P. v. Reyes

Filed 8/21/07 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Quisteen S. Shum and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

The trial court sentenced defendant Andres Quinonez Reyes to prison after a jury convicted him of second degree murder (Pen. Code,  187; all further statutory references are to the Penal Code unless otherwise indicated) and street terrorism ( 186.22, subd. (a)), plus returned findings that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang ( 186.22, subd. (b)) and vicariously discharged a firearm causing death ( 12022.53, subds. (d) & (e)(1)). On appeal, defendant contends the trial court erred by (1) admitting the prior inconsistent statements of a witness who claimed lack of recollection at trial, and (2) imposing both the street gang and vicarious discharge of a firearm enhancements. We shall affirm the judgment in its entirety.

FACTS

Around 6:30 p.m. on August 10, 2004, several young males were riding bicycles along Sullivan Street near its intersection with Willits Street in the City of Santa Ana. A criminal street gang expert testified this locale was on the edge of an area claimed by a street gang named West Myrtle.

The bicyclers began following a car proceeding along Sullivan and yelling, Hey, homey, stop. We want to talk to you. Witnesses heard a gunshot and the car came to a stop. Matthew Selinske, a police officer on a nearby undercover assignment, saw a person in the street straddling a bicycle and holding a revolver. Selinske described the man as a 17- to 20-year-old light-skinned male Hispanic, about 62 tall and weighing approximately 165 pounds. At trial, Selinske initially identified defendant as the gunman, but later conceded he did not fit the foregoing height and weight profile.

After the shooting, the bicyclists broke into two groups and quickly left the area. Pedro Javier Rosario, the person driving the car, died from a single gunshot wound to the head.

Approximately 30 minutes later, defendant and several other persons riding bicycles confronted Jaime Nieves as he walked along English Street in Santa Ana near El Salvador Park. The street gang expert testified this area of the city is claim[ed] by a street gang named El Salvador Park F-Troop.

Nieves testified defendant asked which one is your barrio? which he understood to be an inquiry about gang membership. In response, Nieves said nowhere and that he did not want any problems. Defendant claimed he was from the Troop and asked if Nieves wanted to fight. Noticing defendant was about to pull something from his waistband, Nieves began to run.

Defendant and the others caught up to Nieves and began hitting him with their fists. When defendant placed the barrel of a gun against Nievess neck, Nieves struck defendant causing him to drop the weapon. After a struggle, Nieves obtained possession of the gun. He threw it into a yard. The police later retrieved the weapon and a ballistics expert concluded the bullet that killed Rosario had been fired from it.

The police arrested defendant two days later. While being transported to a juvenile facility, defendant asked about the charges against him. An investigator responded, It looks like its a probation violation. Defendant then said, No, Im going to be charged with murder, because me and five of my homies were down on Sullivan at a shooting. And I didnt shoot, but because I was there with my homies, Im going to get charged with murder too.

Over a defense objection, the court allowed detective Richard Ashby to testify about statements obtained from Michael C. as one month after Rosarios murder. According to Ashby, Michael C. said he was at El Salvador Park along with his brother, cousins Severo de la Riva and Frank Lopez, plus defendant on August 10. Michael C. knew that both de la Riva and Lopez were gang members. Lopez, who stood 62 tall and weighed about 160 pounds, displayed a revolver. Then Lopez, de la Riva,

and defendant left the park on bicycles. Michael C. also admitted being present when defendant confronted Nieves later that evening. He told the police he saw defendant drop the gun that Lopez had previously displayed at the park.

DISCUSSION

1. Admission of Michael C.s Prior Inconsistent Statements

a. Background

Out of the jurys presence, the prosecution called Michael C. to testify. Michael C., 14 years old at the time, had been enrolled in special classes since he was in first grade because of learning difficulties.

Because Michael C. was potentially subject to prosecution for the Nieves assault, the court appointed counsel to represent him. Michael C. told his attorney that he wanted to exercise his privilege against self-incrimination, but when questioned without the jury present, he responded by denying any recollection of persons, places, and events. Once the court and counsel explained to Michael C. the correct manner of invoking the privilege, he responded by [p]lead[ing] the Fifth. The prosecution then petitioned to grant him use immunity, which the court granted.

When the prosecutor again questioned Michael C., he responded, I dont want to talk. The prosecutor sought a contempt ruling. The trial judge declined to do so and, after explaining to both Michael C. and his mother the potential ramifications of a refusal to testify, sent Michael C. home for the evening to think about what he is doing.

The next day, Michael C. agreed to testify. In front of the jury, Michael C. admitted being at El Salvador Park with his brother on August 10, 2004 and seeing his cousins, Lopez and de la Riva, there. But he denied knowledge of both Lopezs and de la Rivas gang membership or gang nicknames and claimed to only have known about

F-Troop for a few months before trial. Although he admitted previously encountering defendant, Michael C. denied they were friends and could not recall either defendants name or whether he was at the park on August 10. Michael C. also testified he could not recall seeing Lopez with a gun or showing it to anyone, or whether Lopez, de la Riva, or defendant left the park on bicycles. Finally, Michael C. testified he did not remember the encounter with Nieves later that evening or seeing defendant with a gun at that time.

Michael C. admitted being questioned by police officers, but could not remember what he said to them or whether he had been truthful at the time. He denied recognizing photographs of Lopez, de la Riva, and defendant, or his notation of each persons name next to that individuals picture.

After Michael C. completed his testimony, the court allowed detective Ashbys testimony on Michael C.s statements during the postshooting interview and Investigator David Rondous authentication of Michael C.s identification of photographs of Lopez, de la Riva, and defendant. It found that while [Michael C.] may have some failure[] of recollection by virtue of the fact that two years have passed and he is an intellectually-challenged 14 year old . . ., on the important points of what he saw and who he was with and who he knows, it would appear . . . he is minimizing and deceiving. Thus, it concluded the repeated responses of failure to remember are feigned . . . .

b. Analysis

Defendant contends the trial court erred by allowing the prosecution to admit Michael C.s prior statements to the police, claiming there is no indication that Michael C.s inability to recall events and statements made two years earlier was not genuine. (Underscoring omitted.) We conclude the record supports the ruling.

A witnesss prior statement is admissible where it is inconsistent with the persons present testimony and he or she is given an opportunity to explain or deny the

prior statement. (Evid. Code,  770, subd. (a) & 1235; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78.) While [i]n normal circumstances, the testimony of a witness that he does not remember an event is not inconsistent with a prior statement by him describing that event (People v. Green (1971) 3 Cal.3d 981, 988), [i]nconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness prior statement [citation] . . . . (Ibid.) Thus, if there is a reasonable basis in the record for concluding the witnesss claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (People v. Johnson (1992) 3 Cal.4th 1183, 1219; see also People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 79-80.)

The trial courts finding on whether a witnesss lack of recollection is merely feigned or the result of genuine forgetfulness will be upheld on appeal if there is a reasonable basis in the record for it. (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220; see also People v. Gunder (2007) 151 Cal.App.4th 412, 418.) When the admissibility of evidence depends upon determinations of fact, the trial courts findings, and in particular its credibility determinations, are reviewed under the substantial evidence standard. [Citation.] (People v. Price (1991) 1 Cal.4th 324, 413.)

In this case, the trial court recognized Michael C. was intellectually challenged and not very sophisticated even for his age. But when it granted Michael C. use immunity and explained to him that youre not going to be prosecuted for anything, he responded to questions by stating I dont want to talk. As the Attorney General also notes, even after agreeing to testify before the jury, Michael C. displayed an uncanny ability to remember the rather unremarkable fact of being at the park with his brother and cousins two years earlier, but not Lopezs noteworthy display of the revolver or defendants use of it in an altercation that occurred a short time later. Like the witness found to be deliberately evasive in People v. Green, supra, 3 Cal.3d 981, Michael C. admittedly remembered the events . . . leading up to . . . [his] crucial observations on

August 10, but as to what he saw at the park and during the encounter on English Street, his testimony was equivocal. (Id. at p. 988, fn. omitted.) In addition, while admitting Lopez and de la Riva were his cousins and that defendant used to live around the area, Michael C. denied being able to identify their photographs or his handwriting that identified each of them by name.

Defendant also contends the admission of Michael C.s prior statements violated his constitutional right of confrontation. Not so. Since the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish[,] . . . [t]he weapons available to impugn the witness statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee. (United States v. Owens (1988) 484 U.S. 554, 559-560 [108 S.Ct. 838, 98 L.Ed.2d 951]; see also People v. Martinez (2005) 125 Cal.App.4th 1035, 1050 [ where declarant was present, testified, and submitted to cross-examination, the use of her prior out-of-court statements did not violate the confrontation clause, because declarants trial testimony . . . gave the jury the opportunity to assess her demeanor as she attempted to deny or explain away the prior statements]; People v. Perez (2000) 82 Cal.App.4th 760, 765 [defendants claim that use of eyewitnesss prior statements where she feigned lack of recollection at trial violated his right of confrontation erroneously equates confrontation with a cross-examination which is effective from a defense point of view. This is not what the constitutional right to confront witnesses requires].)

To support his constitutional argument, defendant cites United States v. Owens (9th Cir. 1986) 789 F.2d 750 and People v. Simmons (1981) 123 Cal.App.3d 677. The United States Supreme Court expressly overruled the Ninth Circuits decision in the Owens case when it reversed that ruling. (United States v. Owens, supra, 484 U.S. at p.

564.) And the Third District recently recognized that, because of the Supreme Courts holding in Owens, Simmons is also no longer of any precedential value. (People v. Gunder, supra, 151 Cal.App.4th at p. 419, fn. 7.)

Under the circumstances, we conclude the trial court did not err in allowing the use of Michael C.s prior inconsistent statements at trial.

2. Sentencing

The trial court imposed a 40-year-to-life sentence, consisting of 15 years to life for second degree murder, plus a consecutive term of 25 years to life under section 12022.53, subdivisions (d) and (e)(1) for the vicarious discharge of a firearm finding. It also imposed a concurrent 2-year sentence on the street terrorism charge. Finally, citing section 654, the court imposed, but stayed, a 10-year sentence for the jurys criminal street gang enhancement finding under section 186.22, subdivision (b)(1).

Defendant contends the last aspect of his sentence is improper, because section 12022.53[, subdivision (e)(2)] . . . expressly forbids the imposition of both the gang enhancement and the firearm enhancement . . . under the circumstances found in this case. (Underscoring omitted.) Thus, he contends the enhancement under section 186.22 should have been stricken rather than merely stayed . . . . We disagree.

Section 186.22, subdivision (b)(1)(C) requires a court to impose a 10-year sentence when a defendant is convicted of a violent 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 . . . . Under section 12022.53, subdivision (d) a court must impose a 25-year-to-life sentence on a defendant who commits one of the listed offenses, including murder, and personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice . . . . In this case, the prosecution proceeded on a theory that Lopez shot Rosario. It prosecuted defendant for aiding and abetting the murder by acting as backup for Lopez.

But while defendant did not personally shoot Rosario, since this case involves actions by a criminal street gang, he is subject to the increased sentence under section 12022.53, subdivision (e)(1). It states: The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [] (A) The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed an[] act specified in subdivision . . . (d). As an aider and abettor in Rosarios murder, defendant is deemed a principal. ( 31.) In addition, the jury found he committed the offense for the benefit of, at the direction of, or in association with other F-Troop gang members. ( 186.22, subd. (b)(1).)

Defendant relies on subdivision (e)(2) of section 12022.53. It declares: An enhancement for participation in a criminal street gang pursuant . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense. In People v. Salas (2001) 89 Cal.App.4th 1275, the trial court imposed a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) on a defendant convicted of attempted murder. The evidence was equivocal as to who fired the gun used to commit the crime, and the jury was instructed the section 12022.53 enhancement applied if it found the defendant acted as a principal. Relying on section 12022.53, subdivision (e)(2), the Court of Appeal reversed the imposition of the 15-year minimum term finding, Defendant is correct in his assertion that since he was never found to have personally used a firearm, . . . section 186.22, subdivision (b)(5) . . . is inapplicable to this case. (Id. at p. 1281.)

Here, the trial court imposed the 10-year term required by section 186.22, subdivision (b)(1)(C) but, unlike Salas, immediately stayed that portion of defendants sentence citing section 654. We disagree with defendants assertion the stay constitutes an illegal sentence. The stay will become permanent upon defendants completion of the term imposed under section 12022.53, subdivisions (d) and (e)(1). (People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) In People v. Vergara (1991) 230 Cal.App.3d 1564, while acknowledging the terms stay and strike are not legally synonymous [citation] (id. at p. 1568), the court concluded the imposition of a similar stay on an enhancement allegation was pragmatically identical to striking it, and thus, should be accorded similar treatment. (Id. at p. 1569; see also People v. Aubrey (1998) 65 Cal.App.4th 279, 284 [recognizing that often the distinction between the terms stay and strike may vanish in actual application].) The same result should apply here as well.

In addition, the Attorney General relies on California Rules of Court, rule 4.447 to support the trial courts ruling. It declares: No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendants service of the portion of the sentence not stayed.

[T]o the extent not inconsistent with statutory or constitutional provisions, the California Rules of Court ha[ve] the force of law. [Citations.] (People v. Granado (1994) 22 Cal.App.4th 194, 201; see also Paul D. v. Superior Court (1984) 158 Cal.App.3d 838, 841.) Contrary to defendants claim, rule 4.447 does not necessarily conflict with section 12022.53, subdivision (e)(2). In People v. Bracamonte (2003) 106 Cal.App.4th 704, the court recognized the word impose encompasses both situations where an enhancement is imposed and then executed and imposed and then

stayed. However, as a practical matter, the word impose is often employed as shorthand to refer to the first situation, while the word stay often refers to the latter. (Id. at p. 711.) Since rule 4.447 of the California Rules of Court clearly employs the latter use of impose, by construing section 12022.53, subdivision (e)(2) to employ that term in the former sense, the statute and rule can be harmonized.

The Advisory Committee Comment to rule 4.447 also indicates the rule was intended to apply in this very circumstance. Statutory restrictions may prohibit or limit the imposition of an enhancement in certain situations. (See, for example, sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(f) and (g), 12022.53(e)(2) and (f), and Vehicle Code section  23558.) [] Present practice of staying execution is followed to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. [Citation.] [] Only the portion of a sentence or component thereof that exceeds a limitation is prohibited, and this rule provides a procedure for that situation. This rule applies to both determinate and indeterminate terms. (Advisory Com. com., 23 pt. 1B Wests Ann. Codes, Rules (2006 ed.) foll. rule 4.447, p. 325; italics added.)

The comment cites the decision in People v. Niles, supra, 227 Cal.App.2d 749 which approved use of the impose sentence but stay execution rule in a case involving multiple convictions subject to section 654. (Id. at p. 756.) As has been recently recognized, [a] stay under rule 4.447 is not issued under . . . section 654, but it is analogous. In both situations, the stay has no express statutory basis. It is implied, so that a defendant who is subject to one of two alternative punishments will not be wrongly subjected to the other; if, however, one of the two punishments is invalidated, the defendant will still be subject to the remaining one. (People v. Lopez (2004) 119 Cal.App.4th 355, 365.)

Under these circumstances, we conclude the trial court did not err by imposing both the section 12022.53, subdivisions (d) and (e)(1) and section 186.22, subdivision (b)(1)(C) enhancements, but staying execution of the punishment required by the latter provision.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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