Filed 6/21/12 P. v. Zayas CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RODNEY LANCE ZAYAS,
Defendant and
Appellant.
F062556
(Super.
Ct. No. VCF226445A)
APPEAL from
a judgment of the Superior Court
of
County. Patrick J.
O'Hara, Judge.
Maureen L.
Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
A jury
convicted appellant Rodney Lance Zayas of second degree murder and made true
findings on gang and weapons enhancements.
He challenges his conviction on the grounds that the trial court
committed error in (1) denying his motion to bifurcate the trial on the gang
enhancement from the substantive offense, (2) failing to conduct an adequate
inquiry into juror bias, and (3) admitting inflammatory evidence. He also claims there was prosecutorial
misconduct, ineffective assistance of counsel, and cumulative error. We reject Zayas’s contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL SUMMARY
About 7:45 p.m. on August 28, 2009, Tulare County Sheriff’s Sergeant Douglas Winslow
was dispatched to investigate a report of a shooting. When he arrived at the scene, there were 25
to 30 people standing on the sidewalk, and the victim, Arturo Bello, was lying
face down in the road about eight feet from the sidewalk. Winslow found no weapons at the scene. Emergency personnel arrived and confirmed Bello
was dead. Bello
was dressed in the color blue.
Sheriff’s
Detective Michael Yandell responded to a felony traffic stop that same
night. The four occupants of the car,
including Zayas, were removed from the car at gunpoint and detained and a
gunshot residue test was conducted on Zayas’s hands. One witness at the “in-field show-upâ€
positively identified all four occupants of the car as being involved in the
shooting of Bello and identified
Zayas as the shooter.
In a taped
interview that night, Zayas waived his rights and agreed to be
interviewed. Zayas briefly discussed
that his brother had been shot and killed by Surenos. Zayas had Norteno gang tattoos and when asked
about them he stated he gravitated toward the people with whom his brother had
associated. At the time of Bello’s
shooting, Zayas claimed he was “very intoxicated†and did not “remember too
much.†Zayas eventually acknowledged
that he pulled out a gun because he “fel[t] threatened.†He did not recall how many times he fired his
gun and claimed he did not see the person he shot.
On August 29, 2009, a search pursuant to
a search warrant was conducted at a residence.
The search uncovered indicia that Zayas lived in a bedroom at that
residence. In the bedroom was a shotgun
loaded with five live rounds, letters addressed to Zayas from incarcerated
inmates, and red clothing.
Zayas,
Joshua Lee Hernandez, Richard Miguel Garcia, and Santos Hernandez were charged with
conspiracy to commit murder, the murder of Bello,
and the attempted murder of G.C. It was
alleged as to all three counts that they were committed for the benefit of a
criminal street gang. A special
circumstance appended to the murder count alleged that the murder was committed
by active participants in a criminal street gang and that it furthered the
activities of the gang.
Prior to trial the trial court
granted the prosecutor’s motion to sever the trials of the four defendants and
the motion to dismiss the conspiracy count.
Also, Zayas moved to bifurcate the trial on the gang allegations from
the substantive offense, which the trial court denied. Zayas then moved to limit the admissibility
of gang evidence. The trial court heard
argument and made a tentative ruling.
At trial the analysis of the
gunshot residue test of Zayas’s hands established that he had gunshot residue
on both his right and left hands. Expert
testimony established that Bello
was identifying himself as a Sureno.
Expert testimony also established that the Nortenos and Surenos were
enemies, that Zayas and his companions, on the evening of the shooting, were
Norteno gang members, and that the charged crimes were committed for the
benefit of the Norteno gang.
Zayas testified on his own
behalf. He testified regarding his
brother’s death, his decision to carry a gun, interviews he gave to the police,
and questionnaires he filled out at the time of booking. Zayas claimed he was a certified medical
assistant and was on a waiting list at Fresno
City College
for the nursing program.
Zayas said he and his companions
had been drinking and “smoking pot†on the day Bello
was shot. While driving through a
neighborhood, Zayas said some people wearing the color blue threw something at
the car they were in, so they stopped and got out of their car. One of the persons wearing blue approached
them. Zayas thought he saw something
“shine†or “glare†from the person’s waistband, so he pulled out his gun and
shot at the person.
The jury found Zayas not guilty of
guilty of second degree murder. The jury
found true that a principal personally discharged a firearm and that the crime
was committed for the benefit of a criminal street gang. The jury found him not guilty of attempted
murder. On May 20, 2011, Zayas was sentenced to a term of 40 years to
life.
DISCUSSION
Zayas contends the trial court
committed error in (1) denying his
motion to bifurcate the trial on the gang enhancement from the substantive
offense, (2) failing to conduct an adequate inquiry into juror bias, and (3)
admitting evidence of gang affiliation.
He also claims there was ineffective assistance of counsel,
prosecutorial misconduct, and cumulative error.
I. Bifurcation Motion
Standard of Review
The denial of a motion to bifurcate
the trial of a gang enhancement is reviewed for abuse of discretion. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Even if some of the evidence offered to prove a gang
enhancement would be inadmissible at a trial of the substantive offense, a
trial court still may deny bifurcation.
(Id. at p. 1050.)
Analysis
Gang evidence may be relevant to
establish “identity, motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]â€
(Hernandez, supra, 33 Cal.4th
at p. 1049.) Under these circumstances,
a gang enhancement is inextricably intertwined with the substantive offense and
bifurcation would not be necessary. (
gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]â€
(Id. 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.)
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.)
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.)
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 offense (ibid.), but held
that the trial court had acted within its discretion in denying the
Here, gang evidence was
inextricably intertwined with the substantive offense. It clearly was relevant to establish motive
and intent and to dispel the claim of self defense. Zayas told officers that Surenos had shot and
killed his brother in 2001. After his
brother’s death, Zayas affiliated himself with the Nortenos, including
obtaining Norteno gang tattoos. The
victim, Bello, was wearing the color blue, identified with Sureno gang members,
and shoes, Nike Cortez, that commonly are worn by Sureno gang members.
Santos Hernandez stated he and his
companions, including Zayas, “went out looking to go and retaliate against
Southern gang members†the night Bello was shot. Zayas, though, claimed he “was just defending
himself†and was “acting in self-defense.â€
Bello had no weapon on or near him at the time of the shooting.
Under the facts of this case, we
conclude the trial court acted within its discretion in refusing to bifurcate
trial of the gang enhancement from trial of the charged offenses. (Hernandez,
supra, 33 Cal.4th at pp. 1050-1051.)
We also reject
Zayas’s due process claim. The trial court dispelled any potential for
prejudice by correctly and expressly instructing the jury on the limited use of
gang evidence. The jury was informed
that the gang evidence could not be used to establish Zayas was a person of bad
character or that he had a predisposition to commit crimes. We presume the jury followed the
instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
II. Juror Inquiry
Factual Summary
During the presentation of the
defense case and outside the presence of the jury, the trial court stated that
Juror No. 2 had approached the bailiff and indicated that “she may recognize
one of the family members from working in the same school.†The bailiff clarified that Juror No. 2 was
not certain if it was the person she knew because she did not “have her glasses
on†and that there had been no contact or interaction between Juror No. 2 and
this person in court.
The trial
court had Juror No. 2 brought into the courtroom. She confirmed that when she left for lunch,
she noticed a “young lady over there†that she either “used to work with†or
still worked with, but she was not certain.
She did not “want to do anything wrong†by failing to report what she
had noticed. When questioned by the
trial court, Juror No. 2 stated she worked at an elementary school.
Juror No. 2
related that the person she knew worked at the same elementary school; however,
they did not have much contact. The
trial court asked Juror No. 2 to assume it was the person she knew and then
asked, “[W]ould that in any way influence your ability to reach a fair verdict
in this case?†Juror No. 2 responded
that it would not affect her verdict.
Juror No. 2
then added that the school where she worked had “a reputation where it’s atâ€
and that she was “a little bit bothered†for “safety purposes.†She stated, “I don’t know if this is the
person. They know who I am and where I
work and I just don’t know.†The trial
court responded that Juror No. 2 was “going to have to let us know,†and that
the trial court could inquire as to the identity of the young lady if necessary. The trial court then asked Juror No. 2 if she
could listen to the evidence and base her decision on the evidence and “not
from any other source.†Juror No. 2
responded affirmatively.
After Juror
No. 2 left the courtroom, the trial court asked the prosecutor and defense
counsel if there was anything else.
Defense counsel indicated he felt Juror No. 2 had expressed fear about
reaching a decision. The trial court
opined that it viewed Juror No. 2’s comments as concern about the location of
the school where she worked, but that she had unequivocally stated she could
reach a verdict based purely on the evidence.
Defense counsel submitted the matter and the trial court ruled that
Juror No. 2 would remain.
Zayas now
contends Juror No. 2 should have been dismissed or a further inquiry should
have been made.
of Review
“The decision whether to
investigate possible juror bias, incompetence, or misconduct, as well as the
ultimate decision whether to retain or discharge a juror, rests within the
sound discretion of the trial court.
[Citation.] If any substantial
evidence exists to support the trial court’s exercise of its discretion, the
court’s action will be upheld on appeal.
[Citation.]†(
434.) As our Supreme Court notes, “a
hearing is required only where the court possesses information which, if proven
to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform
his [or her] duties and would justify his [or her] removal from the case.†(People
v. Ray (1996) 13 Cal.4th 313, 343 (Ray).)
Analysis
A trial court must conduct a
sufficient inquiry when put on notice that cause to discharge a juror may
exist. (People v. Barnett (1998) 17 Cal.4th 1044, 1117.) The ultimate decision whether to retain or
discharge a juror is subject to the discretion of the trial court. That discretion is limited to the extent that
the juror’s inability to perform his or her functions must appear in the record
as a “demonstrable reality†and the trial court must not presume the worst of a
juror. (People v. Bowers (2001) 87 Cal.App.4th 722, 729.)
Here, by questioning Juror No. 2,
the trial court elicited her response that she could evaluate the case based
only upon the evidence, not consider facts from any other source, and she felt
she could be fair to both sides in the case.
Juror No. 2’s expression of being “a little bit bothered†and being
“scared†in the past were, as the trial court noted, expressions of concern
about the location of the school where she worked. The trial court did not abuse its discretion
in concluding that further inquiry was not needed. (Ray,
supra, 13 Cal.4th 313, 344.)
Zayas’s
claim that defense counsel rendered ineffective assistance by failing to
request a more detailed inquiry fails in light of our conclusion that the trial
court conducted an adequate inquiry and did not abuse its discretion in
concluding that further inquiry was not needed.
III. Evidence of Gang Affiliation
Zayas contends the trial court
abused its discretion in admitting evidence that a shotgun and three letters
from Norteno jail inmates were found in his bedroom as a result of a search
conducted pursuant to a search warrant and that admission of this evidence
denied him due process. On appeal, we apply
an abuse of discretion standard of review to any ruling by a trial court on the
admissibility of evidence. (
724 (Waidla).)
Factual Summary
Initially, the trial court granted
a defense request to exclude evidence of a stolen shotgun found hidden in
Zayas’s bedroom when it was searched.
The trial court’s initial ruling on the three letters from Norteno gang
members was that they were admissible to help establish Zayas’s gang
affiliation.
Shortly thereafter, a discussion
ensued regarding admissibility of photographs, some of which depicted the
stolen shotgun and shotgun shells. The
defense argued the pictures were inadmissible, as the shotgun had not been used
in the current offense. The prosecutor
argued the shotgun was found with gang indicia and was relevant to show Zayas
was an active gang member.
Ultimately, the trial court ruled
that the photos of the shotgun and ammunition would be admissible, but no
mention was to be made of it being stolen.
The trial court articulated that the gang expert would be testifying
regarding gang indicia, including that gang members carry weapons.
The officer who conducted the
search of Zayas’s bedroom testified that the shotgun had not been used in the
commission of the charged offenses. The
gang expert testified that it was “common for gang members to carry firearmsâ€
but also acknowledged that nongang members own weapons.
As for the three letters, the same
officer testified that “three pieces of inmate-generated mail†were found in
Zayas’s bedroom and were addressed to Zayas; the return address was the local
jail. On cross-examination, the officer
acknowledged he was unaware the letters were from relatives of Zayas’s. The gang expert opined that Zayas was a
Norteno gang member, an opinion the expert reached in part based upon Zayas’s
receipt of three letters from Norteno gang members. The expert testified on cross-examination
that he had not read the three letters and did not know they were from family
members.
When Zayas was questioned after his
arrest, he denied ever owning “any shotguns in the past.†When Zayas testified at trial, he explained
he owned the shotgun found in his room in “the present,†and he had not owned
any shotguns in the past. Zayas
testified he acquired the shotgun for protection of his home and stated the
three letters were from relatives who he thought were in jail for drug
offenses, not gang offenses.
In closing arguments, the
prosecutor briefly mentioned the three letters.
Defense counsel also briefly mentioned the three letters and the
shotgun.
Analysis
Article I, section 28, subdivision
(f)(2) of the California Constitution provides in relevant part that “relevant
evidence shall not be excluded in any criminal
proceeding.†Evidence Code section
351 declares that “Except as otherwise provided by statute, all relevant
evidence is admissible.†Relevant
evidence is that “having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.†(Id.,
§ 210.) The only limitation on the
admission of relevant evidence found in the Evidence Code, absent a specific
exclusion, is that its probative value not be outweighed substantially by a
danger of undue prejudice, or it necessitates undue consumption of time. (Id.,
§ 352.)
Here, the trial court conducted an
Evidence Code section 352 hearing. The
prosecutor contended the items found in Zayas’s bedroom helped establish Zayas
was a gang member. Zayas was charged
with a gang special circumstance appended to the murder count and also with the
gang enhancement set forth in Penal Code section 186.22, subdivision (b). The defense claimed the items were not
relevant. Ultimately, the trial court
determined the items were relevant and probative of whether Zayas was an active
participant in a criminal street gang.
As a general rule, evidence of gang
membership and activity is admissible if it is relevant to some material issue
in the case. Consequently, gang evidence
may be relevant to establish a defendant’s motive, intent, or some fact
concerning the charged offenses. (
Cal.App.4th 214, 223-224 (Albarran).) Zayas was charged with both the gang offense
and the gang enhancement set forth in Penal Code section 186.22, subdivision
(b); therefore, any evidence tending to support those charges was relevant
under Evidence Code section 351. The
evidence regarding the shotgun and the three letters was used by the gang expert
as support for his opinion that Zayas was a gang member. The evidence of the shotgun also was
admissible to rebut Zayas’s statement to officers after his arrest.
The decision on whether evidence,
including gang evidence, is relevant and not unduly prejudicial, and therefore
admissible, rests within the discretion of the trial court. (Albarran,
supra, 149 Cal.App.4th at pp. 224-225.)
When a discretionary power is statutorily vested in the trial court, its
exercise of that discretion should not be disturbed on appeal except on a
showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner. (
discretion. (Ibid.)
Zayas has failed to establish that
admission of the evidence was an abuse of discretion. There was nothing arbitrary, capricious, or
patently absurd about the trial court’s ruling.
An Evidence Code section 352 hearing was held; the trial court
determined the evidence was relevant to a charged offense and an enhancement;
and there was nothing inflammatory or prejudicial about the evidence. The prejudice the statute seeks to avoid is
not the damage to a defense that naturally flows from highly probative
evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) “Rather, the statute uses the word in its
etymological sense of ‘prejudging’ a person or cause on the basis of extraneous
factors.†(People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another
ground in Waidla, supra, 22 Cal.4th
at p. 724, fn. 6.)
We conclude the trial court did not
abuse its discretion in admitting this evidence. (People
v. Guerra (2006) 37 Cal.4th 1067, 1113.)
IV. Ineffective Assistance of Counsel
Zayas contends his defense counsel
rendered ineffective assistance by offering into evidence his application to
attend a community college, which disclosed that Zayas had lied by falsely
representing he had no criminal convictions when he had misdemeanor
convictions. We decline to address his
contention.
Factual Summary
Zayas testified he had graduated as
a certified medical assistant and was on a waiting list at Fresno City College
to enter the nursing program. This
testimony was presented in response to the gang expert testifying that it would
be “rare†for a gang member to become a certified medical assistant or to
attend college to become a nurse.
Defense counsel apparently obtained
the school records in response to a subpoena duces tecum in order to bolster
Zayas’s testimony regarding his medical assistant certification and application
for nursing school. The records were
subpoenaed into court and opened in court.
The prosecutor then used the documents to impeach Zayas’s asserted
reputation for truthfulness and honesty by showing that he had falsely signed
the college document indicating he had no criminal
convictions.
Standard of Review
“The burden of proving
ineffective assistance of counsel is on the defendant.†(People
v. Babbitt (1988) 45 Cal.3d 660, 707.)
A criminal defendant must show both deficient performance (“that trial
counsel failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocatesâ€) and prejudice (“that it is reasonably
probable a more favorable determination would have resulted in the absence of
counsel’s failingsâ€). (
386.) Zayas has failed to meet this
burden.
Analysis
It has been said on numerous
occasions that a claim for ineffective assistance of counsel is more properly
addressed in a petition for writ of habeas corpus. “[N]ormally a claim of ineffective assistance
of counsel is appropriately raised in a petition for writ of habeas corpus
[citation], where relevant facts and circumstances not reflected in the record
on appeal, such as counsel’s reasons for pursuing or not pursuing a particular
trial strategy, can be brought to light to inform the two-pronged inquiry of
whether counsel’s ‘representation fell below an objective standard of
reasonableness,’ and whether ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’ [Citation.]†(People
v. Snow (2003) 30 Cal.4th 43, 111.)
Here, an ineffective assistance of
counsel claim is more properly raised in a petition for writ of habeas
corpus. Clearly, the documents were
subpoenaed by defense counsel and requested to be produced in open court,
thereby depriving defense counsel of the opportunity to review the documents
before they were admitted. What the
record does not show is whether Zayas was ever asked, or whether he ever
informed his counsel, that he had made false statements in the college
application documents. This information
was wholly within Zayas’s knowledge, and the record does not disclose whether
Zayas informed his counsel of the false statements in the application, as one
would expect knowing the documents had been subpoenaed, or if defense counsel
made inquiries of Zayas and Zayas failed to answer counsel truthfully.
Since the appellate record does
not show the reasons for defense counsel’s actions, the proper method for
addressing an ineffective assistance of counsel claim is by a petition for writ
of habeas corpus rather than by an appeal.
(People v. Cunningham (2001)
25 Cal.4th 926, 1031 (Cunningham).)
V. Prosecutorial Misconduct
Zayas contends the prosecutor
committed misconduct by cross-examining Zayas about the circumstances
surrounding his brother’s shooting.
Zayas testified about the shooting
of his brother on direct examination to explain in part why he always carried a
handgun on his person and had gang tattoos on his body. In response to Zayas’s testimony on direct
examination, the prosecutor cross-examined him about the facts and
circumstances surrounding his brother’s death, suggesting the brother was armed
with a handgun at the time of the shooting, the brother was the instigator in
the incident that led to the shooting, and the shooting was the result of gang
rivalry between the Nortenos and Surenos.
Zayas now contends the prosecutor’s
cross-examination amounted to misconduct because the prosecutor was implying or
insinuating she had more evidence than was presented. We reject this contention for two
reasons. First, there was no objection
to the prosecutor’s questions on cross-examination; thus, any claim of
misconduct is forfeited. Failure to
object and seek a curative admonition forfeits appellate review of any claim of
prosecutorial misconduct. (
1354.)
Second, when a defendant voluntarily
testifies in his own defense, as Zayas did, the prosecution may fully
cross-examine him by inquiring into facts and circumstances surrounding his
assertions or introducing evidence that refutes his statements. (People
v. Harris (1981) 28 Cal.3d 935, 953.)
Although it is improper for a prosecutor to ask questions of a witness
that suggest facts harmful to the defendant absent a good faith belief such
facts exist, there is nothing in the record to suggest the absence of a good
faith belief. (People v. Osband (1996) 13 Cal.4th 622, 695.) Here, there was no request that the
prosecutor make an offer of proof regarding the suggested circumstances
surrounding Zayas’s brother’s death and this court therefore cannot conclude the
prosecutor would have been unable to present evidence if asked. (People
v. Earp (1999) 20 Cal.4th 826, 860.)
We also reject any claim of
ineffective assistance of counsel. The
record before us discloses nothing improper about the cross-examination. Defense counsel’s failure to request an offer
of proof from the prosecutor may have been tactical. Zayas’s testimony on direct examination was
that he witnessed the entire incident involving the shooting and killing of his
brother; yet, on cross-examination, Zayas claimed he could not remember any
specifics when asked by the prosecutor.
Defense counsel may have preferred not to have additional evidence of
the gang shooting of Zayas’s brother since Zayas was present and involved in
that incident. We do not second-guess
defense counsel’s tactical decisions on appeal.
(See People v. Knight (1987)
194 Cal.App.3d 337, 346.) Furthermore,
as explained in part IV. above, claims of ineffective assistance of counsel are
more properly brought in a petition for writ of habeas corpus, not in an appeal. (Cunningham,
supra, 25 Cal.4th at p. 1031.)
VI. Cumulative Error Warranting Reversal
Zayas has asserted numerous
reversible errors, and we have concluded each claimed error to be either
unfounded or not cognizable on appeal.
Since Zayas has failed to persuade us that any error occurred, his
cumulative error argument fails. (
982.)
DISPOSITION
The
judgment is affirmed.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
FRANSON, J.
