P. v. Vega

























Filed 4/23/13 P. v. Vega CA4/3



















NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.











IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. LEONEL VEGA, Defendant and Appellant.

G045613 (Super. Ct. No. 07CF2786) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.

Leslie Conrad, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.



A jury convicted Leonel
Vega of first degree murder and active
participation in a criminal street gang,
and found true allegations he vicariously discharged a firearm causing death,
committed murder for the benefit of a criminal street gang, and murdered the
victim to further the activities of a criminal street gang.

After denying his new
trial motion, the trial court sentenced Vega to life without the possibility of
parole for the murder, plus 25 years to life for gun use, and a concurrent
two-year term for active participation in a criminal street gang, which the
court stayed pursuant to Penal Code section 654.

Vega argues the trial
court abused its discretion and violated his state and federal Constitutional href="http://www.fearnotlaw.com/">rights to due process and to present a
defense by excluding the testimony of two defense expert witnesses on the
culture of inmate informants. We find no
error and affirm the judgment.



FACTS



>The Prosecution’s Case

One evening in March
2004, Giovani and Andrew Onofre and Hector Lopez decided to play basketball at
Memorial Park in Santa Ana, an area
claimed by both the Alley Boys and Delhi
criminal street gang members. The three
teenagers played basketball until it got dark.
They tried to get a ride home, but ended up waiting for a bus at a
nearby bus stop. While they were waiting
for the bus, a white Lincoln Town Car pulled up in front of them. Vega, an active participant in the Delhi
gang, was a passenger in the car. He
made a “D” handsign, although it is not clear Giovani saw him do this.

According to Andrew and
Lopez, Giovani thought he knew someone in the car, and mentioned that they were
stopping to give them a ride home. When
he approached the car and said, “what’s up[,]” Vega got out of the car and
asked the three where they were from.
Giovani said he was from Alley Boys.
Vega got back into the car, said something to the driver, and grabbed a
semiautomatic handgun. He fumbled with
the gun, which gave Giovani a chance to run and jump over a brick fence. Andrew and Lopez ran in the opposite
direction and hid behind some dumpsters.


Vega got back into the
car, and the car made a U-turn. Lopez
saw the car circle the park a couple of times, and he thought the car’s
occupants were after them. Lopez
searched for Giovani without success, and either he or Andrew used a cell phone
to call the police. Police officers
responded within minutes. Andrew heard a
gunshot over the police radio, and Lopez heard there had been a homicide in
another location.

Santa Ana Police
officers found Giovani dead close to a construction site a short distance from
the bus stop. He had been shot in the
head and there was a spent nine-millimeter Speer brand shell casing about 20
feet from his body. A worker at the
construction site heard a gunshot and then saw a white Lincoln Town Car drive
by, run a stop sign, and disappear from sight.


A few days later, a
police officer on patrol in the area of Broadway and Anahurst Streets in Santa
Ana saw a white Lincoln Town Car that matched the
description of the car involved in the homicide. The officer attempted to make a traffic stop,
but the car sped away. After a
high-speed pursuit through a residential area, the car pulled to the curb and
Vega got out and ran away. He was
apprehended by other officers, and as he was escorted to the police patrol car,
Vega yelled, “This is Delhi.”

During a search of the
car, officers found a .380-caliber handgun, a package of live ammunition, which
included .357 magnum cartridges, 14 Speer nine-millimeter cartridges, and nine Winchester
nine-millimeter cartridges, in the driver’s door interior panel. A .357 revolver was found in the right front
passenger seat. The investigating
officers noted the car had a missing front grille, other damage to the front
end, and a donut spare tire mount on the right front wheel, details Lopez and
Andrew either did not notice or mention.


Lopez said the car had a
V-shaped antenna on the back of the car, something Vega’s car lacked, and he was
unable to positively identify Vega’s car at trial. However, he had identified Vega’s car from a
photograph in 2004, and the photograph did not show an antenna of the type
Lopez described. He identified Vega as
someone resembling the shooter from a photographic lineup in 2006.

Andrew remembered a
white, two-door car with a “V” antenna on the back, but he did tell police
officers Vega’s car looked very similar to the one involved in the
shooting. In 2007, he identified Vega
from a photographic lineup, although he also told police officers the passenger
in the car was of a darker complexion and appeared younger than the people in
the lineup. At trial, he identified Vega
and said, “I can’t forget his eyes.”

Rocky Edwards, a
forensic firearm and tool mark examiner, analyzed and compared the cartridge
casing found at the homicide scene with the live cartridges recovered from the
car Vega was driving. He found that the
fired cartridge case had the same bunter mark as six of the unfired Speer
nine-millimeter cartridges. This fact,
according to Edwards, indicates the spent nine-millimeter cartridge found by
Giovani’s body was made by the same machine in the same factory as the six
unfired Speer cartridges. Edwards also
matched extraction marks from five of the unfired Winchester
nine-millimeter cartridges found in the car to extractor marks on the cartridge
casing from the homicide scene, which indicated they had been cycled through
the same gun.

Julio Ceballos, another Delhi
gang member, testified he saw Vega at a Delhi
gang gathering the day after the shooting.
Vega was holding up a newspaper from the day before, referred to an
article about the homicide, and bragged that he had been the shooter. Vega claimed he killed an Alley Boys gang
member, and he said Joey Soto,href="#_ftn1"
name="_ftnref1" title="">[1] another Delhi
gang member, was with him at the time.
Ceballos also said Vega had a .357 revolver at the party, but he claimed
to have used and then dumped a nine-millimeter, slide-action handgun to kill
the Alley Boys gang member.

Johnny Belcher, a former
member of the Delhi gang who had
known Vega for about 16 years, talked to Vega while they were both in jail for
their respective criminal cases. Belcher
acknowledged a grant of use immunity in exchange for his testimony. According to Belcher, Vega told him that he
and Soto were driving around a rival gang’s neighborhood, looking for rival
gang members, when he came across a “youngster” at a bus stop. He pretended to be from the Alley Boys gang,
a fierce rival of the Delhi gang,
and asked the youngster and his companions if they wanted a ride. Vega said he convinced one of the boys to get
into the car, then drove him to a neighborhood by some train tracks and shot
him in the head.

Oscar Moriel, another Delhi
gang member, also had conversations with Vega when they were both
incarcerated. He wrote down some of what
Vega told him, including threats Vega made against Ceballos to dissuade him
from testifying. Vega told Moriel he had
murdered someone when “he was cruising around the Memorial Park area with my
homeboy [Soto].” He said that he and
Soto “were looking for fools from Alley Boys to smoke, to kill.” He saw some people standing around the bus stop,
pretended to be from the Alley Boys gang, and asked the group where they were
from. They said, Alley Boys. Vega said
they should “‘go bang on them hypes.’
Hypes is a derogatory term [that] was used for – against Delhi,
Delhi gang members. ‘Let’s go bang on the hypes. Let’s go fuck up them cats.’” One of the group got into the car. Moriel stated Vega told him “[w]hile they
were cruising around, [Vega] and [Soto] were telling this dude, ‘yeah, fuck the
hypes. Let’s go smoke a hype.’ Showing ‘em the guns, saying there were
strapped and shit. [¶] And when – when
the dude was telling ‘em – you know, dissing – dissing the varrio, dissing Delhi,
[Soto] and [Vega], they stopped. They
say, ‘let’s get off right here.’ And the
guy got off and [Vega] smoked him.”

The parties stipulated
that Delhi was a criminal street
gang within the meaning of Penal Code section 186.22. A gang expert opined Vega committed the
instant murder for the benefit of the Delhi
gang and in association with other Delhi
gang members.



>Defense Evidence

Vega did not testify at
trial. Family members testified his
white Lincoln Town Car had been inoperable on the day of the homicide, and he
had been at home working on the car.
Randall Marquez, a passenger in Vega’s car when he was arrested,
testified the guns and ammo found in Vega’s car belonged to him. Marquez had pled guilty to gun and gang
charges arising from this arrest.

Belcher had testified he
got out of jail on bond the day after he contacted authorities in an attempt to
snitch on Vega. Vega called his fiancé
to testify she paid the bond, not Belcher’s friend. Vega also called two defense private
investigators in an attempt to impeach Ceballos. One of these investigators said Ceballos
refused to talk to him. Vega also
presented evidence none of the fingerprints taken from the outside of his car
matched Giovani’s prints, and the fact Andrew had once pointed to a different
Delhi gang member in a photographic lineup as the person most closely
resembling the person who got out of the Lincoln Town Car and brandished a gun.

Vega also called two experts
on eyewitness identifications. These
witnesses testified to the factors affecting the accuracy of eyewitness,
including the affect of fear and gun focus on facial recognition. One of the experts also stated eyewitnesses
are subject to error in identifying people from photographic lineups, depending
on how they are questioned. The other
expert testified eyewitnesses are the least reliable means of identification,
stating, “It works at about the level of flipping a coin.”

In addition, defense counsel
vigorously cross-examined the eyewitnesses, Lopez and Andrew, and the
prosecution’s informants, Belcher, Ceballos, and Moriel. With respect to the informants, Belcher
admitted testifying under a grant of use immunity, which he knew precluded any
prosecution as a result of incriminating statements he might make during his
testimony. Belcher also admitted
committing “violent crimes,” including crimes related to his gang
lifestyle. He also conceded the Santa
Ana Police Department had provided financial assistance to him in the form of
$800 per month for rent from the time he was released from jail in May 2009
through October 2010. He acknowledged
his pending drug charges, admitted he did not want to go back to jail or state
prison, and conceded he wrote down his conversations with Vega and turned over
this document to a detective from the Santa Ana Police Department.

Ceballos was serving a
term of 33 years to life for being convicted of a felony firearm offense when
he testified. Although he received no
promises for his testimony, Ceballos admitted pursuing jail authorities with
information about Vega in an attempt to get a break on his sentence.

Moriel testified in
ankle chains due to his incarceration on a pending attempted murder charge, a
crime which he knew carried the risk of a life sentence. He said he hoped his cooperation with the
prosecution would result in a reduction in the pending charges or leniency at
sentencing. Although Moriel claimed
membership in the Delhi gang, he
said he had not met Vega until he was incarcerated and spent two weeks in the
“hole” with him when both were sent into isolation for disciplinary
violations. Later, they were housed in
an area with single-man cells and limited prisoner contact. However, during this period, Vega would often
stand at Moriel’s cell door and talk.

Moriel also said he had
contemporaneous “involvement” with officials conducting state and federal
criminal investigations, but testified none of the authorities he contacted had
promised him anything in exchange for his testimony in Vega’s case. He also acknowledged his jailhouse informant
status, stating he had been working with state authorities, or “handlers,” for
about six months when Vega crossed his path.
Moriel said he had informed on another inmate charged with murder, and
at least one other person charged with a lesser crime. He also testified about his own numerous
prior criminal offenses, including five previously unsolved homicides. And, he admitted prisoners often exchange paperwork
when incarcerated, but asserted they did so “to verify who we
are . . . .
Basically you exchange paperwork with somebody to let them know that
you’re not a rat and you’re not a child molester, you’re not a rapist; that
you’re an upstanding person as far as our code goes.”



DISCUSSION



As part of the defense
case, Vega sought to introduce the testimony of Steven Strong, a former Los
Angeles Police Department homicide gang investigator with over 20 years
experience and expert on jailhouse informants, and Alexandra Natapov, “an
academician expert who was very familiar with the federal system and the state
system who is qualified in the area of jailhouse informants in federal
courts.” The stated purpose for their
testimony was to assist the jury in its credibility assessment of the
prosecution’s informants by providing evidence about how the jail setting
creates unique opportunities for them to obtain information about other
inmates, their sophisticated methods of obtaining information, and the incentives
and conditions that may compel them to manufacture evidence.

After hearing Strong’s
qualifications and the arguments of defense counsel, the trial court
characterized his proposed testimony as “collateral impeachment,” “confusing,”
and an attempt to allow Strong to render an opinion the witnesses testifying
under grants of immunity were lying. The
court also noted these witnesses had already testified about how they gathered
information and parlayed this information with authorities.

Nevertheless, the court
decided to hold an Evidence Code section 402 hearing outside the presence
of the jury to allow counsel to voir dire Strong. During this hearing, defense counsel elicited
Strong’s qualifications, including the fact he had handled between 25 and 30
jailhouse informants. He had testified
as an expert witness on jailhouse informants in over 25 cases. Half of these informants were in federal
institutions and the other half were in state institutions.

With respect to federal
prisoners, Strong was aware of various incidences where the informant was given
a percentage of money recovered by the government. He stated, “just for instance, if they
recover over a million dollars worth of cash in a drug case, or something of
that nature, they’ll get anywhere from 10 to 20 percent of that.” He also testified the advantages of federal
incarceration over state incarceration, including better facilities, less
overcrowding, better food, and other amenities.


In Strong’s opinion, the
number one motivation for jailhouse informants to testify is, “a reduced
sentence or totally no sentence at all.”
He also somewhat discounted the testifying informant’s fear of
retaliation, stating, “the threat to themselves wasn’t so much of a personal
safety issue because their relationship to the actual case or the people
involved in the case. Sometimes they
were from another county, so they wouldn’t have encountered the
person . . . .” He
claimed some informants lied to him, claiming they had family to protect when,
in fact, they did not have a family.

Strong also testified
jailhouse informants use another inmate’s paperwork, including their mail, in
an attempt to get information about the other person’s case. They reach out to the detectives in
particular cases and “shop their information to see if it’s useful or not or to
see if there’s anything that you’re lacking or you’re seeking to firm up your
case if you don’t have a solid case.” He
also believed informants sleuth-out which defendants have active cases, try to
determine what would be useful to law enforcement detectives, and then attempt
to obtain that information. Strong also
said jailhouse informants were not the best witnesses because of their
extensive criminal records, “So if you don’t need them, you always truly try to
avoid using them . . . .”


Strong admitted he knew
little to nothing about the instant case, including anything about these
particular jailhouse informants. After a
short cross-examination, the trial court ruled, “My mind hasn’t been changed. The one additional opinion was concerning the
strength of the prosecution’s case. I
don’t think an expert can render such an opinion as to whether or not
informants should be used to bolster a weak case. Certainly not this witness. [¶] There is nothing in his testimony that is
not otherwise obvious or hasn’t already been testified to.”

After this ruling,
defense counsel gave an offer of proof for Natapov’s testimony. He said her expertise stemmed from research
about informants in federal courts, and her testimony would be “generic.” The court responded, “I liken that to someone
coming in and testifying about people who are wrongly convicted as it turns
out. That is not admissible, nor would
that be admissible.”

The following day,
defense counsel submitted a declaration and curriculum vitae from Natapov as an
additional offer of proof for her testimony.
The court read the documents and stated, “[Natapov’s declaration] is
largely anecdotal and offers her opinion that jailhouse snitches are inherently
unreliable. Her final opinion that ‘the
use of criminal informants as witnesses, particularly jailhouse informants
tends to make it more likely that innocent defendants would be wrongly
convicted,’ I don’t believe that’s a proper subject of expert opinion. I will exclude it.”







>Legal Analysis

> Vega
argues the trial court abused its discretion and violated his Sixth and href="http://www.fearnotlaw.com/">Fourteenth Amendment rights under the
United States Constitution by excluding the testimony of Strong and Natapov.href="#_ftn2" name="_ftnref2" title="">[2]

Citing Evidence Code
section 801, Vega contends, “[t]the culture of inmate informants,
including their unique opportunities, the methods they use to obtain
information, and the incentives and conditions that may compel them to
manufacture evidence, is sufficiently beyond the common experience of jurors
that expert opinion on the matter would be of assistance in evaluating the
informants’ testimony. [Citations.]” He also relies on People v. Curl (2009) 46
Cal.4th 339 (Curl) and >People v. Chacon (1968) 69
Cal.2d 765 (Chacon) in his
quarrel with the trial court’s adverse ruling, and he relies on Evidence Code
section 780, subdivision (f)href="#_ftn3"
name="_ftnref3" title="">[3] to assert he has an
“absolute right” to explore a witness’s bias.
None of these contentions has merit.

The primary problem is
Vega essentially ignores the standard of review applicable to claims of
evidentiary error. Under
well-established principles, the trial court has broad discretion
in deciding whether to admit or exclude expert name="SR;20320">testimony (People v. Bui (2001) 86 Cal.App.4th 1187,
1196), and its decision as to whether expert name="SR;20341">testimony is admissible is subject to review under the name="SR;20352">abuse of discretion standard. (People v. Alcala (1992) 4 Cal.4th
742, 788-789.) Thus, to warrant reversal,
Vega must establish the trial court ruled “‘in an arbitrary, capricious or
patently absurd manner that resulted in a miscarriage of justice. [Citation.]’”
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124-1125.) Vega
cannot demonstrate an abuse of discretion warranting reversal here.

It is true that to be
admissible, expert opinion testimony
must be “[r]elated to a subject that is sufficiently beyond common experience
that the opinion of an name="citeas((Cite_as:_54_Cal.4th_395,_*426,_2">expert would assist the
trier of fact.” (Evid. Code, § 801,
subd. (a); People v. McDowell
(2012) 54 Cal.4th 395, 425-426.)
However, the tenuous credibility of informants is not a matter
sufficiently beyond common experience such that expert testimony must be
admitted for the jury’s understanding.
In fact, the trial court here gave two standard jury instructions
specifically directed at this issue.
(CALCRIM Nos. 336, 337.) Among
other things, CALCRIM No. 336 specifically told the jury to view the testimony
of an in-custody informant “with caution and close scrutiny,” but that the mere
fact a witness is in custody alone does not make the witness more or less
believable. Moreover, the court gave
other instructions telling the jury how to judge the credibility of witnesses,
which included CALCRIM No. 226, a standard instruction based on Evidence Code
section 780.

The two cases cited by
Vega do not compel a different conclusion.
In Chacon, one prison inmate,
Smith, was stabbed by four other inmates during a fight. (Chacon,> supra, 69 Cal.2d at p. 770.)
The prosecution called Smith as a witness, but he told the jury he
started the fight and Chacon had not been involved. He denied implicating the defendants when
questioned by a correctional officer, and he said he had no fear of testifying
against them. (Id. at p. 779.) The
court permitted a correctional officer, Officer DeBord, to testify about a
conversation he had with Smith about a month after the stabbing in which Smith
never mentioned he had started the fight, told the officer all four inmates had
stabbed him but declined to testify for the prosecution because he did not want
to be an informer, and if called to testify would do so in favor of the
inmates. (Ibid.) The court also
permitted the prosecution to call another correctional officer, Officer Weber,
to testify about the “‘convicts’ code,’” which he “described as an unwritten
rule that prison inmates be silent about prison disciplinary matters,” and
often resulted in prisoners refusing to make any statements implicating their
fellow inmates. (Ibid.)

The California Supreme
Court reversed the judgments as to both guilt and penalty phases because the
trial court refused to provide separate counsel for each defendant. (Chacon,> supra, 69 Cal.2d at pp. 773-776.)
The court then went on to address other issues it believed could arise
on retrial, including the admissibility of Smith, DeBord, and Weber’s
testimonies. (Id. at pp. 779-780.)
The court found Smith’s testimony admissible as proper impeachment of
the prosecution’s own witness (Evid. Code, § 785), and DeBord’s testimony
admissible as evidence of prior inconsistent statements (Evid. Code,
§ 780, subd. (h)) and as evidence of bias (Evid. Code, § 780, subd.
(f)). (Chacon, supra, 69
Cal.2d at p. 780.)

As for Weber’s
testimony, the high court stated, “Weber testified to conditions generally
existing in prisons and their effect on the veracity of prisoners. His testimony was relevant [citation], and
was admissible to show circumstances affecting the bias of the witness. [Citations.]
The trial court did not abuse its discretion in finding that Weber was
qualified as an expert.
[Citations.]” (>Chacon, supra, 69 Cal.2d>. at p. 780.)

The above-quoted passage
from Chacon does support Vega’s
argument, but we question the precedential value of these musings about
possible issues that might have arisen during a retrial in Chacon. Certainly, the
court’s preventative observations do not equate to a rule requiring trial
courts to admit expert witness testimony to prison conditions and the general
veracity of prisoners whenever the prosecution calls an informant to testify
about a defendant’s incriminating statements.


Furthermore, Vega
ignores the expansive and elastic limits of the abuse of discretion standard of
review. Under this standard, a trial court’s
ruling, even if it is diametrically opposed to a ruling on the same issue in a
different proceeding or court, will be accorded the same level of deferential
scrutiny on appeal. In other words, the
fact the California Supreme Court found the trial court’s evidentiary ruling to
be within its discretion in Chacon does
not necessarily mean the opposite ruling here requires a reversal of the
judgment.

The Curl case is equally unpersuasive.
In Curl, the defendant’s
fellow inmate, David DeSoto, contacted the county prosecutor’s office in an
attempt to exchange a reinstatement of his bail for testimony about Curl’s
confession to a murder, his explanation of the motive for the murder, and
details he gave about the crime. (>Curl,
supra, 46 Cal.4th at p. 347.) On appeal, Curl challenged DeSoto’s testimony
on grounds the prosecutor failed to produce notes he had made to memorialize
his conversation with DeSoto and suborned perjury by calling him as a witness,
and argued the trial court committed misconduct because it ruled the
prosecutor’s notes were not discoverable.
(Curl, supra, 46
Cal.4th at pp. 352-357.)

In addition, Curl
complained because the trial court denied his request to call a private
investigator, as an “‘expert to explain how an inmate informant can obtain
information used to concoct a confession that was never made.’” (Curl,> supra, 46 Cal.4th at p. 357.)
Curl argued the investigator’s testimony would have been relevant to
explain how DeSoto could have manufactured Curl’s confession by assembling
information about him. (>Ibid.)
The trial court ruled the proffered testimony irrelevant, speculative,
improper opinion about DeSoto’s credibility, and invading the province of the
jury. (Ibid.)

The California Supreme
Court upheld the trial court’s decision in Curl
because such evidence was inadmissible on the issue of DeSoto’s
credibility, and “[t]o the extent the purpose of the testimony was to
demonstrate how inmate informants confabulate testimony,” the defendant failed
to provide a sufficient foundation for admission in the absence of evidence
DeSoto was a repeat inmate informant, or other evidence contradicting his
testimony that defendant was the sole source of his information. (Curl,> supra, 46 Cal.4th at pp. 359-360.)

Here, unlike in >Curl,
neither expert could have provided evidence contradicting the informants’
testimony that Vega’s own statements were the sole source of their
information. The informants steadfastly
denied using his paperwork and the rumors of others to concoct incriminating
statements. The experts had opinions
about how such fabrication could be done, but there was no evidence these
particular informants utilized those methods.
Moreover, of the three, only Moriel might have qualified as a repeat
inmate informant. He claimed to have
informed on others and to have worked with federal authorities, but there was
no evidence his purported work resulted in any benefit to him. Thus, Vega fails to adequately demonstrate
Strong or Natapov’s expert testimony would have assisted the jury in its
determination of the informant’s credibility.
It follows the trial court did not abuse its discretion in excluding
these witnesses under Evidence Code section 801.

Furthermore, the court
properly weighed the probative value of the proffered testimony against the
other factors pertinent to an Evidence Code section 352 analysis, namely
that the experts’ testimony was cumulative of other evidence, confusing, and
improper. The court gave clear reasons
for excluding the experts’ testimony under Evidence Code section 352, and
none of them constitute an abuse of discretion.

Finally, even assuming
error, we conclude the error did not result in a miscarriage of justice. (Evid. Code, § 354.) Eyewitness testimony and circumstantial
evidence linked Vega to the hit-up at the bus stop and the subsequent
murder. He was arrested in a car very
closely matching the description of the suspect vehicle with any differences
explainable by the witnesses’ failure of recollection, or some changes in the
car during the time between the murder and Vega’s arrest. There was quite a cache of guns and
ammunition in the car, some of which matched the type and characteristics of
the ammunition used to kill Giovani.
Vega bragged that he killed what he thought was a member of a rival
gang, and the informants’ testimony was markedly similar as to Vega’s method
and motivation for the crime, facts which did not come out through the
testimony of investigating officers.
Vega attacks the credibility of the eyewitnesses because of
discrepancies in the evidence and their recollection of a crime committed
nearly seven years before the trial, but we must defer to the jury’s
credibility determinations if supported by substantial evidence. (See People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
And, Vega’s alibi evidence included the testimony of openly biased
witnesses, namely family members.
Considering the strength of the prosecution evidence, Vega’s rather
tepid alibi defense, and defense counsel’s thorough cross-examination of the
eyewitnesses and informants, we are convinced any error was harmless under
state evidentiary rules, and did not violate state and federal Constitutional
guarantees to due process and the presentation of an adequate defense.



name="SDU_360">DISPOSITION



The judgment is
affirmed.







THOMPSON,
J.



WE CONCUR:







MOORE, ACTING
P. J.







ARONSON, J.