P. v. Rael
Filed 10/11/12 P. v. Rael CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
LOUIS ALAN RAEL,
Defendant and Appellant.
B232796
(Los Angeles
County
Super. Ct.
No. VA106907)
APPEAL from
a judgment of the Superior Court
of
County,
Michael A. Cowell, Judge.
Affirmed as modified.
Valerie G.
Wass, 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, Steven D. Matthews, and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * * * *
In connection with the killing of
Guillermo Ramirez, a jury convicted appellant Louis Alan Rael of
alleged in connection with the murder to be true. (§ 186.22, subd. (b)(1).) Finally, the jury found the allegations that
a principal in the commission of the crime personally used a handgun,
personally discharged a handgun, and personally discharged a handgun causing
death, to be not true. (§ 12022.53,
subds. (b), (c), (d) & (e).) The
trial court sentenced appellant to an indeterminate term of 15 years to life in
prison for the second degree murder conviction.
In connection with the gang enhancement found true, the court ordered
that he not be considered for parole until he served at least 15 years in
prison. (§ 186.22, subd. (b)(5).)
Appellant
raises a number of issues on appeal, one of which we find to be
meritorious. For the reasons that
follow, we reverse the true finding with respect to the gang enhancement. We order it, and the minimum 15-year term
before parole eligibility that it
requires, stricken.
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below.
BACKGROUND
Testimony presented at trial,
and reasonable inferences drawn there from, established the following facts.
A. Motive: the Michael Sosa Murder
At about 3:30 p.m. on November 27, 2004, Michael Sosa and his girlfriend,
Guadalupe Barragan, were at a taco stand in the City of South
Gate. Sosa, who
went by the moniker “Thumper,†and Barragan, who went by the moniker “Vicious,â€
were both members of the South Side Playerz criminal
street gang.
While Sosa
and Barragan were at the taco stand, a man walked through the parking lot,
approached Sosa, pointed a pistol at him, and shot him seven or eight
times. Sosa later died at the hospital
from his gunshot wounds.
Barragan
was still at the taco stand when the police arrived a few minutes after the
shooting. She spoke to officers but did
not provide a description of the shooter.
Later, she also spoke to the homicide detective assigned to the
case. He offered to give her a ride home
but she refused and walked away on her own.
South Side Playerz Meeting in South Los Angeles
Melissa
Mercado, a member of the South Side Playerz, learned of Sosa’s shooting from
Barragan’s sister. Mercado went to the
hospital. There, she learned that Sosa
had died.
From the
hospital, Mercado went to a South Side Playerz meeting at a house in South
Central Los Angeles. A number of South
Side Playerz members were at the meeting, including appellant, Carlos Munayco,
and Joseph Medina. Munayco was a senior
member of the gang, a “shot-caller†whom gang members would obey. Barragan arrived at the house about 45
minutes after Mercado.
While at
the house, Mercado smoked marijuana and drank alcohol. At some point, someone asked her to come
inside the house. Once inside, someone
told Mercado that she was to go to a specific house, knock on the door, ask to
buy “dope,†and then return to the car that brought her. Mercado knew “something was up.†Mercado got into appellant’s car with
Barragan and appellant drove them to a house in South Gate near the railroad
tracks. Three other cars with South Side
Playerz members followed them to the location.
They arrived at about 11:00 p.m.
At the
location, Barragan got out of the car and Mercado followed her. They walked to the front door together. Mercado knocked on the door, lightly. No one answered, and Barragan began knocking
on the door harder. Someone opened the
interior door, but left the metal security screen closed. Mercado told the person she wanted a “a dimeâ€
of “glass,†or $10 worth of methamphetamine.
The person told them to hold on, and walked back into the house. Mercado did not wait for the person to
return; she “speed-walked†back to the car.
Sofia O.
was inside the house when Mercado and Barragan arrived. Her cousins Guillermo Ramirez and J.R., and
her son Raul, were also in the house, along with various other relatives. Raul answered the door and, after speaking to
the women, went to get J.R. Before J.R.
got to the front door, Ramirez approached it.
Sofia heard seven or eight gunshots and saw muzzle flash; Ramirez fell
backwards onto the couch.
Mercado,
who was already walking back to the car, heard the shots, turned and looked
back towards the house. She saw Barragan
standing at the front door firing a handgun.
Mercado also saw Medina standing on the grass behind Barragan.
After the
shooting, both Mercado and Barragan ran back towards appellant’s car. Appellant started to drive away before
Mercado got to the car. Mercado got
inside but could not remember whether or not Barragan also got in. From the house, Sofia saw Mercado and
Barragan running towards appellant’s car, and also saw a man in the street
holding a gun.
After the
shooting, Mercado ended up at a house in Long Beach. Later, she stopped hanging around the South
Side Playerz because she realized she “didn’t want that kind of life.†She was eventually arrested, and told the
police what happened that night. She
agreed to testify against the others involved in the shooting in exchange for a
21-year prison term.
Ramirez
died from his gunshot wounds. He was shot
seven times from a single gun, a .38 special or a .357 magnum.
J.R. was
friends with Vincent Chavez, who was also called “Gizmo.†Gizmo was from the Compton Varrio Tortilla
Flats gang and would come by the house, even though he was not supposed to hang
out there.
Against Penal Interest
Cesar
Martinez, another South Side Playerz gang member, testified at appellant’s
joint preliminary hearing with Barragan, Mercado, and Medina. Martinez was uncooperative at the preliminary
hearing, and the prosecutor impeached him with an audiotape and transcript of
his earlier interview by Los Angeles County Sheriff’s Department (LACSD)
Homicide Detective Jimmie Gates. The
audiotape and transcript were admitted into evidence at the preliminary hearing
without objection.
At trial,
the court found Martinez to be unavailable as a witness and admitted his
preliminary hearing testimony as the former testimony of an unavailable
witness. (Evid. Code, § 1291.) The trial court also admitted portions of
Martinez’s earlier taped statements to Detective Gates pursuant to section 1294
as prior statements inconsistent with the former testimony of an unavailable
witness. (§ 1294.) The court limited Martinez’s prior
inconsistent statements to those that described admissions purportedly made to
him by Barragan about her involvement in the shooting, admissions the court
found to be declarations against Barragan’s penal interest relevant to
motive. (§ 1230.) The trial court excluded any statements made
to Martinez by persons other than Barragan and any statements that referenced
the involvement of persons other than Barragan.
As
mentioned above, Martinez’s statements to Detective Gates were contained in an
audiotape of the interview admitted at the preliminary hearing. The prior inconsistent statements the trial
court determined to be admissible, however, were intertwined with other
statements the court had ruled inadmissible at trial. To overcome the difficulty of editing the
audiotape for the purpose of playing it to the jury, the prosecution and
defense instead agreed to allow Detective Gates to recount the interview in his
testimony.
During the
interview, Martinez told Detective Gates that Barragan was his home girl from
South Side Playerz and that she had been Michael Sosa’s girlfriend. He received a phone call on the day of Sosa’s
shooting telling him Sosa had been shot.
Later, Barragan told him that she shot Ramirez for “revenge and
payback.†Her intended victim was
“Gizmo†from Tortilla Flats. She told
Martinez that she walked to the door of the house, knocked, and a boy
answered. She asked to buy drugs, and
when a guy came to the door, she pulled out her gun and shot him.
During his
preliminary hearing testimony, Martinez denied that Barragan ever told him
about the shooting. He claimed he was
high on methamphetamine when he spoke to Detective Gates, and that he made up
his statements based upon things he had heard from fellow gang members. He believed that by talking to the police he
could get a reduced sentence on a pending probation violation matter.
Carla B.,
Munayco’s younger sister, knew appellant, Barragan, and Sosa. Sometime after Sosa’s death, Barragan was at
Carla’s house, getting a memorial tattoo to Sosa. Carla overheard Barragan say that she saw
Gizmo shoot Sosa. Barragan also said
that she knew where Gizmo lived and that she had “shot him clean.â€
Carla also
talked to appellant about Ramirez’s murder.
Appellant admitted that he drove Barragan and Mercado over to the house
to “kill somebody.†He told Carla that
Barragan and Mercado got out of the car and that a little girl answered the
door. Barragan asked the girl to call
out her father. Barragan shot the man
who came to the door, firing all the rounds in her gun.
On another
occasion, Carla wore a recording device given to her by Detective Gates and
recorded a conversation with appellant.
During this conversation, appellant stated that Ramirez was killed “for
Thumper.†Appellant admitted that he was
involved but that too many people went to the location. He said that “the bitches†knocked on the
door, and that he “took them.â€
During the
recorded conversation, appellant also admitted that at the meeting before the
shooting, Munayco told them to “just go to the fuckin’ door,†because “that’s
the way shit is being taken care of today[.]â€
Evidence
South Gate
Police Detective Derek O’Malley had been a police officer for over
15 years, and had been assigned to the department’s gang unit from 2006 to
2009. In 2004, at the time of the
shootings in this case, O’Malley was a patrol officer in training with the gang
unit.
The South
Side Playerz were rivals of the Compton Varrio Tortilla Flats criminal street
gang. “Gizmo†was a Tortilla Flats gang
member who was “hanging out†at the Ramirez house in November 2004.
When
presented with a hypothetical that corresponded to the facts of this case,
Detective O’Malley opined that the murder of Ramirez was committed for the
benefit of, in association with, and at the direction of a criminal street
gang. He opined that a person in
Barragan’s position could also be acting for personal reasons, but that the
conduct would still benefit the gang.
F. Defense Evidence
Appellant
testified in his defense.
Appellant
joined South Side Playerz between 1993 and 1995. Sosa’s uncle told appellant about Sosa’s
shooting the day it occurred. That
evening, appellant went to a house in South Central Los Angeles. A number of South Side Playerz members
gathered there after Sosa’s shooting.
As the
gathering broke up, Barragan, Mercado, and a man called “Stalker†approached
appellant. Barragan asked appellant to
give them a ride to a house in South Gate so they could pick up some drugs. Appellant followed two other cars to the
house. He did not know anyone was going
to be shot. He did not see a gun in the
car and no one talked about shooting anyone.
At the
location, Barragan and Mercado got out of appellant’s car and walked to the
door. Appellant told Stalker to get out
and “check†on the drug buy. He also
asked Stalker to find out where they were going after they bought the
drugs. Stalker got out of the car and
disappeared.
Appellant
heard gunshots. He started his car and
began driving away but stopped when he heard pounding on the back of his
car. Mercado and Stalker got back in the
car, and appellant drove away because he “didn’t want no part of no
gunshots.†He dropped off Mercado and
Stalker somewhere and then went home. He
later learned what happened at the location.
When
appellant talked to Carla B., his statements were based on what he had heard
from others, not his personal knowledge.
He lied and exaggerated because he did not feel he could simply say he
did not want to talk about the murder.
A. Response to Jury Question During
Deliberations
Appellant
first contends that the trial court improperly answered a jury question
regarding the intent requirement for aiding and abetting. We disagree.
The trial
court instructed the jury with CALJIC Nos. 3.00 and 3.01 regarding liability
based upon aiding and abetting. No. 3.01
specifically defined an aider and abettor as someone who (1) with knowledge of
the unlawful purpose of the perpetrator and (2) with the intent to commit or
encourage commission of the crime (3) by act or advice aids, promotes,
encourages, or instigates commission of the crime.
In terms of
the definition of murder, the trial court instructed the jury with CALJIC Nos.
8.10 and 8.11, which defined both murder and express and implied malice. The trial court also gave CALJIC No. 8.20,
which defined willful, deliberate, and premeditated first degree murder; CALJIC
No. 8.30, which defined express malice second degree murder; CALJIC No. 8.70,
which told the jury it must determine the degree of the murder; and CALJIC No.
8.71, which told the jury that any reasonable doubt regarding the degree of the
murder must be resolved in favor of second degree murder. The trial court did not give CALJIC No. 8.31, which essentially repeats the
definition of implied malice contained in No. 8.11 and expressly characterizes
implied malice murder as second degree murder.
During
deliberations, the jury sent out a written question:
“Regarding
‘Aid & Abet’ -- does knowledge of the unlawful purpose of the perpetrator
mean any ‘unlawful purpose’ or the specific crime of the case (i.e.
murder). For example, could any
‘unlawful purpose’ mean any crime?â€
In response, the trial court declined the prosecutor’s
request to reinstruct and add the natural and probable consequences instruction
for aiding and abetting. It also
declined appellant’s request that the jury be told the unlawful purpose must be
express malice, or an intent to kill, only.
Instead, the court told the jury that the unlawful purpose could
8.11, with specific emphasis on the two types of malice required for
murder: express and implied.
Appellant
contends that this response was error.
The prosecutor, he argues, did not rely on second degree implied malice
murder in her argument. Further, he
argues, the court did not instruct on that theory since it did not give CALJIC
No. 8.31. Thus, appellant contends, the
jury convicted him on a theory of liability upon which the prosecutor did not
rely and upon which the court did not instruct.
Appellant’s
contentions are wholly meritless. First,
appellant provides no authority for his novel position that the prosecutor’s
failure to argue a theory, otherwise supported by the evidence, precludes the
jury from basing a verdict upon that theory.
It is therefore deemed waived. (
512, 522; Kim v. Sumitomo Bank (1993)
17 Cal.App.4th 974, 979.) Second,
contrary to appellant’s second assertion, the court did instruct on implied
malice murder since it gave CALJIC No. 8.11, which “contains everything
necessary†to instruct on implied malice murder. (People
v. Chun (2009) 45 Cal.4th 1172, 1202.)
It is true
that the jury was not expressly told, through CALJIC No. 8.31, that implied
malice murder is, by definition, second degree murder. Any error in this regard, however, is
harmless beyond a reasonable doubt since the jury convicted appellant of second
degree murder in any event. (See
18, 24.)
to Instruct on Heat of Passion Voluntary Manslaughter
Appellant
next argues that the trial court erred when it failed to instruct on the lesser
included offense of heat of passion voluntary
manslaughter. This claim, too, is
without merit.
A trial
court is obliged to instruct on lesser included offenses so long as they are
supported by substantial evidence. (
142, 162.) Voluntary manslaughter is a
lesser included offense to murder. (
645.) The heat of passion required to
reduce murder to manslaughter has both a subjective and objective
component: the killer must not only
subjectively kill under the heat of passion, but that heat of passion must be
such as would be naturally aroused in the mind of a reasonable person under the
same circumstances. (
1252.)
Appellant’s
contention fails for a number of reasons.
First, whatever Barragan’s argument
might have been in terms of her “heat
of passion,†having witnessed, first hand, the killing of her boyfriend, that
argument is not available to appellant.
Appellant was prosecuted as an aider and abettor to Barragan. Appellant had no special relationship with
Sosa and did not witness his killing.
There was simply no evidence of any event that might have inflamed
of passion required for voluntary manslaughter.
And, absent such evidence, appellant could still be properly convicted
of murder even if Barragan was guilty only of some lesser offense based upon
her mitigated state of mind. (See
1116-1123 [aider and abettor may be guilty of crime greater than that of direct
perpetrator; liability of aider and abettor depends upon his state of mind, not
that of the perpetrator].)
Second,
appellant’s own testimony expressly contradicted the heat of passion
defense. Appellant essentially testified
that he went with Barragan and Mercado to the house to buy drugs and had no
idea that a killing, or even an assault, was to occur. He did not testify that he went to the
location to kill, but did so because of an event that provoked him and inflamed
his passion. A manslaughter instruction
is not required where no substantial evidence supports the theory and an
appellant’s own testimony directly contradicts it. (People
v. Moye (2009) 47 Cal.4th 537, 554.)
Finally,
even setting aside appellant’s testimony, there was simply no evidence to
support a manslaughter instruction. The
evidence demonstrated that Sosa was killed at about 3:30 p.m. by someone the
South Side Playerz believed to be a rival gang member. Barragan shot Ramirez at approximately 11:00
p.m., after a South Side Playerz meeting held in the aftermath of Sosa’s
murder. While we do not purport to
define how an ordinarily reasonable person might react in all circumstances, we
are willing to say under the circumstances present in this case that a
seven-hour period of contemplation, as a matter of law, is a sufficient
“cooling off period†such that any act of provocation is proof of motive and
not heat of passion. The trial court
properly refused to give a manslaughter instruction.
of Heat of Passion as an Element of Malice
Having
failed to demonstrate substantial evidence in support of a voluntary
manslaughter instruction, appellant next attempts to recast that argument and
contend that the definition of malice should have included, as a component, the
requirement that the prosecution prove the absence of heat of passion. This contention is likewise without merit.
First,
appellant has forfeited this claim because he did not raise it below. An appellant may not complain of ambiguities
in an instruction, otherwise correct in law and responsive to the evidence,
unless he requested an appropriate clarifying instruction from the trial
court. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Fiu (2008) 165 Cal.App.4th 360, 370.) This appellant did not do.
Second, the
California Supreme Court has specifically rejected appellant’s argument: unless the People’s own evidence suggests
that a killing may have been provoked in the heat of passion, it is the
instructed that the prosecution must prove absence of heat of passion as a
component of malice. (
461-462; see People v. Breverman,
Appellant
attempts to get around this clear authority by citing Mullaney v. Wilbur (1975) 421 U.S. 684 (Mullaney). In
the Maine law of homicide violated principles of due process insofar as it
conclusively presumed that an intentional and unlawful killing was committed
with malice aforethought, and therefore murder, unless the defendant affirmatively proved heat of passion by a preponderance
of the evidence. (Id. at pp. 686, 701.) The
Court concluded that this rule impermissibly shifted the burden of proof to the
defendant on an essential element of the crime.
(Id. at p. 701.)
The simple
response to appellant’s argument is that the California law of homicide does no
such thing. While California requires
the defendant to present some substantial evidence of heat of passion (unless
the prosecution’s own case does so) to warrant a heat of passion instruction,
once he does so the burden of disproving heat of passion beyond a reasonable
doubt rests entirely with the prosecution.
Thus, California law does not run afoul of due process by shifting the
burden of proof as the law of Maine did in Mullaney. (See People
v. Rios, supra, 23 Cal.4th at p. 462 [implicitly finding that California’s
procedure satisfies Mullaney].)
of the Evidence
Appellant next contends that the
evidence is insufficient to support his conviction for second degree
murder. Again, we disagree.
An appellate court reviewing a challenge
based on sufficiency of the evidence at trial must review the entire record in
the light most favorable to the People and determine whether any rational fact
finder could have found the essential elements of the crime beyond a reasonable
doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Put another way, the appellate court reviews
the entire record in the light most favorable to the verdict and determines
whether there is substantial evidence – evidence that is reasonable, credible,
and of solid value – such that a reasonable juror could find the defendant
guilty beyond a reasonable doubt. (
When making such an evaluation, the
appellate court does not reevaluate witness credibility or resolve conflicts in
the evidence. Such matters are
exclusively issues for the jury. (
1181.) Further, the reviewing court must
accept logical inferences that the jury might have drawn from any
circumstantial evidence. (
396.) While it is the jury’s duty to
acquit where circumstantial evidence is subject to two reasonable
interpretations, one which points to guilt and one which points to innocence,
it is the jury, not the appellate court, that must be convinced beyond a
reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) Where circumstances reasonably justify a
jury’s findings of fact, a reviewing court’s conclusion that such circumstances
might also reasonably be reconciled with contrary findings does not justify
reversal. (Id. at p. 1054.)
In order to prove a defendant
guilty based upon a theory of aiding and abetting, the prosecution must prove
all of the following beyond a reasonable doubt:
that (1) the perpetrator committed a crime; (2) the aider and abettor
knew of the perpetrator’s unlawful purpose; (3) the aider and abettor intended
to assist the perpetrator in achieving his unlawful purpose; and (4) the aider
and abettor, by his conduct, assisted in or facilitated commission of the
crime. (People v. Thompson (2010) 49 Cal.4th 79, 116-117.)
Murder is the unlawful killing of a
human being with malice aforethought.
(§ 187.) Malice may be
express or implied. (§ 188.) Express malice is an intent to kill while
implied malice is the doing of an intentional act, the natural consequences of
which are dangerous to human life, with knowledge of the danger to, and with
conscious disregard for, human life. (
600-601.)
Murder which is willful,
deliberate, and premeditated is murder of the first degree. (People
v. Swain, supra, 12 Cal.4th at p.
601; see also § 188.) Second degree
murder includes unpremeditated express malice murder as well as all implied
malice murder. (People v. Swain, at p. 601; see also § 188.)
Here, the evidence amply supports
appellant’s conviction for second degree murder as an aider and abettor. The evidence was essentially uncontroverted
that Barragan intentionally shot and killed Ramirez as payback for the earlier
murder of her boyfriend, Sosa. Based
upon the other evidence presented, the jury could rationally conclude that
appellant knowingly and intentionally aided and abetted that killing: (1) appellant was a fellow South Side
Playerz member and thus had motive to assist in the payback killing; (2)
appellant attended the South Side Playerz meeting shortly after Sosa’s killing
and immediately prior to Ramirez’s murder; (3) appellant’s own admissions, to
Carla B., of what occurred during that meeting establish that a payback killing
was discussed and planned; and (4) appellant drove Barragan and Mercado to the
location, waited for them until the shooting occurred, and then drove Mercado
and, possibly, Barragan, away from the scene.
Appellant contends that the jury’s
implicit “acquittal†of him of first degree murder and its finding of second
degree murder only somehow undercuts the above reasoning. He argues that the above-recited facts by
definition establish premeditation and deliberation, and the jury must have
therefore rejected those facts since it found him guilty of second degree
murder only. This argument is
meritless: “‘[a]ny verdict of guilty
that is sufficiently certain is a valid verdict even though the jury’s action
in returning it was, in a legal sense, inconsistent with its action in
returning another verdict of acquittal or guilt of a different offense.’ [Citation.]â€
(People v. Miranda (2011) 192
Cal.App.4th 398, 405.) “An inconsistency
may show no more than jury lenity, compromise, or mistake, none of which
undermines the validity of a verdict.†(
656; accord, People v. Miranda,
convicted of second degree murder when the evidence amply supported a
conviction for first degree murder. (See
People v. Lee (1999) 20 Cal.4th 47,
61 [a defendant may not complain on appeal that he has been convicted of a
lesser offense than that warranted by the evidence indisputably accepted by the
jury].)
Appellant raises a number of other
contentions in connection with his sufficiency of the evidence argument. None are meritorious but we need not address
them further in light of our reasoning discussed above.
E. Barragan’s
Unavailability
The trial court admitted various
statements made by Barragan to Mercado, Martinez, and Carla B. as declarations
against penal interest. (Evid. Code, §
1230.) Appellant contends that the court
erred in this regard since it never made a formal finding, based on competent
evidence, that Barragan was unavailable, a requirement of section 1230. We reject this contention as forfeited by the
failure to object below and, in any event, harmless.
At the time of appellant’s trial,
Barragan had already been convicted of first degree murder in connection with
the Ramirez shooting and sentenced to 50 years to life in prison. Her appeal was pending.
being housed in local custody and available to be brought to court.
The court and counsel discussed the
admissibility of Barragan’s statements as declarations against penal
interest.
hearsay grounds, and also asserted admission of the statements would violate of
Aranda-Bruton.
that the declaration against penal interest exception was inapplicable because
the People had not established unavailability.
When defense counsel later raised this issue in appellant’s motion for
new trial, the trial court rejected it:
“First of all, I don’t
think there’s any question of a failure on the part of [defense counsel] to
raise this issue. I think it was rather
because [it] was so obvious.
“We were all aware of the
fact that Ms. Barragan was pending appeal.
I’m sure there have been discussions with her, although I cannot say
this with certainty, between counsel and her attorneys. And I don’t think anyone had any doubts as to
the fact that she would certainly take the Fifth if called to testify, in view
of the peril that she was placing herself in
as far as sentencing is concerned, and with her case on appeal.
“Nonetheless, as [the
prosecutor] point[s] out, had the objection been made it could easily have been
countered, and under any circumstance, under any eventuality, Ms. Barragan’s
statement would have come in.â€
Evidence Code section 353,
subdivision (a), provides that a verdict shall not be set aside on the ground
of erroneous admission of evidence unless “[t]here appears of record an
objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection.†(Italics added.) The rationale for this rule is obvious: a contrary rule would deprive the proffering
party of an opportunity to cure any defect and allow the nonproffering party to
gamble that any error would provide valid grounds for reversal on appeal. (People
v. Coleman (1988) 46 Cal.3d 749, 777.)
Application of this rule compels a
finding of forfeiture, especially upon the facts of this case. As the trial court noted, it was obvious to
all involved that Barragan had a Fifth Amendment right not to testify that
would likely be invoked upon the advice of any competent counsel. Most importantly, a timely and specific objection
would have allowed the prosecution to cure any defect: Barragan could have been transported to court
and allowed to invoke, formally, on the record.
As the trial court observed, her statements would have come in
regardless of the outcome: had Barragan
not invoked and agreed, for some reason, to testify, she could have been asked
about what occurred, and if she denied the shooting she could have then been
impeached with her earlier admissions.
In any event, any error was
harmless under any applicable standard.
Barragan’s declarations against penal interest incriminated herself
only; any references to the others involved were omitted in front of the
jury. Her involvement in the shooting
and motivation for it were essentially undisputed at trial. Indeed, appellant’s own trial testimony
essentially established that Barragan shot and killed Ramirez, by inference as
payback for Sosa’s killing. Appellant
cannot seriously complain that the erroneous admission of testimony completely
consistent with his own trial testimony prejudiced him in any way.
F. Unavailability of
Martinez
As mentioned earlier, the trial
court found Cesar Martinez to be unavailable and allowed introduction of his
preliminary hearing testimony and the statements used to impeach him during his
preliminary hearing testimony. In its
finding that Martinez was unavailable at trial, the court determined that the
prosecution had exercised due diligence in its unsuccessful effort to secure
his attendance at trial. Appellant
contends this finding was error. Again,
we disagree.
Relevant to the Due Diligence Finding
Appellant’s trial was set for
January 18, 2011. On January 6, 2011,
the prosecutor appeared ex parte before the trial court and sought a material
witness order pursuant to section 1332.
The order, signed by the court, ordered Martinez brought to court and
held in custody until he posted a $100,000 bond.
Subsequently, the People made
efforts to execute the material witness subpoena. LACSD Deputy Carlos Nuques, along with other
members of the Major Crimes Surveillance Apprehension team, attempted to locate
Martinez on both January 17 and 18.
Initially, they surveilled a house on Eucalyptus Street in Bellflower
that departmental resources showed to be the residence of Cesar Martinez, but
they later determined that person to be a different Cesar Martinez. Simultaneously, other members of the team
surveilled Martinez’s last known place of employment in Santa Fe Springs, but
could not locate Martinez there either.
Members of the team attempted to
generate more information about Martinez’s whereabouts. They obtained possible addresses for Martinez
on Otis Avenue in South Gate and on Imperial Highway in Lynwood. Deputies went to both locations and
determined that Martinez did not live at the Otis Avenue location and, though
he had lived at the Imperial Highway location with his mother, neither he nor
she lived there currently. The deputies
also obtained a P.O. box to which Martinez forwarded mail. They spoke to a postal supervisor at the
location of the postal box who provided them with an address on Tweedy
Boulevard in South Gate. That address
turned out to be a closed insurance agency.
The deputies then returned to
Martinez’s last place of employment in Santa Fe Springs and spoke to the owner,
Roman T. Roman told the deputies that he
had fired Martinez in July 2010. Though
asked, Roman could provide no additional information about Martinez’s current
whereabouts.
LACSD Homicide Detective Steven
Blagg also attempted to locate Martinez.
In 2010, Blagg had served Martinez with a subpoena at Martinez’s then
place of employment in Santa Fe Springs.
When served, Martinez had stated he was not coming to court and Blagg
later arrested him, pursuant to an another material witness warrant, at
Martinez’s probation officer’s office in the Compton courthouse.
In January 2011, Blagg again attempted to locate Martinez. He reviewed law enforcement data bases,
including Department of Motor Vehicles records and “raps and booking
data.†The information he obtained was
identical to that he had obtained when he located Martinez in May 2010, except
that Martinez was no longer on probation.
Blagg also ran the license plate number of Martinez’s car and determined
that it had been in the area of the Crescenta Valley substation but could not
get a precise location.
After presenting the above evidence
at the due diligence hearing, the prosecutor asked the court to take judicial
notice of the court file and the various minute orders documenting the
difficulty the People had in obtaining Martinez’s appearance at the earlier
trial of Barragan. The prosecutor also
commented on Martinez’s obvious reluctance during his earlier testimony in
front of the Barragan jury.
Law
In order to demonstrate that a
witness is unavailable, the proponent of the hearsay testimony must establish
he has “‘exercised reasonable diligence but has been unable to procure [the
witness’s] attendance by the court’s process.’
[Citation.]†(
622.) Factors relevant to the due
diligence inquiry include the timeliness of the search, the importance of the
testimony, and whether any leads to the witness’s whereabouts were competently investigated. (Id.
at p. 622.) Other factors include
whether the proponent had reason to believe the witness would appear willingly
before beginning to serve him and whether the witness would have been produced
had additional efforts been made. (
347.) There is no requirement that a
prosecutor “keep periodic tabs on every material witness in a criminal
case.†(People v. Friend (2009) 47 Cal.4th 1, 68.)
Due diligence may be shown even
where the proponent begins looking for a witness immediately prior to
trial. (See, e.g., People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236 [attempted
service one week prior to trial], disapproved on another ground in
901, fn. 3; People v. Smith (1971) 22
Cal.App.3d 25, 31 [same]; People v.
Rodriguez (1971) 18 Cal.App.3d 793, 796 [same].)
An appellate court reviews factual
determinations related to the issue of due diligence under the substantial
evidence standard. (People v. Herrera, supra,
49 Cal.4th at p. 623.) It independently
reviews whether the facts establish due diligence. (Ibid.)
3. Analysis
The trial court did not err in its
finding of due diligence. First, the
prosecution had been able to locate and serve Martinez prior to both the
preliminary hearing and the trial of Barragan.
Moreover, although reluctant and uncooperative, Martinez did appear at
both the preliminary hearing and Barragan’s trial, albeit while on a $25,000
material witness bond insofar as Barragan’s trial was concerned. Thus, though Martinez was reluctant, the
prosecution had some basis to conclude that when “push came to shove,†they
would be able to locate and secure Martinez’s attendance at appellant’s trial.
Additionally, although Martinez was
a material witness, his testimony, insofar as it was impeached by his earlier
taped interview, was cumulative to testimony provided by Carla B. Carla, like Martinez, overheard statements
from Barragan admitting to the killing and the motive for the killing. Additionally, Carla obtained a surreptitiously
recorded statement from appellant himself which corroborated the same
facts. Thus, the prosecution could rely
on Carla to offset any omission that might occur if Martinez failed to appear
at trial.
Next, any leads the prosecution had
as to Martinez’s whereabouts were competently investigated, as testified to by
the deputies engaged in the search. Our
review of the record indicates that they reasonably acted upon the information
that they had. For all of the above
reasons, we conclude that the trial court did not err in finding due diligence.
Finally, even if we were to find
error, which we do not, any error was harmless by any applicable appellate
standard. The matters recounted in
Martinez’s preliminary hearing testimony or in the taped interview used to
impeach him were otherwise established by Carla B. or admitted to by appellant
himself during his testimony. Thus, any
error was harmless.
G. Admission of Martinez’s
Prior Inconsistent Interview
Once the trial court determined
Martinez to be unavailable and therefore permitted his preliminary hearing
testimony to be read to the jury, it also determined that Martinez’s prior
taped interview by Detective Gates, admitted at the preliminary hearing, would
also be admitted as a prior inconsistent statement pursuant to Evidence Code
section 1294. As mentioned above,
because the audiotape of the interview intertwined admissible and inadmissible
statements by Martinez, the prosecution and the defense agreed that Detective
Gates could testify about the content of the interview rather than play the
tape.
Appellant contends that admission
of portions of Martinez’s prior interview by Detective Gates was error for two
reasons: (1) section 1294 requires that
the prior inconsistent statements be contained in a videotape admitted at the preliminary hearing, while in this case
the admitted statements were contained only in an audiotape; and (2) in any event, the court allowed Detective Gates
to testify to the content of the interview and did not require the prosecutor
to play the audiotape to the jury. We
reject both contentions.
When the
unavailable witness is admitted at trial as former testimony pursuant to
Evidence Code section 1291, section 1294, subdivision (a), allows admission of
prior inconsistent statements of that witness that are (1) contained in a
videotape properly admitted at the preliminary hearing or (2) contained in the
transcript of the preliminary hearing itself.
Insofar as appellant contends that section 1294 is not applicable in
this case because the prior interview was only audio recorded rather than video
recorded, he has forfeited that point by not raising that specific objection in
the court below. (§ 353;
p. 777.) Insofar as appellant further
contends that Detective Gates’s testimony describing what Martinez said during
the interview violates section 1294 and People
v. Martinez (2003) 113 Cal.App.4th 400, 409, he has waived that point since
his trial counsel expressly stipulated to that procedure in order to simplify
deletion of inadmissible portions of the interview. (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
Finally, to the extent we were to
reach the merits of appellant’s contention and find that there was error,
again, any error was harmless under any applicable appellate standard of
review. The matters presented to the
jury through Martinez’s preliminary hearing testimony and the prior
inconsistent interview were not largely disputed, and established by other
testimony, including that of appellant.
H. Sufficiency of the
Evidence: the Gang Enhancement
Appellant next contends that the
jury’s finding of true with respect to the gang enhancement must be reversed for
insufficiency of the evidence. We
agree: the evidence was insufficient to
support a finding of true on the gang enhancement as the instruction for that
enhancement defined it to the jury.
Accordingly, we reverse the jury’s finding of true and strike the
enhancement.
Law
Section 186.22, subdivision (b)
provides various enhancements for felonies committed for the benefit of, at the
direction of, or in association with any criminal street gang. Where the felony committed carries an indeterminate
term, section 186.22, subdivision (b)(5) requires the defendant serve a
minimum of 15 years before becoming eligible for parole.
The definition of a criminal street
gang under section 186.22, subdivision (b) requires proof of three
elements: (1) an ongoing association of
three or more members with a common name or symbol; (2) whose “primary
activities†include commission of one or more of the crimes listed in section
186.22, subdivision (e); and (3) whose members either individually or
collectively engage or have engaged in “a pattern of criminal gang
activity.†(§ 186.22, subd. (f);
1209, 1222.)
For purposes of this appeal, “a
pattern of criminal gang activity†is further defined as the commission of two
or more of the crimes enumerated in section 186.22, subdivision (e), on either
separate occasions or by two or more persons on a single occasion. (People
v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
The charged crime may itself be used to establish the “pattern of
criminal gang activity.†(
605, 625.) The crimes used to define “a
pattern of criminal gang activity†are often described as “predicate
offenses.†(Id. at p. 610, fn. 1.)
We review the sufficiency of the
evidence in support of an enhancement by applying the same standard of review,
discussed earlier in this opinion, applicable to substantive offenses. (People
v. Albillar (2010) 51 Cal.4th 47, 59-60.)
and Instruction in the Trial Court
In the trial court, Detective
O’Malley testified that the primary activities of the South Side Playerz
included vandalism, robbery, murder, and drug sales. In response to the prosecutor’s follow up
question, “What about gun possession?†O’Malley responded, “Yes. And a lot of weapons possessions.â€
In order to establish a “pattern of
criminal gang activity,†the prosecutor, through Detective O’Malley, introduced
certified court records documenting the conviction of South Side Playerz member
Trenton Saraficio for possession of a “sawed off†shotgun.
With respect to the gang
enhancement, the trial court instructed the jury with CALJIC No. 17.42.2. The instruction, as read and provided to the
jury defined “criminal street gang†as follows:
“‘Criminal street gang’
means any ongoing organization, association, or group of three or more persons,
whether formal or informal;
“One, having as one of
its primary activities the commission of one or more of the following criminal
acts, including unlawful possession of firearms;
“Two, having a common
name or common identifying sign or symbol;
“And three, whose members
individually or collectively engage or have engaged in a pattern of criminal
gang activity.
“A pattern of criminal
gang activity means the commission of two or more of the following
crimes[:] namely, unlawful possession of
firearms . . . and the crimes were committed on separate
occasions on by -- or by two or more persons.
“The phrase ‘primary
activities’ as used in this allegation means that the commission of one or more
of the crimes identified in the allegation be one of the group’s chief or
principal occupations. This would of
necessity exclude the occasional commission of identified crimes by the group’s
members.
“In determining this
issue you should consider any expert opinion evidence offered, as well as
evidence of the past or present conduct by gang members involving the
commission of one or more of the identified crimes, including the crime charged
in this proceeding.â€
Thus, although the instruction told
the jury that it could consider the crime charged in the immediate case in
determining whether the allegation was proved or not proved, it also instructed
the jury that “a pattern of criminal gang activity†included the commission of
only one type of offense: “unlawful
possession of firearms.â€
Appellant contends that the
instruction limited the so-called predicate offenses used to define “a pattern
of criminal gang activity†to the crime of unlawful gun possession, that
evidence of only one such crime committed by one person was introduced, and
therefore that the evidence is insufficient as a matter of law to support a
true finding with respect to the gang enhancement.
The People concede that the
instruction limited the predicate offenses to unlawful gun possession. The People make, however, the following
argument against reversal: (1) this
issue is “analogous†to defense challenges to instructions which omit an
element; (2) the evidence overwhelmingly establishes that a South Side Playerz
member, Barragan, murdered Ramirez; (3) murder is a predicate offense listed in
section 186.22, subdivision (e); (4) had the jury been properly instructed
to include murder in the list of predicate offenses, they would have inevitably
found the enhancement true anyway based upon the additional predicate proven by
the current offense; and (5) any error, therefore, is harmless beyond a
reasonable doubt. This argument
effectively shifts the analysis from whether the evidence is sufficient to
support a true finding on the
enhancement as defined to appellant’s
jury to whether the evidence is sufficient to support a true finding had
the additional predicate offense of murder been included in the instruction.
The problem with the People’s
argument is that there was no improper instruction given in this case. The instruction given to the jury without
objection by the People, insofar as it defined a criminal street gang and the
subordinate element of “a pattern of criminal gang activity,†was an absolutely
correct statement of the law. It failed
to include an additional predicate offense established
by the proof presented at trial, but
in and of itself as a legal matter omitted nothing. We find this situation analogous to the
situation where a defendant fails to object to an instruction, correct in the
law, but ambiguous or incomplete based on the proof adduced at trial: “[a] party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested an appropriate clarifying or
amplifying language.†(
1024.)
At trial, the People allowed this
instruction to be given to the jury.
Appellant was not obligated to alert the People or the trial court that
this instruction, based on the record of
his case, omitted a potential predicate offense necessary to a true finding
on the gang enhancement alleged against him.
The People allowed this legally correct definition of “a pattern of
criminal gang activity†to be given to the jury. They are now bound by it. The evidence presented shows only one
conviction for a firearms violation by a single South Side Playerz member. As such, it is insufficient as a matter of
law to prove “a pattern of criminal gang activity†as defined to appellant’s
jury. The finding of true on the gang
enhancement is reversed and the allegation is stricken.
Since we reverse the finding of
true with respect to the gang enhancement on this ground, we need not address
the other contention made by appellant in connection with this allegation.
I. Cumulative Error
Appellant finally contends that the
various errors raised on appeal considered cumulatively require reversal even
if considered individually they do not.
We disagree. The only error found
above affected the gang enhancement, which we reverse and strike. The error in no way affected the fairness of
appellant’s trial on the substantive charge of murder, nor did it diminish the
overwhelming evidence of his guilt with respect to that charge. (See People
v. Mincey (1992) 2 Cal.4th 408, 454 [“A defendant is entitled to a fair
trial, not a perfect oneâ€].)
The jury’s
finding of true with respect to the gang enhancement is reversed and that
allegation is stricken. The minimum term
prior to parole eligibility of 15 years that the enhancement requires is also
stricken. In all other respects, the
judgment below is affirmed.
SORTINO, J.
title="">*
We concur:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1]
otherwise noted.
does not affect the minimum term of 15 years otherwise imposed as part of the
indeterminate term for appellant’s second degree murder conviction.
