P. v. Granado
Filed
6/21/12 P. v. Granado
CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON FRANCISCO GRANADO,
Defendant and Appellant.
D058198
(Super. Ct.
No. FWV802050)
APPEAL from
a judgment of the Superior Court
of
County, Mary E. Fuller, Judge. Affirmed as corrected.
In this
case the appellant was convicted of the attempted
premeditated murder of a police officer.
In addition, the jury found appellant was a felon in possession of a
firearm, discharged a firearm, used a firearm, and committed the attempted
murder for the benefit of a gang.
Appellant
was stopped by a police officer and, following an initial attempt to flee on
foot from the location of the traffic stop, exchanged multiple gunshots with
the officer. In his principal
related hearsay and confrontation clause arguments with respect to statements
attributed to a witness whose home was invaded by appellant as appellant
attempted to flee the scene of the shooting.
The record suggests the witness was very frightened and made the
disputed statements in an effort to obtain assistance from the police after his
home had been invaded by the appellant and neither the witness nor the law
enforcement personnel present were entirely sure appellant had been apprehended
or was acting alone. As excited
utterances, the statements were not barred by the hearsay rule. Moreover, the record shows the likelihood of
excluding the statements on the alternative grounds they were testimonial and
therefore barred by the confrontation clause of the
Constitution was not very great and that the cost of requiring the prosecution
to meet such a constitutional objection by elaborating further on the witness's
frightened state of mind far outweighed the benefit of excluding what turned
out to be the witness's fairly benign statements. Thus the trial court did not error in
overruling trial counsel's hearsay objection and trial counsel, having been
overruled on his hearsay objection, apparently made a valid tactical decision
to forego a doubtful confrontation clause
objection and instead move the jury's attention away from a further damaging
discussion of the victim's mental state.
Importantly,
even if the witness's statements were objectionable they were in no sense
prejudicial. The witness's statement did
not identify appellant as the shooter, but merely explained how law enforcement
officers located the gun appellant used in the shooting and a shirt he was
wearing. DNA evidence and other witness
testimony, not the witness's out of court statement, convincingly connected
appellant to the gun and the shirt.
In addition
to his hearsay and confrontation clause objections, appellant argues his trial
counsel was ineffective in failing to raise objections to gang evidence offered
by the prosecution and in failing to move to bifurcate trial of the gang
allegations. We reject these contentions
as well.
With one
exception, we also reject appellant's contentions with respect to the sentence
imposed by the trial court.
FACTUAL AND
PROCEDURAL BACKGROUND
Appellant
Jason Francisco Granado is a member of the Pomona
12th Street Sharkeys, a criminal street gang.
At approximately 10:00 in the
morning on July 22, 2008,
Granado was pulled over in an alley in Ontario by Ontario Police Officer Craig
Pefferle. Pefferle stopped Granado
because Granado failed to stop at a stop sign.
While
Pefferle was waiting for a report on the license plate number on the car
Granado was driving, Granado got out of the car, disobeyed Pefferle's order to
get back in the car, and began running south in the alley. Pefferle chased Granado down the alley and
drew his weapon; Granado ignored Pefferle's order to stop and get on the ground
and instead jumped over a small wall and began running toward an adjacent street.
Pefferle
returned to the alley where his patrol car and Granado's car were still
parked. When Pefferle approached his
patrol car, he saw Granado crouched on the driver's side of the car, near the
driver's door, peeking over the hood of the patrol car. As Pefferle approached the patrol car,
Granado moved to the right rear of the patrol car; when Pefferle reached the
front of the patrol car, Granado stood with both arms extended in front of him
and fired three shots from a handgun at Pefferle. Pefferle fired one shot at Granado, who began
running down a sidewalk. Pefferle chased
Granado and fired two more shots at him.
Pefferle
radioed to his dispatcher that shots had been fired and continued to pursue
Granado. Pefferle got within 30 to 40
feet of Granado, who fired three or four more shots at Pefferle. At that point Pefferle returned to his patrol
car to wait for backup. In the meantime,
a bystander saw Granado climb over a wall at the rear of his next door
neighbor's house. Shortly thereafter, the
bystander and Pefferle saw Granado, who had been wearing a button down shirt,
go out the front door of the neighbor's house wearing a tank top. Granado crossed the street and began walking
toward a laundromat, where he was apprehended by other officers responding to
Pefferle's report of shots being fired.
Another Ontario
police officer, Sergeant James Renstrom, also responded to Pefferle's
report. Renstrom found Pefferle near his
patrol car and Pefferle appeared shaken and upset. Pefferle directed Renstrom to the house
Granado had entered. As Renstrom and two
other officers approached the front steps of the house, the occupant, who was
only identified as Mr. Cuevas, came out onto the porch.
According
to Renstrom, Cuevas was very upset and could barely speak. Through gestures and stuttering speech,
Cuevas indicated that a man had come into his house with a gun and had demanded
a ride. According to Cuevas, the invader
took off his shirt, wrapped the gun in the shirt and left the shirt and gun on
a table near the front door of Cuevas's home.
Cuevas appeared very anxious for the officers to go into his home and
retrieve the gun; Renstrom believed that Cuevas was also concerned that other
people were still in the home. Renstrom
and the other officer went into Cuevas's home, determined that no one else was
in the home and located the shirt and gun.
Renstrom examined the gun and determined that it was unloaded. To assuage Cuevas's continuing fears,
Renstrom posted an armed officer at the front door of Cuevas's home to make
sure no one else entered the house.
After his
inspection of Cuevas's home, Renstrom went to the location where Granado had
been apprehended. Renstrom went there to
conduct an infield identification of Granado as the shooter observed by
Peferrle and the other witnesses who had seen the shooting. Renstrom found Granado in the back of an
ambulance where he was being treated for a gash on his left arm. While Granado was in the ambulance, Granado
told Renstrom he was trying to kill himself.
Granado then told the ambulance driver "I'm going to be gone for a
long time."
At or near
the time Granado was apprehended, another Ontario
detective was following up on a report that a different suspect in the
shootings had been seen running in the area and getting on a bus. In response to that report, a police
helicopter began following the bus and Ontario
law enforcement personnel contacted police in the neighboring community of Chino,
where Chino police eventually
stopped the bus and detained the suspect.
The Ontario detective went
to the Chino location where the
suspect was detained, questioned him, and determined that he was not involved
in the shooting.
After the
shooting, police determined the car Pefferle stopped was registered to Granado's
daughter. According to Granado's
daughter, Granado had taken it without her permission earlier in the month and
had not returned it.
At trial an
investigator and a parole officer with the Arizona Department of Corrections
both testified as to Granado's gang affiliations. According to the investigator, Granado
admitted to being a member of both the Pomona
12th Street Sharkeys and the Surenos and had tattoos indicating his affiliation
with the Pomona 12th Street
Sharkeys. Granado also admitted to the
parole officer that he was involved with the Surenos and the 12th
Street Pomona Sharkeys. According to the parole officer, Granado
failed to report for a September 2007 meeting with his parole officer, a parole
warrant was issued and was outstanding at the time Pefferle stopped Granado.
A gang
expert testified as to the extensive criminal activities of the 12th
Street Pomona Sharkeys and
opined that killing Pefferle would have enhanced both Granado's reputation
within the gang and the overall reputation of the gang itself. Thus the gang expert believed the shooting
was for the benefit of Granado's gang.
As we
indicated at the outset, a jury found Granado guilty of premeditated attempted
murder of a police officer and being a felon in possession of a firearm; the
jury found true gun use, gun discharge and gang enhancements. In a separate proceeding the trial court
found Granado had suffered seven prior strike convictions. The trial court sentenced Granado to an
indeterminate term of 70 years to life and a consecutive determinate term of 23
years.
DISCUSSION
I
In his
principal arguments on appeal, Granado challenges admission of the statements
Cuevas made to Renstrom on the porch of his house. As we noted, Granado contends the trial court
erred in overruling his hearsay objection to the statements and that in failing
to also object on confrontation grounds, his trial counsel was
ineffective. Because it informs our
discussion of Granado's ineffective assistance claim, we take up the hearsay
argument first.
A. Hearsay
1. Additional
Background
After testifying about
Pefferle's shaken state, Renstrom testified he went to Cuevas's home and Cuevas
came out on his porch to meet Renstrom and the officer who was accompanying
him. At that point in his testimony,
Renstrom was about to volunteer what Cuevas told him on the porch and Granado's
counsel objected on hearsay grounds. In
response to the objection, the prosecutor then laid a foundation for admission
on the grounds Cuevas's statement was an excited utterance within the meaning
of Evidence Code section 1240. In
response to the prosecutor's foundational questions, Renstrom described in some
detail how upset Cuevas was, how he was stuttering and pointing to the inside
of his house. After an unreported sidebar
conference, the prosecutor was permitted to ask Renstrom what Cuevas said on
the porch. Renstrom testified: "He told me that there was just a guy in
his house with a gun demanding a ride from him.
He said the guy took off his shirt and wrapped the gun up in the shirt
and placed it on a table next to his front door." The prosecutor then asked a further question
about Cuevas's demeanor and Renstrom responded:
"He was visibly upset and he kept pointing into the house. He was very excited for us to go in there and
look and to find the gun. I also thought
maybe he was still scared to go back in the house maybe there was—maybe
somebody else was in the house. He
wasn't sure. He was just very
upset."
According
to Renstrom, he then went into the house, located the gun, made sure it was not
loaded and determined no one else was in the house. Notwithstanding the fact that he did not find
anyone in the house, Renstrom left an armed officer at the house with Cuevas so
that no one else could enter the house.
As we have noted, Renstrom then went to coordinate the infield
identification of Granado.
2. Evidence
Code Section 1240
Evidence Code section 1240
provides: "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."
The crucial element in determining whether a statement is spontaneous
within the meaning of section 1240 is the mental state of the speaker and in
determining that issue the trial court is vested with reasonable
discretion. (See People v. Farmer (1989) 47 Cal.3d 888, 903-904, overruled on other
grounds in People v. Waidla (2000) 22
Cal.4th 690, 729, fn. 6.)
There is no
dispute Cuevas's statement described events he perceived. Contrary to Granado's argument, Renstrom's
testimony about Cuevas's agitated behavior and state of mind were more than
sufficient to establish Cuevas was still under the stress of the home invasion
he had just endured. Indeed, as we have
noted, Renstrom testified that shortly before meeting Cuevas he observed
Pefferle and Pefferle was also still under the stress of the shots that had
been fired at him by Granado. Although,
as Granado points out Renstrom did not provide a detailed time line of when he
spoke with Cuevas or what precise questions he asked Cuevas, Renstrom's testimony
that he responded to the report of shots fired, located a still shaken Pefferle
and then went to Cuevas's home, where he found an agitated and nearly
speechless crime victim, are abundant evidence from which the trial court could
conclude Cuevas's statements were not the product of deliberation or reflection
but were in fact spontaneous utterances.
(See People v. Farmer, supra,
47 Cal.3d. at pp. 903-904.) Thus we find
no error in the trial court's ruling on Granado's hearsay objection.
Now we turn
to Granado's related claim trial counsel should have also made a confrontation
clause objection to Cuevas's statement.
B. Ineffective
Assistance of Counsel
1. Deficient
Performance and Prejudice
"An appellant claiming
ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient,
falling below an objective standard of reasonableness under prevailing
professional norms; and (2) the deficient performance resulted in
prejudice. [Citations.] . . . .
"To
establish prejudice, '[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'
[Citations.] 'A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.' [Citation.] In demonstrating prejudice, the appellant
'must carry his burden of proving prejudice as a "demonstrable
reality," not simply speculation as to the effect of the errors or
omissions of counsel.' [Citation.]
"In
determining whether counsel's performance was deficient, we exercise
deferential scrutiny. [Citations.] The appellant must affirmatively show
counsel's deficiency involved a crucial issue and cannot be explained on the
basis of any knowledgeable choice of tactics.
[Citations.]" (
1139, 1146–1147.)
In
particular, where " 'there was no sound legal basis for objection,
counsel's failure to object to the admission of the evidence cannot establish
ineffective assistance.' [Citation.] And, even when there was a basis for
objection, ' "[w]hether to object to inadmissible evidence is a tactical
decision; because trial counsel's tactical decisions are accorded substantial
deference [citations], failure to object seldom establishes counsel's incompetence." [Citation.]
"In order to prevail on [an ineffective assistance of counsel]
claim on direct appeal, the record must affirmatively disclose the lack of a
rational tactical purpose for the challenged act or omission." [Citation]'
[Citation.]" (
403.)
2. Confrontation
Clause
In the landmark case of
36, 68 [124 S.Ct. 1354] (Crawford),
the United States Supreme Court held the confrontation clause of the Sixth
Amendment to the United States Constitution requires that before a witness's
out-of-court "testimonial" statement may be admitted in a criminal
proceeding, the witness must be unavailable and the witness's prior statement
must have been subject to the defendant's right of cross-examination. Although the court in Crawford expressly declined to provide a comprehensive definition
of "testimonial," it concluded that at a minimum testimonial
statements include "prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . . police
interrogations." (
Thus, in Crawford the court
held that a wife's statement to police while she was in custody and in response
to police interrogation could not be admitted against her husband at his murder
trial. (Ibid.)
Since
elaborated on the definition of testimonial statements subject to the
protection of the confrontation clause.
In a pair of domestic violence cases, Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (
statements taken by law enforcement personnel during the course of an ongoing
emergency are not testimonial and thus not subject to the requirements of the
confrontation clause. "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,
supra, 547 U.S. at p. 822, fn. omitted.)
In Davis the court found that
the victim's recorded statement to a 911 operator reporting her boyfriend's
ongoing attack was nontestimonial in that it reported ongoing events and was
needed so that law enforcement personnel could resolve a present
emergency. (Davis, supra, 547 U.S. at p. 827.)
In contrast, in Hammon the
court found that written and oral statements the victim gave to a police
officer while her husband was physically separated from her by another police
officer were testimonial. (
829-830.) The court found that at that
point the emergency had come to an end and that from an objective point of view
it was clear the statements were taken from the victim as a means of
establishing her husband's culpability.
(Ibid.)
More
recently, in Michigan v. Bryant
(2011) __U.S.__ [131 S.Ct. 1143] (Bryant),
the Supreme Court elaborated further on the means by which we should evaluate
the impact an ongoing emergency has on the admissibility of statements made by
crime victims. In Bryant police officers interviewed the victim of a shooting who was
lying next to his car in a gas station parking lot. The victim was in great pain and had
difficulty speaking. In response to the
officer's questions, the victim explained he had gone to the backdoor of the
defendant's house, spoke with the defendant through the door, turned around,
walked away and was shot through the door.
The victim drove himself to the gas station. Shortly after making the statements, the
victim was taken to a hospital, where he died.
The court
in Bryant found the victim's
statements were not testimonial. In
reaching this conclusion, the court noted that statements made during an
ongoing emergency are outside the protection of the confrontation clause for
many of the reasons excited utterances are not excluded by the hearsay
rule. "As our recent Confrontation
Clause cases have explained, the existence of an 'ongoing emergency' at the
time of an encounter between an individual and the police is among the most
important circumstances informing the 'primary purpose' of an
interrogation. [Citations.] The existence of an ongoing emergency is
relevant to determining the primary purpose of the interrogation because an
emergency focuses the participants on something other than 'prov[ing] past
events potentially relevant to later criminal prosecution.' [Citation.]
Rather, it focuses them on 'end[ing] a threatening situation.' [Citation.]
Implicit in Davis is the idea
that because the prospect of fabrication in statements given for the primary
purpose of resolving that emergency is presumably significantly diminished, the
Confrontation Clause does not require such statements to be subject to the
crucible of cross-examination." (
1157, fn. omitted.)
"This
logic is not unlike that justifying the excited utterance exception in hearsay
law. Statements 'relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition,' [citations], are considered reliable because
the declarant, in the excitement, presumably cannot form a falsehood. See Idaho
v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) ('The
basis for the "excited utterance"
exception . . . is that such statements are given under
circumstances that eliminate the possibility of fabrication, coaching, or
confabulation . . . .'); 5 J. Weinstein & M. Berger,
Weinstein's Federal Evidence § 803.04[1] (J. McLaughlin ed., 2d ed.2010)
(same); Advisory Committee's Notes on Fed. Rule Evid. 803(2), 28 U.S.C.App., p.
371 (same). An ongoing emergency has a
similar effect of focusing an individual's attention on responding to the
emergency." (Bryant, supra, __U.S.__, 131 S.Ct. at p. 1157, fn. omitted.)
With
respect to determining the impact of an emergency on a witness's or victim's
statement, the court stated: "The
existence of an ongoing emergency must be objectively assessed from the
perspective of the parties to the interrogation at the time, not with the
benefit of hindsight. If the information
the parties knew at the time of the encounter would lead a reasonable person to
believe that there was an emergency, even if that belief was later proved
incorrect, that is sufficient for purposes of the Confrontation Clause. The emergency is relevant to the 'primary
purpose of the interrogation' because of the effect it has on the parties'
purpose, not because of its actual existence." (Bryant,
supra, __.U.S.__, 131 S.Ct. at 1157, fn. 8.)
In addition
to the circumstances under which a statement was made, "the statements and
actions of both the declarant and interrogators provide objective evidence of
the primary purpose of the interrogation."
(Bryant, supra, __U.S.__, 131
S.Ct. at p. 1160.)
Of some
pertinence here, the court in Bryant
recognized that in any given emergency situation both police interrogators and
crime victims may be acting with very mixed motives: "Police officers in our society function
as both first responders and criminal investigators. Their dual responsibilities may mean that
they act with different motives simultaneously or in quick succession. See New
York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) ('Undoubtedly
most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out
of a host of different, instinctive, and largely unverifiable motives—their own
safety, the safety of others, and perhaps as well the desire to obtain
incriminating evidence from the suspect'); see also Davis, 547 U.S., at 839, 126 S.Ct. 2266 (THOMAS, J., concurring in
judgment in part and dissenting in part) ('In many, if not most, cases where
police respond to a report of a crime, whether pursuant to a 911 call from the
victim or otherwise, the purposes of an interrogation, viewed from the
perspective of the police, are both
to respond to the emergency situation and
to gather evidence.')
"Victims
are also likely to have mixed motives when they make statements to the
police. During an ongoing emergency, a
victim is most likely to want the threat to her and to other potential victims
to end, but that does not necessarily mean that the victim wants or envisions
prosecution of the assailant. A victim
may want the attacker to be incapacitated temporarily or rehabilitated. Alternatively, a severely injured victim may
have no purpose at all in answering questions posed; the answers may be simply
reflexive. The victim's injuries could
be so debilitating as to prevent her from thinking sufficiently clearly to
understand whether her statements are for the purpose of addressing an ongoing
emergency or for the purpose of future prosecution. Taking into account a victim's injuries does
not transform this objective inquiry into a subjective one. The inquiry is still objective because it
focuses on the understanding and purpose of a reasonable victim in the
circumstances of the actual victim—circumstances that prominently include the
victim's physical state." (
pp. 1161-1162, fn. omitted.)
In applying
these principles, the court in Bryant
found the victim's identification of the shooter was not testimonial. The court relied on the fact that at the time
the questioning took place, neither the victim nor the police knew the location
of the shooter and the police did not know what circumstances had caused the
altercation between the victim and the shooter.
(Bryant, supra, __U.S.__, 131
S.Ct. at pp. 1164-1165.) The court found
the questions asked—" 'what had happened, who had shot him, and where the
shooting occurred' "—sought information police needed to determine what
action to take to protect themselves and the victim. (Bryant,
supra, __U.S.__, 131 S.Ct. at p. 1166.)
Finally, the court considered the informality of the setting—the parking
lot of a gas station—as further evidence that the officers were trying to
address what they viewed as an ongoing emergency rather than collect
evidence. (Ibid.) The court found that
these circumstances, taken together showed that the primary purpose of the
interrogation was to enable police to meet an ongoing emergency and hence the
victim's statements were not testimonial.
(Bryant, supra, __U.S.__, 131
S.Ct. at p. 1167.)
3. Analysis
We begin our analysis by noting
that, had a confrontation clause objection been made, under
fairly substantial argument Cuevas's statements were nontestimonial. Renstrom's description of Cuevas's agitated
state not only supports the trial court's finding his statements were excited
utterances, Cuevas's physical and mental state support the related conclusion
his statements were made primarily as a means of obtaining police assistance in
securing his home and the gun Granado had left.
Of importance here also is the fact that at the time Renstrom spoke with
Cuevas, Granado had not yet been positively identified as the shooter, and a
second suspect had been identified by other witnesses and was being pursued by
other law enforcement officers. Thus,
although as he spoke to Cuevas, Renstrom may have known that one suspect had
been stopped, at that point in time it was not yet clear the actual shooter and
any possible confederate had been apprehended.
Those circumstances of course validate Cuevas's apparent fears that the
crime or crimes were ongoing. It is also
of some significance Cuevas's statements did not purport to identify Granado or
anyone else as the invader, but was merely descriptive in fairly general terms
of what Cuevas had just experienced.
Arguably
then, Cuevas's statements themselves and all their attendant circumstances
support a finding the statements were not given in contemplation of
establishing anyone's guilt and therefore did not implicate Granado's
constitutional right to confront the witnesses against him. (See Bryant,
supra, __U.S.__, 131 S.Ct. at pp. 1166-1167.) Rather, the record supports the conclusion
that at most this is a case of "mixed motives" and is insufficient to
bar admission of a victim's statement.
(See Bryant, supra, __S.Ct.__,
131 S.Ct. at pp. 1161-1162.) Thus we
could conclude our analysis by simply determining a confrontation clause
objection would not have had any merit and therefore trial counsel cannot be
faulted for failing to make one.
However, as we explain, while we do not believe trial counsel's
representation was deficient, we reach that conclusion by way of a different
analytical path.
On this
record we are hesitant to simply conclude a confrontation clause objection
would have been denied because, as Granado suggests, no confrontation clause
objection was made and we do not know whether the trial court, which was vested
with considerable discretion in making such an evidentiary ruling, would have sustained
such an objection. The trial court might
have concluded that, notwithstanding Cuevas's frightened state, in going to
Cuevas's home Renstrom's primary purpose was to collect evidence and his
questioning was fundamentally designed to investigate a crime. Moreover, as Granado points out, because
trial counsel did not pursue the matter beyond making a hearsay objection, we
do not have a more complete record with respect to what Renstrom knew at the
time he went to Cuevas's house or what precisely he asked Cuevas. Thus, Granado argues that in failing to make
a better record on the confrontation clause issue, counsel was also
deficient. This is where we part company
with Granado: We believe the record with
respect to counsel's excited utterance objection entirely vindicates counsel's
apparent decision to dispense with an additional confrontation clause
objection.
As we have
noted, in responding to counsel's hearsay objection, the prosecution elicited
vivid testimony from Renstrom about Cuevas's mental state following his
encounter with Granado. Plainly, that
foundational testimony did not engender any sympathy for Granado. Having heard the prosecution's foundation,
the trial court then overruled the hearsay objection. The trial court's ruling on the hearsay
objection, although not definitive with respect to a confrontation clause
objection, did not bode well for the success of a constitutional
objection. Thus the record shows that at
that point in the proceedings a constitutional objection did not have a strong
chance of being sustained and would give the prosecution the opportunity to
continue focusing the jury's attention on the plight of Cuevas. In our view, trial counsel, in the heat of
trial, wisely decided to cut Granado's losses and move the trial past Cuevas's
plainly frightening experience. In sum,
we find no deficiency in counsel's unwillingness to raise an additional
confrontation clause objection.
We not only
conclude counsel acted appropriately, the record shows admission of Cuevas's
statement did not prejudice Granado.
Quite apart from Cuevas's statement, other admissible testimony and DNA
evidence showed that Granado invaded Cuevas's home, that Cuevas was visibly
upset and barely able to speak after the invasion, and most importantly, that
Granado's shirt and gun were found in Cuevas's home. Cuevas's statement itself of course did not
incriminate Granado because it did not purport to directly identify him. Thus, while somewhat helpful in explaining
the circumstances under which Renstrom retrieved the shirt and gun, in light of
other evidence about Granado's invasion of Cuevas's home and the limited nature
of the statements, admission of Cuevas's statements was in no sense
prejudicial. Our prejudice analysis is
of course informed not only by the other evidence with respect to the invasion
of Cuevas's home, but by the entire case against Granado, including Pefferle's
testimony, the testimony of other witnesses who saw him fleeing and his own
admissions to Renstrom after being apprehended.
In sum
then, we reject Granado's claim his counsel was ineffective in failing to make
an objection which, on the merits, was questionable, which would have opened
the door to further damaging evidence related to Cuevas and which, it turns
out, concerned a statement which was not prejudicial.
II
Next,
Granado argues the trial court improperly permitted the prosecution's gang
expert to testify he believed Granado attempted to kill Pefferle for the
benefit of the 12th Street Sharkeys and that his trial counsel was ineffective
in failing to object to the expert's testimony.
We agree the expert's testimony was in an improper form and that an
objection, had it been made, would have been sustained. However, because the expert went on to
respond to an appropriate hypothetical question, which set forth facts which
had been persuasively established and included a detailed recitation of
Granado's gang participation, the other criminal acts of the 12th Street
Sharkeys and the attempted murder of Pefferle, the expert's earlier more direct
testimony about the benefit to the gang of the shooting was not prejudicial.
A. Additional
Background
The
prosecution's gang expert began his testimony by explaining in some detail the
history, makeup and crimes committed by the 12th Street Sharkeys; in
particular, the expert testified the gang was responsible for graffiti which
stated "the only good cop is a dead cop." The prosecutor then posed the following
question: "Now, sir, you
reviewed—you reviewed the reports in this case, you watched the preliminary
hearing in this case, you've looked at jail intake sheets, prison intake
sheets, you've looked at the defendant's tattoos in person and in photographs,
and you looked at—you've actually looked at the description of tattoos that the
defendant has on his person. And based
upon that do you have an opinion on whether the defendant committed the act of
attempted murder on a police office with premeditation and deliberation for the
benefit of, at the direction of or in association with a criminal street
gang?" Granado's counsel objected
to the question on the grounds it was leading and the objection was
overruled. The expert then answered the question
by stating he believed that not only did the 12th Street Sharkeys benefit from
Granado's actions, "but also it benefits [Granado's] individual stature in
the gang as well as in custody." In
explaining his opinion, the expert stated that the gang benefits when a member
attempts to kill a police officer:
"Because it's what the top one percent of gang members are not
willing to do, that type of activity, because they understand the ramifications
that occur. But when somebody does
something like that, not only does the gang receive a lot of publicity but that
individual is respected for taking on what they consider to be the biggest nail
in their side, a police officer. That
person is respected not only by the gang, but also respected when they go into
custody."
Later on in
his direct testimony, the expert was asked the following hypothetical
question: "Okay. So in essence, let me ask you hypothetically,
if a person, he's got the Pomona tattoo across his back, 'Huero' tattoo across
the top part of his back, who's got 'Sur' down his arm, who's got Pomona 12th
Street Sharkeys on his hand, an actual depiction of a shark, and has got P12 on
his leg, is stopped by the police and from that traffic stop he runs down an
alleyway, jumps a fence, then goes back through the front yard, back to the
police car where the officer has doubled back, shoots at that police officer
three times, is shot at by the police officer while he's retreating three
times, retreats to an area, shoots at the officer again three times, then jumps
over a wall, a wooden wall, breaks through a window, breaks through an interior
door of a house, dumping a gun, dumping what he is wearing, his shirt, and
walks down the street and is arrested 300 feet away, do you have an opinion as
to whether that kind of activity benefits Pomona [12th Street Sharkeys]?
"And
taking into account all the reports that you've looked at with all the jail—the
jail intake sheets you looked at, the prison intake sheet that you've looked
at, the reports from a parole agent that you looked at, taking all that into
consideration, do you have an opinion as to whether that activity benefits the
Pomona 12th Street Sharkeys?"
Granado's trial counsel objected to the hypothetical on the grounds it
called for the ultimate conclusion in the case and the objection was
overruled. The expert again answered the
prosecutor's question in the affirmative and stated: "Not only does it benefit 12th Street
gang as a whole, it benefits [Granado] as an individual, because it will raise
his stature not only in the gang but also he's been respected for what he just
did, in hypothetical."
B. Legal
Principles
Recently,
in People v. Vang (2011) 52 Cal.4th
1038 (Vang), our Supreme Court
discussed the principles which govern admissibility of both the initial direct
question the prosecutor asked the expert here and the follow-up hypothetical
question. In Vang, as here, it was alleged the defendants committed a
felony—assault with force likely to commit great bodily injury—for the benefit
of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1). As here, in support of that
allegation, the prosecutor presented expert testimony with respect to the
history, characteristics and motives of the gang. Significantly, as here, the prosecutor also
asked the expert hypothetical questions which closely tracked the evidence
presented against the defendant. The
defendants objected to the hypotheticals and the objections were
overruled. The Supreme Court found the
hypotheticals, and in particular their recitation of the evidence against the
defendants, were a proper means of presenting the expert's opinions.
In
approving the use of the hypotheticals, the court noted that it had previously
determined that the culture and habits of street gangs are sufficiently beyond
common experience that expert opinion will assist a trier of fact. (Vang,
supra, 52 Cal.4th at p. 1044, citing People
v. Gardeley (1996) 14 Cal.4th 605, 617.)
Although approving an expert's express reliance on and consideration of
the evidence presented at trial, the court nonetheless carefully reiterated and
reaffirmed the rule which prevents an expert from offering an opinion as to a
defendant's actual guilt or, as here, the actual truth of an alleged
enhancement. The court stated: " 'A witness may not express an opinion
on a defendant's guilt. [Citations.]
The reason for this rule is not because guilt is the ultimate issue of
fact for the jury, as opinion often goes to the ultimate issue. [Citations.]
"Rather, opinions on guilt or innocence are inadmissible because
they are of no assistance to the trier of fact.
To put it another way, the trier of fact is as competent as the witness
to weigh the evidence and draw a conclusion on the issue of guilt." ' [Citations.]" (Id.
at p. 1048, quoting People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 77.) The
court pointed out that the expert had no personal knowledge as to whether any
of the defendants had committed the underlying assault "and if so, how or
why; he was not at the scene. The jury
was as competent as the expert to weigh the evidence and determine what the
facts were, including whether the defendants committed the assault. So he could not testify directly whether they
committed the assault for gang purposes.
But he properly could, and did, express an opinion, based on
hypothetical questions that tracked the evidence, whether the assault, if the
jury found it in fact occurred, would have been for a gang purpose." (Vang,
supra, 52 Cal.4th at p. 1048.)
The court
emphasized that hypotheticals which closely track evidence presented at trial
and are, as a practical matter, indistinguishable from the case presented
against a defendant, are quite distinct from direct opinions about a
defendant's guilt or innocence. (
1049.) Unlike questions of guilt or
innocence, hypotheticals do not invade the province of the jury because: "First, [the jury] must decide whether
to credit the expert's opinion at all.
Second, it must determine whether the facts stated in the hypothetical
questions are the actual facts, and the significance of any difference between
the actual facts and the facts stated in the questions." (Id.
at p. 1050.) The court noted with
approval that the jury was instructed with a version of CALCRIM No. 332, which
stated: " 'In examining an expert
witness, the expert witness may be asked a hypothetical question. A hypothetical question asks a witness to
assume that certain facts are true and then give an opinion based on those
facts. It's up to you to decide whether an assumed fact has, in fact, been proved. If you conclude that an assumed fact is not
true, consider the effect of the expert's reliance on that fact in evaluating
the expert's opinion.'
[Citations.]" (
C. Analysis
Here, it is clear the
prosecutor's initial request for the expert's opinion as to whether in fact
Granado attempted to murder Pefferle for the benefit of the Pomona 12th Street
Sharkeys was improper because it involved the jury's duty to determine the
underlying facts. The expert was not a
witness to any part of the shooting and his implicit conclusion Granado was in
fact the shooter and motivated by his gang membership was not helpful to the
jury. (See Vang, supra, 52 Cal.4th at p. 1048.) As the court in Vang suggested, such an opinion was improper because it invaded the
jury's role in determining whether the underlying events occurred in the manner
suggested by the prosecution, including in particular whether Granado was the
shooter. (Ibid.) As Granado argues on
appeal, trial counsel's objection that this question was leading did not alert
the trial court to the real defect in the question—its invasion of the jury's
function—and thus did not preserve the issue for appeal.
In contrast
however, and of some importance in considering whether Granado was prejudiced
by admission of the expert's opinion as to truth of the gang enhancement
allegation, the expert's later response to the detailed hypothetical was
entirely proper. As the court in
closely tracking the evidence presented, is an entirely proper method of
eliciting gang expert opinion because, among other reasons, it leaves to the
jury the critical task of determining whether the evidence supports the facts
assumed in the hypothetical. (
1050.) We also note that, as in
CALCRIM No. 332 and thus, as in Vang,
directed to determine whether any fact assumed by the expert was proved.
In light of
the appropriate hypothetical posed to the expert, his response and the trial
court's use of CALCRIM No. 332, the earlier improper question did not prejudice
the jury's determination the attempted murder of Pefferle was for the benefit
of Granado's gang. Both the hypothetical
and the earlier improper direct question relied on the same logical
inference: that given the history of the
gang, including in particular its expressed antipathy toward police officers,
evidence of Granado's active participation in the gang, and the nature of the
shooting, it was very likely that in attempting to kill Pefferle, Granado was
acting as a means of amplifying the gang's reputation in the community and
Granado's reputation within the gang.
Thus, had an objection to the earlier question been made and sustained,
it is indisputable the jury nonetheless would have been presented the expert's
reasoning.
As we have
seen, the vice in the earlier question and its distinction from the
hypothetical is that the earlier question, instead of leaving to the jury the
task determining whether there was evidence of the facts upon which the expert
relied, purported to also resolve any underlying factual questions for the
jury. Although improper, this aspect of
the earlier question was not prejudicial here because there was other ample and
powerful evidence of the facts relied upon by the expert. There was no dispute someone fired multiple
times at Pefferle, and Pefferle, the other eyewitnesses and the DNA evidence
provided a virtual mountain of evidence that Granado was the shooter. No doubt of particular persuasive value was
the fact that after the shooting police were able to determine the car Pefferle
stopped was registered to Granado's daughter and she testified that Granado had
taken it without permission earlier in the month, but had not returned it. Moreover in light of Granado's gang tattoos
and admission that he was a gang member, there was no serious dispute Granado
was an active gang member. Given this
record, we have little doubt that in the absence of the improper question posed
to the expert, the jury would have nonetheless concluded that the evidence
fully supported the facts the expert relied on, both in convicting Granado of
the substantive crimes and in finding true the gang enhancement.
In sum
then, although the expert should not have been asked to opine on the question
of whether the gang enhancement allegation was true, in light of the
appropriate hypothetical that was posed to the expert and the volume of other
evidence supporting the facts the expert relied on, the improper question did
not prejudice Granado. Thus trial
counsel's failure to object to it will not support a claim of ineffective
assistance of counsel. (See
Cal.App.4th at pp. 1146-1147.)
III
Granado
contends his counsel was also ineffective in failing to move to bifurcate trial
of the gang enhancement allegations from trial of the underlying substantive
crimes. Our review of the record shows
that there was very little likelihood the trial court would have granted such a
motion and that in any event a separate trial of the substantive offenses would
not have given rise to a more favorable outcome. Thus, as we explain counsel did not act
deficiently in failing to move to bifurcate the gang enhancements and in any event
Granado was not prejudiced.
A. Bifurcation
Because of the efficiencies
which are achieved by way of a joint trial of related matters, in order to
prevail on a motion to bifurcate a gang enhancement, a defendant must "
'clearly establish that there is a substantial danger of prejudice requiring
that the charges be separately tried.'
[Citation.]" (
1040, 1051 (Hernandez).) "In cases not involving the gang enhancement, we have held that evidence of
gang membership is potentially prejudicial and should not be admitted if its
probative value is minimal.
[Citation.] But evidence of gang
membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant's
gang affiliation—including evidence of the gang's territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime. [Citations.] To the extent the evidence supporting the
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Hernandez,
supra, 33 Cal.4th at pp. 1049–1050.)
"Even
if some of the evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime
itself . . . a court may still deny bifurcation." (Hernandez,
supra, 33 Cal.4th at p.
1050.) Hernandez explained that a "trial court's discretion to deny
bifurcation of a charged gang enhancement is . . . broader
than its discretion to admit gang evidence when the gang enhancement is not
charged." (Ibid.)
In applying
these principles, the court in Hernandez
noted that much of the gang evidence presented in that case was relevant to the
charged offense, specifically on the issues of motive and intent. (Hernandez,
supra, 33 Cal.4th at p. 1051.) While
the court in Hernandez acknowledged
that some evidence of prior criminal acts by the defendants' fellow gang
members and some of the expert testimony
would not have been admissible at a trial that was limited to the charged
offenses, the court found that the otherwise inadmissible evidence was
nonetheless somewhat probative and not highly inflammatory as compared to the
other gang evidence which would have been admissible even in a separate trial
of the substantive offense. Thus the
court found that the defendants had not shown any substantial danger of
prejudice. (Ibid.)
B. Analysis
The record here is quite similar
to the record the court considered in Hernandez. Gang evidence was plainly very relevant here
in explaining Granado's motives and intent in first running from Pefferle and
then attempting to ambush him when Pefferle returned to his car. Granado's gang affiliation, and indeed some
of the gang expert evidence, would plainly have been admissible in a separate
trial of the attempted murder count. The
damaging impact of the relevant gang evidence was not materially amplified by
the additional gang evidence which was admitted because the gang enhancement
was tried together with the attempted murder and weapons charges. Thus, although the trial court had discretion
to grant a motion to bifurcate, given the added expense and inconvenience of
doing so and the limited prejudice to Granado, we doubt a motion to bifurcate
would have been granted and do not find any deficiency in counsel's failure to
make a motion with such limited chance of success. (See People
v. Majors, supra, 18 Cal.4th at
p. 403 [deference to trial counsel's tactical choices].) Suffice it say, given the very limited
prejudice caused by the joint trial of the enhancement and substantive charges,
any error in failing to make a motion to bifurcate was not prejudicial and will
not support a claim of ineffective assistance of counsel. (Ibid.)
IV
The trial
court imposed a consecutive sentence of 25 years to life for Granado's
conviction of being a felon in possession of a firearm. (§ 12021.) In doing so the court stated that the firearm
possession offense was a separate, distinct act.
We reject
Granado's claim his firearm sentence should have been stayed because it was not
separate from his attempt to murder Pefferle.
Where as here, the evidence shows a felon was in possession of a firearm
before committing a separate crime using a firearm, the stay provisions of
section 654 have no application. (See
1139, 1144-1146.) " 'Commission of
a crime under section 12021 is complete once the intent to possess is perfected
by possession. What the ex-felon does
with the weapon later is another separate and distinct transaction undertaken
with an additional intent which necessarily is something more than the mere
intent to possess the proscribed weapon.
[Citations.]' " (
Granado
also claims the trial court's reference to the separate and distinct nature of
the felon in possession conviction was not a sufficient statement of reasons
for consecutive sentencing, as required by rule 4.406(b), California Rules of
Court, and that his trial counsel erred in failing to request a statement of
reasons. The Attorney General concedes
the trial court's statement did not meet the requirements of the rule and that
in failing to request one, counsel forfeited the issue on appeal. (See People
v. Scott (1994) 9 Cal.4th 331, 353.)
However, as the Attorney General points out, this error did not
prejudice Granado: "Where
sentencing error involves the failure to state reasons for making a particular
sentencing choice, including the imposition of consecutive terms, reviewing
courts have consistently declined to remand cases where doing so would be an
idle act that exalts form over substance because it is not reasonably probable
the court would impose a different sentence." (People
v. Coelho (2001) 89 Cal.App.4th 861, 889.)
Here, it is plain a remand to require the trial court to more fully
articulate its obvious and fully adequate reasons for imposing a consecutive
sentence would be an idle act and that any error by trial counsel was
completely one of form and did not substantially prejudice Granado.
V
Finally,
Granado points out that the abstract of judgment reflects that, with respect to
the attempted murder conviction, the trial court imposed and stayed a 10-year
term for the section 186.22, subdivision (b) gang enhancement. Where, as here, a defendant commits a crime,
which by its own terms, is punishable by imprisonment for life, the defendant
is not subject to a determinate enhancement under section 186.22, subdivision
(b)(1), but instead is subject to the 15-year parole minimum set forth in
section 186.22, subdivision (b)(5). (
1006-1007.) Thus the abstract of
judgment must be corrected to reflect the appropriate application of section
186.22, subdivision (5).
With
respect to Granados' firearm conviction, the trial court imposed a three-year
determinate gang enhancement under section 186.22, subdivision (b)(1)(A). Because the firearm conviction under former
section 12021 did not, by its own terms, provide for a life sentence, the trial
court could impose the three-year determinate gang enhancement. (See People
v. Montes (2003) 31 Cal.4th 350, 360-362.)
DISPOSITION
The trial
court is directed to correct the abstract of judgment so that it no longer
imposes a 10-year gang enhancement on count 1 and instead reflects that, as to
count 1, Granado is subject to a 15-year parole minimum under section 186.22,
subdivision (b)(5).
The trial court is further directed to forward a copy of the
corrected abstract to the Department of Corrections and Rehabilitation. As corrected, the judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
O'ROURKE,
J.
