley, Peters, Eads and Soto had been hanging out together
with Alonzo Wilson, smoking marijuana. In the early evening, Eads, Coley and
Wilson went to a Wal-Mart with a young woman to buy spray paint.
driving around in Coley’s car, stopping to spray paint anti-Sureno
graffiti. They drove to a park in West
Vallejo, where they knew Sureno gang members were likely to be present. Coley was driving and Peters was sitting in
the front passenger seat, with the others sitting in the back seat.
While driving down Sonoma Boulevard,
Peters and Coley noted a “rival gang member†named “Yusef†(Hussein) walking
down the sidewalk with some other people.
Coley said something to the effect of, “I can’t believe he [is] walking
around on my streets.†Eads knew that
Hussein was a rival gang member from his name.
Coley drove Peters to his car, where Peters retrieved something, and
they drove back to the area where they had seen Hussein. When they spotted him again, Coley slowed
down and Peters got out of the car, but he returned without doing
anything. Coley made a U-turn, ran a red
light at the intersection of Sonoma Boulevard and Nebraska Street and crossed
over onto the opposite side of the street to get closer to Hussein. Peters leaned out the open passenger side window,
sat on the door frame (where the window rolled up and down) with his feet on
the passenger seat, and Eads heard several shots. As they drove away, Eads saw a person
kneeling down with his hand on the cement like he was trying to hold himself
up.
The group returned to Coley’s house,
where they searched the car for bullet shells.
They drove back to Peters’s car, and Eads and Peters drove together to
Eads’s house. Eads heard Peters speaking
on his phone saying “shots, fired, shots fired.†He also said, “I got my stripes now,†or “I’m
definitely getting my stripes now.â€
Peters later told Eads he had gotten rid of the gun used in the shooting
and that Emmanuel Hernandez, the person who was killed, was a Sureno gang
member known as “Little Creeps.†Sometime
after the shooting, Peters told Eads that he and Coley had had an encounter
with a rival gang member in which he yelled, “Rest in piss, Little Creeps†out
the car window.
Soto described the shooting in much
the same way. He testified that after a
day of smoking marijuana, Coley, Peters, Eads and Soto were driving around in
Coley’s car, with Coley driving and Peters in the front passenger seat. While on Sonoma Boulevard, they saw a BBH
(Brown Brotherhood) Sureno gang member who Peters identified as “Yusefâ€
(Hussein) walking down the street.
Peters told Coley that Hussein was a rival gang member and Coley pulled
off on one of the side streets. Peters
got out of the car and walked toward Hussein with a gun in his hand, but then
returned to the car.
name="_ftnref5" title="">[5] Coley started driving again and Peters leaned
out the passenger side window, sat on the door frame, and fired some
shots. They drove to Coley’s house and
searched the car for shells. Soto heard
Peters say, “We just laid him down.â€
Records of Peters’s cell phone usage
show that on the afternoon and evening of the shooting, whoever was using that
phone was moving around the City of Vallejo.
At 4:40 p.m. a call was placed from Peters’s’ cell phone from a location
in Vallejo to his mother’s telephone.
Four more calls were made from his phone in Vallejo that evening, and
incoming calls to his phone went unanswered between 8:00 p.m. and 8:13
p.m. At 8:23 p.m., there was a call from
Peters’s phone to his home number, and at 8:26 p.m., Peters’s phone received a
call from his mother’s cell phone. A
call from Peter’s cell phone back to his mother’s number connected at 8:28
p.m.
A text message sent by Peters’ cell
phone about three hours after the shooting stated, “im sellin dat ruger.†The following text messages were exchanged
between Coley’s telephone number and Peters’s later that same night: “U home?â€
“Yup was dat shit on the news.â€
“I didn’t c it bt I missed half of it.â€
“Yup, I ain’t heard nutin eitha.â€
In the days following the shooting a text exchange between Peters’s
phone and another number appeared to refer to the trade or sale of a handgun,
which is sometimes referred to in street parlance as a “thangâ€: “[Other number]: You grimy u hit dat nigga an den trade me dat
thang is hot u shadey. [Peters’s
phone]: Don’t tex me at work [Other number]: Cus what u mean [Peters’s phone]: It ain’t hot bruh don’t text shit like dat
cuz da fed.â€
Detective Tribble of the Vallejo
Police Department had been assigned to the FBI Solano County violent gang task
force and had monitored gang activity within Solano County since October
2007. He had testified as a gang expert
on 25 occasions and was familiar with the Norteno and Sureno gangs. The “primary activities†of the Nortenos
include criminal activities such as murder,
robbery, assault with a deadly weapon, drug sales, witness intimidation,
firearm possession and shooting from a vehicle. Tribble arrested Norteno member Randy
Valencia in 2006, who was convicted of assault with a firearm, and Norteno
member Dominic Tenorio in 2007, who was convicted of robbery.
According to Detective Tribble,
various subsets of the Nortenos operate in Vallejo, one of which is the North
Vallejo Savages or NVS. NVS and other
subsets operate under the umbrella of the larger Nortenos organization, engage
in some common criminal activities, and are all enemies of the Sureno
gang. NVS had about seven to
10 members, associated itself with the color red and the number 14 (Norteno
symbols) and operated throughout the city of Vallejo. Tribble had first seen graffiti bearing the
initials “NVS†in 2008; a fellow officer told him it was a new subset of
Nortenos that had emerged within the past year or so.
In Tribble’s opinion, appellant
Coley was a member of NVS, a subset of the Nortenos. He based this opinion on Coley’s association
with Peters, Eads, Soto, and other Norteno members; his possession of rap
lyrics that appeared to be gang writings; and photos showing him throwing gang
signs and wearing red clothing that appeared to be gang attire. Tribble believed appellant Peters was also a
member of NVS because he associated with Norteno/NVS members, wore gang
clothing and had a gang moniker of “Frosty.â€
In 2010, after the shooting in this case, NVS member Roy Brown was
arrested for a crime involving a gun.
Both appellants associated with Brown.
Appellant Peters offered an alibi
defense at trial, with his mother, uncle, sister and a neighbor testifying that
he was at his mother’s home on the night of the shooting. To explain various references to NVS, he
presented the testimony of friends who reported that he used a laptop in
Coley’s garage to create songs and referred to the garage as NVS Studios, short
for North Vallejo Studios. Peters also
presented the testimony of two homeless men who were living close to the scene
of the shooting. One of them claimed not
to have heard any vehicles when the shots were fired. The other testified that he heard people
yelling profanities in Spanish and saw a man walking fast and holding a weapon
after the shooting; he described the man as 6 feet 3 inches, stocky, with his
face hidden by a hood.
The murder weapon was never found,
although a different semiautomatic handgun was seized by police when they
arrested Peters and searched his home.
No gunshot residue was found in Coley’s car.
The jury convicted Coley and Peters
of second degree murder and attempted murder.
As to Coley, the jurors returned true findings on the gang allegations under
section 186.22, subdivision (b) that were attached to each count, as well as
the firearm enhancement that was alleged as to the murder count under section
12022.53, subdivisions (d) and (e)(1).
As to Peters, the jury found true the gang allegations under section
186.22, subdivision (b), but was unable to reach a verdict on the allegations
that he had personally discharged a firearm causing great bodily injury or
death under section 12022.53.
The court sentenced Coley to prison
for 15 years to life on the murder count plus 25 years to life for the firearm
enhancement, for a total term of 40 years to life, with a concurrent sentence
on the attempted murder count. Peters
was sentenced to 15 years to life on the murder count and was ordered to serve
a consecutive nine-year upper term on the attempted murder count, plus an
additional 10 years for the gang enhancement attached to the attempted murder
count, for a total term of 19 years plus 15 years to life.
DISCUSSION
I.
Evidence—Gang Allegations
The jury returned true findings on
the gang allegations under section 186.22, subdivision (b)(1), which at the
time of the crime in 2009, applied to “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.â€
Appellants argue that the prosecution failed to prove the existence of a
criminal street gang. We disagree.
When assessing the sufficiency of
the evidence to support a finding under section 186.22, subdivision (b), “
‘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.]’ [Citation.] We resolve all conflicts in the evidence and
questions of credibility in favor of the verdict, and indulge every reasonable
inference the jury could draw from the evidence. [Citation.]
. . . . Reversal is unwarranted unless ‘ “ ‘upon no hypothesis whatever
is there sufficient substantial evidence to support [the conviction].’ †’ [Citation.]â€
(People v. Mendez (2010) 188
Cal.App.4th 47, 56; see also People v.
Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
For the purposes of section 186.22,
subdivision (b), a “criminal street gang†is “an ongoing organization,
association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more
[enumerated] criminal acts . . . , having a common name or common identifying
sign or symbol, and whose members individually or collectively engage in or have
engaged in a pattern of criminal gang activity.†(§ 186.22, subd. (f).) “The phrase ‘primary activities,’ as used in
the gang statute, implies that the commission of one or more of the statutorily
enumerated crimes is one of the group’s ‘chief’ or ‘principal’
occupations.†(People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) A “pattern of criminal gang activityâ€
requires a showing of two or more enumerated crimes committed on separate
occasions, or by two or more persons, within the statutorily defined period
(the so-called “predicate offensesâ€).
(§ 186.22, subd. (e); People
v. Ortega (2006) 145 Cal.App.4th 1344, 1355 (Ortega).)
Detective Tribble, a qualified gang
expert, testified that the Nortenos were one of three main Hispanic street
gangs in the state, the others being the Surenos and Brown Pride. The Nortenos identified with common signs and
symbols such as the number 14 and the color red, and were rivals and enemies of
the Sureno gang. Norteno gang members
thrived on fear and intimidation and members earned status within the gang by
“putting in work†or committing criminal acts that promoted their gang and
their status in the gang community. A
primary activity of the Nortenos was the commission of violent crimes such as
murder, robbery, assault with a deadly weapon, witness intimidation, firearm
possession, shooting from a vehicle, and drug sales. Given this evidence, the Nortenos clearly
qualified as a criminal street gang under section 186.22. (See Ortega,
supra, 145 Cal.App.4th at p. 1356;
201, 207.)
We reject appellant Peters’s claim
that the prosecution failed to prove the Nortenos had three or more members as
required by the statute. Though he may
not have placed a precise number on Norteno membership, Detective Tribble
testified that the Nortenos were one of the three main Hispanic gangs in the
state, and that there were several subsets of the Nortenos in Vallejo alone
(the Centro Vallejo Cliqua, the Barrio Centro Vallejo, the Northern Organized
Raza, the North Side Locos, the Frisco Killin’ Riders, and NVS). Moreover, he testified that NVS, a Norteno
subset, had seven to ten members. From
this testimony it can be readily inferred that the Norteno gang has more than
three members.
Appellants argue that the jury was
required to find that NVS, not simply the Nortenos, qualified as a criminal
street gang under the statute. We
disagree. Evidence of gang activity and
culture need not be specific to a particular local street gang, but may be
based on a larger organization. (
Cal.App.4th 983, 987 (Williams). While having a similar name or a shared
ideology is not sufficient to allow the status and deeds of a larger group to
be ascribed to a smaller group, multiple units can be treated as a whole when
“some sort of collaborative activities or collective organizational structureâ€
can be inferred from the evidence. (
supra, 145 Cal.App.4th at pp.
1356-1357, the court rejected the assertion that the prosecution had to prove
precisely which Norteno subset was involved in the case when there was
sufficient evidence that Norteno was a criminal street gang, and “[n]o evidence
indicated the goals and activities of a particular subset were not shared by
the others.†(See also
458, 463 [evidence sufficient where gang expert testified that Norteno street
gang was an ongoing organization having 600 members and associates in the
Salinas area; that there were separate cliques or factions within the larger
gang; and that the two gangs at issue in the case were Norteno subgroups loyal
to one another and to the larger Norteno gang].)
The evidence showed that appellants
were members of the NVS subset of the Norteno gang, that they brandished the
Norteno symbols (red clothing, the number 14), and that they targeted Surenos,
which “increases the Norteno criminal street gang stature and reputation.†NVS, like other Norteno subsets in Vallejo,
were under the “umbrella†of the Nortenos, identified as Nortenos, maintained
enmity with Sureno groups, and “all have a certain level of criminal activity
in common.†As in Ortega, “[n]o evidence indicated the goals and activities of a
particular subset were not shared by the others.†(Ortega,
supra, 145 Cal.App.4th at p. 1357.)
Appellant Coley suggests that there
was no substantial evidence of the “primary activities†element of section
186.22, subdivision (b) because Detective Tribble’s testimony on that point was
“conclusory.†He relies on
Cal.App.4th 605 (Alexander L.), in
which the gang expert testified in the following manner about an alleged street
gang known Varrio Viejo: “I know they’ve
committed quite a few assaults with a deadly weapon, several assaults. I know
they’ve been involved in murders. [¶] I
know they’ve been involved with auto thefts, auto/vehicle burglaries, felony
graffiti, narcotic violations.†(
The problem in Alexander L. was that the expert’s conclusory statement was the sum
total of the evidence regarding the primary activities of the gang. (Alexander
L., supra, 149 Cal.App.4th at p.
611.) The appellate court concluded that
absent additional information about how the expert had come to “know†this
information, the testimony was insufficient to meet the primary activities
element. (Id. at p. 612.) Here, by
contrast, Detective Tribble testified that he had worked as a gang investigator
for the City of Vallejo, was cross-designated as a federal officer with the
Solano County violent gang task force, had received extensive specialized
training in gangs, had met with gang investigators from different
jurisdictions, had made daily contact with gang members, had personally
investigated over 100 gang crimes, and had qualified as a gang expert on 25
previous occasions, five of which involved Norteno gangs. His opinion was sufficiently founded on a
number of sources and did not suffer from the same defect as the opinion in
v. Gonzalez (2006) 38 Cal.4th 932, 949.)
II.
Informants’ Identity
Appellants argue that the trial
court should have ordered the prosecution to disclose the identities of
confidential informants relied upon by Detective Tribble in forming his opinions
regarding gang activity and membership in the Vallejo area. We disagree.
A.
General Legal Principles
The government has a privilege to
refuse to disclose the identity of a person who has furnished information to
the police concerning the commission of crimes.
(Evid. Code, § 1041.) The
privilege is founded on the recognition that informants lose access to
crime-prevention information when their identities are known publicly and risk
reprisal from those they incriminate. (
957-958.) This privilege is not absolute
and must be balanced against a criminal defendant’s right to a fair trial. (People
v. Garcia (1967) 67 Cal.2d 830, 843.)
When an informant is a material
witness in the case, the prosecution must disclose that person’s identity or
suffer dismissal of the charges. (
159 (Lawley).) “An informant is a material witness if there
appears, from the evidence presented, a reasonable possibility that he or she
could give evidence on the issue of guilt that might exonerate the
defendant.†(Lawley, at p. 159.) A
defendant seeking disclosure has the burden of producing “some evidence†to
establish materiality. (
The showing “ ‘must rise above the level of sheer or unreasonable
speculation, and reach at least the low plateau of reasonable possibility.’
†(People
v. Luera (2001) 86 Cal.App.4th 513, 526.)
Evidence Code section 1042,
subdivision (d) establishes the procedure for seeking disclosure of an
informant’s identity. The trial court
must determine whether “the informant is a material witness on the issue of
guilt†and can hold an in camera hearing to determine “whether there is a
reasonable possibility that nondisclosure might deprive the defendant of a fair
trial.†(Ibid.) On appeal, the ruling
is reviewed for abuse of discretion.
(See People v. Alderou (1987)
191 Cal.App.3d 1074, 1080; see People v.
Haider (1995) 34 Cal.App.4th 661, 669.)
B.
Procedural Background
In forming his opinions regarding
gang activities in Vallejo, Detective Tribble relied in part on information
provided by five confidential informants who were gang members or associates in
the Vallejo area. At the preliminary
hearing and in a set of notes provided to the defense, Tribble described the
informants as follows: (1) a person who claimed association with members of the
Central Valley Clique and the Barrio Central Vallejo (two Norteno subsets in
Vallejo), and who knew that appellant Peters and Jeremy Molina (known as
“Wormâ€) were founders of NVS and that NVS sold drugs; (2) three Sureno
gang members who had no information about who started NVS or its membership,
but who knew that NVS stood for North Vallejo Savages and that NVS interacted
with CVC (Centro Vallejo Clique); and (3) a validated member of BBH (Brown
Brotherhood), a Sureno subset, who told Tribble he went to school with an NVS
member known as “Worm.†None of the five
informants were percipient witnesses to the charged crimes or had spoken to
appellants.
After cross-examining Detective
Tribble at the preliminary hearing,
appellants asked the court to order the disclosure of the informants’
identities. Tribble asserted that their
identifying information was privileged under Evidence Code sections 1040
through 1042. The court conducted an in camera hearing on the issue, pursuant
to Evidence Code section 1042, subdivision (d), and denied the request for
disclosure.
Before trial commenced, appellants
brought motions to disclose the identities of these informants under Evidence
Code section 1042, subdivision (d).
Appellant Peters also filed a motion
in limine seeking the same information, or, alternatively, an order
precluding expert testimony that was based on information provided by the
informants. After conducting a second in
camera hearing on the issue, the court ordered the prosecution to disclose a
redacted gang debriefing form filled out by the first informant, but ordered
that the informants’ identities would remain confidential. The court indicted that Detective Tribble
could base his expert opinion on information provided by the informants, but
could not convey the details of what they had told him on
cross-examination. It observed that
while the identities of the informants had not been disclosed, appellants knew
the substance of the information they provided from the cross-examination of
Detective Tribble at the preliminary hearing.
The court admonished the jury to consider the out-of-court statements of
other people to Detective Tribble as an explanation for his expert opinion, but
not for the truth of those statements.
B.
Discussion
Appellants and the People have
requested that we review the transcripts of the in camera hearings to determine
whether the five informants were material witnesses whose identities should
have been disclosed. (See
Having done, so, we find no abuse of discretion. The five informants at issue were gang
members who provided Tribble with background information regarding the
existence of NVS as a subset of the Nortenos, but none of them had information
about the shooting in this case. They
did not qualify as material witnesses because no showing was made that they
could have provided any information tending to exonerate appellants. (See Lawley,
at p. 159.) Nothing in the sealed
transcripts suggests otherwise.
Appellants argue that they were
deprived of their right to cross-examine witnesses under Evidence Code section
721, subdivision (a), which provides that “a witness testifying as an expert
may be cross-examined to the same extent as any other witness and, in addition,
may be fully cross-examined as to (1) his or her qualifications; (2) the
subject to which his or her expert testimony relates; and (3) the matter upon
which his or her expert opinion is based and the reasons for his or her
opinion.†They also claim a violation of
Evidence Code section 804, subdivision (a), which provides, “If a witness
testifying as an expert testifies that his opinion is based in whole or in part
upon the opinion or statement of another person, such other person may be
called and examined by any adverse party as if under cross-examination
concerning the opinion or statement.â€
The court’s order did not violate
these statutory provisions. Appellants
were not prevented from cross-examining Detective Tribble about the matters on
which his opinion was based as allowed by Evidence Code section 721,
subdivision (a); only information that would have identified the informants was
off limits. And Evidence Code section
804, subdivision (a) does not, as appellants suggest, entitle a defendant to
call any particular person as a witness.
Rather, it governs the manner of direct examination when a person who
testifies has also made a statement relied upon by the opposing party’s
expert. (People v. Ledesma (2006) 39 Cal.4th 641, 701.) Evidence Code section 804, subdivision (d)
specifically provides, “An expert opinion otherwise admissible is not made
inadmissible by this section because it is based on the opinion or statement of
a person who is unavailable for examination pursuant to this section.†The privilege under Evidence Code section
1041 would be meaningless if the statutory right to cross-examine an expert
witness were construed to mandate the disclosure of an informant’s identity
after the trial court had correctly ruled that the witness was not material.
Appellants complain that because they
did not know the identify of the five informants and could not cross-examine
them at trial, they were deprived of their Sixth Amendment right to confront
the witnesses against them. Although
recognizing that California law has historically allowed experts to testify to
out-of-court statements for the non-hearsay purpose of explaining the basis of
their opinions (People v. Gardeley
(1996) 14 Cal.4th 605, 618), they argue that this practice is no longer tenable
in light of Crawford v. Washington
(2004) 541 U.S. 36 (Crawford). We disagree.
The Sixth Amendment’s confrontation
clause states, “In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted by the witnesses against him . . .†(U.S. Const., 6th Amend.) In Crawford,
supra, 541 U.S. at p. 54 the court held that any “testimonial†statement
that is offered for its truth is barred by the confrontation clause unless the
declarant is unavailable to testify at trial and the defendant has had a prior
opportunity to examine the declarant.
(See also Davis v. Washington
(2006) 547 U.S. 813, 821.) Although the
nature of a “testimonial†statement was not comprehensively defined in
guide a court in determining whether a statement meets that definition: “First . . . the confrontation clause is
concerned solely with hearsay statements that are testimonial, in that they are
out-of-court analogs, in purpose and form, of the testimony given by witnesses
at trial. Second, though a statement
need not be sworn under oath to be testimonial, it must have occurred under
circumstances that imparted, to some degree, the formality and solemnity
characteristic of testimony. Third, the
statement must have been given and taken primarily
for the purpose ascribed to
testimony—to establish or prove some past fact for possible use in a criminal
trial. Fourth, the primary purpose for
which a statement was given and taken is to be determined ‘objectively,’
considering all the circumstances that might reasonably bear on the intent of
the participants in the conversation.
Fifth, sufficient formality and solemnity are present when, in a
nonemergency situation, one responds to questioning by law enforcement
officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement
officials are not testimonial if the primary purpose in giving and receiving
them is to deal with a contemporaneous emergency, rather than to produce
evidence about past events for possible use at a criminal trial.†(People
v. Cage (2007) 40 Cal.4th 965, 984.)
Detective Tribble did not relay
statements by any of the five informants to the jury. And, even if such statements could be implied
from the content of his opinion, it appears that most of them would not qualify
as “testimonial.†Though statements were
made by gang members to the detective, our review of his testimony at the in
camera hearings suggests that only one informant provided statements during the
course of an (unrelated) formal investigation, as opposed to an informal
interview.
To the extent Detective Tribble
might have considered testimonial statements by the informants in forming his
opinion, the confrontation clause is not implicated because those statements
were not offered for their truth. “ ‘
established rule that experts can testify to their opinions on relevant
matters, and relate the information and sources upon which they rely in forming
those opinions. This is so because an expert
is subject to cross-examination about his or her opinions and additionally, the
materials on which the expert bases his or her opinion are not elicited for the
truth of their contents; they are examined to assess the weight of the expert’s
opinion. Crawford itself states that the confrontation clause “does not bar
the use of testimonial statements for purposes other than establishing the
truth of the matter asserted.†’ †(
1422, 1427, citing People v. Thomas
(2005) 130 Cal.App.4th 1202, 1210; see also People
v. Sisneros (2009) 174 Cal.App.4th 142, 153-154.) The limiting instruction given in this case
directed the jury to consider the statements relayed by Tribble as a basis for
his opinion, and not for their truth.
Nor do we agree that appellants were
deprived of their rights under the confrontation clause as a result of the
“limitation†placed on their cross-examination of Detective Tribble. As a result of the court’s ruling on the motion
to disclose the informants’ identities, the statements made by those informants
were not conveyed to the jury by the detective during direct examination. But the court specifically stated, “[T]he
defendants are free to cross-examine him about that, so then that puts the ball
back in your court as to whether or not you wish to cross-examine him about
that information . . ..â€
Thus, the only restriction placed on the appellants’ cross-examination
was their ability to elicit information identifying the five informants. This restriction, which was authorized under
this state’s evidentiary law regarding confidential informants, did not amount
to a violation of the federal Constitution. (See People
v. Montgomery (1988) 205 Cal.App.3d 1011, 1018.)
III.
Disclosure of Juror Contact Information
Prior to sentencing, trial counsel
for appellant Peters filed a “Petition for Release of Juror Identifying
Information†so that he could investigate a motion for new trial. Appellant Coley joined in the petition, which
was denied by the court based on a lack of good cause. Appellants argue that the denial of the
petition requires reversal of the judgment or, alternatively, a remand to allow
the disclosure of the information and the preparation of a motion for new
trial. We disagree.
A.
Applicable Law
Following a jury verdict in a
of juror information is “sealed,†meaning all “personal juror identifying information
of trial jurors. . . consisting of names, addresses, and telephone numbers,†is
extracted or otherwise removed from the court record. (Code Civ. Proc., § 237, subds. (a)(2)–(3).) Code of Civil Procedure section 206,
subdivision (g), allows a defendant to petition the court for access to
juror-identifying information “for the purpose of developing a motion for new
trial.†Code of Civil Procedure section
237, subdivision (b) provides, “The petition shall be supported by a
declaration that includes facts sufficient to establish good cause for the
release of the juror’s personal identifying information.†The procedure for obtaining juror contact
information set forth in Code of Civil Procedure sections 206 and 237 is
designed “to balance the interests of providing access to identifying juror
information for a particular, identifiable purpose against the interests in
protecting the jurors’ privacy, safety, and well-being, as well as the interest
in maintaining public confidence and willingness to participate in the jury
system.†(Stats. 1995, ch. 964,
§ 1, p. 7375.)
A defendant’s petition for
disclosure of juror identifying information must be “accompanied by a
sufficient showing to support a reasonable belief jury misconduct occurred. . .
.†(People
v. Wilson (1996) 43 Cal.App.4th 839, 850 (Wilson).) The statutes are
not designed to allow fishing expeditions for information; rather, good cause
for disclosure must be affirmatively established. (Id.
at p. 852.) “Absent a satisfactory,
preliminary showing of possible juror misconduct, the strong public interest in
the integrity of our jury system and a juror’s right to privacy outweigh the
countervailing public interest served by disclosure of the juror information. .
. .†(People v. Rhodes (1989) 212 Cal.App.3d 541, 552; see
Cal.4th 1084, 1093-1095 (Townsel);
Cal.App.4th 978, 990.)
When evaluating whether a defendant
has made a prima facie showing of juror misconduct under Code of Civil
Procedure section 237, we bear in mind that such misconduct may only be proven
by “overt acts or statements that are objectively ascertainable by sight,
hearing, or the other senses. (
302, []; Evid. Code, § 1150, subd. (a).)
No evidence may be presented concerning the subjective reasoning
processes of a juror that can neither be corroborated nor disproved; rather,
the effect of any misconduct is evaluated based on an objective standard of
whether there is a substantial likelihood of juror bias.†(People
v. Cissna (2010) 182 Cal.App.4th 1105, 1116; see also In re Hamilton (1999) 20 Cal.4th 273, 294.)
We review an order denying a
petition under section 237 under the deferential abuse-of-discretion
standard. (Townsel, supra, 20 Cal.4th at p. 1097.)
B.
Peters’s Petition for Disclosure and Trial Court Ruling
In support of the petition for
disclosure in this case, Peters’s counsel submitted a declaration alleging that
the following facts were evidence of juror misconduct: (1) the jurors informed the court on the
fourth day of deliberations that they had reached a verdict as to Coley but
were at an impasse as to Peters, and continued deliberating after the
foreperson indicated deliberations might be helpful; (2) when the jurors sent a
note to the court asking whether witnesses Richard Eads and Francisco Soto were
accomplices within the meaning of the jury instructions, the court responded
that it was up to the jury to decide that question; (3) the jurors informed the
court they were at an impasse “as to both cases†but sent a follow up note
indicating that they were “close†and needed to know whether a unanimous
verdict was required on the special allegations; (4) after being advised that
unanimity was required, the jury returned verdicts that were “inconsistent,†in
that both appellants were convicted of second degree murder in a case where the
evidence showed first degree murder, and no firearm enhancement was found true
as to Peters, the alleged shooter; and (5) when the jury was polled, Juror No.
10 “hesitated noticeably†before responding.
The court denied the petition: “I don’t find that . . . the defendants have
carried their burden to demonstrate a prima facie good cause basis to set a
hearing and provide notification to the jurors.
[¶] There are a couple [of] reasons. The basic thrust of the motion and even the
argument something odd happened, this all concerns the jury’s collective or
individual thought processes or deliberative processes, and none of that is
admissible under Evidence Code section 1150.
[¶] The verdicts are not necessarily inconsistent. They may smack of compromise. It doesn’t mean that anything odd
happened. There is no suggestion of
outside or undue influence.
[¶] There is an indication that one of the jurors, Juror No. 10,
hesitated when he was polled as to one of the verdicts. I think it was, if I read the motion
correctly, the verdict as to Mr. Coley, not Mr. Peters. But there is no indication, other than that,
that anything odd happened during the taking of the verdict. And juror hesitancy while polling is not
uncommon. [¶] There is nothing to
indicate that there were any equivocal statements made by Juror No. 10 before
he or she indicated it was his verdict.
And I just don’t find that good cause has been shown as required by the
statute.â€
C. Analysis
The trial court did not abuse its
discretion when it concluded that appellants had failed to make the requisite
showing of jury misconduct. Appellants
suggest it was unusual for the jurors to have reached a verdict after
declarations of impasse, but the sequence of events recited in defense
counsel’s declaration indicates only that the jurors carried out their duty to
deliberate and that further deliberations were productive. Nor does a single juror’s perceived
hesitation in answering the court’s post-verdict poll amount to evidence of
misconduct during the deliberations; at most, it might suggest a subjective
concern on the part of that juror that would not be admissible to challenge the
verdict. (Evid. Code, § 1150, subd.
(a).)
We do not agree with appellants’
suggestion that the jury’s verdict of second degree murder rather than first
degree murder is consistent with juror misconduct. Though the verdict was perhaps “puzzling†in
light of the strong evidence that the shooting was premeditated, it “may show
no more than jury lenity, compromise, or mistake†(People v. Abilez (2007) 41 Cal.4th 472, 512-513), none of which
amounts to misconduct and all of which involve the mental processes of the
jurors, which are inadmissible to show misconduct.
We also reject appellants’ claim
that the verdicts on the firearm enhancements were inconsistent and therefore
suggest impropriety on the part of the jury.
It is true that the jury hung 11 to 1 in favor of the enhancement
allegation as to Peters, the alleged shooter, but found the enhancement true as
to Coley, the alleged driver. But this
apparent discrepancy can be readily explained as the product of the particular
instructions given.
Both appellants were alleged to have
violated section 12022.53, which establishes escalating enhancements for the
use of a firearm in the commission of enumerated offenses including murder and
attempted murder: 10 years under
subdivision (b) when the defendant “personally uses a firearmâ€; 20 years under
subdivision (c) when the defendant “personally and intentionally discharges a
firearmâ€; and 25 years to life under subdivision (d) when the defendant
“personally and intentionally discharges a firearm and proximately causes great
bodily injury . . . or death, to any person other than an accomplice. . .
.†Section 12022.53, subdivision (e)(1)
additionally allows the enhancement to be imposed for vicarious firearm use in
cases where the crimes are gang related:
“The enhancements provided in this section shall apply to any person who
is a principal in the commission of an offense if both the following are pled
and proved: [¶] (A) The person violated subdivision (b) of
Section 186.22. [¶] (B) Any principal in
the offense committed any act specified in subdivision (b), (c), or (d).â€
Consistent with section 12022.53,
subdivision (e)(1), CALCRIM No. 1402 advised the jury that it could find the
enhancement true as to Coley if the
gang allegation under section 186.22 was proved and “1. Someone who was a principal in the crime
personally discharged a firearm during the commission of the crime; [¶] 2.
That person intended to discharge the firearm; [¶] AND
[¶] That person’s act caused the death or great bodily injury of another
person.†But the jury was not given a
similar instruction as to Peters, and instead received versions of CALCRIM Nos.
3148 and 3149 that required a finding that Peters personally discharged a firearm during the commission of the
offenses.
Thus, assuming the holdout juror
believed that both Coley and Peters were principals in the murder, but was
unsure of the exact role played by each, that juror would have been obliged to
reject the firearm allegation as to Peters under the instructions given, even
though he or she could have returned a true finding as to Coley under a
vicarious use theory. Far from showing
juror misconduct, the verdicts on the
firearm enhancements suggest the holdout juror gave close attention to the
instructions given.
The court did not abuse its
discretion when it concluded that appellants had failed to make a prima facie
showing of good cause sufficient to support a reasonable belief that any juror
committed misconduct. (
317.) The petition for disclosure was
properly denied.
IV.
Self-Representation (Coley)
Appellant Coley argues that the
court should have granted his motion to represent himself pursuant to
(Faretta), which he brought on the
day of his sentencing hearing. We reject
the claim.
A.
Relevant Proceedings
During the trial, Coley was
represented by retained counsel, who filed a motion for new trial on his behalf
on the ground of inconsistent verdicts.
Coley then discharged retained counsel and the court appointed a new
attorney to represent him. Appointed
counsel obtained a continuance of the sentencing hearing to research a motion
for new trial to investigate an alibi defense for Coley, having received a
repair receipt showing that Coley’s car (the vehicle purportedly used in the
shooting) was in the shop when the crime was committed.
At the sentencing hearing that was
ultimately held on Coley’s case on May 27, 2011,
the court denied the motion for new trial
that had been filed by Coley’s retained counsel. Coley advised the court that his appointed
attorney had decided not to file the motion for new trial based on the
potential alibi defense, and requested a continuance so he could file the
motion himself. After a recess to allow
Coley to confer with appointed counsel, counsel advised the court that Coley
was requesting to represent himself for purposes of the new trial motion. The court denied the request: “I’m going to deny the motion for
self-representation. I noted that I
appointed [appointed counsel] on December 15th of last year. I’ve continued judgment and sentence a number
of times. The last continuance was I
think to facilitate further investigation by [appointed counsel] pertaining to
– I think there was like a car repair order or something that was attached to
the motion. A repair order. Apparently that investigation did not pan
out. [¶] [Appointed counsel] is an
experienced attorney, criminal defense attorney. I’ve witnessed him try numerous cases.
[¶] . . . .[¶] . . . . [¶] And this just seems untimely to the
Court. [¶] There also seems to be a
bit of gamesmanship about it, to try to further delay the proceedings. The verdict of the jury was October 28th of
last year. [¶] So I just think
under all the circumstances that have been presented to the Court that are
apparent from the Court’s file, I’m going to deny the motion as untimely.â€
B.
Discussion
A criminal defendant has a
himself at trial. (Faretta, supra, 422 U.S.
at pp. 807, 835.) In order to invoke
this constitutional right, the defendant must make an unequivocal assertion of
the right within a reasonable time before the trial begins. (People
v. Skaggs (1996) 44 Cal.App.4th 1, 5.)
If a timely motion to proceed pro se has been made, the trial court
“must permit a defendant to represent himself upon ascertaining that he has
voluntarily and intelligently elected to do so, irrespective of how unwise such
a choice might appear to be.†(
217.) But when the motion is untimely,
self-representation is no longer a matter of right but is subject to the
court’s discretion. (
959.) In People v. Windham (1977) 19 Cal.3d 121, 128 (Windham) the court set forth the factors that should be considered
by a court in exercising this discretion:
(1) the defendant’s proclivity to substitute counsel; (2) the
quality of counsel’s representation of the defendant; (3) the reasons for the
request; (4) the length and stage of the proceedings; and (5) the disruption or
delay which might reasonably be expected to follow if the defendant is allowed
to represent himself.
Coley argues that although his
motion was not brought until the date of the sentencing hearing, it was timely
because his appointed counsel had just recently told him he would not be filing
a motion for new trial. We
disagree. Under the circumstances, and
based on the record as it appeared at the time, it was reasonable for the court
to conclude that Coley had been given ample time to confer with his appointed
counsel and that his last-minute request for self-representation was a delay
tactic. The court carefully considered
the factors relevant to the untimely Faretta
request, including Coley’s previous change of counsel, his appointed counsel’s
experience and competence, the very late state of the proceedings, and the
likelihood that the request was being brought for the purpose of delay. Moreover, any error in denying the motion was
harmless because the appellate record does not establish that it is reasonably
probable Coley could have obtained a better result (an order granting a motion
for new trial or a more lenient sentence) had he represented himself. (People
v. Rivers (1993) 20 Cal.App.4th 1040, 1050-1053 [denial of untimely
standard for state law error articulated in People
v. Watson (1956) 46 Cal.2d 818, 836].)
V.
Finding on Gang Allegation (Peters)
Peters argues that the court
violated section 654’s proscription against multiple punishment by imposing a
10-year gang enhancement on the attempted murder count pursuant to section 186,
subdivision (b)(1)(C), as well as a 15-year minimum parole term on the murder
under section 186.22, subdivision (b)(5).
He submits that his commission of the crimes for the benefit of a criminal
street gang was a single act or course of conduct that could only be punished
once. (See People v. Hester (2000) 22 Cal.4th 290, 294.)
The People respond that section 654
does not apply to multiple acts of violence against different victims (see
331, 339), but that in any event, appellant has not been punished twice because
he is required to serve 15 years in prison on the second degree murder count
regardless of the finding on the gang allegation. We agree that in light of appellant’s
sentence of 15 years to life on the murder charge, for which he will not earn
conduct credits, the section 654 issue is effectively moot. (See People
v. Johnson (2003) 109 Cal.App.4th 1230, 1238 [application of
section 186.22, subdivision (b)(5) does not extend minimum parole date on
second degree murder charge].) There has
been no double punishment for the true finding on the gang allegation because
that finding does not increase the penalty on the murder count.
VI.
In his
that he was entitled to an award of an additional 828 days of credit for time
spent in presentence custody on the murder count. Although the People disputed his entitlement
to these credits in the respondent’s brief filed August 2, 2012, Coley’s reply
brief advises us, “On August 14, 2012, the Solano County Superior Court issued
an order, with the consent of the Deputy District Attorney and appellant’s trial
counsel, to make corrections to award the presentence credit based on
appellant’s opening brief.†We consider
the issue no further.
VII.
Appellant Coley argues that the
cumulative effect of the errors requires reversal even if they were
individually harmless because considered together, they produced an unfair
trial. Having found no error,
prejudicial or otherwise, we reject the claim.
DISPOSITION
The judgments are affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
Code unless otherwise indicated.
habeas corpus alleging newly discovered evidence and ineffective assistance of
counsel. By separate order filed the
same date as this opinion, we have issued an order to show cause returnable in
the superior court. (Consolidated case
no. A137025.)
