P. v. Zapata

Filed 1/9/09 P. v. Zapata CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Paul Zapata was convicted of first degree murder and sentenced to imprisonment for 50 years to life. On appeal he contends that numerous errors were made in the admission of evidence and other matters. We find no error in the murder conviction, but direct certain modifications in the judgment with respect to a simultaneous conviction for battery.

Background

On May 18, 2001, Juan Trigueros drove from his home in Soledad to Gilroy, where he attended an electronics class. After class Trigueros joined a classmate, Magdaleno Barajas, for dinner and drinks. He drank a good deal; his blood alcohol level was later measured at .18, which is more than twice the level for drunk driving. (See Veh. Code, 23152, subd. (b).) In the evening, while driving in quest of beer, he hit a curb and punctured both right-side tires. Since there was only one spare tire, and it was too late to repair or replace a second tire, the car was effectively disabled. Barajas called a friend for a ride home. Trigueros declined a ride, saying he did not wish to leave his car unattended. About 9:30 p.m., Barajas left him near a Beacon gas station on Leavesley Road in Gilroy.

Fatefully, Trigueros was wearing a jersey emblazoned with the numeral 8 in honor of basketball star Kobe Bryant. An expert testified that the neighborhood in which he had stranded himself was claimed as turf by Outside Posse (OSP), a local clique of the Norteos street gang. The principal local clique of the rival Sureos gang was Calle Oche (Eighth Street), one of whose identifying signs was the numeral 8. By wearing that symbol in OSP territory, Trigueros made himself, in the experts words, a marked man.

Around 2:00 a.m., Trigueros called Marissa Villagomez, whom he had been dating, from a phone booth in the parking lot of a 7-Eleven on Leavesley Road. He told her he would not be able to see her because he had a flat tire. After conversing for 10 or 15 minutes, he abruptly stopped talking and the line went dead.

At about that time Brian Puphal was making a stop at the 7-Eleven so that a friend, whom he was driving home, could buy tobacco. As Puphal approached the store, he saw one man talking on the telephone while another was yelling at him and [r]aising his arms in anger. Puphal stopped his pickup about 40 feet away with its headlights pointed directly at the two men. He saw the yelling man pull a pistol from his waistband and shoot the other from a distance of two to three feet.[1]The victim twisted but did not fall. The gunman fired a second shot from about six feet. The victim staggered into the store. The gunman looked directly at Puphal for a few seconds before running through a nearby car wash. Shortly thereafter a white pickup drove slowly past the 7-Eleven. Puphal entered the store, where he saw Juan Trigueros lying dead on the floor. Puphal described the gunman to police, and within a few days of the shooting described him to police sketch artist Gilbert Zamora. He was sure that the gunman had a scraggly goatee. He testified that a June 2001 photo of defendant could be the gunman. However, he had failed to identify defendant in a pretrial photographic lineup.

Joseph Morton was working at a gas station and convenience market near the 7-Eleven when he heard gunshots. He saw a man walk nonchalantly from the direction of the 7-Eleven, looking backwards as though associated with the shots in some way. The man walked about half a block in Mortons direction before getting into the passenger seat of a white pickup or SUV, which quickly drove away. Morton called 911.

Army recruiter Felipe Davila was making a purchase in Mortons convenience market when he heard at least two shots from what sound[ed] like a nine millimeter. Apparently unable to credit this perception, he completed his transaction, which took [a] few seconds. He then heard a screeching noise and ran outside in time to see a white truck being driven in a crazy manner. It started to make a right turn, but resumed its original course after hitting a traffic island hard enough to damage the right tires. Davila described the truck as a white pickup with a chrome bumper and Toyota on the tailgate in blue letters. About a month before trial, police showed him defendants pickup. As Davila walked toward it he said it resembled the truck he had seen on the night of the shooting, and that if he was right it should have some damage on the tires. Consistent with this expectation, there was damage to the right-side tires.

Defendant belonged to OSP. Evidence was received concerning several violent offenses, in which defendant participated, that were committed for the apparent benefit of OSP. Nancy Echeverria, who described defendant as her former boyfriend, testified that on the night of the Trigueros shooting she accompanied him to a barbecue at an OSP members home a few blocks from the 7-Eleven. Defendant left between 10:00 and 11:00 p.m. to drive a friend to work. Echeverria left soon after.

Sarah Sanchez (ne Valdez), a former associate of OSP members, testified that in May or June of 2001shortly after the shootingshe saw defendant at the Ramirez family ranch near Gilroy, where he asked her to do him a favor by driving his truck to Stockton or Manteca. She asked him why, and he replied that he had shot somebody at the 7-Eleven and needed to get rid of the truck. She thought he was joking until some time later, when she saw a newspaper report on the shooting. That fall she saw defendants truck, or one like it, parked on a Manteca street near the home of the mother of Rico Clarke, an OSP member whose gang nickname was Sparkie or Sparky.

Victoria Lopez, who was married to but separated from another OSP member, testified that defendant had driven a white pickup in the spring of 2001, but drove a black Taurus after May of that year. She acknowledged that, prior to trial, she had told Police Detective Daniel Zen that she believed defendant was the killer of Trigueros because his pickup had disappeared immediately after the shooting. She did not recall telling the detective that defendants truck had broken down at the Stockton home of Rico Clarke. Nor could she recall whether defendant had ever worn a goatee. The jury heard a recorded interview in which Sanchez told Zen that she kind of th[ought] it was stupid Paul who killed Juan Trigueros, and that right after the murder, while defendant was visiting the home of Sparkie, defendants truck broke down. Lopez told Zen that Sparkie gave defendant a black Taurus to use.

Nancy Echeverria testified at trial that she saw defendant driving his truck the day after the shooting, but before trial she had told a detective that the truck was gone the day after the shooting and that she had been told it was at the Stockton home of Rico Clarke and his wife Olga. She also acknowledged having told the detective that defendants clothing that night matched that of the shooter as given in news reports, that the police sketch looked just like defendant when he was trying to grow a goatee, and that whenever she asked defendant about the shooting, he got weird and said, I dont know what you're talking about.

Detective Zen, who was the lead investigator on the case, testified that he first interviewed Echeverria after learning that she had called a police tip line about the killing. When he showed her the artists sketch of Juan Trigueross killer, she laughed or chuckled. He testified that when he asked her to explain, She said, it looks like him [defendant] and that was when he was trying to grow a goatee. She pointed to his chin area on the police sketch. Zen surreptitiously recorded a second interview, which was played for the jury. In it Echeverria referred to various circumstances tending to incriminate defendant, including that the truck was gone the very next morning or next day.

In December 2002 Echeverria told Detective Zen that defendants truck was at the Morgan Hill apartment of defendants then-current girlfriend, Priscilla Pena, and his friend, Eric Garcia. Zen went there and photographed the pickup. When he returned a few months later it was gone. He later tracked it to the Morgan Hill address of Penas sister Elizabeth, where police seized it in March 2003. Zen also testified that when he told Echeverria she would probably be subpoenaed for the preliminary hearing, she said that she would refuse to testify, or would testify falsely, out of fear of defendant and his friends.

Several defense witnesses testified to the effect that defendant had little if any facial hair, had never attempted to grow a goatee, and according to one witness, could not grow a moustache, or at best could grow a small one. However a booking photo of defendant taken in June 2001 depicts a somewhat sparse but distinct dark moustache. The defense also noted that whereas the police sketch of the suspect depicts what looks like a bead necklace, Nancy Echeverria testified that defendant did not wear jewelry of any kind. However, other photographs in evidence show a long tattoo just above the collarbone that might be suggestive of a necklace. Puphal testified that he told the sketch artist the feature could have been something like a neckline. At the preliminary hearing, however, Puphal testified that it had looked more like beads and not a tattoo . . . .

After further proceedings described more fully below, and after deliberating for about three hours, the jury returned a verdict of guilty of first degree murder.[2]The court sentenced defendant to two consecutive terms of 25 years to life.

Discussion

I. Hearsay Evidence of Other Crimes

Defendant contends that the prosecutions gang expert, Geoff Guerin, should not have been permitted to testify concerning various hearsay accounts of gang-related offenses in which defendant was involved, or the jury should at least have been admonished not to accept such testimony for the truth of the matters asserted. Defendant acknowledges that this point was not raised below, but asserts that this court should either grant discretionary relief from the resulting forfeiture, or should find that he was the victim of ineffective assistance of counsel.

We begin with the indisputable fact that insofar as the experts testimony might be considered for any purpose other than as the basis for his expert opinion concerning applicability of the anti-gang statutes, it was objectionable. Defendant is thus correct to assert that, on objection, the testimony could have been excluded or, more probably, admitted for that limited purpose, as reflected in limiting instructions to the jury. Insofar as the testimony was not hearsay on its faceexplicitly recounting such out-of-court statements as police reportsit manifestly lacked any foundation in the witnesss firsthand knowledge, since there was no suggestion that he witnessed any of the described crimes or had any other way of directly observing them.

It does not follow, however, that counsel should have objected to this testimony, or that his failure to do so constitutes ineffective assistance of counsel. Counsel cannot be held to have performed deficiently if there was a rational tactical purpose for the challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 437.) For deficient performance to appear on direct appealas distinct from on habeas corpus, where extrinsic evidence may be receivedthe record must affirmatively demonstrate that counsel lacked a rational tactical reason for the challenged conduct. (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541; see People v. Viray (2005) 134 Cal.App.4th 1186, 1212.) There is no suggestion here that counsel was ever called upon to explain his acquiescence in the admission of the challenged evidence. Accordingly, for the present argument to succeed, the record must dispel any reasonable possibility that counsel might have acted for a reasonable tactical purpose.

A hearsay or foundational objection goes to the form of evidence. It assumes that the substance of the evidence would be admissible if presented in a different mannermost obviously, by the live testimony of one with personal knowledge of the subject. Here defendant does not suggest that the substance of the officers testimonythe fact of the other offenses, and defendants involvement in themwas not admissible. He seems to concede the opposite by acknowledging that there were . . . several valid bases on which evidence of prior crimes could have been admitted, including to show motive or intent. (Evid. Code 1101, subd. (b); People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049; People v. Robbins (1988) 45 Cal.3d 867.) He does not suggest that the evidence was improperly admitted to show disposition, and in fact the jury was admonished not to consider it for that purpose. (See Evid. Code, 1101, subd. (a).)

In view of this concession, we fail to see how defendant can, on direct appeal, dispel the possibility that trial counsel withheld objection out of a reasonable belief that a successful hearsay objection would merely compel the prosecution to introduce other, possibly more damaging evidence of the same tenor as that now challenged on appeal. For example, in one of the incidents described by prosecution expert Guerin, defendant and three other OSP members attacked a Mexican family, including a 54-year old woman and a blind boy, while hurling epithets including scrapas (which Guerin translated as pieces of shit) and mojados (wetbacks). After the attack, one of the assailants threatened to get a gun and kill the victims if they called the police. It requires no great feat of imagination to suppose that defense counsel might reasonably have preferred Officer Guerins recitation of these facts to a parade of the actual victims of the described attack. So long as the substance of the testimony could have been presented by other meansand the present record does not establish otherwiseOfficer Guerins testimony may have been the least damaging way for it to come in. Counsel might well have had, therefore, a tactical reason for failing to object.

Defendant meets this possibility only by asserting that the prosecutor would have offered stronger evidence had he possessed it. This does not follow. A prosecutor might have any number of reasons to prefer to introduce evidence of this type in the form of a hearsay summary. If nothing else, it is certain to be more convenient and expeditious than securing the attendance of the percipient witnesses and coordinating their appearances on the stand. The prosecutor may be willing to forego the possibly greater impact of direct victim testimony for the greater efficiency of a hearsay summary.

Nor is there any reason to assume that the interests of prosecution and defense will invariably conflict on such a point. Each side might prefer hearsay for its own reasonsthe prosecution for conciseness and convenience, the defense for reduced visceral impact. In the present context, both sides might also prefer to avoid the risk of courtroom recantationsthe prosecutor because of the complexities thus introduced into his case, the defense because of the risk of creating an atmosphere of gang-based menace.

In addition, as we have noted, the expert was entitled to rely on hearsay evidence in forming his opinions, and to disclose the basis for his opinions in direct testimony. (See Evid. Code, 802, 804.) This meant that, as defendant concedes, at least some of the evidence here in question would have been heard by the jury even over a hearsay objection, though it would have been accompanied by an admonition to consider it only as it bore on the soundness of the experts opinion. A successful objection could thus have meant that the jury would hear about defendants other crimes twice: once as a basis for expert opinion; and once as substantive evidence of conduct by the defendant offered to prove motive and intent. Nothing in this record dispels the possibility that counsel reasonably believed it was preferable to just have the jury hear it once, even if this meant foregoing a meritorious hearsay objection.

In sum, it is impossible on this bare appellate record to say that counsels failure to object to the experts hearsay testimony constituted ineffective assistance of counsel. For much the same reason, it is impossible to say that counsels failure to object had any effect on the outcome of the trial. For all this record shows, a successful objection would only have forced the prosecution to present other and possibly more damaging evidence of defendants participation in other gang-motivated crimes. The charge of ineffective assistance therefore cannot be sustained on direct appeal, and the hearsay objection must be held to have been forfeited.

II. Lay Opinions About Defendants Guilt

Defendant contends that the trial court erred in permitting the prosecution to present evidence of the lay opinions of Nancy Echeverria and Victoria Lopez concerning defendants guilt, and that defense counsel rendered ineffective assistance to the extent he forfeited the point by failing to object. The jury heard an interview by Detective Zen in which Echeverria alluded to and then gave reasons for the belief that I know he [defendant] did it.[3]Similarly, the jury heard Lopezs statement to Zen that with respect to who did it, I kind of think that it was stupid Paul.[4]Again we conclude that the appellate record cannot sustain the findings necessary to uphold defendants contention.

Defendant may well be correct in asserting that the statements were objectionable under either the general rule governing lay opinion (Evid. Code, 800) or a specific prohibition in caselaw against opinion testimony concerning a defendants guilt or innocence of the charged offense (People v. Coffman (2004) 34 Cal.4th 1, 77). As defendant implicitly concedes, however, any such objection was presumptively forfeited by failure to assert it during trial. (See Evid. Code, 353.) Defendant is thus relegated once again to a contention that trial counsel rendered inadequate assistance when he failed to object. But again the record fails to establish that counsel lacked a tactical reason for allowing these opinions into evidence. Indeed it strongly suggests the oppositethat Echeverrias and Lopezs accusations of defendant played a central role in the defense strategy, which was to characterize these opinions as malicious lies, part of a concerted effort to get even with defendant, which the prosecution uncritically embraced in lieu of an adequate independent investigation.

Counsel introduced this theme in his argument to the jury by describing Echeverria and Lopez, together with Sarah Sanchez, as a category of witnesses that I call the informants, who he said came forward and told a story that has forever changed Paul Zapatas life and their own. By doing so, he said, they sent Detective Zen and other officers of the Gilroy Police Department on nothing less and nothing more than a snipe hunt. Shortly thereafter he continued, [T]he prosecution and investigat[ors] . . . so embraced the story related by Sarah [Sanchez] and Nancy Echeverria that they were blinded to other issues. That was the story that were going with and thats the story were going to stick with no matter what. Counsel returned to this theme over and over, accusing Detective Zen of h[angin]g on to a theory he wasnt going to let go of and the prosecution of committing a wrong by [e]mbracing somebodys story as true without proving it . . . . Later he referred to [i]nformation that . . . whether its right or wrong youve got your arms around it and youre not going to let go of it. Later still he accused the prosecution of embrac[ing] . . . these wild stories, and adopting a yarn spun by Echeverria. Similarly it had embraced a story by Sarah Sanchez, and damn it were going to prove it up by the prosecution its got to be the truth and anybody who says its not is a damn liar.

In effect counsel charged investigators and the prosecution with stubborn credulousness. In doing so he did not hesitate to cite the opinions they had supposedly embracedthe evidence now challenged as inadmissible. Thus he said of Echeverria, The thing thats most telling is we get down here, you know, and Detective Zen is pressing her on how she got to form this opinion. And she says, well, the fact of the main thing is that he was gone during that time. He was gone during that time. He was wearing that outfit. The sketch looked just like him. The truck was gone the next day in the morning. False, false and false.

With respect to Lopez, counsel not only alluded to but quoted, more than once, the supposedly offending opinion: [W]hats Victorias stake in this? Could it be her husband? Could it be her brother-in-law? Her friendship with Victoria [sic] and Nancy? You know, it wasyoull have the transcript of her conversation with Detective Zen, but she starts out, you know, Detective Zen wants to know what she can tell him about this. And she saysand quote here is that what I want to knowwell, what I think who did it. And who was with them. Honestly, Ill tell you, I kind of think it was stupid Paul. Sorry. And then she goesand Detective Zen says welland then she goes but then I dont know else who could have been with him. I know that Ed was working that night. Well, we assume Ed was working that night. We assume Ed was at that party that night. Theres no evidence other than statements by Nancy and Victoria about Ed. You know, the one thing she tells you, it wasnt my husband [i.e., Ed], he was working. But other than that it was probably stupid Paul. . . . [C]ould Detective Zen have asked Victoria where was Paul living? Did you see the truck? You knowyou know, if you dont ask the questions you dont know the answers to them, but in this business its your job to know the answers and to take the next step because so much is at stake. And that didnt happen. It never happened.

Defendants appellate challenge does not extend to the statements of opinion by Sarah Sanchez, the witness who most directly incriminated defendant by describing a conversation in which he admitted shooting someone at the 7-Eleven. But trial counsels treatment of Sanchezs statements of opinion is highly germane to the existence of a tactical motive for acquiescing in the introduction of the similar statements by Echeverria and Lopez. As with Lopez, counsel directly quoted Sanchezs opinion that I know who shot up 7- ELEVEN. I know who shot up the 7- ELEVEN. But counsel went beyond using that evidence; it was he who introduced that evidence, as he emphatically pointed out to the jury, as if the prosecutors failure to do so betrayed some gap in its theory of the case. Thus counsel pointed out that he himself had called as a witness an officer who was, as counsel put it, the first person that heard the words out of Sarah Sanchezs mouth, I know who shot up the 7-ELEVEN. She is the person who tells Officer Gillio I know who shot up the 7- ELEVEN. Paul Zapata. Counsel repeated this supposedly pernicious statement of opinion a few pages later: [F]irst Sarah says I know who shot up the 7- ELEVEN. Then she tells Officer Gillio Paul told me I shot up the 7- ELEVEN. You know, its justthose are her words. Its justits just silliness.

In sum, the defense strategy with respect to these witnesses was not only to accuse the prosecution of failing to adequately check their accounts but to accuse the witnesses themselves of framing defendant for purposes of romantic revenge, solidarity with one another, and in Lopezs case, to obviate official threats to the custody of her children. Given that strategy, counsel could reasonably conclude that it would have been worse than futile to separate their purely factual assertions from their opinions, admitting the former while excluding the latter. The whole idea was that these three witnesses were out to get defendant. The fact that they flatly accused him of committing the crimes, without professing to have any firsthand knowledge of the subject, supported that theory. Defense counsel had no apparent ground to interfere with proof of that fact. Any challenge to such proof is, at least for purposes of direct appeal, doomed.

III. Officers Opinion on Sketch

Defendant contends that counsel rendered ineffective assistance by failing to object to testimony by San Jose Police Officer Gilbert Zamora that the sketch he drew of the killer under the direction of eyewitness Puphal resembled in certain respects a June 2001 photograph of defendant.[5]Defense counsel did assert, in an unrecorded sidebar conference, an advance objection to improper opinion testimony comparing the photo and the sketch, but after the witness testified counsel said that he had not found any of the testimony objectionable.[6]On appeal this is charged as ineffective assistance because the cited testimony did not meet the requirements for admissibility as a lay opinion in that it was not helpful to the jurys understanding of any properly admitted testimony.

We agree that this is not a type of testimony to which a jury should ordinarily be exposed. It was clear from Officer Zamoras testimony that he had no independent recollection of anything about this case. He was only able from his own knowledge to identify the sketch (which he had not seen since its creation), to describe the procedures he normally used in creating such a sketch, and to explain the notations he made on it. The prosecutor made no attempt to qualify him as an expert on physiognomic resemblance or any other subject. He was therefore entitled to give an opinion only if the two conditions for admitting lay opinion, as set forth in Evidence Code section 800, were present. Respondent alludes to the first condition by asserting that the testimony was unobjectionable because Zamoras comparison of his sketch and the photo of appellant was based on his own perception . . . . (See Evid. Code, 800, subd. (a) [opinion must be [r]ationally based on the perception of the witness].) But respondent offers no rationale for finding the second condition, i.e., that the testimony be [h]elpful to a clear understanding of [the witnesss] testimony. (Id., subd. (b).) We fail to see how it would assist the jury in understanding Officer Zamoras testimony to hear him express the belief that features in a sketch he did not recall making resembled those in a photograph he had never seen before.

Again, however, it is impossible to say on a cold appellate record that counsel could have had no rational tactical motive for his failure to object. The degree of resemblance between the two depictions was a matter as to which anyones opinion was as good as anyone elses. Counsel may have believed that the risk of letting the jury hear the artists opinions on that subject was low enough to justify the possible benefits, most obviously, that the jury might find less resemblance than he claimed, and thus find the prosecutions overall case that much less credible.

For similar reasons, we are unable to conclude that the admission of this evidence was likely to have any effect on the verdict. (See Evid. Code, 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Zamora did not say that the sketch depicted the same person as the photo; on the contrary, he would only say that there was some likeness and that certain features were comparable. Having examined both exhibits, we do not believe there is any real possibility that the jury would have failed to reach this same conclusion on its own. There are arguable resemblances, as well as differences, between them. The critical question was whether the resemblance was great enough to warrant an inference that defendant was the person seen by the eyewitness Puphal and described by him to Officer Zamora. The latter was not asked, and did not attempt to answer, that question.

At bottom the effect of the challenged testimony was only to allow the prosecutor to use the witness as a vehicle to enumerate his talking points with respect to resemblances between the sketch and defendants appearance at that time. It was no worse than if the prosecutor had stopped in the middle of trial to draw the jurys attention to those features as to which he wished them to find a resemblance. While this would certainly be an irregular mode of proceeding, and an objection to it would be well taken, it is quite impossible to say on this record that the equivalent questioning of Officer Zamora inflicted any prejudice on defendant. It therefore cannot sustain reversal of the judgment.

IV. Extrajudicial Statements About Truck

A. Introduction

A substantial part of the prosecution case rested on the premise that defendants white Toyota pickup, which matched one seen conveying the apparent gunman away from the murder scene, disappeared from the Gilroy area immediately after the shooting. The prosecutor argued to the jury that the vehicle was initially hidden at the Ramirez ranch near Gilroy and was then moved to the home of Rico Sparky Clarke in Stockton. Citing statements by defendant and others reported to investigators by Victoria Lopez and Nancy Echeverria, the prosecutor asked jurors, So how many different sources do we need [to conclude] that the car is in Stockton[?]

Defendant contends that trial counsel rendered ineffective assistance by acquiescing in the admission of the evidence on which this argument was based. He contends that the evidence should have been objected to, and excluded, on grounds that it was hearsay.He specifically challenges testimony and pretrial statements by Nancy Echeverria and Victoria Lopez concerning rumored movements of the truck, and testimony by Detective Zen concerning the history of a certain television program alluded to in a recorded jailhouse conversation contended by the prosecution to concern the continued concealment of the truck.

This argument must be addressed witness-by-witness.

B. Echeverria

Defendant contends that Echeverria should not have been permitted to testify that, as stated in the brief, defendant sent his truck to Rico Clarke in Stockton and that it remained there until [defendants] family had it towed back to Hollister in 2002. Defendant asserts that this testimony had no apparent foundation in personal knowledge, and that much of it was hearsay.[7] He contends that the same is true of much of her pretrial statement.[8] He asserts that counsel could not competently forego these objections, and that the failure to object should therefore be overlooked, or relief should be granted on grounds of ineffective assistance.

Again the argument fails because the record affirmatively suggests a possible tactical motive for counsels failure to object: he may have wanted the jury to hear this evidence in light of other evidence on the same subject that was not subject to hearsay and foundational objections. In January 2003, in recorded statements ultimately placed in evidence, Echeverria listed, among circumstances that led her to know that [defendant] did it, her perception that [t]he truck was gone the next day, in the morning. She cited the unlikelihood of defendants lend[ing] the truck out to some guy and going car-less for like, a year and a half. When Zen began reviewing the listed circumstances with her, she again said, That truck was gone the very next morning or next day. Asked how she knew this, she said, He didnt drive it no more, and Everybody knew that it was gone like, the next day.

So far as the record shows, Echeverria was speaking from her own knowledge when she said the truck was gone the very next . . . day and that [h]e didnt drive it no more. As defendants girlfriend she was presumably in a position to know when the truck disappeared. Since these were matters she personally observed, her testimony about them appears unobjectionable. We must therefore assume that these statements could have been admitted in any case.[9]

Had Echeverrias testimony concerning the truck been limited to the fact that it disappeared after the shooting, the jury could well have been left with a strong and straightforward impression that it was concealed due to consciousness of guilt on the part of those associated with itmost obviously, its owner. To the extent Echeverria gave additional details about its disposition, they did little to strengthen, and might reasonably be thought to weaken, this impression. For example, the statement Everybody knew it was gone might support an argument that Echeverria was not speaking from personal knowledge but was merely reciting conventional, and perhaps erroneous, wisdom. Much the same thinking applies to Echeverrias initial answer, when asked where defendant took the truck, Um, I guess, to, was it Stockton where Rico was at? (Question mark in transcript.) She then said, Stockton or Sacramento. Im not sure. Again, the tentativeness of the answer might be hoped to cast doubt on its overall accuracy, and perhaps on the accuracy of the otherwise unobjectionable statements that accompanied it.

A more complicated question is presented by another portion of Echeverrias pretrial statement. Pressed to identify the source of her information, she eventually described a conversation with the mom of Ricos girlfriend or Ricos wife, who said she had seen a white truck. This apparently led Echeverria to ask Ricos wife whether you guys have Pauls truck, to which she replied, yeah, we have it. Were driving it around. This testimony was unquestionably objectionable insofar as it was offered to prove that Ricos family in fact had defendants truck and was driving it around. However, defense counsel might have acquiesced in the admission of this evidence not because it helped the defense, but because Echeverrias trial testimony on the same subject might do so. At trial she acknowledged having a conversation about the truck with Ricos mother or grandmother, whom she quoted as saying that the truck was over there, but was broken down. Counsel might have welcomed evidence that the truck was broken down because it provided a relatively innocuous explanation for the protracted nature of its disappearance. Defense counsel sought to bolster this point on cross-examination, eliciting testimony that the truck had broken down two or three times and that in the summer of 2001 defendant could not afford to get it fixed.[10] Yet there is no evidence that Echeverria could claim to know from personal knowledge that the truck was broken down. Counsel might therefore be happy to allow the prosecution to introduce hearsay testimony about the truck because it would open the door to this evidence of disrepair. With this testimony, the defense had a concrete explanation to compete with the inference of deliberate concealment put forth by the prosecution. It is impossible to say that a reasonable and competent attorney might not choose to pursue such a strategy.

Similarly it is impossible to say that the admission of the challenged evidence worked any prejudice on the defense. As we have already noted, Echeverrias statements that the truck disappeared and that defendant stopped driving it immediately after the shooting would have come in regardless of the posited objections. It is far from clear that sending the case to the jury in that posture would have improved defendants chances of a more favorable verdict. It might very well have worsened them. This is particularly true since the evidence thus admitted would seem, as far as it went, to corroborate the more directly incriminating testimony of Sarah Sanchez, who said that around the time of the shooting, she gave another OSP member a ride to the Ramirez ranch near Gilroy, where defendant, with whom she was then on good terms, approached and asked her discreetly if she could do him a favor, i.e., if I could drive his truck to Stockton or to Manteca. She could not recall whether he mentioned a specific person to whom it should be delivered. When she asked him why, he said he wanted to take it over there because he wanted tohe needed to get rid of it, and he wasrumor had already been around that he wanted to sell it or something, so I figured, okay, hes selling the car. Then I tell him, nah, wait a minute. It was iffy. I told him why do you want me to take it. And he said well, um, that he hadhe had shot up somebody at 7-ELEVEN. She did not take this comment seriously until she saw the sketch of Juan Trigueross killer in the paper. In the fall of 2001, she saw a truck that she thought was defendants parked near the Manteca home of the mother of Rico Clarke, to whom Sancez was distantly related.

Even apart from the direct admission of guilt thus attributed to defendant, this testimony tended to show that he was anxious to hide the truck. Coupled with the fact of its disappearance, as reported by Echeverria, it supported a reasonably strong inference of guilt. We cannot say that defendants chances of acquittal would have been improved by excluding the hearsay portions of Echeverrias testimony and pretrial statements.

C. Lopez

In pretrial statements also placed before the jury, Victoria Lopez told Detective Zen that the truck had broken down, apparently while in the possession of Sparkie (Rico Clarke), who then got [defendant] a black Taurus to use. Detective Zen asked, Was it broken down or did they just stash it out? to which she replied, The story they gave me is that it broke down when they were, when Paul was working with, with Sparkie. She then said that defendant used the black Taurus for maybe about three months right after the murder. Zen asked if they just swapped, to which she replied, That, see thats why I was like, I told Edward, What happened to the truck? And hes like, he said that it was broke, that, its at Sparkies. And I was like, Oh, okay. And then I had told [defendant], what happened to the truck? And he said that, he goes, Oh, well, it broke down when I was working with Sparkie. He goes, He let me come over in this car. 

At trial Lopez attempted to retreat from these statements in various respects. First she professed not to be sure that defendant had ever driven a white truck; then she testified that the truck as depicted in a photographic exhibit seemed kind of small to be defendants. Then she testified that she saw him driving a white pickup after the shooting, but sometime after May I guess until he got a black car. She largely denied any memory of her statements to Detective Zen.

Defendant contends that Lopezs recorded statements to Detective Zen were objectionable hearsay insofar as she said that right after the murder, they said the truck had broken down when [defendant] was working with Sparky Clarke, and that Sparky had the truck and had given [defendant] a black Taurus to use. Defendant notes that Lopez said that she had learned some of this information from her husband Edward. He acknowledges, however, that she also told Zen that Spookmeaning defendant himselfhad told her  it broke down when I was working with Sparkie meaning Clarke.

Again, some of this testimony may have been subject to exclusion as hearsay or for lack of foundation, but again it is impossible to say that counsel had no tactical motive for failing to require that the objectionable matter be excised and excluded. Lopezs pretrial statement has defendant himself telling her that the truck was in the possession of Rico Sparky Clarke. At trial Lopez flatly denied that defendant had told her such a thing. This made her pretrial statement admissible as a prior inconsistent statement. (Evid. Code, 1235.) Defendants own statements are of course admissible, at the prosecutions instance, as statements by a party opponent. (Evid. Code, 1220.) Given that this evidence was admissible over a hearsay objection, it is impossible to say that counsel had no tactical reason for failing to object to other evidence to similar effect, or that the admission of such evidence was prejudicial to the defense.

D. Detective Zen

The prosecution called Anthony Villalobos to authenticate a recorded telephone conversation to which he was a party. Villalobos, who denied that he was an OSP member but who wore a number of tattoos apparently suggesting Norteo allegiance or affiliation, reluctantly recalled participating in the phone conversation on January 3, 2003, with Eric Garcia, an OSP member known as Lurch. The conversation was recorded because it originated in the Santa Clara County Jail. In it, Villalobos referred to a supposed scene in the television program Fugitive Watch involving a white truck. When Garcia seemed not to comprehend, Villalobos said, [R]emember that, remember that white truck along time ago, and then explained, [I]t[]s fucking still there. Chivo came over here ear [sic] . . . about like 15 minutes ago, 20 minutes ago, told him we needed to find [a way] to get it out of here right now. (Ellipsis in transcript.) Later he said, I already talked to that ugly mother fucker, that scary guy . . . . [] . . . []  And he said fucking and he said get rid of it anyway, it dont matter. So fucking I called Chivo and Chivo said we can take it to his peoples house out in the country and fucking part it out or whatever. Villalobos conceded at trial that the white truck alluded to had been defendants, which he knew the police had been looking for. At the same time he seemed to try to insist that he had merely seen a white truck in a magazine article or television program produced by Fugitive Watch, a local crime-prevention organization. He professed not to remember who he meant by the scary guy, though he eventually conceded that he was possibl[y] referring in a covert manner to defendant, whose gang nickname was Spooky. He also acknowledged that by referring to the scene with a white truck, he might have been speaking [s]lightly in code. At the same time he insisted that he was not referring to defendants truck, but only something similar to that, which he had seen on Fugitive Watch. Eventually the prosecutor asked, What if I was [sic] to tell you that it never ran on Fugitive Watch? Defendant replied, Id have to say youre lying, and insisted, I seen it on Fugitive Watch.

It was in this context that Detective Zen gave the testimony targeted by the present claim of error. The prosecutor asked Zen whether he had made an effort to determine whether or not . . . the . . . May 19, 2001 7-ELEVEN murder, ever ran with the show Fugitive Watch either on the television show or in their print publication. In response, without objection, Zen testified as follows: I talked to Ray Shields of the San Jose Police Department, the person that is co-owner of the Fugitive Watch. Let me back up. I first asked another detective with the Gilroy Police Department to check on it for me. He checked the dates of 2000/2001 and found that there was no airing of Fugitive Watch having to do with this case. I then realized that he only checked 2001. I called Mr. Shields back and told him or asked him, which he agreed and checked from the year 2000 until present and he said that it was not aired. To the best of my knowledge it wasnt aired while I was assigned this case, and to the best of Detective Callahans knowledge it wasnt aired when he was assigned to the case. He confirmed that this was both on the television show and print publication of Fugitive Watch, which were the same company and the same owner.

Again defendant is correct in asserting that the challenged evidence might have been successfully objected to as hearsay. Again his claim of error fails, however, for want of a showing that counsel lacked a tactical reason for declining to assert the objection. Again it is easy to posit a possible tactical rationale not dispelled by the present record: that the hearsay source of the evidence in questionthe programs co-owner, who was apparently a San Jose police officercould readily be summoned to the stand, where he might give testimony more damaging than the hearsay evidence actually admitted. Here one potential for increased damage is reflected in the failure of Detective Zens testimony to squarely meet the most exculpatory interpretation that might be placed on Villaloboss testimony. Villalobos did not assertat least not clearlythat he saw an episode of Fugitive Watch concerning the 7-Eleven shooting. He claimed, or at least could be understood to claim, to have seen a white pickup being sought in connection with some unspecified murder, and to have been concerned that the mere resemblance between that pickup and defendants, which he had been told was sought by police, might bring unwanted police attention to Villaloboss own activities, which he conceded tended toward the unlawful. Had a witness with personal knowledge of the programs content been called, he might have testified that there was never any episode involving a pickup resembling defendants. Defense counsel might thus have very well concluded that there was little promise and much risk in objecting to Zens hearsay testimony.

V. Closing Arguments

A. Introduction

Defendant contends that trial counsel inexcusably allowed the prosecutor to commit extensive misconduct in closing argument by (1) offering inflammatory speculation about Juan Trigueross experience of the last moments of life; (2) inviting the jury to infer a criminal disposition from defendants prior crimes; (3) improperly characterizing the reasonable doubt standard of proof; (4) alluding indirectly to defendants failure to testify; (5) commenting upon, and urging as affirmative evidence, Sarah Sanchezs invocation of the right not to incriminate herself; (6) characterizing as a spontaneous statement Nancy Echeverrias laughter upon seeing the police sketch; (7) suggesting, without evidentiary support, that the shooter had go[ne] back [to] get a gun before killing Juan Trigueros; (8) mischaracterizing the relative heights of the victim and the shooter; and (9) offer[ing] his own testimony about the meaning of some of the records for Mr. Zapatas truck.

 The applicable federal and state standards regarding prosecutorial misconduct are well established.  A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.]. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Conduct falling short of this level of egregiousness may constitute prosecutorial misconduct under state law, but only if it involves    the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.   [Citation.] [Citation]. (Ibid.) The public prosecutor is held to an elevated standard of conduct, compared to that of attorneys generally, because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. (Id. at p. 820.) In determining whether the prosecutor violated this elevated standard, his state of mind is immaterial. (Id. at pp. 822823.) Indeed the term misconduct is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error. (Id. at p. 823, fn. 1.)

B. Griffin Error

Defendant contends that the prosecutor committed misconduct by alluding to the absence of defense evidence or explanation on certain points of controversy. Thus the prosecutor noted that while there was talk about how defendants truck breaks down all the time, there was no evidence that it broke down and specifically no witness who came in and said, oh yeah, I was with Paul and it broke down, you know, and we took it out to the Ramirez brother[s] ranch. The prosecutor also alluded, in his concluding argument, to the failure of the defense to present any alibi testimony: We dont know where he was at 2:03 in the morning do we? And the defense didnt put on a witness, an alibi witness to say, hey, he was with me in San Jose, he was with me in Hollister. We dont know where he was. Oh, yeah, we do. He was at the 7-ELEVEN on Leavesley killing Juan Trigueros.

Defendant contends that these remarks violated the rule that prosecutorial comment upon the defendants failure to testify has the effect of penalizing him for exercising his right Fifth Amendment right to remain silent, and thus operates in derogation of that right. (Griffin v. California (1965) 380 U.S. 609, 611-615 (Griffin).) Defendant does not contend that the prosecutor commented explicitly on his failure to testify, as the prosecutor and court did in Griffin. Instead he attempts to compare this case to three others in which Griffin was held not only to bar the prosecutor from expressly urging the jury to draw an incriminating inference from the defendants failure to testify, but also to prohibit commentary that implicitly draws jurors attention to that failure. (People v. Vargas (1973) 9 Cal.3d 470,476-477 (Vargas); People v. Ryner (1985) 164 Cal.App.3d 1075, 1084-1085 (Ryner); People v. Medina (1974) 41 Cal.App.3d 438, 457 (Medina).)

Defendant overstates the breadth of these cases holdings. He describes Medina, as holding that the prosecutor committed misconduct under Griffin merely by characterizing the testimony of prosecution witnesses as unrefuted. But this was only one of several comments that, in combination, unmistakably highlighted the defendants failure to testify. The other comments alluded to the fact that all eyewitnesses except the two defendants were put under oath and subject to perjury. (Medina, supra, 41 Cal.App.3d at p. 457.) The reviewing court held that these passages in combination had the net effect of urg[ing] the jury to believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury. (Ibid.) This in turn was plain error under Griffin. (Id. at pp. 457-460.)

In Ryner, supra, 164 Cal.App.3d at page 1084, footnote 3, the prosecutor described the defendant by name as [t]he one who can tell you what happened, who can bring you name and addresses of witnesses who saw exactly what happened . . . . This was a far more direct invitation to consider the defendants silence than anything before us. The court agreed that it was Griffin error, but concluded that it was harmless.

The decision in Vargas, supra, 9 Cal.3d 470, seems to weigh more against defendants contention than in favor of it. The court there pointed out that Griffins prohibition against comment on the defendants silence  does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]  (Id. at p. 475, quoting People v. Burns (1969) 270 Cal.App.2d 238, 247; italics added.) The court found no Griffin error in the prosecutors asking the jury to consider why the defense had failed to produce any witnesses to show where the defendant and a codefendant were at the time of the crime. (Id. at pp. 476, fn. 5, 474.) The prosecutors argument strayed into Griffin error only when he referred to the absence of a denial of prosecution evidence in a context where the quoted term was likely to connote[] a personal response by the accused himself. (Id. at p. 476.) While the prosecutor may have only intended to point out to the jury that the defense had introduced no evidence concerning the defendants whereabouts, the language he used was sufficiently ambiguous in this respect to lead us to conclude that Griffin error was committed. (Id. at p. 476.) The court went on to hold the error harmless beyond a reasonable doubt, noting that the allusion to defendants silence was much less direct than in most cases finding reversible Griffin error (id. at p. 478), that it was brief and mild (id. at p. 479), and that the case against the defendant was overwhelming (id. at p. 480).

We do not believe the prosecutor here ran afoul of Griffin as applied in these cases. The challenged comments drew attention to the lack of defense evidence that defendants pickup was actually broken down after the shooting, and to the absence of any evidence of defendants whereabouts when the shooting took place. The first point scarcely even hints at Griffin error since if defendants truck was in fact broken down there might be any number of witnesses who could so testify. The second point has more substance because a defendant may indeed be the sole witness to his whereabouts if he is alone. But there was no reason to suppose that defendant was alone. He had left the party with another OSP member, whom he was supposedly giving a ride to work. But assuming he dropped that member off before the shooting, there is no reason to suppose that he spent the rest of the evening in solitude. There was simply no reason to assume that defendant was the only witness to his whereabouts at that time. Drawing attention to the absence of alibi evidence was therefore not an impermissible comment upon defendants own failure to testify.

C. Predisposition

Nor do we find serious misconduct in the remarks cited by defendant as an improper invitation to infer guilt from criminal predisposition. The remarks were addressed to three points based on defendants history of gang-related violence against Sureos and Mexican nationals: first, that his demonstrated willingness to assault such persons reduced the time it would take him to premeditate a killing for purposes of first degree murder; second, that his explicit threats to shoot one group of victims were an admission that he had a gun as well as that he was willing to inflict lethal force on such persons; and third, that his manifest willingness to attack such persons established a motive as well as the requisite intent to murder Juan Trigueros. It is true that the prosecutor brushed the third rail of character evidence by saying, in connection with the first point, And we all know its this defendant has premeditated murder, has premeditated on Eight Street member, has premeditated attacks on Mexican nationals for years. Hes predisposed to that, and you can take that into consideration. We are uncertain that this statement, closely parsed, was an inaccurate characterization of the law. The vice at which the rule against character evidence chiefly aims is a direct inference of guilt based upon a defendants apparent predisposition to commit crimes of the type charged. With one exception, the arguments challenged here all assumed that defendant killed Juan Trigueros; his predisposition to inflict violence of persons like Trigueros was argued as a basis not to identify defendant as the killer but to infer a particular element of the offense, i.e., intent or premeditation. The one exception was motive, the apparent argument here being that defendants manifest hatred of persons like Trigueros constituted a motive to kill him, which in turn supported several incriminating inferences, including that it was indeed defendant who committed this seemingly pointless killing.[11] Any inaccuracy in the argument appears too slight to prejudice defendant, particularly since the jury was plainly instructed not to draw an inference of guilt from predisposition.

D. Sanchez Assertion of Fifth Amendment

Defendant also charges as misconduct the prosecutors invitation to the jury to infer that Sarah Sanchez was a particularly reliable auxiliary of the OSP gang based on her assertion of the Fifth Amendment when she was asked whether she had helped O.S.P. during their earlier years. The prosecutor argued, The testimony came out when I asked her have you [helped] O.S.P. she said I dont want to incriminate myself. Okay. Shes a player at that point. Shes somebody they can trust. Shes friends with the defendant. Shes the perfect person to drive that car to Ricos house.

We agree that this was misconduct in that it invited an improper inference from a witnesss invocation of the Fifth Amendment (see Evid. Code, 913, subd. (a); People v. Padilla (1995) 11 Cal.4th 891, 948; People v.