P. v. Ruvalcaba
Filed 11/4/13 P. v. Ruvalcaba CA4/1
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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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ANTHONY RUVALCABA, Defendant and Appellant. | D061753 (Super. Ct. No. RIF136340) |
APPEAL from
a judgment of the Superior Court
of
County, Bernard J. Schwartz, Judge. Affirmed.
Leslie
Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General,
A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A jury
convicted Daniel Anthony Ruvalcaba of the first degree murder of Michael Benge
(Pen. Code, § 187, subd. (a); count 1)
and the second degree murder of Benge's
sister, Denaya Shanks (§ 187, subd. (a); count 2).
murder special circumstance allegation (§ 190.2, subd. (a)(3)). As to both counts, the jury found true gang
benefit enhancement allegations (§
186.22, subd. (b)) and vicarious firearm use enhancement allegations (§
12022.53, subds. (d) & (e)).
Ruvalcaba also admitted having a prior strike conviction (§ 667, subds.
(c), (e)(1)), a prior serious felony conviction (§ 667, subd. (a)), and a prior
prison commitment conviction (§ 667.5, subd. (b)). The court sentenced him to a prison term of
life without the possibility of parole, plus 80 years to life, plus five years.
Ruvalcaba
appeals, contending his conviction must be reversed because the court once
again prejudicially erred in admitting double hearsay against him (see fn. 2,
He further contends his trial counsel provided ineffective assistance by
failing to:
(1) request the court strike portions of two prosecution
witnesses' testimony, object to portions of the prosecution's gang expert's
testimony, and elicit certain favorable testimony from a defense witness. We conclude these contentions lack merit and
affirm the judgment.
BACKGROUND
Prosecution
Evidence
Ruvalcaba, Vincent
Solorio, and Rojas were good friends. Vincent's
mother, Gina Solorio,
name="_ftnref3" title="">[3]
and Ruvalcaba's mother were best friends.
Ruvalcaba spent a lot of time at the Solorio home, and Gina treated him
like a son. Gina also treated Rojas like
a son. The Solorio family took Rojas in
after his mother died and he lived with them on and off. He was living with them in December 2006,
when the killings in this case occurred.
In addition
to being good friends with one another, Ruvalcaba, Vincent and Rojas were good
friends with Benge and Benge's brother. The
five men grew up together and hung out together almost every day.
Ruvalcaba
and Vincent were members of the Casa Blanca Rifa gang (CBR gang). Rojas was at least an associate of the gang
and may have been a member. In October
2003, Ruvalcaba, Vincent and two other CBR gang members forced a man and a
woman out of a car at gunpoint and took the car. The next day a police officer recovered the
car in an area marked with CBR gang graffiti.
In October
2006 Gina and her husband separated, and Gina stayed with a friend in Colton. On October 29, 2006, Gina's husband and Benge
went to the home where Gina was staying.
Gina's husband confronted Gina because he believed she was cheating on
him. At one point during the encounter, Gina's
husband pointed a gun at Gina. Gina
moved behind Benge, but Benge moved out of the way, leaving her
unprotected. Gina was very angry with
Benge because she believed his act of stepping away and failing to protect her
was disrespectful. Gina told her friend,
Patricia Revelez, she was angry at Benge and was going to put a "green
light" on him.
title="">[4]
By December
2006, Gina and her husband had reconciled and were once again living in the same
home. Patricia and her daughter,
Britaini Revelez, were living with them.
Patricia was dating Benge and Britaini was dating Vincent.
On December
7, 2006, Benge was visiting with Patricia on the Solorios' porch. He went in the house to wake Gina's husband. When he returned, he told Patricia that Gina
had kicked him out. Patricia did not
understand why Gina did this since Benge was "in the house all the time." Patricia believed Gina was still angry at
Benge because he disrespected her during the Colton incident.
During the
day on December 8, 2006, Ruvalcaba was at the Solorio home with Vincent and
Rojas. In the evening, the three men got
dressed to go to a gathering Benge and his brother were hosting in the garage
of their parents' home. When Rojas left
the Solorio home, Vincent and Ruvalcaba followed him. On their way out, Vincent remarked to
Ruvalcaba, "Come on. Let's go. Got to have the homeboys' [
Although Benge's
brother had invited Ruvalcaba, Vincent and Rojas to the gathering, he felt a "weird
vibe" from them when they arrived. In addition, he thought it was strange they
were only talking to one another and not to anyone else. Benge's mother and father also thought they
were acting unusually.
About 45
minutes after arriving, Ruvalcaba, Vincent and Rojas left. They stopped at Rojas's grandmother's house
briefly and then returned to the gathering.
When most
of the guests had left the gathering and Benge's parents had gone to bed, Benge
went to a nearby grocery store.
Ruvalcaba, Vincent, Rojas, and Benge's sister invited themselves along. Benge's brother stayed behind.
Around 9:30
p.m. that evening, a husband and wife drove to the grocery store. As they pulled their car into the store's
driveway, a group of four men and one woman walked in front of them. After the group passed by, the couple
proceeded into the driveway and, as they were parking, they heard two gunshots
coming from behind their car. They thought
someone might be hurt, so they parked their car and went to help. They found the woman and one of the men from
the group that had just walked by them lying on the ground. The three other men from the group were
jogging away while periodically looking over their shoulder.
After the
killings, Vincent, Ruvalcaba and Rojas did not return to Benge's parents'
house. They also never contacted Benge's
brother or his parents. Instead, they
ran to Rojas's grandmother's house. Paul
Martinez was standing in front of Rojas's grandmother's house when they arrived. Rojas told Martinez, "[W]e dealt with
[Benge]" and "Vincent shot [Benge] in the face at close range." Rojas then remarked, "[W]e need to get
out of here" and the three men left, walking toward Vincent's house.
When a police
officer arrived at the grocery store parking lot, he found Benge and his sister
lying on the sidewalk about two feet away from one another. Benge's sister had a gunshot wound on her
left temple and was pronounced dead at the scene. There was stippling around the wound indicating
the gunshot was fired at close range. Benge
had a bullet lodged under the skin on his forehead. His breathing was shallow and he was
nonresponsive. He was taken to a
hospital, where he died the following day.
Meanwhile, Britaini
was waiting on the porch of the Solorios' home for the three men to return when
she noticed police cars at the grocery store.
She walked to the store with Gina and Rojas's girlfriend. A bystander told them Benge and his sister
had been shot. Britaini tried to call
Vincent, but she could not reach him because his phone was off.
Gina,
Britaini, and Rojas's girlfriend walked to Ruvalcaba's house, but the three men
were not there and no one was able to contact them. The women went back to the Solorios' home,
but the three men did not return that night.
Within a
couple of hours after the shooting, police detectives and members of the Special
Weapons and Tactics team went to the Solorios' home. They questioned everyone in the home about
the killings and the three men's whereabouts.
The day
after the killings, Gina asked Patricia to drive her to a mall area to pick up
the three men. When the men got in the
car, Vincent gave Gina a watch and told her to get rid of it because, he "was
standing too close, and it got blood splattered all over it, and it's dirty." Vincent put the watch in Gina's purse,
remarking "You know what to do."
Patricia
dropped Ruvalcaba off at his home and took Gina, Vincent and Rojas back to the
Solorios' home. Gina gathered clothes
for the two men while they took showers.
After the men showered, they got into the Solorios' van with Gina, Britaini,
and Rojas's girlfriend. Gina picked up
Ruvalcaba and drove him to his girlfriend's house. She then took Vincent, Britaini, Rojas and
Rojas's girlfriend to a hotel in another county, checked them in, and left.
Gina
returned the following morning and either Vincent or Rojas told her they needed
to talk with her. The two men went
outside and Gina followed them. When the
trio returned to the room, Vincent and Rojas gathered some of their belongings
and took them out to the van. Rojas's
girlfriend went with them. Gina then told
Britaini, "The boys just told me what happened."
sister]." Britaini asked, "What
do you mean? What happened?" Gina told Britaini that the three men went to
Benge's house and "played off what they were planning that night." When
the group went to the store, the plan "fell into place." Vincent intentionally lagged behind, pulled a
gun out, and shot Benge after first remarking, "Who's got the gun pointed
at them now, motherfucker?" Since Benge's
sister witnessed the killing, Vincent told her, "I'm sorry I have to do
this" and shot her, too.
Gina then asked
Britaini, "You know why they did it; right?" Britaini replied, "No. Why?" Gina told her Vincent and Rojas said it was
because Benge failed to protect Gina during the Colton incident.
After Gina told
Britaini what Vincent and Rojas said, Britaini packed up her stuff and they all
left the hotel. Gina dropped Britaini off
at a park near the Solorios' home and told her to walk from there so no one
would see them. Gina then left with
Vincent and Rojas and Britaini did not see them again for a while.
The same
day, Britaini met up with Vincent in a parking lot. She asked him whether he killed Benge and Benge's
sister. He initially would not give her
a direct answer, but she continued to press him and he eventually admitted to
her that he had killed them.
Vincent,
Rojas and Ruvalcaba were subsequently arrested.
At the time of his arrest, Ruvalcaba was living with the Solorio family
at a new address.
A gang
expert testified that, at the time of the killings, the CBR gang was an ongoing
organization with approximately 200 members, affiliates, and associates; it used
common signs or symbols; its primary activities included weapons violations,
violent assaults and homicides, carjackings, and narcotics sales; and its
members had committed multiple predicate offenses. The gang expert believed that, at the time of
the killings, Vincent and Ruvalcaba were active members of the CBR gang and
Rojas associated with the CBR gang. The
expert further believed the killings were committed by CBR gang members in association
with one another. He based this opinion
on his training and experience, Vincent's and Ruvalcaba's admissions to being
CBR gang members, and the three men's prior involvement in incidents where
their victims and witnesses knew them to be CBR gang members. He also based his opinion on the carjacking
incident because Vincent's and Ruvalcaba's accomplices were CBR gang members,
the crime involved sophistication and teamwork, and the stolen vehicle was left
in an area marked with CBR gang graffiti.
On
cross-examination, the gang expert testified he believed Vincent would have
felt disrespected by Benge's failure to protect Gina during the Colton incident
and this would have given Vincent a personal motive for vengeance. On redirect examination, the gang expert also
testified he believed Rojas may have felt disrespected by Benge's failure to
protect Gina because "Gina was as much his mother as Vincent's mother." The gang expert explained that Vincent,
Rojas, and Ruvalcaba were essentially brothers and they treated Gina as their
mother. The gang expert believed Gina
told Vincent about Benge's act of disrespect, this information was relayed to
Rojas and Ruvalcaba, and all three men were angry because Benge had "disrespected
[their] mother." The gang expert
believed on the night of the shootings, Ruvalcaba "went to back his homey
up." Although the gang expert
acknowledged Ruvalcaba may not have known Vincent intended to kill Benge that
night, the gang expert believed Ruvalcaba knew there was going to be a
confrontation between the two men.
Defense Evidence
A former
inmate testified to a jailhouse conversation he had with a person he was almost
certain was Vincent, in which Vincent bragged about shooting and killing a
brother and sister on the way back from a grocery store in the Casa Blanca
area. Vincent said he killed the brother
because the brother was "a dirty person" and he killed the sister
because she was a witness. Although Vincent
claimed sole responsibility for the killings, he had a friend with him when the
killings occurred. Vincent said as the
group was leaving the grocery store, he and his friend parted company with the
brother and sister. Then, he and his
friend circled back, came up on the brother and sister again, and Vincent shot
them.
Vincent
also said there was another witness who had taken the gun to or gotten the gun
from someone's grandmother's house.
Vincent did not say whether the friend who was with Vincent at the time
of the killings was involved in whatever took place at the grandmother's house
with the gun.
A district
attorney's office investigator testified the inmate told him another Hispanic
male was with Vincent during the killings, but only as a witness.
Ruvalcaba's
grandmother testified Ruvalcaba started living with her after he was released
from custody for another offense. He
moved in with Gina a week or two before his arrest after he learned the person
he believed was his father was not actually his biological father.
Ruvalcaba's
parole officer testified Ruvalcaba was released from custody on November 29,
2006. He was arrested for his
involvement in this case on May 7, 2007.
Ruvalcaba's
uncle testified Ruvalcaba and his father went to Ruvalcaba's grandmother's
house just after the killings. The three
men watched television there and talked for about 20 minutes before Ruvalcaba
and his father left. Ruvalcaba's uncle
never told anyone this information until the day before he testified.
Rebuttal Evidence
Six days
after the killings, Ruvalcaba told a police detective he heard shots on the way
back to Benge's house from the grocery store.
He, Vincent and Rojas ran from the area to a cul-de-sac and jumped into
a car with some girls. They went to an
area near a mall and hung out with the girls and others. Gina picked them up the next day and dropped
Ruvalcaba off at his home. Ruvalcaba
denied he and Vincent had any involvement in the killings.
DISCUSSION
I
Admission of
Double Hearsay
A
1
In
admitting Britaini's testimony relaying Gina's statements about "the boys"
admission to killing Benge and his sister because it was unclear from the
record whether the admission was intended to include Ruvalcaba. (Ruvalcaba
I, supra, D056842, at pp. 40-41.) We similarly concluded the court erred in
admitting Britaini's testimony relaying Gina's statements about the reasons for
and planning behind the killings because it was unclear from the record whether
this information originated from Vincent and Rojas, or from Gina herself. (Id.
at p. 40.) We concluded the errors were
prejudicial to Ruvalcaba because the evidence against Ruvalcaba was not sufficiently
strong to preclude a reasonable possibility of a more favorable outcome absent
the error. (Id. at p. 41.)
2
Before
Britaini testified in this case, the court, mindful of our concerns in
determine the admissibility of her testimony.
At the hearing, she testified the evening after the killings she went
with Gina, Vincent, Rojas, and Rojas's girlfriend to a hotel in another
county. Gina checked them into the hotel
and then left to get clothes for Vincent and Rojas. When Gina returned the next morning, Vincent
and Rojas asked to speak with her and the three went outside. Afterwards, as Vincent, Rojas, and Rojas's
girlfriend loaded up Gina's van to leave, Gina told Britaini that Vincent and
Rojas had just told her "they"—meaning Vincent, Rojas, and Ruvalcaba—were
the ones who killed Benge and Benge's sister.
They shot Benge first and then shot Benge's sister because she was a
witness. Gina said "they"—again
meaning Vincent, Ruvalcaba, and Rojas—had talked about killing Benge, decided
how to do it and that night their plan just worked out and fell into the
place. Gina also said they killed Benge
because Benge left her uncovered and unprotected during the Colton incident.
The main
point of contention during the hearing was whether Gina's remarks about the men's
motivation and planning were Gina's own suppositions or whether Gina was merely
relaying information Vincent and Rojas had just told her. Britaini believed Gina was merely relaying
information Vincent and Rojas had just told her based on Gina's prefatory
remark, "Vincent and [Rojas] just told me," and the subsequent conversation
flow.
After
defense counsel made several failed attempts to clarify Britaini's testimony on
this point, the court interjected, "What we're trying to establish here,
ma'am, is whether or not Gina told you these things that the boys told her, and
she was just relaying that to you, or whether some of it was from the boys,
some of it was from her own mind, or thoughts, or whether it was all from her
own thoughts? [¶] . . . [¶] We just need to know whether or not the boys
said something to her, and she told you what the boys said." Britaini responded, "She was relaying
the conversation to me."
The court
continued, "Right. Or whether or
not she's just speaking on her own and perhaps surmising it was done for a
different reason, or a reason not told to her by the boys. So we just need to know if it was something
that came directly from the boys completely, or whether or not it was something
that she made up on her own."
Britaini responded, "Well, by the way she had told me, it came from
the boys, to her, then to me. That's
what I believe the conversation was."
Not
satisfied with Britaini's responses, defense counsel continued to press her for
clarification. She continued to maintain
that, because of Gina's prefatory remark and the conversation flow, she
believed Gina was relaying what Vincent and Rojas had just said outside. Nothing about the conversation, including
Gina's statements, voice, or mannerisms, gave Britaini any reason to believe
otherwise.
At the
conclusion of the hearing, the court found Britaini's testimony was admissible
because Vincent's and Rojas's statements to Gina were declarations against
their penal interest and Gina's statements to Britaini were declarations
against Gina's penal interest. In
reaching its decision, the court reasoned the statements from Gina to Britaini
had to have originated from Vincent and Rojas because there was no other way
for Gina to "know how the planning took place or what the reason behind or
motive behind the shootings would be, unless she was told."
As
summarized in the background section above, Britaini's trial testimony largely
tracked her hearing testimony. During her
trial testimony, defense counsel pointedly asked her, "Would it be fair to
say that everything that Gina told you right then, your understanding was the
boys, specifically [Rojas] and Vincent, had just told her that?" Britaini replied, "Yes."
B
1
The parties
agree Britaini's testimony about Vincent's and Rojas's remarks to Gina was
double hearsay and was only admissible if both levels of hearsay fell within
some exception to the hearsay rule. (Evid. Code, § 1201; People v. Riccardi (2012) 54 Cal.4th 758, 831.) Ruvalcaba contends the testimony was not
admissible because Gina's statements to Britaini, the second level of hearsay, were
not against Gina's penal interest. More
particularly, he contends the record does not show Gina knew the three men
committed the killings before she put Vincent and Rojas up in a hotel and,
therefore, Gina's statements to Britaini did not expose Gina to criminal
culpability as an accessory.
" 'Evidence
Code section 1230 provides that the out-of-court declaration of an unavailable
witness may be admitted for its truth if the statement, when made, was against
the declarant's penal interest. The
proponent of such evidence must show "that the declarant is unavailable,
that the declaration was against the declarant's penal interest, and that the
declaration was sufficiently reliable to warrant admission despite its hearsay
character." ' [Citation.] 'The focus of the declaration against
interest exception to the hearsay rule is the basic trustworthiness of the
declaration. [Citations.] In determining whether a statement is truly
against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not
just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant's relationship to the
defendant.' " (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier), overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, as acknowledged
in People v. Houston (2012) 54
Cal.4th 1186, 1220.) "A trial court's
decision to admit or exclude evidence is a matter committed to its discretion '
"and will not be disturbed except on a showing the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of
justice." ' " (
"Section
32 defines the crime of 'accessory' as follows: 'Every person who, after a felony has been
committed, harbors, conceals or aids a principal in such felony, with the
intent that said principal may avoid or escape from arrest, trial, conviction
or punishment, having knowledge that said principal has committed such felony
or has been charged with such felony or convicted thereof, is an accessory to
such felony.'
"The
crime of accessory consists of the following elements: (1) someone other than
the accused, that is, a principal, must have committed a specific, completed
felony; (2) the accused must have harbored, concealed, or aided the principal;
(3) with knowledge that the principal committed the felony or has been charged
or convicted of the felony; and (4) with the intent that the principal avoid or
escape from arrest, trial, conviction, or punishment." (People
v. Plengsangtip (2007) 148 Cal.App.4th 825, 835-836.) "[I]n determining whether a defendant
had the requisite knowledge and intent to commit the crime of accessory, the
jury may consider 'such factors as [the defendant's] possible presence at the
crime or other means of knowledge of its commission, as well as his
companionship and relationship with the principal before and after the offense.'
" (Id. at p. 837.)
As the
People point out in their brief, Gina had numerous indications Vincent, Rojas,
and Ruvalcaba committed the killings before she put Vincent and Rojas up in the
hotel. Among these indications: the men did not return home after the
killings and could not be reached by telephone; police detectives and SWAT team
members went to the Solorios' home after the killings looking for the men; and,
when Gina picked the men up the day after the killings, Vincent asked her to
dispose of his watch because he was "standing too close," "it got
blood splattered all over it," and Gina knew "what to do."
Even if, as
Ruvalcaba asserts, these circumstances do not establish Gina knew the men had
committed the killings before she put Vincent and Rojas up in the hotel, Gina's
statements were still against her penal interest because she was in the process
of assisting them when they told her of their involvement and she continued to
assist them afterwards. (
518, 537 [a person who unwittingly aids a perpetrator may become an accessory
if the person later learns of the perpetrator's criminal purpose and then does
something to help the perpetrator get away with the crime].) Accordingly, the court did not abuse its
discretion in finding Gina's statements to Britaini were statements against Gina's
penal interest.
2
Ruvalcaba
also contends the testimony was not admissible because it is unclear from the
record whether Vincent's and Rojas's admissions to the killings included
Ruvalcaba as a participant and whether the statements regarding the planning of
and motivation for the killings came from Vincent and Rojas, or from Gina. Consequently, he contends the court should
have excluded the evidence under Evidence Code section 1230 as untrustworthy
and under Evidence Code section 352 as more prejudicial than probative.
However, during
the hearing, Britaini specifically clarified Gina's statements relaying who
planned and committed the killings included Ruvalcaba, not just Vincent and
Rojas. Although Britaini was not asked
and, therefore, did not clarify whether Ruvalcaba knew of or shared the same
motive as Vincent or Rojas, the lack of clarity on this point is of no moment
since aider and abettor liability does not require shared motivation. Rather, a person is liable for a crime as an
aider and abettor if the person acts "with 'knowledge of the direct
perpetrator's unlawful intent and an intent to assist in achieving those
unlawful ends, and . . . conduct by the aider and abettor . . . assists
the achievement of the crime.' " (
1069.)
As for whether
the statements regarding the planning of and motivation for the killings came
from Vincent and Rojas, or from Gina, the court and counsel explored this point
at length during the hearing. At the
conclusion of the hearing, the court found the statements came from Vincent and
Rojas, not Gina. On appeal, we uphold a
court's determination of preliminary facts made in the course of deciding the
admissibility of hearsay evidence if the facts are supported by substantial
evidence. (People v. Riccardi, supra,
54 Cal.4th at p. 831.) Substantial
evidence supports the court's determination in this case. Britaini repeatedly maintained that, based on
Gina's prefatory remark and the conversation flow, she believed Gina was merely
relating what Vincent and Rojas said outside the hotel room. Britaini further testified nothing in Gina's
statements, voice, or mannerisms suggested otherwise. As the court reasoned below, Gina would not
have known about the planning behind or motive for the shootings unless Vincent
or Rojas told her. She also had no
reason to come up with the Colton incident as the motive on her own and nothing
in Britaini's hearing testimony suggested Gina went off on a tangent during
their conversation or was speculating about a possible motive. Ruvalcaba, therefore, has not established the
court abused its discretion in finding Gina's statements to Britaini were
sufficiently trustworthy and probative to be admissible.
II
Ineffective
Assistance of Counsel
A
Failure to
Request Court Strike Testimony
1
Patricia
testified Gina was particularly close to her boys and Vincent was particularly
close to Gina. Patricia also testified
Rojas was close to Gina. Patricia
explained, "They were all close to her.
They do whatever she says."
The prosecutor then asked, "How about [Ruvalcaba]? Was he close to her too?" Patricia responded, "He was close to
her. They're all close to her."
Because
Patricia also testified Gina intended to put a "green light" on Benge
for the Colton incident, defense counsel belatedly objected to Patricia's testimony
that Vincent, Rojas, and Ruvalcaba did whatever Gina said and asked the court
to instruct the jury the testimony was not offered for its truth. Alternatively, he asked that Patricia be
recalled as a witness and the court conduct a hearing on "the issue about
whether the boys do everything [Gina] tells them to, and why [Patricia] thinks
she knows that information." The
court indicated defense counsel was free to recall Patricia if he wanted to ask
her additional questions. Defense
counsel opted not to do so.
Later,
Britaini confirmed she too believed the three men did everything Gina told
them. When the prosecutor attempted to
explore the basis for Britaini's opinion, defense counsel objected. Following a sidebar hearing, during which
Britaini briefly testified about the basis for her opinion, and the court
sustained the objection. Then, defense
counsel again stated he should have objected to Patricia's similar testimony.
2
Ruvalcaba
contends Patricia's and Britaini's opinions that the three men did everything
Gina told them lacked foundation and, consequently, were irrelevant. Because defense counsel did not move to
strike these opinions, he contends defense counsel provided him with
ineffective assistance.
" 'The
law governing defendant's claim is settled. "A criminal defendant is guaranteed
the right to the assistance of counsel by both the state and federal
Constitutions. [Citations.] 'Construed in light of its purpose, the right
entitles the defendant not to some bare assistance but rather to
inadequacy of trial counsel. [Citation.]
[The California Supreme Court has]
summarized defendant's burden as follows: " 'In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel's performance was "deficient"
because his "representation fell below an objective standard of
reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing
from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome." ' " [Citation.] [¶] Reviewing courts defer to counsel's reasonable
tactical decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a "strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance."
[Citation.] Defendant's burden is
difficult to carry on direct appeal, as we have observed: " 'Reviewing courts will reverse
convictions [on direct appeal] on the ground of inadequate counsel only if the
record on appeal affirmatively discloses that counsel had no rational tactical purpose
for [his or her] act or
omission.' " ' " (People
v. Vines (2011) 51 Cal.4th 830, 875-876.)
The court
found and we agree Patricia's and Britaini's opinions that the three men did
whatever Gina told them were relevant in light of Patricia's testimony Gina intended
to put a "green light" on Benge because the opinions tend to prove
Ruvalcaba intended to kill Benge. As the
People point out, the testimony did not completely lack foundation as Patricia
and Britaini had known the three men and the Solorio family for a long time,
they lived in the Solorios' home, and Britaini had dated Vincent for several
years. Thus, they would have had personal
observations from which to form their opinions.
In
addition, the record shows the prosecutor could have supplied additional
foundation had the court required him to do so as Britaini's testimony during
the sidebar hearing demonstrated she had firsthand knowledge of Vincent, Ruvalcaba,
and Rojas committing violent acts at Gina's behest. The court was wary of allowing such testimony
as it could open up too many new areas of questioning. Nonetheless, had defense counsel pressed the
matter by moving to strike Patricia's and Britaini's opinions for lack of
foundation, the court might have allowed the prosecutor to elicit testimony
from them showing the bases for their opinions, which would not have aided
Ruvalcaba. Moreover, defense counsel was
able to substantially undercut Patricia's and Britaini's testimony on this
point by eliciting the gang expert's opinion Gina was unlikely to have
sufficient influence to obtain the requisite authorization for a green light on
Benge. (See fn. 4, ante.) Accordingly, contrary
to Ruvalcaba's assertions, the record demonstrates defense counsel could have
had a rational tactical purpose for not moving to strike Patricia's and
Britaini's testimony.
B
Failure to Object
to Gang Expert's Testimony
1
A key
defense theory in this case was that Ruvalcaba merely witnessed the killings
and did not plan or participate in them.
To support this theory, defense counsel elicited the gang expert's
opinion that Vincent's extreme closeness to Gina gave Vincent a personal motive
to avenge Benge's perceived disrespect of Gina and Vincent would have looked
weak if he did not do something about the perceived disrespect.
During his
redirect examination, the prosecutor followed up on defense counsel's
questioning:
"[PROSECUTOR]:
Based on what you know about the case, I mean, it was a particularly
offensive thing that was done to Gina; correct?
"[GANG EXPERT]:
Yes.
"[PROSECUTOR]:
[Defense counsel] was asking you about personal disrespect that
[Vincent] may have felt as a result of that happening; correct?
"[GANG EXPERT]:
Yes.
"[PROSECUTOR]:
Do you believe that [Rojas] might have been or felt disrespected by that
as well?
"[GANG EXPERT]:
Yes.
"[PROSECUTOR]:
Why?
"[GANG EXPERT]:
Because Gina was as much his mother as Vincent's mother. Vincent and [Rojas], for all intents and
purposes, were brothers. They are maybe
not of blood, but they lived together as brothers, acted as brothers, to
include [Ruvalcaba] as well. They were
always together, and we heard that in testimony. They are always together, and they treated
Gina, whether she was their birth mother or not, treated her as their mother.
"And that disrespect to Gina that she communicated
to Vincent, whether it be individually to each boy, or one, and then it went
out to the others, there is going to be anger associated with that. You disrespected my mother; therefore, you
disrespected me based on our relationship.
"[¶] . . . [¶]
"[PROSECUTOR]:
You indicated earlier that Ruvalcaba was considered one of her boys,
meaning one of Gina's boys; right?
"[GANG EXPERT]:
Yes.
"[PROSECUTOR]:
What did you mean by that?
"[GANG EXPERT]:
She had made that statement to both Britaini and Patricia. She's made that statement in court
proceedings that he's one of her boys.
"[¶] . . . [¶]
"[PROSECUTOR]:
So in your expert opinion, do you believe that [Ruvalcaba] could have
felt disrespected by [Benge's] actions?
"[GANG EXPERT]:
He could have, yes."
A short
while later:
"[PROSECUTOR]:
How do you think the incident in Colton might factor into whether or not
and to what extent this crime occurred, and whether or not it has anything to
do with [the CBR gang]?
"[GANG EXPERT]:
Well, I believe the incident in Colton was related to¾or
relayed to other members of the Solorio family, like I said, whether Gina told
Vincent or the three boys individually or together, she relayed the information
on what happened out there, and that [Benge], by all accounts, stepped away
from her when [Gina's husband] pointed a gun at her leaving her exposed and
vulnerable, and she took that as a sign of disrespect because [Benge] was
living in her home off and on during that time, and was, by Patricia and
Britaini's comments, good friends with the Solorio family to an extent. And that she communicated that disrespect, that
she left him out there¾or he left her out there exposed to [her husband] and
that gun.
"[¶] . . . [¶]
"[PROSECUTOR]:
Does the fact that there was this interpersonal relationship between all
three of them, and that Gina considered all three of them her boys, does that
factor into your opinion about what level of participation [Ruvalcaba] had in
this crime?
"[GANG EXPERT]:
Yes
"[PROSECUTOR]:
How so?
"[GANG EXPERT]:
I believe that he went to back his homey up. He knew of the incident in Colton through,
again, Gina or Vincent, and he may not have known that Vincent's intent was to
kill [Benge], but he knew that he was¾I believe he knew there
was going to be a confrontation between [Benge] and Vincent as a result of what
occurred in Colton."
2
Ruvalcaba
contends defense counsel provided ineffective assistance by failing to object
to the gang expert's redirect testimony because the testimony was speculative,
it improperly informed the jury of what the gang expert believed was Ruvalcaba's
subjective knowledge and intent, it involved subject matter which was not
beyond the jury's common experience, it did not assist the jury in its
determination of guilt, and it usurped the jury's function by telling the jury
how to decide the case.
However, part
of the challenged redirect testimony was intended to directly counter the
inference raised by the cross-examination testimony that Vincent was the only
one close enough to Gina to have a personal reason for killing Benge. A successful objection to this part of the
redirect testimony could have led the court to strike the related cross-examination
testimony, which would have undermined a key defense.
The remainder
of redirect testimony was intended to establish the killings benefited the CBR
gang. An expert is permitted to testify
about gang culture, habits, and the psychology of gangs and gang members. (People
v. Gonzalez (2006) 38 Cal.4th 932, 944; People
v. Valdez (1997) 58 Cal.App.4th 494, 506.)
This testimony typically takes the form of hypothetical questions, although
it is not necessarily improper for an expert to testify a particular defendant's
actions benefited a particular gang. (See
People v. Vang (2011) 52 Cal.4th
1038, 1048, fn. 4, citing People v.
Valdez, supra, at p. 507 [finding
the court did not abuse its discretion in allowing an expert in a complex case
involving concerted action by diverse gang members to testify the gang members
acted for the benefit of their respective gangs]; cf. People v. Spence (2012) 212 Cal.App.4th 478, 510-511 [disapproving
of question to an expert witness that was not in hypothetical form and appeared
to unduly focus on defendant as presumptively guilty].)
Had defense
counsel successfully objected to the gang expert's gang benefit testimony, the prosecutor
likely would have asked substantially similar questions in hypothetical
form. Defense counsel could have chosen
not to object because the risk of giving the prosecutor an opportunity to
further emphasize the information outweighed the benefit of the objection. Therefore, the record demonstrates defense
counsel could have had a rational tactical purpose for failing to object to the
redirect testimony.
C
Failure to Elicit
Favorable Testimony
1
Before the
former inmate testified, the court conducted a hearing to determine the
admissibility of the inmate's testimony.
At the hearing, the inmate testified Vincent claimed sole responsibility
for the killings. The inmate also
testified Vincent had mentioned there was another person with him when he
killed Benge and Benge's sister, but said the person was not involved and did
not know what was going to happen.
Prior to
the hearing, the inmate had not listened to the recordings of his interviews
with investigators or read summaries of them.
During the hearing, the prosecutor attempted to impeach the inmate's
testimony about Vincent's companion's level of involvement by asking the inmate
whether he recalled "saying something a little different than that about
the friend? You know, that friend's
level of participation in this whole thing?" The inmate said he did not recall and wanted
an opportunity to hear his statements "[b]ecause as of right this second,
I can't say I remember word for word everything I was told."
After a few
more similar "do you recall" questions by the prosecutor, the inmate
again asked to hear his statements to refresh his recollection. The hearing then quickly concluded and the
court determined the inmate's testimony was admissible.
Between his
hearing testimony and his trial testimony, the inmate refreshed his recollection
by listening to recordings and reviewing summaries of the statements he made
during his interviews with investigators.
When the trial resumed, defense counsel asked the inmate during direct
examination:
"[DEFENSE COUNSEL]:
You said on a couple of occasions [Vincent] referred to another¾just
one other person?
"[FORMER INMATE]:
That's what he referred to, yes.
"[DEFENSE COUNSEL]:
All right. Did he ever say
anything about that other person in terms of what that person¾where
that person was, or what the role was in that killing?
"[FORMER INMATE]:
No.
"[DEFENSE COUNSEL]:
Would it¾well,
did you¾do
you recall testifying, or giving a statement where you indicated that the
inmate¾being
the guy that's talking to you¾told you another Hispanic male was with them during the
double killing, but was only a witness?
"[FORMER INMATE]:
He¾he
was there, he didn't shoot. So, yeah, a
witness."
The prosecutor also probed this area on cross-examination:
"[PROSECUTOR]:
When you were speaking with him about the friend, did you¾well,
the impression that you got about the friend, based on your conversation with
him, did you get an impression about the friend and his involvement?
"[FORMER INMATE]:
I wasn't trying to form an impression about the friend. The only impression that I got, or can say
that I had, would be that he did not shoot the victims. I was listening to him, and just¾he
didn't really speak about the friend so much.
"[PROSECUTOR]:
And so when [defense counsel] talks to you about him identifying this
person as a witness, did he say those words, that he was a witness, or did he
say he was a friend that was with me, and you're articulating he was a witness
because he didn't shoot?
"[¶] . . . [¶]
"[FORMER INMATE]:
I would¾the
conversation took place three, four years ago.
I don't¾I
can't recall if he actually used the word 'witness,' or if this is a word that
I just used. Because he did not shoot,
in my mind, that makes him witnessing it, so he would be a witness.
"[PROSECUTOR]:
And that's what I'm getting at.
Are you saying that because he was there, the friend, according to this
person that you talked to, and because he didn't shoot, that, in your mind, he's
a witness?
"[FORMER INMATE]:
Correct?
"[¶] . . . [¶]
"[PROSECUTOR]:
But you're not inferring anything additional to that, right? Like there was no involvement on behalf of
the other person; right?"
After
sustaining defense counsel's objection to the phrasing of this question, the
court asked:
"THE COURT: . . . The
question is whether or not this individual that talked to you inferred
something other than him being a witness.
That's the question.
"THE WITNESS:
Just that he was there. I mean,
he didn't pull the trigger. That's all
he was saying. That he, himself, pulled
the trigger on both of them."
2
Ruvalcaba
contends defense counsel provided
ineffective assistance by failing to elicit favorable trial testimony
comparable to the inmate's favorable hearing testimony that Vincent claimed
sole responsibility for the killings and the friend who was with him had no involvement
in the killings. However, based on the
questioning detailed above, it appears defense counsel tried to elicit
comparable testimony, but simply was not successful. Defense counsel's lack of success appears
attributable to the inmate's refreshing of his recollection between the hearing
and trial. Because the inmate readily acknowledged
during the hearing he did not have an accurate recollection of his conversation
with Vincent, defense counsel was not able to impeach the inmate with his
hearing testimony. Nevertheless, defense
counsel was able to elicit testimony from one of the investigators who
interviewed the inmate. The investigator
testified that the inmate told him Vincent said another Hispanic male was with Vincent
during the killings, but only as a witness.
Accordingly, the record does not show defense counsel's failure to
elicit the desired testimony resulted from objectively deficient performance.
DISPOSITION
The judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
name="_ftn1" title="">[1] Further statutory references are also to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] This was Ruvalcaba's second trial. He was previously tried with codefendant
Ralph Rojas. The first jury convicted
him of two counts of first degree murder.
We reversed his conviction after concluding the court prejudicially
erred in admitting double hearsay statements against him. (People
v. Solorio (Aug. 9, 2011, D056842) [nonpub. opn.] (Ruvalcaba I).)
