P. v. Rosales

Filed 2/16/10 P. v. Rosales CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Rand S. Rubin, Judge. Reversed in part and affirmed in part.

Derek K. Kowata, 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, Lance E. Winters, Susan D. Martynec and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Joshua P. Rosales timely appealed from his conviction on one count of second degree murder^[1]and one count of grossly negligent discharge of a firearm. The jury found the firearm allegations to be true and the gang allegation to be not true. The court sentenced defendant to 40 years to life. Defendant contends the court erred in improperly instructing the jury on felony murder based on an unauthorized theory, in allowing two witnesses to testify after they invoked their Fifth Amendment privilege, and in excluding evidence the victim had two prior felony convictions. We concluded the instructional error was prejudicial and reversed. We subsequently granted respondents petition for rehearing as that error only affected the conviction for murder. We reverse in part and affirm in part.

FACTUAL BACKGROUND

I. Prosecution Case

On August 25, 2006, at around 5:00 p.m., Albert Hernandez was inside his home near the intersection of Mariana Avenue and Folsom Street in Los Angeles when he heard gunshots. Hernandez looked out the window and saw a young man with facial hair on his upper lip and chin, wearing a hat, jeans and a dark shirt, riding a skateboard south on Mariana. Hernandez believed he saw the man place a gun in his waistband. Shortly thereafter, police arrived and found Pedro Flores had been shot and killed nearby.

Deputy Sheriff Richard Lopez arrived at the scene and recovered five expended shell casings from the street and videotape surveillance footage from Dianas Market which captured the incident taken from three camera angles. The videotape, which was played for the jury, showed appellant riding his skateboard in the area, then a brief confrontation with Flores, followed by appellant taking out a gun and firing it at Flores as Flores rode away on a bicycle. Flores died from a gunshot wound to the right buttock that traveled upward through the bowel, liver, stomach and right ventricle of the heart, fractured the left anterior second rib, and lodged in the chest.

Pursuant to a search warrant, Lopez searched appellants home and recovered a skateboard from appellants room. Lopez also recovered a 9-millimeter Taurus pistol from a car parked in appellants backyard. An expert firearms examiner determined the shell casings found at the scene and the bullet taken from Floress body all came from the Taurus pistol recovered at appellants residence. A criminalist determined that DNA samples taken from appellant matched DNA found on the Taurus pistol and magazine.

II. Defense Case

Appellant was 16 years old at the time he shot Flores. Prior to that time, appellant had been shot on three occasions, including once in the head and stomach in 2005 and once in the arm a short while later. Appellant believed that Flores, also known as P-Dog from the Stoners Trece Gang, was the person who shot him in the head. Appellant also believed Flores painted 187 P-Dog Stoners next to appellants moniker on the sidewalk next to appellants house. Appellant understood that painting to mean Flores was going to murder him.

After being shot in the head, appellant could not think straight and experienced confusion and began stuttering. Appellants mother recalled that after appellant had been shot in the head, he became fearful, panic stricken and paranoid, often sleeping in her room or the attic, where he once stayed for three days. Appellant began stuttering and mumbling and would forget what he was talking about in the middle of the conversation, had trouble understanding simple words and experienced hallucinations.

Appellant and his mother could not afford to move out of the neighborhood, and as a result, he joined the Lott Gang for protection.

On August 24 the day before the shooting, appellant, his girlfriend Susan Pernudi and their friend Francine Lopez went to Dianas Market to buy beer. They ran into Nestor Lopez and accompanied him to a house on Folsom Street a few doors down from the market. While appellant was on the porch of that house, Flores approached and threatened to kill appellant. Flores had a gun. Flores wanted appellant to take a walk with him, but appellant was scared and refused to go with Flores.

The following day, appellant rode his skateboard to meet Pernudi near Dianas Market. When appellant left his house, he took a gun for protection. As appellant rode his skateboard looking for Pernudi, Flores rode by on his bicycle and threatened to kill appellant. Flores told appellant that he was not going to live long because Flores was going to kill him.

As Flores started to ride away on his bicycle, appellant thought Flores had a gun in his waistband and was going to turn around and kill appellant. In a moment of panic, appellant took his gun, pointed the gun down toward the street and fired five times, but he accidentally struck and killed Flores. Appellant stated he only intended to frighten, not kill, Flores so that Flores would leave him alone.

Dr. Ronald Fairbanks, a forensic psychologist, administered numerous psychological assessment tests to appellant and concluded appellant had the mental age of someone between eight and ten and described appellant as mentally retarded. Dr. Fairbanks diagnosed appellant as suffering from polysubstance abuse, attention deficit disorder, post-traumatic stress disorder with flashbacks, bipolar disorder, paranoid schizophrenia, and mental retardation. Dr. Fairbanks believed that at the time of the instant offense, appellant suffered from those same disorders.

III. Prosecution Rebuttal

Elizabeth Soto lived at 4141 Folsom Street with her sister Janet Contreras, who was Floress girlfriend. Like Flores, Elizabeths boyfriend Michael Haynie was from the Stoners Trece Gang. Flores and Haynie often came to the house.

On the day of the shooting, Elizabeth was at home with her sister, having just given birth to her and Floress son. Elizabeth did not witness any of the events. Elizabeth did not recall if she had seen Nestor at the house that day, but she confirmed he lived there at the time. Elizabeth did not recall the contents of her taped interview with Deputy Lopez and did not recognize her voice on the tape. Elizabeth did not recall calling Haynie on that day or telling him to leave appellant alone.

Ernestina Soto, the mother of Elizabeth and Janet, testified she rented the middle house at 4141 Folsom. On the day of the shooting, Nestor was at the house with two girls; Haynie was by his side. Ernestina recalled seeing another male there with a skateboard whom she identified at trial for the first time as appellant. Haynie was talking to appellant, who said, I will be back, Im going to get something. Flores was not present, but about 30 minutes later, while Ernestina was in the front yard, she saw Flores down the street leaving Carloss house on his bicycle, and then she saw appellant shoot Flores.

Nestor testified he was not at 4141 Folsom Street on August 24 or 25 and did not live there at the time.

Haynie testified that on the day of the shooting, he was drunk and had an argument with Contreras at her house and then he went to Floress house. Haynie did not see anyone on the porch or in the yard of Contrerass house when he left. Shortly thereafter, Haynie and Flores went to Carloss house. Later, as Flores rode his bike from Carloss house to Contrerass house, he was shot. Haynie did not know appellant and did not recognize him at trial.

Deputy Lopez testified that when he arrested appellant, appellant did not mention he was going to meet Pernudi or that he had plans to meet Pernudi near the market.

During a taped interview with Elizabeth, she told Deputy Lopez that when Flores left her house on the day of the shooting, he said he was going to Carloss house and she called Haynie that day and told him to leave appellant alone because he was just a kid.

Ernestina told Deputy Lopez that Nestor was at 4141 Folsom on the day of the shooting with two girls; she also saw Haynie that day arguing with a male Hispanic in the front lawn area of the house. When the male Hispanic walked away from Haynie, he said hed be back and hed bring something.

When Deputy Lopez interviewed appellant, appellant stated that previously when he was with Pernudi, Flores had a gun and threatened to kill him. Appellant said Flores shot at him a few months earlier, although court records showed Flores was in custody at that time.

Appellant never told Deputy Lopez that he was pointing the gun at the ground. Appellant said that after Flores had threatened him, he told Flores, fuck you fool, because he was tired of this shit. Appellant then stated he went to shoot Flores and just started shooting because if not, Flores would probably have come back and killed him. Appellant said he acted in self-defense.

DISCUSSION

I. Felony Murder Instruction

Appellant was convicted of second degree murder. The prosecutor argued two alternate theories for murder: (1) murder with malice aforethought (CALCRIM No. 520), and (2) second degree felony murder based on the charged felony of grossly negligent discharge of a firearm (CALCRIM No. 541A). CALCRIM No. 520 stated in part:

The defendant is charged in Count 1 with murder. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant committed an act that caused the death of another person; [] [AND] [] 2. When the defendant acted, he had a state of mind called malice aforethought; [] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The parties agree that under People v. Chun (2009) 45 Cal.4th 1172, 1178, 1200-1201, which was decided after the trial in this case, the court erred in instructing the jury on second degree murder based on an assaultive felony (grossly negligent discharge of a firearm) as such felonies merge with the homicide. The parties disagree as to whether the error was harmless. Instructional error is harmless if the record demonstrates beyond a reasonable doubt that the jury based its verdict on a legally valid theory. (Id., at p. 1203.) Such instructional error may also be found harmless beyond a reasonable doubt [i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the finding necessary for implied malice or express malice. (Id., at pp. 1204-1205.)

Respondent notes the verdicts do not necessarily show the jurors did not rely on a legally valid theory, i.e., the jurors could have found appellant was guilty of second degree murder based upon implied or express malice. Respondent then posits that the evidence, instructions and verdicts leave no reasonable doubt the jury made the findings necessary for a second degree murder verdict based upon implied malice and that no juror could have found appellant guilty based on a theory of felony murder without also finding he harbored implied malice. We disagree.

Pursuant to CALCRIM No. 520, the court instructed the jury that appellant acted with implied malice if: (1) he intentionally committed an act; (2) the natural consequences of the act were dangerous to human life; (3) at the time he acted, he knew his act was dangerous to human life; and (4) he deliberately acted with conscious disregard for human life.

As to the underlying felony, the court instructed the jury had to find: (1) appellant intentionally shot a firearm, (2) appellant did the shooting with gross negligence, and (3) the shooting could have resulted in the injury or death of a person. The instruction further instructed that a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequence of that act. (CALCRIM No. 970.)

However, [t]he second degree felony-murder rule eliminates the need for the prosecution to establish the mental component [of conscious-disregard-for life malice]. (Italics omitted.) (People v. Chun, supra, 45 Cal.4th at p 1182.) In determining whether a crime merges, the court looks to its elements and not the facts of the case. (Id., at p.1200.)

Respondent notes that the only substantive difference between the elements for murder based on implied malice and murder based on felony murder is that gross negligent shooting does not require a defendant personally know his act was dangerous to human life, but only that a reasonable person would know shooting in such a manner would create a high risk of death or great bodily injury. Respondent asserts the evidence overwhelmingly showed appellant personally knew the shooting was dangerous to human life. Respondent then reasons that in order to have found appellant guilty of felony murder, the jury had to have found appellant harbored implied malice.

In People v. Contreras (1994) 26 Cal.App.4th 944, 954, the court discussed the distinction between gross negligence and implied malice: Gross negligence was defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. Implied malice requires proof the accused acted deliberately with conscious disregard for life. [] Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. [] . . . A finding of gross negligence is made by applying an objective test: if a reasonable person in defendants position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [] It is the conscious disregard for human life that sets implied malice apart from gross negligence. (Citations & italics omitted.)

In other words, if a juror found appellant guilty of second degree murder based on felony murder, he or she did not necessarily find appellant harbored implied malice. Any juror who relied on felony murder only had to find appellant shot with gross negligence. (Compare People v. Hach (2009) 176 Cal.App.4th 1450, 1456-1458 [The court concluded the error in instructing on felony murder was harmless because any juror who relied on felony murder necessarily found the defendant willfully shot at an occupied vehicle, meaning he did so knowing of the danger and with conscious disregard for life. Penal Code section 246, the underlying felony, requires in part that the person maliciously and willfully discharged a firearm.].)

The jury was unable to agree appellant committed first degree murder and found the gang allegation to be not true. As the prosecutor argued, if the jury thought that appellant fired to scare rather than kill or that he shot at the ground and did not intend to kill, it should convict appellant of felony murder. Thus, there is reasonable doubt the jury made the finding necessary for a verdict based on malice. Hence, we reverse the conviction for second degree murder as instructing the jury on felony-murder was prejudicial.

II. Invocation of Fifth Amendment Privilege and Cross-examination.

Appellant contends the court erred by allowing Nestor Lopez and Michael Haynie to testify after they invoked their Fifth Amendment privilege, which improperly limited his right to cross-examine those witnesses.

A. Background

Appellants defense to the murder charge was that he acted in self-defense when he shot and killed Flores. Appellant and his girlfriend Pernudi testified that the day before the shooting, they ran into Nestor and went to his house where Flores threatened appellant. The prosecutor sought to show that appellant and Pernudi were lying and that appellant had an argument with Haynie on the day of the shooting not with Flores the day before.

The court held an Evidence Code section^[2]402 hearing at which Nestor invoked his Fifth Amendment privilege not to incriminate himself. The court ordered Nestor to answer the prosecutors question as to whether he was present at the house on 4141 Folsom Street on August 24 or 25 as that was not incriminating. Nestor answered he was not present. Defense counsel objected to Nestor being allowed to testify because counsel would not be able to cross-examine Nestor about whether Flores was trying to kill appellant. Defense counsel noted the prosecutor could argue his witnesses were liars. The court ruled the only relevant fact Nestor could testify about was whether he was on the porch with appellant and Pernudi and stated appellant could ask if Nestor had been there and could argue Nestor was a liar. Defense counsel responded he did not want to ask anymore. The court overruled the objection, stating, You could ask him that [if Flores was trying to kill appellant] in front of the jury and he could take the Fifth in front of the jury.

In front of the jury, over defense counsels objection, Nestor testified he was not present at 4141 Folsom Street on August 24 or 25 and was not living there at the time. On cross-examination, Nestor invoked his Fifth Amendment privilege and refused to answer the question, Isnt it true that the day before the shooting in this case, Pedro Flores threatened to kill Mr. Joshua Rosales?

At a separate section 402 hearing, Haynie also invoked his Fifth Amendment privilege. The court allowed Haynie to testify, stating, I believe the jury can see him take the 5th.

In front of the jury, Haynie testified that on the day of the shooting, he was drunk at his girlfriend Janet Contrerass house where they had an argument. When Haynie left to go to Floress house, only Contreras and her sister Elizabeth Soto were home; nobody was on the porch or in the yard. Haynie was too drunk to remember if he had had a confrontation with anyone. When the prosecutor tried to confirm Haynie told Detective Lopez that he had had a confrontation with appellant on the day of the shooting, Haynie invoked his Fifth Amendment privilege. Haynie invoked the privilege again on cross-examination when asked if he and Flores were members of the Stoner Trece gang.

B. Right to Cross-examine

To avoid the potentially prejudicial impact of having a witness assert the privilege against self-incrimination before the jury, we have in the past recommended that, in determining the propriety of the witnesss invocation of the privilege, the trial court hold a pretestimonial hearing outside the jurys presence. (People v. Mincey (1992) 2 Cal.4th 408, 441.) The Supreme Court noted it has stopped short of declaring it error for trial courts to fail to adhere to this practice [of requiring the exercise of the privilege outside the jurys presence]. (People v. Smith (2007) 40 Cal.4th 483, 517.)

Although defendants have the general right to confront the witnesses against them, this right is not absolute and properly gives way when a witness is entitled to the protection of the Fifth Amendment privilege against self-incrimination and the defendant had an appropriate prior opportunity to cross-examine the witness. (People v. Williams (2008) 43 Cal.4th 584, 618.) In Williams, the court concluded that the defendant had that opportunity at an in limine hearing. (Id., at p. 619.) Moreover, [a]s the United States Supreme Court has explained, the confrontation clause permits the trial courts to retain wide latitude to impose limits on cross-examination concerning matters of marginal relevance. (People v. Cornwell (2005) 37 Cal.4th 50, 95 disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

In the case at bar, the court held separate section 402 hearings outside the presence of the jury. Appellant asserts that when each witness invoked his right not to incriminate himself in front of the jury, the court either should not have let him testify or struck his entire testimony. (See People v. Apodaca (1993) 16 Cal.App.4th 1706, 1716.) Appellant complains that the court allowed the prosecutor to discredit his defense that he was in fear of Flores and acted in self-defense and that he could not question these witnesses about the events of the day before or the day of the shooting, their relationship to Flores, their gang affiliations, Floress gang affiliation and propensity for violence, or whether Flores ever carried a gun or threatened to kill appellant. Most of these questions address matters of marginal relevance.

No person other than a defendant has a right to refuse to be sworn as a witness. And after administration of the oath, a witness who has a privilege to assert must generally assert it on a question-by-question basis. Initial inquiries intended to test the validity of the claim should be conducted outside the presence of the jury. If the court finds a valid privilege exists, it can either limit the questions the parties may ask before the jury or excuse the witness, if it becomes clear that any testimony would implicate the privilege. (Citations omitted.) (People v. Lopez (1999) 71 Cal.App.4th 1550, 1555.)

Allowing a witnesss to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference. (People v. Frierson (1991) 53 Cal.3d 730, 743; see also People v. Lopez, supra, 71 Cal.App.4th at p. 1554 [Once a court determines a witness has a valid Fifth Amendment right not to testify, it is, of course, improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt.].)

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. There is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced a significantly different impression of [the witnesss] credibility. (Citations omitted.) (People v. Cooper (1991) 53 Cal.3d 771, 817.) Appellant has not explained how cross-examination of Nestor and Haynie would have given a different impression of their credibility.

Appellant complains the prosecutor was able to use the testimony of Haynie and Nestor to prove he (appellant) was not at 4141 Folsom Street the day before the shooting (and thus could not have been threatened by Flores). Appellant also complains the prosecutor used Haynies testimony to imply he had had a confrontation with appellant on the day of the shooting. Nestor testified he was not at that address either the day before or the day of the shooting so his testimony could not be used to prove appellant was not there, and Haynie, who admitted he was too drunk to remember if he had a confrontation with appellant or anyone, testified he had never seen appellant before. Moreover, even if Haynie had a confrontation with appellant, that would not negate appellants claim he had been threatened by Flores the day before.

Haynie testified favorably to appellant in that he denied arguing with appellant the day before the shooting or having ever seen appellant prior to seeing appellant in court. Appellant could not remember if Nestor was on the porch (where appellant said he was when Flores threatened him). Nestor asserted his Fifth Amendment privilege when asked if he knew whether Flores had threatened appellant the day before the shooting. Any likely inference the jury would draw from that refusal would have been favorable to appellant. Appellant testified about the reasons for his fear of Flores (i.e., that previously Flores had shot appellant in the head and written a threat to kill appellant in graffiti near appellants house). Another witness testified Flores was a member of the Stoners Trece Gang. At trial, appellant did not indicate he wanted to question either Haynie or Nestor about his relationship with Flores, Floress propensity for violence, or whether Flores ever carried a gun.

Thus, the error, if any, in allowing Haynie and Nestor to invoke their Fifth Amendment privilege before the jury or in not striking their testimony was harmless beyond a reasonable doubt. (People v. Cornwell, supra, 37 Cal.4th at p. 95.)

III. Victims Prior Felony Convictions

Appellant contends the court committed reversible error in excluding evidence of Floress two prior felony convictions because the evidence was probative and not allowing him to introduce this evidence was tantamount to the denial of a defense.

A. Background

In 2003, Flores was convicted of being in possession of marijuana for sale, and in 2005, Flores was convicted of receiving stolen property and sentenced to prison. When Flores was arrested for possession of marijuana, he was found to be in possession of an assault rifle with 28 or 29 cartridges in the magazine; the assault rifle charge was dismissed pursuant to a plea deal. Defense counsel wanted to introduce that evidence to show Flores was a violent gang member who was prone to keep deadly weapons in his possession in order to explain appellants fear of Flores. Counsel also wanted to subpoena the arresting officer in the 2003 arrest to testify about the events of that arrest.. The court denied the request on the basis the evidence was relevant only to credibility and therefore irrelevant as the issue was not whether Flores was a bad or violent person or carried guns, but what appellant knew about Flores.

B. Prior Convictions

We review a trial courts exclusion of evidence for abuse of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.)

It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible. Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence. (Citations omitted.) (People v. Wright (1985) 39 Cal.3d 576, 587.)

Floress 2005 conviction for receiving stolen property had no relevance to his reputation for aggression or violence. Regarding the 2003 prior conviction for possession, the weapons charge was dismissed and having a gun did not show Flores always carried a gun. Neither prior conviction involved violent behavior by Flores or showed Flores was involved in a gang. Neither prior conviction constituted evidence of a specific act by Flores against a third person or general reputation evidence. Accordingly, the court did not abuse its discretion when it denied appellants request to introduce evidence of the prior convictions.

In addition, appellant testified about the threats made by Flores the day before and the day of the shooting and by graffiti on the sidewalk near appellants house and about how he acted in self-defense. Thus, appellant was not deprived of the opportunity to present a defense. (See People v. Snow (2003) 30 Cal.4th 43, 91-92.)

As we concluded that the only possible error was harmless, there was no cumulative error to consider. (People v. Gutierrez, supra, 45 Cal.4th at pp. 828-829.)

The court stayed punishment on count 2. Given the possible retrial on count 1, we note that should it become relevant at resentencing, respondent concedes that pursuant to Penal Code section 2900.5, appellant should have received custody credit of 719 days (for the period August 26, 2006, through August 13, 2008) rather than the 718 days credit he was awarded.

DISPOSITION

The judgment is reversed in part and affirmed in part. As to the conviction on count 1, second degree murder, the judgment is reversed. As to the conviction on count 2, grossly negligent discharge of a firearm, the judgment is affirmed.

WOODS, J.

We concur:

PERLUSS, P. J.

JACKSON, J.

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^[1] The prosecutor dismissed the first degree murder charge during deliberations after the jury indicated it agreed appellant committed murder but could not agree on the degree.

^[2] Unless otherwise noted, all statutory references are to the Evidence Code.