P. v. Rodriguez

Filed 11/25/09 P. v. Rodriguez CA2/7

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Hollingsworth, Judge. Affirmed, as modified.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

Salvador Rodriguez appeals from the judgment entered after his conviction by a jury on one count of murder and three counts of attempted murder with true findings by the jury on related gang and weapon enhancement allegations. Rodriguez contends he was prejudiced by the erroneous admission of a videotaped interview of a witness who testified against him at trial and by the trial courts refusal to allow him to reopen testimony. He also challenges the calculation of his sentence. We modify the judgment to correct his sentence and, as modified, affirm the judgment.[1]

FACTUAL AND PROCEDURAL BACKGROUND

1.      The Shooting

On the night of December 19, 2004 Rene Elias and Alberto Aragon, members of a tagging crew known by its initials SAP, were spray-painting walls on Imperial Avenue near Van Buren Street in south Los Angeles. Renes brother, Luis Elias,[2]and Alex Contreras were parked and waiting for them nearby in a green Buick. As a white van with brown stripes drove by, Rene and Aragon headed back to the waiting car. The van stopped in front of the Buick about 30 to 40 feet away; and two people, a tall, brown-skinned male with a shaved head, wearing a white shirt and holding a chrome revolver, and a short, Hispanic male wearing a hooded sweater, got out. The man with the gun began shooting as Rene climbed into the back seat and Aragon reentered the front passenger seat of the Buick.[3] Luis, the driver, ducked to avoid the gunshots, and began backing down the street. After driving away, the young men flagged down a police car. Aragon, who had been hit in the head by a single gunshot, was dead.

2.      The Investigation

In an initial interview with Los Angeles County Sheriffs Department detectives after the shooting, Rene described the shooter as a tall, slim, dark-complexioned male about 18 years old wearing a white shirt and gray pants. Luis gave a similar description, adding that the shooters head was shaved. The second shooter, also a brown-skinned male, was very short, almost like a kid. Rene reviewed some photographs in a book provided by the detectives but stated he could not identify anyone.

Several days after the shooting deputy sheriffs observed graffiti in two different places in the neighborhood that appeared to refer to the shooting. The first stated, RIP SAP Jackel, which was understood to mean Rest in peace, SAP tagger Jackel, the moniker for Aragon. The second featured the letters CRS, a reference to a local gang known as the Crazy Riders, followed by the letters SAP, which had been crossed out, and the number 187, a reference to the Penal Code section for murder. A deputy reported this graffiti to the detectives investigating the Aragon murder, who interpreted it to mean a CRS member had killed, or had wanted to kill, an SAP member.

About the same time, Detective Michael Valento, a deputy sheriff assigned to the Lennox station gang detail, reviewed another deputys report of a December 1, 2004 incident at a home three blocks from the scene of the shooting. The deputy had interviewed a number of young men at the home, including Rodriguez, who admitted his membership in the CRS gang, and Gabriel Flores, who was a member of a tagging crew known as a rival of SAPs. In a conversation with the reporting deputy, Valento was told the deputy had logged the license plate of a white van parked in front of the home. After tracing the license plate, Valento learned the van was registered to Floress father. Valento drove to the residence and photographed the van.

In an interview with detectives on December 29, 2004, Rene identified the van in the photograph as the one involved in the shooting and stated he was certain about the identification. He also stated he had seen someone who looked like the shooter with other members of the CRS gang at an automobile body shop located on Vermont Avenue at 95th Street.[4] According to Rene, CRS and SAP had been slashing or crossing out each others graffiti for the past month.

On the evening of December 30, 2004 a patrolling sheriffs deputy saw fresh graffiti on a bus stop depicting the letters CRS. The deputy approached a group of Hispanic males standing nearby to inquire about the graffiti. When they saw the patrol car, the members of the group scattered into an adjacent parking lot. Because the deputy had observed one of the men, later identified as Edwin Morales, holding a revolver that he discarded as the deputy approached, the deputy chased Morales and detained him. Morales, who was on probation for felony possession of a sawed-off shotgun, was arrested on a charge of possession of a loaded handgun while on probation. Rodriguez was also interviewed at the scene and acknowledged his membership in the CRS gang, but was not arrested.

The revolver recovered from the parking lot, a stainless steel .357 magnum, contained six bullets and matched the description of the gun used in Aragons murder.[5] The next day Morales was interviewed by Detective Valento and two detectives from the sheriffs homicide unit investigating Aragons murder. In a videotape that was played for the jury at trial, Morales denied he was a member of CRS and claimed to know nothing about the gun, insisting he had never touched it. Instead he told the detectives he had run because he had been smoking marijuana, also a potential probation violation, and had thrown the marijuana cigarette, not the gun, to the ground as he ran toward the parking lot. The detectives pressured him to talk more openly, warning him the revolver had been used in a murder and had been seen in his possession and clearly implying he could be charged with the murder, even though they later acknowledged at trial he did not resemble the description of either perpetrator. Morales continued to deny any knowledge about the gun or the murder, and the interview was terminated.

Detective Valento initially left the room with the other detectives. When he returned to escort Morales back to his holding cell, Morales offered to talk to Valento if Valento would help him. After Valento restarted the video camera, Morales told him his mother lived in the apartment building he had been standing near when he was arrested. While waiting for his mother, Morales said, he had been with his nephew, a CRS gang member; Rodriguez, a CRS member Morales knew as Lazy; Rodriguezs brother Manuel, known as Flaco;[6]and another gang member Morales knew as Red Eyes. As they stood and talked, Flaco raised his shirt to reveal a gun tucked into his waistband; and Lazy said he had done another job with that one. Lazy, Flaco and Red Eyes had been driving around and saw some enemies tagging a wall on Imperial. Lazy got out and shot someone from SAP in the head. Morales told Valento Lazy and Flaco were CRS members and he was afraid they would target him or his family for retribution. He also identified photographs of Lazy, Flaco and other CRS gang members and told Valento Lazy stayed with his girlfriend, the sister of Gabriel Flores, at the Flores home. After the interview, Morales directed Valento to the Flores home where the white van was parked.

On January 4, 2005 Detective Valento and the homicide detectives again interviewed Rene and Luis Elias. Valento inserted photographs of the Rodriguez brothers in the collection of photographs for Rene to review. Rene, however, refused to look at the book, stating he was afraid to leave his children without a father. He would not indicate whether he recognized a particular photograph Valento pointed out to him.

A search warrant was executed at the Flores home on January 11, 2005. Deputies found two notebooks containing gang symbols and graffiti and photographs depicting Salvador Rodriguez displaying CRS gang signs. The white van, in which spray paint cans were found, was also impounded. Rodriguez was arrested following the search. Another search warrant was executed at the Rodriguez family home, where deputies found bullets for a .357 magnum revolver.

On January 13, 2005 Detective Valento, accompanied by the assistant district attorney assigned to the case, again interviewed Morales. This interview was also videotaped. During the first portion of the interview, Morales recounted the statements he had previously made to Valento concerning Rodriguezs description of the shooting. After Morales finished answering questions about the case, Valento and the prosecutor advised him he would have to testify in court and that Rodriguez, his brother Manuel and Gabriel Flores had been arrested and charged with murder because of a bunch of other circumstances. Because Moraless name was not yet out there, they said, if he was willing to work with them, he and his family could be moved to a different residential area for their safety. When Morales admitted he was afraid, the prosecutor explained, move your mom, move you, and then, you know, were hoping that youll cooperate with us, because . . . youve been totally truthful, you said what happen[ed], you said your prints werent going to be on the gun, theyre not on the gun. And so . . . well never have to file the case on you, but we do want to know that youre going to cooperate with us. The prosecutor continued, Were just trying to tell you that, you know, you were helpful, you were honest, so were going to let the gun thing slide, but we got to know that youre going to cooperate. So do you feel like either of us are threatening you in any way? Morales answered he did not feel threatened but wanted to talk with his mother before committing to testify for the prosecution. The prosecutor reiterated the suspects did not yet know about Morales; and Valento concurred, stating he would never do that because they could go switch his mother right now. Valento and the prosecutor also warned Morales to stay out of the gang life when he moved because he would be killed if he came back to the neighborhood. They concluded the interview after discussing logistics related to moving Moraless family.

3.      The Trial[7]

Rene and Luis Elias and Alex Contreras all testified reluctantly at trial and professed to remember little about the night of the shooting. Rene volunteered he was drunk that night and had been drunk frequently during that period of time. None of the victims identified Salvador Rodriguez or his brother Manuel as the perpetrators. Excerpts from the videotapes of Renes and Luiss interviews with the detectives were played for the jury, and transcripts of those excerpts were marked as exhibits and provided to the jury.

Morales testified for the prosecution. In support of his testimony, and with no objection from the defense, the prosecutor played the entire videotape of his first interview with detectives. Predictably, he was subjected to intensive cross-examination, most of it focused on his own motivation to avoid being charged with murder and the Peoples grant of immunity in exchange for his testimony. The defense also impeached him with inconsistent statements he had made during his second interview with Detective Valento and the prosecutor. The prosecutor then called various sheriffs deputies as witnesses, who recounted the results of their investigation. Finally, she called Valento to testify and proffered the videotape of the second interview she and Valento had conducted of Morales. Defense counsel objected to use of the videotape, arguing it was improper on numerous grounds, particularly because it included the prosecutors statements vouching for Moraless truthfulness. The trial court overruled the objections. After the tape was played, the court denied a defense motion to strike the tape in its entirety but offered to caution the jury not to consider as evidence any statements made by the prosecutor. The defense accepted the instruction, albeit reserving multiple objections to the evidence.[8] At the close of the Peoples case, defense counsel renewed their objections. The prosecutor offered to submit herself for cross-examination and justified the admission of the tape under Evidence Code section 356, relating to use of an entire communication after a part has been received in evidence, or as a prior consistent statement. The court denied the defense motion to exclude the tape.

Rodriguez did not testify in his own defense. One of his brothers, Ismael, a former CRS member, and a second CRS member each testified Morales himself was a member of CRS known as Diablo, an allegation Morales had denied under cross-examination. Rodriguezs sister, Maria, testified she saw Detective Valento speaking to Rene, Luis and Contreras in an aggressive manner. According to her, Valento swore at them and directed them to accuse Rodriguez. On redirect Valento denied swearing at the witnesses, stating he had always had a friendly relationship with them.

The jury convicted Rodriguez on one count of murder (Pen. Code, 187, subd. (a))[9]and three counts of attempted willful, deliberate and premeditated murder ( 187, subd. (a), 664) and also found true the allegations a principal had personally discharged a firearm causing death or great bodily injury as to the murder count ( 12022.53, subds. (d), (e)(1)) and had personally discharged a firearm in the commission of the attempted murders ( 12022.53, subds. (c), (e)(1)). In addition, the jury found true the allegation the offenses had been committed for the benefit of a criminal street gang ( 186.22, subd. (b)). Rodriguez was sentenced to an aggregate state prison term of 165 years to life: 25 years to life for first degree murder (count 1), plus 25 years to life pursuant to section 12022.53, subdivisions (d) and (e), because a principal had personally discharged a firearm causing death or great bodily injury in a crime committed to benefit a criminal street gang, plus 10 years for the gang enhancement pursuant to section 186.22, subdivision (b)(1); and three consecutive terms for attempted willful, deliberate and premeditated murder (counts 2, 3 and 4) of life with the possibility of parole with a minimum 15-year parole eligibility date pursuant to section 186.22, subdivision (b)(5), plus an additional term of 20 years on each count pursuant to section 12022.53, subdivisions (c) and (e), because a principal had personally discharged a firearm in a crime committed to benefit a criminal street gang.

contentions

Rodriguez contends numerous statements in the unredacted videotape were inadmissible hearsay and unduly prejudicial under Evidence Code section 352 and their admission into evidence violated his federal constitutional rights to due process and confrontation, the trial courts cautionary instruction did not cure the prosecutors improper vouching for Moraless credibility and the court erred in refusing to allow his counsel to reopen the defense case and examine a final witness. With respect to sentencing Rodriguez contends, because the jury did not find he had personally discharged a firearm in the commission of the murder and attempted murders, the trial court improperly imposed both firearm-use enhancements under section 12022.53 and criminal street gang enhancements. He also contends the abstract of judgment must be corrected to reflect the proper terms of the restitution and parole revocation fines.

DISCUSSION

1.      Admission of the Entire Videotape Did Not Unduly Prejudice Rodriguez or Violate His Constitutional Rights

We review a trial courts determination as to the admissibility of evidence for abuse of discretion (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Karis (1988) 46 Cal.3d 612, 637) and the legal question whether admission of the evidence was constitutional de novo (People v. Cromer (2001) 24 Cal.4th 889, 893-894; People v. Mayo (2006) 140 Cal.App.4th 535, 553).

a.       There was no violation of Rodriguezs right to confrontation[10]

Rodriguez contends the admission of the videotape, which itself constituted hearsay[11]and was inadmissible unless admitted pursuant to a valid exception, violated his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). In Crawford the United States Supreme Court held use of an out-of-court statement that is testimonial in nature is prohibited by the Sixth Amendments confrontation clause, whether or not the statement is inherently reliable or meets an established exception to the hearsay rule, unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. (Crawford, at p. 61 [[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendments protection to the vagaries of the rule of evidence, much less to amorphous notions of reliability].) The Supreme Court later provided some guidance as to when statements are testimonial and when they are not: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis v. Washington (2006) 547 U.S. 813, 822 [126 S.Ct. 2266, 165 L.Ed.2d 224].)

The statements contained in the challenged videotape were unquestionably testimonial in nature. Nonetheless, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. . . . (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Both Morales and Detective Valento testified at trial and were cross-examined at length about various inconsistencies in their testimony. Moreover, although it is rare for a prosecutor to be called as a witness, the prosecutor stated she was willing to be cross-examined about her statements, an opportunity defense counsel declined.

Cognizant of this limitation, Rodriguez argues the declarants citation of statements made by other witnesses during the course of the interview constitute separate Crawford violations. Rodriguez, however, fails to identify particular statements he believes were made by those otherwise unknown declarants. The portion of the videotape defense counsel most vigorously opposed was the discussion among Morales, Valento and the prosecutor regarding the need to relocate Morales and his family. The underlying assumption of danger to Morales and his family did not result from an uncredited, out-of-court statement but instead from the experience of all three individuals with criminal street gangs. There was no single statement or threat that would violate the tenets of Crawford or the confrontation clause.[12]

b.      The trial court did not abuse its discretion in refusing to strike the prosecutors comments about Moraless truthfulness

Rodriguez challenges as improper vouching the prosecutors taped comments to Morales that he had been totally truthful and honest in his statements about the murder. [A] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witnesss truthfulness at trial. [Citation.] However, so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, [the prosecutors] comments cannot be characterized as improper vouching. (People v. Stewart (2004) 33 Cal.4th 425, 499.)

The trial court concluded the prosecutors comments here, made in the context of negotiating immunity for Morales in exchange for his testimony against Rodriguez, did not cross the line described by the Supreme Court in Stewart and Frye. We agree. A claim similar to Rodriguezs argument was rejected by the Supreme Court in People v. Williams (1997) 16 Cal.4th 153. The defendant contended the prosecutor had improperly vouched for a prosecution witness who testified about the defendants involvement in the charged crime when the prosecutor stated the witness had cut a deal with the prosecution, agreeing to testify truthfully and honestly in return for being allowed to plead guilty to robbery on certain charges pending against him. As the Court stated in Williams, [i]mpermissible vouching may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witnesss veracity or suggests that information not presented to the jury supports the witnesss testimony. (Id. at p. 257.) On the other hand, Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper vouching, which usually involves an attempt to bolster a witness by reference to facts outside the record. (Ibid.)

Rodriguez does not address this important distinction and seems to argue any comment by a prosecutor regarding the truthfulness of a witness is inherently forbidden. That is not the law. Furthermore, even were we more troubled by the nature of the prosecutors comments on the tape, the trial court prudently (and correctly) admonished the jury the statements of the prosecutor (or any other lawyer) did not constitute evidence to be considered by the jury in reaching its decision. We find no abuse of discretion by the trial court on this ground.

c.      The trial court did not abuse its discretion in admitting Moraless statements under Evidence Code sections 1236 and 791, subdivision (b)

Evidence Code section 1236 provides, Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791. Evidence Code section 791 provides, Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

The People assert Moraless statements relating to his fear of retribution by CRS against him and his family were properly admitted as prior consistent statements. We agree. Defense counsel attempted to impugn Moraless professed fear of retribution by suggesting Morales was simply trying to avoid a murder charge and to place responsibility for the crime on the Rodriguez brothers. Unquestionably, some of Moraless initial statements to Valento were susceptible to this interpretation. For instance, Morales acknowledged he did not want to be charged with a murder he did not commit and expressly requested help from Valento in a manner that could well be understood as a request for immunity from prosecution, statements with which he was properly impeached. However, the mere fact Morales harbored more than one motive to fabricate is not determinative under section 791. [A] prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing partys express or implied charge, may have influenced the witnesss testimony. (People v. Hayes (1990) 52 Cal.3d 577, 609; see People v. Cannady (1972) 8 Cal.3d 379, 388.)

The crux of the admissibility issue under Evidence Code section 791 is Rodriguezs contention Moraless statements in the second interview were made after, and not before, his motive to fabricate arose. However, Moraless fear of retribution against himself or his family if he talked to detectives or testified at trial arose only upon the prosecutors decision to call Morales as a witness, thus revealing his identity to CRS. In People v. Noguera (1992) 4 Cal.4th 599, 630, the Supreme Court cautioned that the focus under Evidence Code section 791 is the specific agreement or other inducement suggested by cross-examination as supporting the witnesss improper motive. (See also People v. Jones (2003) 30 Cal.4th 1084, 1106-1108 [trial court properly admitted consistent statement of witness made before plea bargain struck and thus before existence of one of alleged grounds for bias].) Here, Moraless statements during the second interview preceded the prosecutors formal offer of immunity to Morales, and Moraless acceptance of that offer.

Rodriguez argues further Morales never articulated fear of retribution on his own behalf until Valento and the prosecutor fostered that fear during the second interview. Although we read Moraless testimony less narrowly, even had Morales failed to specify a fear of retribution, Evidence Code section 791, subdivision (b), would authorize admission of his statements during the second interview. To borrow from our colleagues in Division Two, given the negative nature of counsels impeachment of Morales, the timing of the proffered prior consistent statement loses significance. (People v. Williams (2002) 102 Cal.App.4th 995, 1011.) The Williams court acknowledged an exception to the Evidence Code section 791 requirement that the prior consistent statement must have been made before an improper motive is alleged to have arisen. (Williams, at p. 1011.) Different considerations come into play when a charge of recent fabrication is made by negative evidence that the witness did not speak of the matter before when it would have been natural to speak, and the witnesss silence is alleged to be inconsistent with trial testimony. [Citation.] In this scenario, the evidence of the consistent statement becomes proper because the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story. (Id. at pp. 1011-1012.) Seen in this light, the vigorous impeachment of Moraless motivation opened the door for the prosecutor to demonstrate the scope of Moraless concerns. (Cf. Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2008) [] 8:1355, p. 8D-88 (rev. #1, 2007) [[u]nless the witness[s] credibility has been attacked (by evidence of an inconsistent statement or charge of bias or improper motive), there is no foundation to permit the introduction of the witness[s] prior consistent statement].) On such a record we are reluctant to second-guess the decision of the court to admit Moraless statements concerning his fear of retribution during the second interview.

d.      Evidence Code section 356 authorized the trial court to admit the portion of the videotape concerning Moraless immunity from prosecution

The People justify the admission of the remainder of the videotape, in particular the comments of Detective Valento and the prosecutor relating to potential retribution against Morales for his testimony, under Evidence Code section 356. This section provides, Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence. Rodriguez protests this section does not justify admission of these portions of the videotape because his own counsel limited his use of the interview during cross-examination to a specific portion of the videotape (impeaching Moraless assertion at trial Flaco was present at the shooting) unrelated to the detective and prosecutors later comments.

Rodriguez, however, misperceives the scope of section 356 in this situation. As our colleagues in Division Eight have explained, Section 356 is sometimes referred to as the statutory version of the common law rule of completeness. [Citation.] According to the common law rule: [T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3 (Parrish).) The statute is founded on the equitable notion that a party who elects to introduce a part of a conversation is precluded from objecting on confrontation clause grounds to introduction by the opposing party of other parts of the conversation which are necessary to make the entirety of the conversation understood. Section 356 is founded not on reliability but on fairness so that one party may not use selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. (Id. at pp. 272-273.)

Consequently, [i]n applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . . (People v. Harris (2005) 37 Cal.4th 310, 334-335; accord, Parrish, supra, 152 Cal.App.4th at p. 274.)

For purposes of analysis here, the subject of inquiry initiated by the defense included both Moraless motivation to testify against Rodriguez, a motivation the defense had characterized as focused on avoiding a murder charge, and his acceptance of the prosecutors offer of immunity. Toward that end, the defense elicited testimony from Morales that he knew he could have been charged with unlawful possession of the gun and, possibly, the murder committed with the gun, and had been granted immunity from prosecution for his testimony at trial. Because those statements potentially presented a misleading picture of Moraless motivation, as well as the basis for the immunity offered by the prosecutor, the prosecutor was in turn permitted to offer evidence necessary to make those out-of-context statements understood. (Cf. People v. Harris, supra, 37 Cal.4th at pp. 334-335 [statements of unavailable victim made to police in subsequent conversation admissible for the nonhearsay purpose of placing [the victims]statements into context; the jury is entitled to know the context in which the statements . . . were made].)

The need to correct a misimpression left by the defenses cross-examination using selective excerpts of a witnesss prior statements is a matter particularly within the trial courts discretion. We are unwilling to find an abuse of that discretion in this instance.

e.      The trial court did not abuse its discretion in admitting the tape over defense counsels objection under Evidence Code section 352

Under Evidence Code section 352 a court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Rodriguez argues the portion of the tape discussing the need to relocate Moraless family was unduly prejudicial and was largely fostered by Detective Valento and the prosecutor. We disagree. Morales consistently expressed fear for his mother and pregnant girlfriend and conceded in later conversations a corresponding concern for the rest of his family, including himself. Moraless concerns were validated by the conduct of the victims, whose palpable reluctance to testify candidly at trial reinforced the inference of a tangible threat from CRS. The trial court apparently concluded defense counsels impeachment of Moraless motives justified admission of the tape and vitiated any unduly prejudicial impact on the jurors.

2.      The Trial Court Did Not Abuse Its Discretion in Refusing To Reopen Testimony

Rodriguez argues his right to present witnesses in his defense was improperly curtailed when the trial court refused to allow him to reopen testimony, the morning after his defense had rested, to rebut Detective Valentos denial he had cursed and yelled at Rene Elias. In support of the request to reopen, Rodriguezs counsel stated the proposed witness, a lawyer who had represented Gabriel Flores at the preliminary hearing, would testify he heard Rene state that Valento had been threatening and cursing me. As the trial court later explained, he denied the motion because the offer of proof was he was going to quote [Rene Elias], and I kept it out . . . .

In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: (1) the stage the proceedings had reached when the motion was made; (2) the defendants diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. (People v. Jones, supra, 30 Cal.4th at p. 1110.)

Under the circumstances in this case, we see no abuse of the courts discretion. Whatever corroboration this testimony may have offered to support Maria Rodriguezs testimony Valento had pressured Rene Elias to lie on the stand, as proffered, the testimony would have been inadmissible hearsay. It was not the courts responsibility to advise counsel how the evidence might be presented in an admissible form or introduced in a different manner.[13]

3. The Trial Court Erred in Imposing Both Firearm-use Enhancements Pursuant to Section 12022.53 and Criminal Street Gang Enhancements Under Section 186.22 in the Absence of Jury Findings Rodriguez Had Personally Used a Firearm

In addition to finding Rodriguez guilty of the first degree murder of Alberto Aragon and the attempted murders of Rene and Jose Elias and Alex Contreras, the jury found true the special allegations (a) the attempted murders were committed willfully, deliberately and with premeditation; (b) in committing each of the offenses a principal personally and intentionally used and discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) (and, as to count 1, the intentional discharge of the firearm proximately caused the death of Aragon within the meaning of section 12022.53, subdivision (d)); and (c) the offenses were committed to benefit a criminal street gang within the meaning of section 186.22, subdivision (b). In sentencing Rodriguez the trial court imposed not only consecutive, indeterminate life terms for the four offenses (25 years to life for first degree murder and life with the possibility of parole for attempted willful, deliberate and premeditated murder) but also the additional penalties and enhancements prescribed by both sections 186.22 and 12022.53.

Section 12022.53s firearm-use enhancements generally apply only to the personal use or discharge of a firearm in the commission of a statutorily specified offense. Section 12022.53, subdivision (e)(1), creates an exception to this personal use requirement when the offense is committed to benefit a criminal street gang even if the defendant did not personally use or discharge a firearm but another principal did.[14] Pursuant to section 12022.53, subdivision (e)(1), imposition of the section 12022.53, subdivisions (c) and (d) firearm-use enhancements in this case was entirely proper.

Section 12022.53, subdivision (e)(2), however, moderates the effect of subdivision (e)(1). A defendant who personally used or discharged a firearm in the commission of a specified offense for the benefit of a criminal street gang is subject to both the increased punishment provided in section 186.22 and the increased punishment provided in section 12022.53, but, when only another principal in the offense has used or discharged the firearm, the non-using defendant is not subject to [a]n enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to section 12022.53. (See People v. Brookfield (2009) 47 Cal.4th 583, 591.)[15]

Rodriguez emphasizes that, although the case was tried on the theory he had been the shooter with respect to at least some of the victims (there was also testimony at least two weapons were fired), the jury was asked to determine only whether in each offense one of the principals had personally discharged a firearm in violation of section 12022.53 within the meaning of subdivision (e)(1). Accordingly, Rodriguez contends increasing his sentence with both firearm-use enhancements and criminal street gang enhancements or penalties is barred by section 12022.53, subdivision (e)(2).[16]

Prior to People v. Brookfield, supra, 47 Cal.4th 583, it was apparent section 12022.53, subdivision (e)(2), precluded a court from increasing the sentence of a defendant who had not personally used or discharged a firearm in the commission of a gang-related offense by both a specific additional sentence enhancement under section 186.22, subdivision (b)(1)(A), (B) and (C)that is, a determinate term enhancement of two, three, four, five or 10 yearsand a firearm-use enhancement pursuant to section 12022.53, subdivisions (b), (c) or (d). However, it was far less certain whether section 12022.53, subdivision (e)(2), similarly prohibited imposition of the 15-year minimum parole eligibility term mandated by section 186.22, subdivision (b)(5), and a firearm-use enhancement under section 12022.53, subdivisions (b), (c) and (d), in light of Supreme Court cases that, in construing various subdivisions of section 186.22, had drawn a clear distinction between alternate penalty provisions and sentence enhancements and had expressly held the 15-year minimum parole eligibility provision is not an enhancement. (See, e.g., People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7 [[s]ection 186.22, subdivision (b)(5) is an alternate penalty provision that applies to any gang-related underlying felony punishable by imprisonment in the state prison for life]; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-899 [ 186.22, subd. (b)(5), provides an alternate increased sentence in the form of a higher minimum eligible parole date, for certain felonies punishable by life that were committed for the benefit of a criminal street gang].)[17]

In People v. Brookfield, supra, 47 Cal.4th 583, in considering an argument essentially identical to Rodriguezs, the Supreme Court resolved any uncertainty on this point and held the use of the term enhancement in section 12022.53[, subdivision] (e)(2) was intended to refer broadly to any greater term of imprisonment for a crime that, as here, is committed to benefit a criminal street gang. This means that, as used in the statute, the word enhancement includes not only the sentence enhancements in section 186.22, but also the alternate penalty provisions in that section. (Brookfield, at p. 593.) Accordingly, in sentencing Rodriguez for first degree murder the trial court erred in imposing both a 25-years-to-life enhancement under section 12022.53, subdivisions (d) and (e)(1) and an additional penalty or enhancement pursuant to section 186.22 and similarly erred in sentencing Rodriguez on the attempted murder counts to both the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) and the 20-year enhancement under section 12022.53, subdivisions (c) and (e)(1). (See Brookfield, at p. 597; accord, People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 [ 12022.53, subd. (e)(2), prevents imposition of the 15-year minimum term specified in 186.22, subd. (b)(5), as well as expanded liability under  12022.53, subd. (e)(1), unless defendant personally used the firearm].) As to all four counts, absent an exercise of its discretion to strike the gang enhancements in the interests of justice (see  186.22, subd. (g)), the trial court should have stayed imposition of the 15-year minimum parole eligibility term set forth in section 186.22, subdivision (b)(5). (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1129; People v. Sinclair (2008) 166 Cal.App.4th 848, 854; see generally Cal. Rules of Court, rule 4.447 [[n]o finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements; sentencing judge must stay execution of so much of the term as is prohibited or exceeds the applicable limit].)[18]

The Attorney General does not take issue with Rodriguezs analysis of section 12022.53, subdivision (e)(2), in light of People v. Brookfield, supra, 47 Cal.4th 583, but argues Rodriguez was properly sentenced (save for the incorrect imposition of the section 186.22, subdivision (b)(1)(C) 10-year gang enhancement on count 1) because the jurys failure to find Rodriguez had personally used and discharged a firearm was due to a technical defect in the verdict form that was harmless beyond a reasonable doubt. In support of this argument the Attorney General cites case law, including a recent decision from Division Five of this court (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1273), that technical defects in a verdict may be disregarded if the jurys intent to convict of the crime charged is unmistakably expressed. (See also People v. Jones (1997) 58 Cal.App.4th 693, 710; People v. Reddick (1959) 176 Cal.App.2d 806, 821; People v. Bratis (1977) 73 Cal.App.3d 751, 763-764.)

As the Attorney General notes, with respect to all four counts the information specially alleged that Rodriguez had personally and intentionally used and discharged a firearm; and the jury instructions stated, to find the special firearms-use allegations true, the jury had to find that [t]he defendant personally discharged a firearm during the commission of each crime. However, the information also alleged Manuel Rodriguez had personally used and discharged a firearm in committing the murder and attempted murders and alleged with respect to both men, as well as Gabriel Flores, that a principal in the commission of the offenses had used and discharged a firearm. The evidence indicated, as the prosecutor noted in closing argument, two guns may have been used in the incident (and, thus, two different men may have done the shooting), although the prosecutor argued Rodriguez fired the gun that killed Aragon. Notwithstanding the jury instructions, the verdict forms given the jurywithout objection from either the People or defense counselonly asked if a principal in the offenses had personally and intentionally discharged a firearm.

The crimes at issue in this case necessarily involved the discharge of a firearm. Aragon, after all, was killed by gunshots. Under the circumstances the failure to require the jury actually to decide whether the defendant had personally used and discharged a firearm, as opposed to the far different question whether any one of the principals in the commission of the offenses had personally used a firearm, is not a technical defect or harmless clerical error akin to using the wrong Penal Code section for the crime charged or mistakenly identifying a charge of robbery as one for carjacking on the verdict form when the case was tried throughout with the understanding that count was for robbery. Although, if given the proper forms, the jury very well may have concluded Rodriguez personally used and discharged a firearm in committing all four offenses, on this record we cannot conclude, beyond a reasonable doubt, the jurys unmistakable intent was to find true a special allegation that Rodriguez personally used and discharged a firearm. (Cf. People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [error in failing to instruct on element of a sentence enhancement provision (other than one based on a prior conviction) is federal constitutional error if it increases the penalty for the underlying crime beyond the prescribed statutory maximum; such error is reversible unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict].)

4. The Abstract of Judgment Must Be Corrected To Reflect the Proper Fines

Rodriguez contends, and the People concede, the abstract of judgment incorrectly reflects restitution and parole revocation fines in the amount of $800. At the time of sentencing, the trial court imposed a $200 fine as to each component. Because the abstract of judgment must conform to the trial courts pronouncement of judgment (see People v. Boyde (1988) 46 Cal.3d 212, 256), we order the abstract of judgment corrected to include imposition of a $200 restitution fine pursuant to section 1202.4, subdivision (b), and imposition and suspension of a $200 parole revocation restitution fine pursuant to section 1202.45. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment that does not accurately reflect judgment of sentencing court is clerical error that may be corrected by appellate court on its own motion or upon application of parties].)

disposition

The judgment is modified as to count 1 to strike the 10-year enhancement imposed pursuant to section 186.22, subdivision (b)(1), and to impose and stay a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5), and as to counts 2, 3 and 4, to stay imposition of the 15-year minimum parole eligibility terms. As modified, the judgment is affirmed.

The abstract of judgment is ordered corrected to reflect (a) on count 1 the imposition of a 25-years-to-life life term, plus a consecutive term enhancement of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1), and the imposition and stay of a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5); (b) on each of counts 2, 3 and 4 the imposition of a consecutive term of life with the possibility of parole, plus a consecutive term enhancement of 20 years pursuant to section 12022.53, subdivisions (c) and (e)(1), and the imposition and stay of a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5); (c) imposition of a $200 restitution fine pursuant to section 1202.4, subdivision (b); and (d) imposition and suspension of a $200 parole revocation restitution fine pursuant to section 1202.45. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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[1] Our original opinion in this case was filed April 1, 2009. On July 8, 2009 the Supreme Court granted Rodriguezs petition for review (S172198) and deferred further action pending consideration and disposition of a related issue in People v. Brookfield, S147980. Following its decision in People v. Brookfield (2009) 47 Cal.4th 583, on October 28, 2009 the Supreme Court transferred the matter to us with directions to vacate our decision and reconsider the case in light of Brookfield. Other than a few minor, nonsubstantive changes, the opinion we now file is the same as the opinion filed on April 1, 2009 except for section 3 of the Discussion, which addresses the Brookfield sentencing issues, and the Disposition, which incorporates our modification of Rodriguezs sentence in light of Brookfields holding.

[2] Because Rene and Luis share the same last name, we refer to them by their first names for convenience and clarity. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

[3] A woman driving past the scene largely confirmed this account of the shooting, although she mistook Rene, who wore his hair long, for a woman. Some testimony suggested there may have been a third person who got out of the van and that at least two weapons were fired. These factual variances do not affect the resolution of this appeal.

[4] According to testimony at trial, Rodriguezs father owned the body shop, which was frequented by Rodriguez and at least four of his brothers, in addition to other CRS members.

[5] At trial a ballistics expert testified the bullet fragments retrieved from Aragons head were fired by the gun recovered on December 30, 2004. No fingerprints were found on the gun or on the bullets.

[6] A deputy sheriff testified Manuel Rodriguez had acknowledged his gang membership and moniker in a stop some months before the murder. The deputy recorded Manuels height at the time as 5 feet, 4 inches.

[7] Salvador Rodriguez, Manuel Rodriguez and Gabriel Flores were jointly charged with the murder of Alberto Aragon and the attempted murders of Rene Elias, Luis Elias and Alex Contreras. The court granted Floress motion for a separate trial. Manuel Rodriguez was tried concurrently with Salvador Rodriguez, but the charges against him were dismissed pursuant to section 1181.1 before the case went to the jury.

[8] The transcript of the videotape provided to the jury was edited to remove the prosecutors statements related to Moraless truthfulness.

[9] Statutory references are to the Penal Code unless otherwise indicated.

[10] We do not separately address Rodriguezs contention his due process rights were violated because that argument presumes the evidence was inadmissible under some state rule of evidence. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175] [misapplication of state law constitutes deprivation of liberty interest in violation of due process clause].)

[11] See Evidence Code, section 1200, subdivisions (a) ([h]earsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted); and (b) ([e]xcept as provided by law, hearsay evidence is inadmissible).

[12] Detective Valentos disclosure they all went to jail and . . . got filed on for murder today because of a bunch of other circumstances is not such a statement. Defense counsel was free to cross-examine Valento about that statement but elected not to do so for obvious reasons.

[13] Much of Rodriguezs argument on this point is directed to the prosecutors reference to the defenses failure to call a different witness who had been identified as present during Valentos alleged tirade. The appeal, however, challenges the courts evidentiary ruling, not the prosecutors comments. Accordingly, we do not address those comments.

[14] Section 12022.53, subdivision (e)(1), states, The enhancements provided in this section [concerning use or discharge of a firearm] shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: []  (A) The person violated subdivision (b) of Section 186.22. [] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

[15] Section 12022.53, subdivision (e)(2), states: An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.

[16]An unauthorized sentence may be corrected on appeal even if no objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.)

With respect to sentence enhancements, in his original briefing Rodriguez argued only that the trial court had erred in imposing a consecutive term of 10 years for the section 186.22, subdivision (b)(1)(C) criminal street gang enhancement on count 1 (first degree murder), rather than a 15-year