P. v. Prado

Filed 8/18/06 P. v. Prado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy. Affirmed as modified.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Zeke Prado of two counts of carjacking, in violation of Penal Code^[1] section 215, subdivision (a), and one count of attempting to dissuade a witness, in violation of section 136.1, subdivision (c)(1).

The jury also found that each of the offenses was committed in association with a criminal street gang, in violation of section 186.22, subdivision (b)(1), and that defendant personally used a firearm, in violation of sections 12022.53, subdivision (b) and 1192.7, subdivision (c)(8) in committing each of the offenses.

Defendant Prado appeals, arguing that he was deprived of his right to confront a witness, and that the trial court committed several sentencing errors.

FACTUAL AND PROCEDURAL HISTORY

The victim, Jason Lawson, testified that he was driving home from an Easter party at 5 a.m. on April 21, 2003, with John Cruz. He pulled up to a stop sign in Rubidoux and saw a car with its hood up. There was a woman with a baby and three men standing by the car. Mr. Cruz stopped to assist and the three men came to his pickup truck. One punched Mr. Cruz through the passenger window. Another dove in the window, put the truck in park, and pulled the keys out. The third man had a gun, ordered Mr. Lawson out of the truck and told him they were taking it. The third man also threatened to kill him if he called the police. The men drove away in Mr. Lawson's truck and the woman drove away in the other car.

Mr. Lawson recognized the man with the gun as defendant Prado. Mr. Lawson knew him from the neighborhood and knew that he was a member of the Westside Riva gang. Mr. Lawson subsequently identified defendant as the person who took the truck in a 911 call, in a photo lineup, and at trial.

As discussed below, the investigator who prepared the photo lineup was allowed to testify that Mr. Cruz had separately identified defendant in the photo lineup. Mr. Cruz did not testify and was unavailable at trial.

A gang expert testified about the Westside Riva gang in general and he identified defendant as a member of that gang. He also presented pictures of gang members, including defendant, flashing gang signs. He opined that Westside Riva is a criminal street gang, and that the crime was committed for the benefit of that gang. The gang expert also testified about convictions of other gang members.

Defendant testified and presented an alibi defense. His girlfriend testified that defendant slept at home on the night in question. The boyfriend of defendant's mother testified that he slept in the same room as defendant on the night in question. Defendant's aunt testified that she owned the home where the others slept on the night in question. She observed that defendant and the others were asleep by midnight. Defendant slept until almost noon.

Defendant himself undercut his alibi defense when he testified that he left the home where the other witnesses were and he went to another house around midnight on the night in question. He showered there and then went to his cousin's home. He smoked methamphetamine at his cousin's home and returned to his home. He conceded he could have returned home by 6 a.m. Defendant also admitted membership in Westside Riva, but denied that it is a criminal gang.

The jury believed Mr. Lawson, disbelieved defendant's alibi defense, and convicted defendant of all charges.

DISCUSSION

The confrontation clause issue arose before the prosecution examined Detective Madden. Detective Madden had shown a photo lineup to Mr. Lawson and Mr. Cruz. The prosecutor wanted to show that Mr. Cruz had identified defendant in the photo lineup, even though Mr. Cruz was unavailable to testify to that fact. The prosecutor therefore proposed to have the detective testify that he showed the lineup to Mr. Cruz and that Mr. Cruz signed his name above one of the pictures in the lineup. Defense counsel raised a hearsay objection, and ruling on the issue was deferred.

Detective Madden was then asked in detail about his photo lineup procedures, and the photo lineup he showed to Mr. Lawson. In this context, the detective testified he told Mr. Lawson that if he was absolutely certain he should write his signature above the picture of the suspect. Mr. Lawson identified defendant and signed his name above defendant's picture. The lineup with the signature on it was introduced into evidence. The detective also showed Mr. Lawson a lineup of another suspect, but Mr. Lawson was not absolutely sure of the identification, so he did not sign the lineup.

On cross-examination, the following testimony occurred:

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