P. v. Velez

Filed 1/13/10 P. v. Velez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.
Norman J. Shapiro, Judge. Affirmed.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Andrew Adam Velez appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, 187, subd. (a), count 1),^[1]attempted willful, deliberate and premeditated murder ( 664, 187, subd. (a), count 2) and possession of a firearm by a felon ( 12021, subd. (a)(1), count 3). The jury found to be true as to counts 1 and 2 the firearm-use allegations within the meaning of section 12022.53, subdivisions (b) and (d), and as to count 1 the firearm-use allegation within the meaning of subdivision (c) of section 12022.53. As to all counts, the jury found to be true the allegation that appellant committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). Appellant admitted having suffered a prior felony strike within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced him to an aggregate state prison term of 130 years to life. Appellant contends that the trial court erred (1) in allowing over a hearsay objection evidence of a recorded telephone conversation identifying him as the shooter, (2) in allowing evidence of the murder victims hearsay statement identifying appellant as the person to whom the victim was speaking prior to the shooting, (3) in denying appellants motion for a mistrial based on prosecutorial misconduct for attempting to elicit evidence previously ruled inadmissible, and (4) in allowing evidence of a firearm that was not the murder weapon. Appellant also contends that (5) the cumulative effect of the errors and prosecutorial misconduct require reversal.

We affirm.

FACTUAL BACKGROUND

The prosecutions evidence

Introduction

In 2006, Debra Lopez (Debra) lived at 4487 Lovett Street (4487), in the City of Commerce. Her brother, Johnnie Lopez, and two nephews, Antonio Lopez (Antonio) and Joseph Lopez, were members of the Choppers 12 gang (Choppers). For over 30 years, Debra knew Carlos Moreno (Carlitos), also a Choppers gang member. She denied being a member of that gang, though she socialized with its members.

The shooting

On April 19, 2006, Debra hosted a barbeque at 4487. Several Choppers members were present, including Omar Padilla (Padilla) and Eduardo Osoria (Lefty). At approximately 4:00 p.m., Debra saw appellant speaking with Lefty, leave and later return.

According to Enrique Hernandez (Hernandez), between 7:00 and 7:30 p.m., Carlitos drove to 4487, with Hernandez as a passenger, and parked in front of the driveway. Carlitos got out of the car, Hernandez remaining inside. A few minutes later, Hernandez heard and saw Carlitos and appellant arguing. Four men were holding Carlitos back. Carlitos mentioned regulating,^[2]and appellant responded, If you pull out a knife, someone is going to pull out a gun. A few minutes after the argument stopped, Carlitos returned to his car, opened the door and pressed on the brake pedal, stating, See Kimo, I cant give you a ride, because my brakes are no good. Carlitos closed the door and walked toward the back of the car.

Five to 10 minutes later, appellant approached the passenger door, and asked Hernandez, Where you from? Hernandez got a good look at appellant,^[3]and responded that he was from nowhere. Appellant then yelled, Kimo from Choppers. Ten to 20 seconds later, Hernandez turned and saw the right half of appellants face. Appellant was smiling and shot Hernandez, who lost consciousness. Hernandez did not see the gun, but was positive appellant shot him.

Hernandez regained consciousness and was covered with blood. He jumped into the drivers seat, turned the key that was left in the ignition, and drove himself to East Los Angeles Doctors Hospital. As he was pulling away from 4487, he saw appellant dragging Carlitoss body by the collar toward the house next door. He saw no one else around. On the way to the hospital, Hernandez threw up blood and spit out a bullet. He arrived at the hospital at 9:00 p.m., with six gunshot wounds.

Debra also heard the name Kimo yelled five or six seconds before she heard two or three shots. She identified appellant as Kimo. She saw Kimos truck in front of her house and saw the gun flash through its windshield. She then saw Kimo get into his truck and zoom off.

The investigation

The crime scene

Los Angeles Deputy Sheriff Santiago Cabrera and his partner Deputy Gutierrez were the first responders to the scene of the shooting. They saw a pool and a trail of blood leading to a mattress under which they found the body of Carlitos, who died from a single gunshot wound to the head. The driveway at 4487 appeared to have been washed down.

Police recovered three shell casings and two expended rounds at the crime scene. A fingerprint was lifted from the passenger door of Carlitoss car. It was run through the police computer fingerprint database, but no match was found.

Detective Richard Ramirez arrived at the crime scene at approximately 11:15 p.m. He found Chopperss gang graffiti in the middle of the street. No guns were recovered that night, and the murder weapon was never found.

The hospital

Deputy Sheriff David Duran responded to Doctors Hospital for a gunshot victim call. Hernandez told him that Carlitos was shot and that the shooter yelled, This is Choppers. He described the shooter as a male Hispanic, five feet seven or eight inches tall, 170 pounds, bald with a light complexion. Deputy Duran marked the box for facial hair on his report form unknown.

Deputy Scott Hennessy went to Doctorss Hospital and inspected the car in which Hernandez had arrived there. He recovered on the drivers side floor board an expended bullet and on the passenger side a shell casing.

A firearms examiner compared the expended shell casings and bullets found at the crime scene with the bullet that Hernandez spit in the car on the way to the hospital. They were all fired from the same .380-caliber, semiautomatic pistol.

The interviews

Debra

On April 20, 2006, at approximately 1:30 a.m., Detective Ramirez interviewed Debra. She said she knew appellant as Kimo, saw him sitting in his parked SUV before the shooting and was able to identify him by the dome light inside. She heard someone say Kimo a few seconds before she heard shots. After the shooting, Kimo zoomed off. Debra identified a photograph of appellant as Kimo and said he had no facial hair.

Hernandez

On April 27, 2006, Detective Ramirez interviewed Hernandez. The detective showed him a photographic six-pack he had prepared. Hernandez identified the photograph of appellant as Kimo. Hernandez circled the photograph and wrote, This is him, the person who shot me. Detective Ramirez did not tell him he had to select a particular photograph and gave him no indication of which photograph to select.^[4]

Appellant

Appellant was arrested on May 4, 2006. He was five feet, eight inches tall and weighed 150 pounds. After his arrest, Detective Scott Schulze searched appellants home in Diamond Bar. In appellants bedroom he located an envelope with the name Kimo on the front, as well as an unregistered, .38-caliber revolver. On the day of appellants arrest, Detective Schulze interviewed him and asked if he was called Kimo, because youre light skinned? Appellant responded, Yeah, but thats old. He said that he joined Choppers 12 years earlier.

Detectives Ramirez and his partner, Joe Sheehy, also interviewed appellant on the day of his arrest. Appellant denied being at Debras residence at the time of the shooting and being known as Kimo.

Padillas wire-tapped cell phone calls

On April 15, 2006, Bureau of Narcotic Enforcement (BNE) agents recorded a wire-tapped phone conversation between Padilla, a suspected drug dealer, and Antonio. In the conversation, they discussed Carlitos, who had complained about the quality of methamphetamine he had gotten from them. Antonio said that he told Carlitos he was putting a green light^[5]on him because Carlitos open[ed] [his] fucking mouth . . . . Padilla said that Carlitos aint about shit, . . . and Lefty will put him in the dirt.

On the evening of the shooting, the wiretap on Padillas cell phone recorded numerous calls. At 9:01 p.m., Padilla spoke with his brother, Alejandro Padilla (Alejandro). Padilla asked Alejandro who drove away in Carlitoss car. Alejandro said it was the person that was with Carlitos. Padilla said, Yeah, but Kimo shot them. Kimo, reached in the car and shot them all up. I seen him. Alejandro said that when the person drove off, Carlitos was dead and under a mattress. Padilla said, I know, I seen everything.

Between 9:04 p.m. and 9:30 p.m., Padilla had four calls with Rudy, Debras son. In those conversations, Padilla asked if the police were there and where Carlitoss body was. He told Rudy to water down the driveway because theres blood right here, trust me, I know thats where Carlitos fell. He also told Rudy to water down the trail of blood and to get everything out of the pad. Theres a shotgun under the van. Get it out of there, too . . . wrap it in a bag and go throw it in any neighbors trash can . . . .

On April 24, 2006, Padilla and Antonio were arrested together after a cell phone call mentioned paying a visit to a person named Pollo to harm him. In another conversation, Padilla asked someone to get him a nine-millimeter handgun with a silencer.

Appellants cell phone calls

After appellants arrest, Detective Ramirez obtained his cell phone records. They reflected calls between appellants cell phone and a cell phone recovered in Padillas vehicle. There were numerous calls with Antonio on April 9 and April 12, 2006. On the day of the shooting and the morning after, there were more than a dozen calls to Antonio and Lefty, both before and after the shootings.

James Hollister (Hollister), an audio frequency manager for AT&T, testified that based on the location of the cell towers receiving appellants calls on April 19, 2006, between 8:00 p.m. and 9:20 p.m., there was a 90 percent chance that appellant was within 1.2 miles of the tower, an area that included 4487, and was consistent with appellant being at 4487. The progression of calls from the cell phone after 8:59 p.m., indicated that the caller was traveling east on the 60 Freeway toward Diamond Bar, where appellant lived.

Gang evidence

Detective Schulze testified as a gang expert that the Choppers was an Hispanic criminal street gang, whose primary activities were murder, robbery, thefts, possession of firearms and narcotics sales. According to the detective, appellant, Carlitos and Padilla were all members of that gang, and Debra was an associate.

In response to a hypothetical based upon the evidence in the case, Detective Schulze opined that Carlitoss shooting was for the benefit of the gang. The murder involved regulating the gang by removing a weak link, enforcing rules so that the gang was stronger and received more loyalty, enhancing gang reputation, and aiding in recruitment.

The defenses evidence

Annie Collier, a former manager at Pomona Walmart where appellant had worked, testified on his behalf that he worked 40 to 50 hours per week and had superb attendance. He became a department manager and, at the time of his arrest, supervised seven to 10 people and was about to be promoted.

Rebecca Moreno, who also worked with appellant at Walmart, testified for him. She regularly rode in his Ford Explorer and noticed that the inside lights did not work. Appellant always had a goatee.

Jeff Fischbach, a forensic technologist, disagreed with Hollister that there was a 90 percent probability that the calls from appellants cell phone after 8:00 p.m. on April 19, 2006, were within a two-mile radius surrounding the receiving cell tower. He believed the calls were made within a 12-mile radius from that cell tower. He conceded that the phone calls up until 8:16 p.m. were not inconsistent with someone being at 4487, but the person could be anywhere in the coverage area.

Martin Jimenez (Jimenez) lived at 4485 Lovett Street, behind 4487. On April 19, 2006, between 8:00 and 9:00 p.m., he was standing at his front door and heard five to six gunshots. Before the shooting, he did not hear anyone shout Kimo. He saw a small dark-colored car stop in front of the driveway before the shooting.

Alex Alonso testified as appellants gang expert that veteranos were gang members in their 30s, who told youngsters, who were generally 15 to 21 years old, what to do and who to assault. Youngsters did the shooting. A gang member, like appellant, who had a full-time job and did not live in the neighborhood, was most likely an associate of the gang, not a hardcore member. While yelling the gang name at the time of a shooting is an indication a crime is being committed for the benefit of the gang, it is rare for a gang member to yell his moniker before a shooting. Alonso opined that a murder committed only four days after a green light call was a powerful link to the green light.

Defense investigator, Charles Flippo (Flippo), testified as to his three interviews of Hernandez, only the last of which was recorded for the purpose of verifying the accuracy of Flippos notes of the first two. Hernandez told Flippo that Detective Ramirez showed him two six-packs. He said that when he pointed to two photographs about which he was uncertain, Detective Ramirez pointed to the picture of appellant and said thats Kimo from Choppers, Dont you think it could be this one? When Hernandez tried to tell Detective Ramirez that two of the photographs looked alike, the detective said, Forget about those two guys. We got the right guy.

Flippo claimed that Hernandez gave him varying explanations for identifying appellant at the preliminary hearing. Hernandez said he identified appellant because appellant was the same person in the photograph Hernandez had been shown, was told appellants gang had ratted [him] off or fronted him off and was told he was shot by Kimo from Choppers.

In one interview Flippo showed Hernandez a booking photograph of appellant. Hernandez said he had never seen that person before, because the shooter was only 17 to 19 years old, while Kimo was 32. In the another interview, Hernandez said he was positive the shooter did not have a goatee.^[6]

Flippo interviewed Debra in December 2007. She told him she was not afraid and had not been threatened.^[7]

Rebuttal

Detective Ramirez testified that before he prepared the six-pack, he had the recording of Padillas statement identifying Kimo as the shooter. Thus, there was no reason for Detective Ramirez to prepare two six-packs.

Debra denied telling Flippo that she was not afraid and that she was not threatened by anyone.

DISCUSSION

I. Admission of wiretap phone conversation

A. Background

Before trial, the prosecutor filed an in limine motion seeking to introduce several phone conversations obtained from a wire tap of Padillas cell phone, claiming they were admissible within the coconspirator exception to the hearsay rule. The trial court admitted several of the conversations but refused to admit a conversation that occurred on the night of Carlitoss murder, between Padilla and his brother, Alejandro, wherein Padilla told Alejandro, Kimo shot them. Kimo reached in the car and shot them all up. I seen him (Padillas statement). It concluded that that conversation was not in furtherance of the conspiracy, as Carlitos had already been murdered. The trial court also saw no Confrontation Clause issue, as the statement was not testimonial.

On multiple occasions during trial, the prosecutor moved for reconsideration of the ruling because defense counsel had opened the door by suggesting that Padilla or another Choppers gang member killed Carlitos. The prosecutor offered to redact the name Kimo from the challenged conversation. He argued that Padillas statement was admissible to counter speculation that a third party was the shooter and to provide the complete context to Padillas cell phone conversations that were admitted into evidence and which suggested that Padilla might have been the shooter. Defense counsel argued that nothing had changed since the trial courts prior ruling, that he did not intend to introduce any of the recorded telephone conversations and that it was the prosecutions evidence which implied third party culpability. The trial court initially affirmed its earlier ruling, but later reversed itself, permitting the prosecution to introduce an edited version of the conversation, redacting the name Kimo. It concluded that this evidence would not necessarily implicate appellant, or a person named Kimo, but would allow the prosecutor to argue the lack of third party culpability.

During the instruction conference, the issue was again revisited. A juror had submitted a written question during deliberations asking why the name of the shooter was redacted from Padillas statement. The trial court stated that it was hoping that wouldnt be posed to us, that they would just accept its redacted and not draw anything from it. But I guess thats kind of a foolish approach. They see it redacted smack in front of them. They are going to wonder what that is and why that was. The trial court explained that evidence that there were two six-packs shown to Hernandez and the statement by Flippo suggesting a corruption investigation of Detective Ramirez, introduced after the trial courts earlier ruling on the issue, made this evidence necessary. The trial court overruled the objections and ruled that the unredacted statement could be introduced in rebuttal for the limited purpose of explaining why Detective Ramirez did not prepare two photographic lineups. It instructed the jury to insert the name Kimo in the transcript and gave CALJIC No. 2.09.^[8]

Detective Ramirez was then called as a rebuttal witness and testified that he had been given Padillas statement identifying Kimo as the shooter before he prepared one photographic lineup which included appellants photograph.

B. Contentions

Appellant contends that the trial court erred in allowing evidence of the conversation containing Padillas statement. He argues that Padillas statement was inadmissible as a statement made in furtherance of a conspiracy because the conspiracy to murder Carlitos had concluded when the criminal objective had been achieved by killing him. He further argues that the statement was inadmissible to rebut third party culpability evidence because the prosecution, not the defense, opened the door to that defense, why Detective Ramirez included appellants photograph was irrelevant, the statement should have been excluded under Evidence Code section 352, and it violated his Sixth Amendment right to confrontation.

The People contend that appellant has forfeited his federal Confrontation Clause and Evidence Code section 352 claims by failing to object on those specific grounds in the trial court.

C. Forfeiture

Confrontation Clause and Evidence Code section 352 claims can be forfeited by the failure to raise them in the trial court. (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal]; People v. Burgener (2003) 29 Cal.4th 833, 869 [confrontation issue forfeited by failure to object in the trial court].) They were adequately raised in the trial court here. Though appellant did not explicitly mention the Confrontation Clause, he argued that he would be unable to cross-examine the parties to the conversation. The trial court understood this argument to refer to the Confrontation Clause, as it said that the right to confront was not an issue because Padillas statement was not testimonial, specifically referring to Crawford v. Washington (2004) 541 U.S. 36 (Crawford). This made further objection by appellant futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Appellant also argued that the evidence was certainly far more prejudicial than it is probative under the circumstances. This argument encompassed the crux of Evidence Code section 352, though that section was not specifically identified. A specific objection requires no set form of words. (See People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

D. Confrontation Clause

Admission of the cell phone conversation between Padilla and Alejandro on the night of Carlitoss murder did not violate the Confrontation Clause. In Crawford, supra, 541 U.S 36, the United States Supreme Court concluded that where testimonial hearsay evidence is involved, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (Crawford, supra, at p. 68.) The Court generally defined testimonial to include, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. (Id. at p. 52.)

In Davis v. Washington (2006) 547 U.S. 813 (Davis), the Court concluded that the Confrontation Clause applies only to testimonial hearsay. (Davis, supra, at pp. 824826.) Davis stated: Only [testimonial] statements . . . cause the declarant to be a witness within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay . . . .  (Id. at p. 821.)

The phone conversation between Padilla and Alejandro was not testimonial. It was a private conversation between two individuals who had no reasonable belief that it would be available for later use at trial. Consequently, the Confrontation Clause was inapplicable.

Furthermore, Crawford states that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) As discussed below, the challenged conversation was admitted for nonhearsay purposes.^[9]

E. Admissibility for nonhearsay purpose

The trial court initially admitted Padillas statement with the name Kimo redacted as rebuttal to the defense of third party culpability. The statement showed that Padilla was not the shooter, as he referred to Kimo doing the shooting. The trial court later allowed the name Kimo to be inserted in order to rebut evidence that Detective Ramirez showed Hernandez two six-packs and subsequently destroyed evidence of the second six-pack. As discussed below, in neither instance was Padillas statement admitted for a hearsay purpose.

1. Third party culpability

Appellant argues that Padillas conversation with Alejandro was not admissible to rebut third party culpability because the prosecution, not the defense, opened the door to that issue. The open the door theory is a popular fallacy. (People v. Gambos (1970) 5 Cal.App.3d 187, 192.) We find it to be of no consequence who opened the door. The issue is whether the evidence was relevant to issues in the case.

There was evidence supporting a theory that a Choppers gang member other than appellant, most likely Padilla, may have been the shooter. Padilla was a major drug dealer and member of a murderous criminal street gang. A phone conversation on April 15, 2006, between Padilla and Antonio indicated that they were placing a green light on Carlitos. BNE agents later overheard a conversation in which Padilla threatened to kill a person named Pollo. Debra testified that Padilla was present at the barbeque at which Carlitos was murdered. After the shooting, Padilla instructed Debras son Rudy to clean up the crime scene by watering the driveway to get rid of the blood.

In the challenged conversation between Padilla and Alejandro, Padilla said that he saw Kimo shoot Hernandez, the making of which statement was evidence that Padilla was not the shooter. The conversation also helped place in context other admitted cell phone conversations, which provided a wealth of evidence pointing to Padilla being the perpetrator. On the issue of third party culpability, Padillas statement was admitted because it was made, not for its truth.

2. Two six-packs

Hernandez was the principal witness against appellant. Only he had a good look at appellant as appellant shot him, and, as Hernandez drove away, he saw appellant dragging Carlitoss body.^[10] He identified appellant in a six-pack shown to him by Detective Ramirez a week after the shooting and also identified him at the preliminary hearing. Because of the central importance of Hernandezs identifications, the defense aimed its sites at undermining them, and with them, Detective Ramirezs honesty and integrity. It introduced evidence of Flippos interviews of Hernandez in which Hernandez told him that he was shown two six-packs, not one, by Detective Ramirez and that the detective directed Hernandezs attention to the photograph of Kimo. The defense also introduced evidence that when Flippo showed Hernandez a photograph of appellant, Hernandez denied that appellant was the shooter. Flippo testified that, The significance of what Mr. Hernandez told me, that I knew that sooner or later [my] taped interview would be used in a corruption case against Detective Ramirez, though this testimony was stricken by the trial court and the jury was instructed to disregard it. Nonetheless, Flippos statement cast aspersions on Detective Ramirezs integrity, suggesting that he had perjured himself and destroyed evidence of a second six-pack, which could not so easily be mitigated by an admonition.

Contrary to appellants argument, why Detective Ramirez prepared only one six-pack was relevant to proving appellants identity as the shooter. Padillas statement identifying Kimo, along with evidence that Detective Ramirez had received that statement before he prepared the six-pack containing appellants photograph, provided Detective Ramirez with compelling information that appellant was the shooter. With that knowledge, there was no reason to prepare more than one six-pack. This reasonable explanation reinforced Hernandezs trial testimony that there was only one six-pack, which in turn reinforced his testimony identifying appellant. It also rehabilitated Detective Ramirezs credibility by showing that there was only one six-pack, and the detective did not destroy evidence of a second one. On the issue of Detective Ramirezs knowledge, Padillas statement was not hearsay, as it was not offered to prove the truth of the matter asserted. (Evid. Code, 1200.)

F. Evidence Code section 352

We evaluate a trial courts Evidence Code section 352 ruling under the abuse of discretion standard. (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) The trial courts discretion is as broad as necessary. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) [I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded. (Ibid.)

We cannot say that the trial court abused its discretion here. As discussed above, the challenged evidence was not merely relevant, but critical to key issues in the case, including appellants identity. Its relevance outweighed any prejudice, which, in any event, was mitigated by the trial courts instruction to the jury emphasizing that the evidence was admitted for only a limited purpose and was not to be considered on appellants guilt. The instruction given went beyond the form CALJIC instruction and contained the trial courts extra cautionary comments. It is presumed that the jury understood and followed the limiting instruction. (People v. Jablonski (2006) 37 Cal.4th 774, 834.)

II. Admission of decedents hearsay statement identifying shooter

A. Background

In his opening statement, the prosecutor told the jury that Hernandez heard Carlitos say, Kimo, I cant give you a ride, you see, the brakes are no good. Defense counsel objected, and a bench discussion followed. The prosecutor argued that the evidence was not being offered for the truth of whether the brakes were working, but to describe what was said in the argument and for identity. Defense counsel argued that identity is not a hearsay exception, the evidence was inadmissible under Evidence Code section 352, because its relevance was outweighed by its prejudice, and it was highly prejudicial because the prosecutions entire case was premised upon Kimo being the shooter. The trial court said that if the issue came up in the testimony, it might give a limiting instruction.

Over the defenses hearsay objection and motion to strike, Hernandez testified that he heard Carlitos make the above-challenged statement. The prosecutor argued that the statement was an operative fact and was the only way to describe what was being said during the argument between appellant and Carlitos. After taking the hearsay objection under submission, the trial court ruled that the statement was admissible as a spontaneous statement. The trial court stated, I know its important, I know its key. I know its critical.

B. Contentions

Appellant contends that the trial court erred in admitting Carlitoss statement identifying Kimo because it deprived him of his constitutional right to confrontation, as it was not admissible within any firmly rooted hearsay exception and was not within the excited utterance exception to the hearsay rule because it was not made under the immediate influence of the occurrence to which it related. It was made three or four minutes before the shooting.

The People contend that appellant forfeited his Confrontation Clause claim.

C. Forfeiture

We agree with the People that appellant forfeited his Confrontation Clause claim. The record before us fails to reflect that the defense objected to the challenged statement on the Confrontation Clause ground, thereby failing to preserve it for appeal. (People v. Burgener, supra, 29 Cal.4th at p. 869.)

D. Hearsay

A hearsay statement is one made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200.) As the prosecutor acknowledged, Carlitoss out-of-court statement was not offered for the truth of whether Carlitoss brakes worked, but to identify Kimo. But on that issue it was offered for the truth of the matter asserted; whether the person to whom Carlitos was speaking was or was not Kimo. It had no other legitimate purpose.

Relying on People v. Freeman (1971)20 Cal.App.3d 488 (Freeman), the People argue that the statement identifying Kimo was not hearsay. In Freeman, the defendant was the get-away driver in a robbery that occurred with two other accomplices at 11:30 a.m. Witnesses at the scene, while identifying the two robbers who entered the store, could not identify the defendant. Based upon the description of the getaway vehicle given by the eyewitness, the car was stopped by police 40 minutes later, with the two identified robbers and the defendant driving. Mrs. Anna Duckworth went to her daughters house at 7:00 a.m. on the morning of the robbery. Her daughter was the girlfriend of one of the defendants accomplices. While Mrs. Duckworth was outside the home, a man came to the house and she heard her daughter say, Hi, Norman, the defendants first name. This contradicted defendants alibi that he spent the night before the robbery at his girlfriends house, and left shortly before noon to see a doctor. The Court of Appeal concluded that Hi, Norman, was not hearsay because not offered to prove the truth or falsity but was offered as evidence of the fact that the statement was made. (Id. at p. 492.)

We find Freeman unconvincing. The Court of Appeal failed to explain the relevance of the fact that the statement was made. We fail to see how the statement, Hi, Norman had any relevance to the issues in that case, apart from the truth of whether it was in fact Norman, the defendant. Freeman has never been cited for the proposition that the statement, Hi, Norman, was not hearsay. With respect to such greetings, Mueller and Kirkpatrick state, But even such phrases may (and usually do) amount to somewhat minimal assertions that the speaker recognizes and knows the listener from prior contact or encounter. . . . Thus understood, the phrases are hearsay, . . . (Mueller & Kirkpatrick, Modern Evidence, Doctrine and Practice (1995) 8.8, p. 1069, fns. omitted.)^[11]

E. The spontaneous utterance exception

The trial court found Carlitoss statement to be admissible under the spontaneous utterance exception to the hearsay rule. This was error. Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Evid. Code,  1240.) To be admissible as a spontaneous declaration, (1) the occurrence must be startling enough to produce nervous excitement and render the statement spontaneous and unreflecting, (2) the statement must be made while the nervous excitement still dominates the reflective powers, and (3) the statement must relate to the circumstance of the occurrence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590.) A spontaneous declaration is one made without deliberation or reflection (People v. Morrison (2004) 34 Cal.4th 698, 718) under the stress of the excitement (People v. Ledesma (2006) 39 Cal.4th 641, 708). The crucial element is the mental state of the speaker. (People v. Gutierrez (2009) 45 Cal.4th 789, 811.) Whether to admit a statement as a spontaneous declaration lies within the discretion of the trial court. (People v. Ledesma, supra, 39 Cal.4th at p. 708.)

There is no evidence that Carlitoss statement was spontaneous. First, it was made before the shooting occurred. While the People argue that Carlitoss argument with appellant was the stressful occurrence, there is no evidence that when Carlitos made the challenged statement, he was still stressed. He returned to his car after the argument had concluded. His statement appeared to have been in response to a request for a ride and was not an unsolicited declaration. It is a significant factor whether or not the statement was in response to a question. (People v. Brown (2003) 31 Cal.4th 518, 541.) Further, the nature of the comment was contrived and reflective. It appears that Carlitos did not want to give appellant a ride, possibly fearing that appellant intended to take him away from the Chopperss hangout at 4487 to kill him at a distant location. It can be inferred that Carlitos fabricated that his brakes were not working to avoid going with appellant. He had just driven to 4487 with Hernandez, with no indication that the brakes were not functional. Additionally, Carlitoss statement did not purport to narrate or refer to any stressful circumstance, a requirement of the spontaneous utterance exception. (Evid. Code, 1240, subd. (a).)

F. Harmless error

We conclude that the error in admitting Carlitoss statement was harmless in that it is not reasonably probable that had it been excluded, a result more favorable to appellant would have ensued. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Williams (2009) 170 Cal.App.4th 587, 612; See People v. Carter (2005) 36 Cal.4th 1114, 1171.) When compared with the compelling, properly-admitted statement of Padilla that Kimo was the shooter, Carlitoss statement was less convincing. It only identified Kimo as the person to whom Carlitos spoke before the shooting, not as the shooter. Additionally, other evidence that appellant was the killer was strong. He was a member of a gang whose primary activity included murders. A green light was placed on Carlitos, and appellant was in telephone communication with his fellow gang members who placed the green light numerous times on the day of the shooting. His cell phone call pattern was consistent with him being at 4487, and Debra identified him as being there, Kimo being yelled just before the shooting, and appellant taking off in his car immediately afterwards. Hernandez identified him from a photographic six-pack a week after the shootings as the person who shot him. Forensics established that the bullet spit from Hernandezs mouth was fired from the same gun as the bullets found at the crime scene, strongly suggesting that the person who shot Hernandez also shot and killed Carlitos. Finally, while Flippo obtained a statement from Hernandez that appellant was not the shooter, contradicting Hernandezs prior statement and Detective Ramirezs testimony, the jurors evidently believed the prior statement and Detective Ramirez. It is doubtful that exclusion of Carlitos statement would have changed the jurors belief.

III. Prosecutorial misconduct

A. Background

As discussed in part I, ante, the trial court initially allowed the admission of the cell phone conversation between Padilla and Alejandro with the name Kimo redacted. The prosecutor then played the tape and asked BNE agent Rose, Now this particular phone call, there is a portion that is redacted, correct. [The witness]: Yes. Q: Was there a name there that was given? [Defense Counsel]: Objection. [The Court]: I am going to sustain the objection. At sidebar, appellant moved for a mistrial, arguing that the prosecutors questions constituted misconduct and contempt. He argued that the redaction order implied an order not to mention it, focus on it, or invite speculation as to what was redacted. Defense counsel was concerned that the jury would focus on that phone call and speculate as to the missing name. He requested at the very least that the prosecution be ordered not to argue the redaction. The prosecutor argued that he wanted to establish that the name was not Antonio, Lefty or Smokey, to refute the third party culpability claim. He was not going to mention that the name was Kimo.

The trial court denied the motion for mistrial. It did not find any willful disobedience of the court order or misconduct. It instructed the prosecutor not to argue inference or speculation as to whats been deleted or redacted.

B. Contentions

Appellant contends that the prosecutor committed intentional prosecutorial misconduct by attempting to elicit the identity of the redacted name, previously ruled inadmissible. The trial court therefore erroneously denied his request for a mistrial. The People contend that appellant forfeited this claim by failing to request that the jury be admonished.

C. Forfeiture

Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] This general rule, however, does not apply if a defendants objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct: nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.] (People v. McDermott (2002) 28 Cal.4th 946, 1001.) We do not find forfeiture here. Appellant timely objected to the challenged question and answer and asked for a mistrial. In doing so, it appears he believed that an admonition might have only given additional attention to the questions, with little benefit. As the trial court stated, I dont think the bell can be unrung.

D. Harmless error

The well-established federal and state standards for assessing a claim of prosecutorial misconduct were set forth by our Supreme Court in People v. Samayoa (1997) 15 Cal.4th 795, 841: 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.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] . . . Additionally, when the claim [of prosecutorial misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]

We need not determine whether the prosecutor engaged in misconduct sufficient to have warranted the trial court to grant his motion for mistrial because even if it was misconduct, it was harmless beyond a reasonable doubt. (People v. Williams, supra, 170 Cal.App.4th at pp. 637638.) Later in the trial, the trial court allowed the prosecutor to fill in the name Kimo on the redacted transcript of Padillas conversation and instructed the jury that it was admitted for a limited purpose. Given these later rulings, the prosecutors reference to the redaction had negligible, if any, effect on the outcome.

IV. Admission of firearm not used in the shooting

A. Background

Before trial, the prosecutor said that he did not intend to introduce evidence that appellant possessed the revolver recovered in a search of his bedroom on the day of his arrest. But during the examination of Detective Ramirez, the prosecutor asked: Is it important in your investigation to find out what was in [appellants] house? Detective Ramirez responded, Absolutely. When asked if a murder weapon was found at appellants house, the detective said that he was not told that a murder weapon was located.

Detective Ramirez was later asked by defense counsel on cross-examination if any gang letters, any drugs or weapons were found in appellants car when he was arrested. The response to each question was No. The prosecutor then sought to introduce evidence that a revolver was found during the search of appellants residence. He said that he was not seeking to do so to establish the charge of a felon in possession but to counter the defenses questions to Detective Ramirez making it appear that [appellant] was in possession of no weapons, and thats not an accurate portrayal of this gang member. Defense counsel argued that the murder weapon was established to be a semiautomatic handgun, not a revolver, and thus the evidence had no relevance. Also, under Evidence Code section 352, its prejudice outweighed any relevance. The trial court overruled the objections. At a later sidebar discussion, the trial court also indicated that it would permit the prosecution to present a photograph of the recovered revolver.

Detective Schulze then testified that he recovered an unregistered, .38-caliber revolver, which was not the murder weapon, from appellants bedroom during a search. Detective Schulze testified that the primary activities of the gang included homicides, assaults with firearms and narcotics sales.

In closing argument, the prosecutor referred to the revolver found at appellants residence, specifically noting that it was not the murder weapon.

B. Contention

Appellant contends that the trial court prejudicially erred by allowing evidence of a firearm not used for the murder. He argues that such evidence portrayed him as the type of person who would have shot the victims. The weapon therefore was only evidence of appellants criminal propensity. He further argues that the evidence should have been excluded under Evidence Code section 352. We agree that admission of the evidence was error, but find that the error was harmless.

C. Admissibility of revolver evidence

As a basic proposition, [w]hen the prosecution relies . . . on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. (People v. Riser (1956) 47 Cal. 2d 566, 577, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648649, and in People v. Chapman (1959) 52 Cal.2d 95, 98; People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) But when weapons are otherwise relevant to the crimes commission, but are not the actual murder weapon, they may still be admissible. (People v. Cox (2003) 30 Cal.4th 916, 956957, disapproved on other grounds in People v Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The critical question is whether the weapons evidence is being admitted simply as character evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1249.)

Here, forensics determined that the murder weapon was a .380-caliber semiautomatic pistol. It was undisputed that the weapon recovered in appellants bedroom was a revolver and not the murder weapon. Hence, unless otherwise relevant to some issue besides appellants character, evidence regarding the recovered gun was irrelevant and inadmissible. There is no hint in the record that the recovered weapon was relevant to anything other than appellants character. In fact, the prosecutor acknowledged that he sought to admit the gun because defense counsel made it appear that [appellant] was in possession of no weapons, and thats not an accurate portrayal of this gang member.

The prosecutor argued that although he did not intend to admit evidence of the recovered weapon initially, appellant opened the door to it by showing that appellant did not have weapons in the car when he was arrested. This argument cannot withstand scrutiny. The fact that appellant had no weapons when he was arrested was irrelevant, as it says nothing about whether he had access to weapons or had weapons at another location or at other times. Hence, the prosecutions argument for admission rested on a faulty premise.

The open the door theory, a popular fallacy (People v. Gambos, supra, 5 Cal.App.3d at p. 192), regarding the admissibility of evidence was rejected long ago and cannot justify the admission of evidence that otherwise should have been excluded. (People v. Steele (2002) 27 Cal.4th 1230, 1270 (conc. opin. of George, C.J.) Failure to object to improper questions on direct examination may not be taken advantage of on cross-examination to elicit immaterial or irrelevant testimony. (Id. at p. 1271.)

As discussed above, the prosecutors proper remedy would have been a relevancy objection to the question whether appellant had any guns in his possession when arrested. Having failed to object, he could not introduce irrelevant evidence to rebut the testimony he should have endeavored to keep out of evidence.

D. Harmless error

We conclude that the error in admitting evidence of the recovered revolver was harmless in that it is not reasonably probable had that evidence been excluded that a more favorable result for appellant would have ensued. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Williams, supra, 170 Cal.App.4th at p. 612; People v. Carter, supra, 36 Cal.4th at p. 1171.) Appellant was a longstanding member of the Choppers. The prosecutions gang expert testified that the Choppers primary activities included murder and robbery. Evidence was adduced of conversations involving other Choppers gang members talking about harming others, placing a green light on Carlitos and other unsavory conduct. Even without the challenged evidence, the jury would likely have had little doubt that appellant had weapons or access to them. Further, the prosecution presented a strong case of guilt as set forth in part IIE, ante. The testimony regarding the revolver was brief in the context of this lengthy trial.

V. Cumulative error

Appellant contends that even if the asserted errors were not individually sufficiently prejudicial to warrant reversal, the cumulative effect of the errors reinforced each other and warrant reversal. This contention is meritless.

Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 844.) Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (Ibid.) While we have concluded that there were multiple errors in this case, we also conclude that the prejudice from the errors individually and collectively was insufficient to deprive appellant of a fair trial so as to warrant reversal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

ASHMANN-GERST

We concur:

___________________________, P. J. ____________________________, J.

BOREN CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Regulating means enforcing gang rules through violence.

^[3] Hernandez believed appellant had no facial hair.

^[4] Hernandez also identified appellant as the shooter at the preliminary hearing, but testified that the shooter had facial hair.

^[5] Placing a green light means giving permission to attack a fellow gang member.

^[6] In apparent anticipation of Flippos testimony, in the Peoples case, Hernandez denied telling Flippo (1) that when Hernandez pointed to appellants photograph in the six-pack shown to him by Detective Ramirez, he said, It could be, but I am pretty sure its not. (2) that Detective Ramirez pointed to appellants photograph, (3) that Hernandez picked two photographs other than appellant and that Detective Ramirez told him Forget about those two. Dont worry. We got the right guy, (4) that Detective Ramirez said the photograph was Kimo from Choppers before Hernandez circled his photograph, (5) that Hernandez identified appellant in court because of his photograph, (6) that Hernandez told Flippo that he identified appellant in court because detectives said he was Kimo from Choppers, and (7) that appellant was not the shooter because the shooter had different ears. Detective Ramirez did tell him, Look, dont worry. One of his own fronted him off, but that was after the preliminary hearing, not at the photographic identification.

Detective Ramirez denied telling Hernandez who to select in the six-pack or giving him Kimos name before the identification.

^[7] Debra testified in the Peoples case that when she gave an interview to Flippo, he had shown up at her house with appellants mother and father before the preliminary hearing. In May 2006, she was threatened in a park and received further threats thereafter. She lied and told Flippo that she did not see Kimo at the Barbecue.

^[8] The trial courts lengthy instruction and explanation of the limited use of the evidence was as follows: Certain evidence is admitted for a limited purpose, and you are instructed