P. v.
Filed 4/25/13 P. v. Hidalgo CA2/4
PUBLISHED IN THE OFFICIAL REPORTS
California
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
ANGEL
ANTHONY HIDALGO,
Defendant and Appellant.
B236817
(Los Angeles County
Super. Ct. No. BA360743)
APPEAL from a judgment of the Superior Court of
County, Curtis B. Rappe, Judge. Affirmed as modified and remanded with
directions.
Jean Ballantine, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane
R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr. and William N. Frank, Deputy Attorneys
General, for Plaintiff and Respondent.
Appellant
Angel Anthony Hidalgo challenges his conviction for murder (Pen. Code,
§ 187, subd. (a)).
name="_ftnref1" title="">[1] He contends his judgment
of conviction must be reversed due to insufficiency of the evidence,
instructional error, and sentencing error; in addition, he maintains that the
trial court erred in admitting the preliminary hearing testimony of a witness
not available at trial. Respondent
acknowledges certain defects in appellant’s sentence. Although we reject appellant’s contentions
regarding the sufficiency of the evidence, the prejudicial effect of any
instructional error, and the admission of the
conclude that his sentence contains errors, and modify the judgment to correct
them.
On July 22,
2010, an
information was filed, charging appellant, along with Gabriel Demetruis Delgado
and Angel Garcia, with the murder of Luis Miguel Mora.
The information alleged that a principal had personally used, and
intentionally discharged a firearm, causing great bodily injury and death
(§12022.53, subds. (b), (c), (d), (e)).
It further alleged that the offense was committed for the benefit of a
(b)(1)(C)). Appellant pleaded not guilty
and denied the special allegations.
Appellant
was tried jointly with Delgado and Garcia.
The jury found appellant guilty of willful, deliberate, and premeditated
murder and found the special allegations to be true. The jury also found Delgado guilty of willful, deliberate,
and premeditated murder, and found the special allegations against him to be
true. The jury was unable to reach a
unanimous verdict regarding Garcia, and a mistrial was declared with respect to
him. The trial court sentenced appellant
to a term of imprisonment of 50 years to life.
In addition, the court imposed a 15-year minimum parole eligibility
period (§ 186.22 (b)(1)(C)).
A. Prosecution
Evidence
1. Background
In
August 2009, appellant, Delgado, and Garcia belonged to the Maywood Locos gang,
as did Yvette Lemus. Yesenia Villarreal
was an “associate†of the gang.
According to Los Angeles County Sheriff’s Department Deputy Sheriff
Andrew Serrata, a gang expert, during the pertinent period, the Maywood Locos
gang had more than 100 members, and claimed territory west of the intersection
of 57th Street and Atlantic
Boulevard in Maywood. A rival gang known as the “Krazy Wicked
Surenos†(K.W.S.) had approximately 30 members, and claimed territory east of
that intersection. Serrata opined that Maywood Locos who entered
K.W.S. territory in an effort to kill a K.W.S. member earned respect within
their own gang; he also opined that such a murder would be done for the gang’s
benefit.
Luis
Mora lived in a house on 57th
Street located a short distance east of Atlantic
Boulevard.
According to Serrata, Mora was not a documented member of any gang.
2. Mora’s
Murder
The prosecution’s principal witnesses
regarding appellant’s role in Mora’s murder were Villarreal and Lemus. Villarreal testified that on August 13, 2009, she was
driving with Lemus. She picked up
appellant and Delgado, who asked her to go to Garcia’s house so that Delgado
could retrieve his gun. After Villarreal
made the stop, Garcia joined the car’s occupants. Villarreal then drove to a Shell gas station on the northwest
corner of Atlantic Boulevard and 57th Street, where she
and Lemus entered the store to pay for gas.
When they returned to the car, appellant was outside, using a cell
phone. While Villarreal pumped gas,
appellant pointed to a specific location on Atlantic
Boulevard, and asked her to pick him up
there. Appellant and Delgado then
crossed the street. Garcia, who remained
at the car, told Villarreal that they had “seen a dummy across the
street.†She understood this to mean
that they had observed a K.W.S. member.
Soon afterward, she heard gunshots.
At Lemus’s urging, Villarreal stopped pumping gas and drove to the
location appellant had identified, where appellant and Delgado entered the
car. As Villarreal drove away, Delgado
said, “I got him,†and “he fell to the floor screaming.â€
Lemus
was determined by the
trial court to be unavailable as a witness, and portions of her preliminary hearing
testimony were presented to the jury.
According to Lemus, on August 13, 2009, she was “cruising†in a car driven
by Villarreal, who stopped to pick up appellant and Delgado.
At Delgado’s request, Villarreal drove to Garcia’s house to permit
Delgado to retrieve his gun. Delgado
went into the house and returned with Garcia, who joined Lemus and the others
in the car.
Villarreal
then drove to the Shell station. After
Villarreal parked at the gas pumps, Lemus and Villarreal walked into the station
to pay for gas. When Lemus and
Villarreal returned to the car, Lemus heard Garcia tell Delgado, “It’s a
dummy,†and saw Delgado look toward a Valero gas station located across Atlantic Boulevard.
According to Lemus, the term “dummy†means “enemy gangster[].†Delgado then said to appellant, “You got
it?†Lemus watched appellant and Delgado
walk across Atlantic Boulevard.
Sometime later, after Lemus heard gunshots, Villarreal and Lemus left
the gas station and drove onto Atlantic Boulevard, where appellant and Delgado entered
the car. According to Lemus, Delgado
said, “I got him. He was
screaming.â€
A
video recording from the Shell station’s security camera was played for the
jury. The recording shows appellant
(wearing a white T-shirt) step outside the car while Villarreal and Lemus enter
the station to pay for gas. As
Villarreal pumps gas, Lemus reenters the car.
Appellant then points toward the street; Delgado (wearing a dark
T-shirt) leaves the car, and the pair crosses Atlantic Boulevard. After a few moments, Lemus also steps out of
the car, walks in front of it, and looks toward Atlantic Boulevard. Lemus soon gestures to Villarreal, who stops
pumping gas, and the car leaves the gas station.
Ramon
Portillo and his son, Fernando Tovar, resided close to Mora on 57th
Street. At 3:00 p.m. on August 13, 2009,
while Portillo and Tovar were in their living room, they saw Mora walk west on
57th Street toward a street vendor and return with a slurpee or a shaved iced
cone. After Mora moved past their house,
they noticed Delgado, who appeared to be following Mora. Delgado stopped, drew a gun, fired several
shots, and walked away.
name="_ftnref4" title="">[4]
At
approximately 3:00 p.m., Robert Rodriguez, who also lived near Mora, left his
house and walked west toward the convenience store in the Valero service
station on Atlantic Boulevard. As he did
so, he saw Mora, who was walking east, carrying a shaved ice cone. Two young men also passed him moving east,
one wearing a white T-shirt, and the other a black T-shirt. When Rodriguez entered the convenience store,
he heard gunshots and decided to return to his house. As he hurried back to his house, he saw the
two young men running west toward Atlantic Boulevard. He then discovered Mora on the ground.
Mora
died of fatal gunshot wounds.
B. Defense
Evidence
Only Delgado
presented evidence on his behalf. Raul
Hernandez, an air conditioning and refrigeration technician, testified that
during August 2009, he employed Delgado as a helper, although he acknowledged
that Delgado missed work on two days. He
was unsure whether Delgado appeared for work on August 13, 2009.
DISCUSSION
contends (1) there was insufficient evidence to support the gang enhancement,
(2) the trial court erred in admitting Lemus’s preliminary hearing testimony,
(3) there was instructional error, and (4) the trial court imposed an incorrect
sentence. As explained below, we find no
reversible error, with the exception of certain sentencing defects that we may
properly correct without a remand for resentencing.
A.
the Evidence
Appellant contends the gang enhancement fails for want of
sufficient evidence. Generally,
subdivision (b) of section 186.22 “imposes additional punishment when a
defendant commits a felony for the benefit of, at the direction of, or in
association with a criminal street gang. To establish that a group is a criminal
street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of
three or more persons sharing a common name, identifying sign, or symbol; (2)
one of the group’s primary activities is the commission of one or more statutorily
enumerated criminal offenses; and (3) the group’s members must engage in, or
have engaged in, a pattern of criminal gang activity. [Citations.]â€
(People v. Duran
(2002) 97 Cal.App.4th 1448, 1457.)
Appellant maintains the prosecution made an inadequate showing regarding
the Maywood Locos’ “primary activities.â€
As explained below, we reject this contention.
“The phrase
‘primary activities,’ as used in the gang statute, implies that the commission
of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations.†(
Cal.4th 316, 323 (Sengpadychith).) Among the crimes enumerated in the statute
are murder, attempted murder, assault with deadly weapons or force likely to
produce great bodily injury, burglary, robbery, gun possession, sales of
narcotics, and felony extortion. (§
186.22, subds. (e)(1), (e)(2), (e)(3), (e)(4), (e)(19), (e)(23), (e)(31); see
1209, 1226 [attempted commission of enumerated crimes also falls under gang
statute].) Evidence that gang’s members have
“consistently and repeatedly†committed criminal activity enumerated in the
gang statute is sufficient to
primary activities. (
commission of such crimes is insufficient.
(Ibid.) To make the required showing, the prosecution
may rely on evidence of the crimes charged against the defendant, evidence of
crimes committed by other gang members, and expert testimony regarding the
gang’s activities. (Id. at pp. 323-324.)
Here,
the key evidence regarding the Maywood Locos’ primary activities was provided by Deputy Sheriff
Serrata, who stated that he was familiar with the gang because he had lived
near the gang’s area, served with the Maywood Police Department, and worked in
a unit that investigated the Maywood Locos.
He testified as follows:
“[Prosecutor]. Are you familiar with the types of crimes
that Maywood Locos gang members participate in?
“[Serrata]. Yes, sir.
“[Prosecutor]. Can you describe what those are based on your
experience?
“[Serrata]. Auto theft, burglary, robbery, assault,
assault with deadly weapons, attempted murder and murder[,] and narcotics
sales.
“[Prosecutor]. What narcotics?
“[Serrata]. Mostly marijuana and methamphetamine. [¶]
They’re also --also extortion.â€
In addition, he identified two gang
members who had been convicted of attempted murder, murder, and narcotics
sales.
Serrata
further testified that the Maywood Locos and the K.W.S. gang became rivals in
the late 1980’s or early 1990’s. The
hostilities between the two gangs rapidly escalated from fistfights to
shootings. According to Serrata, at the
time of Mora’s murder, “there were so many shootings back and forth that gang
members were even afraid to walk around in their own area, much less going into
rival gang territory.†He also testified
that members of the Maywood Locos earned respect within their gang by “putting
in work,†which involved the commission of violent crimes against other gangs,
including murder, attempted murder, and assault with a deadly weapon.
Although Serrata
expressly stated that the Maywood Locos committed crimes listed in the gang
statute, appellant contends his testimony was insufficient to establish the
gang’s primary activities, for purposes of the gang statute. We disagree.
Viewed as a totality, Serrata’s testimony, including his description of
the warfare between the Maywood Locos gang and its rival, showed that Maywood
Locos “consistently and repeatedly†engaged in crimes enumerated in the statute
(Sengpadychith, supra, 26 Cal.4th at p. 324, italics omitted).
Appellant’s
reliance on In re Alexander L. (2007)
149 Cal.App.4th 605 is misplaced. There,
a deputy sheriff presented as an expert witness testified that a specified gang
had committed crimes enumerated in the statute, but offered no testimony
regarding the circumstances of the crimes or how he knew of them. (Id.
at pp. 611-612.) The appellate court
concluded that the testimony did not constitute substantial evidence regarding
the gang’s primary activities, as no foundation had been laid for the deputy
sheriff’s conclusory description of the gang’s criminal activity. (Id.
at pp. 611-614.) That is not the case
here: Serrata explained the basis of his
knowledge of the Maywood Locos’ crimes, and testified that they repeatedly
engaged in enumerated offenses over a lengthy period. In sum, there was sufficient evidence to
support the gang enhancement.
B. Lemus’s
Preliminary Hearing Testimony
Appellant
contends the trial court erred in ruling that Lemus’s preliminary hearing
testimony was admissible because she was unavailable as a witness. He maintains that admitting the testimony
contravened his confrontation rights under the California and United States
Constitutions, arguing that the prosecution failed to show due diligence in
attempting to procure Lemus’s appearance as a witness, and that he lacked an
adequate opportunity to cross-examine Lemus during the
1. Governing
Law
Our inquiry
into appellant’s contentions follows established principles. “The confrontation clauses of both the federal
and state Constitutions guarantee a criminal defendant the right to confront
the prosecution’s witnesses. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15.)
That right is not absolute, however.
An exception exists when a witness is unavailable and, at a previous
court proceeding against the same defendant, has given testimony that was
subject to cross-examination. Under
federal constitutional law, such testimony is admissible if the prosecution
shows it made ‘a good-faith effort’ to obtain the presence of the witness at
trial. (Barber v. Page (1968) 390
U.S. 719, 725; accord, Ohio v. Roberts (1980) 448 U.S. 56, 74[, reversed
on other grounds in Crawford v.
Washington (2004) 541 U.S. 36, 62].)
California allows introduction of the witness’s prior recorded testimony
if the prosecution has used ‘reasonable diligence’ (often referred to as due
diligence) in its unsuccessful efforts to locate the missing witness. [Citation.] . . .)†(People
v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); Evid. Code, §§ 240, subd. (a)(5), 1291.)
Generally,
“‘[w]hat constitutes due diligence to secure the presence of a witness depends
upon the facts of the individual case.
[Citation.] The term is incapable
of a mechanical definition. It has been
said that the word ‘diligence’ connotes persevering application, untiring
efforts in good earnest, efforts of a substantial character. [Citation.]
The totality of efforts of the proponent to achieve [the] presence of
the witness must be considered by the court.
Prior decisions have taken into consideration not only the character of
the proponent’s affirmative efforts but such matters as whether he reasonably
believed prior to trial that the witness would appear willingly and therefore
did not subpoena him when he was available [citation], whether the search was
timely begun, and whether the witness would have been produced if reasonable
diligence had been exercised [citation].’
[Citation.]†(
523.)
The trial
court’s ruling regarding due diligence presents a mixed question of fact and
law. (Cromer, supra, 24 Cal.4th
at p. 893.) To the extent the trial
court resolved conflicts in the evidence regarding historical facts, we review
the trial court’s findings for the existence of substantial evidence. (Id.
at pp. 894, 900-902.) To the extent the
trial court concluded that the historical facts “amount[ed] to due diligence by
the prosecution,†we review the determination de novo. (Id.
at pp. 900-901.)
2. Evidence
and Ruling
Lemus was
fifteen years old at the time of Mora’s murder.
When interviewed by Los Angeles County Sheriff’s Department Detective
Brian Schoonmaker, she initially denied any knowledge of the crime, but soon
provided an account of it. Schoonmaker
later served her with a subpoena to appear at the preliminary hearing.
On July 2,
2010, at the beginning of the preliminary hearing, appellant and some of his
co-defendants asked for a continuance, arguing, inter alia, that they needed
additional time to explore whether Lemus suffered from mental illness. In opposing the request, the prosecutor
stated that Lemus was present and was “going to testify, either on her own or
with a grant of immunity.†He also
expressed “serious doubts†whether she would reappear following a continuance,
even if ordered to do so. After the
trial court denied the continuance, Lemus asserted her Fifth Amendment right
against self-incrimination, received a grant of immunity, and testified regarding
Mora’s murder.
On July 6,
2010, Lemus reappeared at the preliminary hearing to continue her
testimony. Appellant and his
co-defendants requested an order to compel Lemus to enter into a written
undertaking to appear at trial (§ 1332), pointing to the prosecutor’s earlier
remarks regarding her potential reluctance to testify. The prosecutor opposed the request, arguing
that his concerns regarding Lemus were common in gang-related cases, and did
not constitute a basis for a written undertaking.
On the same
date, before Lemus resumed her testimony, the prosecutor also told the trial
court that members of the courtroom audience had made hostile gestures to Lemus
while she testified during the prior session.
Lemus also informed the court that she felt “[t]hreatened.†Following an inquiry, the court excluded two
persons from the courtroom and ordered Lemus’s foster father, who had
accompanied her to the hearing, to stay with her throughout the
proceedings. Lemus then continued her
testimony, which she completed on July 7, 2010.
Shortly afterward, appellant and his co-appellants withdrew their
request for a written undertaking to secure Lemus’s appearance at trial,
stating that they accepted the prosecutor’s representation that “the concerns
he had [were] . . . common in every gang case.â€
During the
preliminary hearing, Lemus described the events surrounding Mora’s murder. In addition, during cross-examination, she
testified that she had been diagnosed as bipolar at an early age, and took
medication for the condition. In May
2009, after her mother was arrested, she ran away to avoid placement in a
foster home. At the time of Mora’s
murder, she was “living on the street,†using drugs and drinking alcohol, and
not taking her prescribed medication.
She further testified that she felt some “pressure†when the
investigating officers interviewed her, but denied that they promised to let
her go if she described the crime.
According to Lemus, she began living in a foster home in January 2010,
and was taking her prescribed medication at the time she testified.
Appellant’s
trial began on June 20, 2011. Prior to
the selection of the jury, the prosecutor requested a determination that Lemus
was unavailable as a witness, for purposes of admitting her preliminary hearing
testimony. The sole witness to testify
at the due diligence hearing was Detective Schoonmaker. According to Schoonmaker, Lemus was
cooperative during the investigation of Mora’s murder, and complied with the
subpoena to appear at the preliminary hearing.
Lemus’s foster father brought her to the preliminary hearing, and she
was “friendly and cooperative†while she testified.
Schoonmaker
further testified that on June 7, 2011, he sought to serve a subpoena on
Lemus. He phoned Lemus’s foster parents,
who said that she had run away several weeks earlier, while meeting with a
social worker. The social worker told
Schoonmaker that on April 28, 2011, she authorized a warrant for Lemus’s
detention. Schoonmaker unsuccessfully
tried to contact Lemus on her cellphone.
He also talked to Lemus’s mother, aunt, and sister, none of whom had
seen Lemus within the previous month. In
addition, he checked Los Angeles County custody facilities, juvenile halls,
morgue, coroner’s office, and hospitals, as well as the United States Postal
Service and the Department of Motor Vehicles address database, all to no
avail.
During
cross-examination, Schoonmaker testified that he did not recall Lemus’s
preliminary hearing testimony regarding her need for medication, use of illegal
drugs, and status as a runaway at the time of Mora’s murder, but remembered
that she was under the care of a psychiatrist.
He further stated that he had no reason to believe that she would not
continue living in a foster home after the preliminary hearing, as she was
supervised by a social worker.
In finding the
existence of due diligence, the trial court stated that although Lemus had
“problems†when Mora was murdered, her situation changed after that event: she cooperated during the criminal
investigation, was placed in a foster home, and appeared to have a good
relationship with Schoonmaker and her foster parents. The court also noted that Lemus complied with
the subpoena and completed her preliminary hearing testimony despite threats to
her. The court thus found that
Schoonmaker reasonably believed that Lemus would not flee before trial. The court further concluded that Schoonmaker
had done everything he could to locate her, and noted that even if Schoonmaker
had tried to find her as early as April 28, 2011, he would have been unable to
do so.
3. Due
Diligence
Because the
historical facts are not in dispute, we confront an issue of law, namely,
whether the prosecution exercised due diligence in trying to secure Lemus’s
presence at trial. Generally, the
prosecution is obliged only to use “reasonable efforts†to procure a
witness. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) Because appellant does not dispute that
Schoonmaker made reasonable efforts to locate Lemus in June 2011, our focus is
on whether the prosecution was required to monitor Lemus or prevent her from
fleeing prior to trial. (See
341-342 [detective’s two-day search for missing witness encompassing last known
address and police, county, and state records was sufficient to establish
witness’s unavailability].) Absent
special circumstances, the prosecution is subject to no such requirement. (People
v. Fuiava (2012) 53 Cal.4th 622, 676-677 (Fuiava).) Our Supreme Court
has explained: “[W]e could not properly
impose upon the People an obligation to keep ‘periodic tabs’ on every material
witness in a criminal case, for the administrative burdens of doing so would be
prohibitive. Moreover, it is unclear
what effective and reasonable controls the People could impose upon a witness
who plans to . . . simply ‘disappear,’ long before a trial date is set.†(People
v. Hovey (1988) 44 Cal.3d 543, 564.)
Pointing to
the prosecutor’s remarks at the preliminary hearing regarding Lemus’s risk of
flight, appellant maintains that the prosecution was obliged to monitor Lemus
prior to the trial. We disagree. In Fuiava,
a witness testified at the preliminary hearing that she saw the defendant
fleeing from a gang-related shooting. (
676.) She also stated that although she
initially had been fearful to testify, she had moved her residence prior to the
preliminary hearing with the assistance of the sheriff’s department. (Ibid.) Later, two weeks before the trial, a
detective tried to serve her with a subpoena, but discovered that she had
disappeared. (Id. at pp. 675-676.) On
appeal, the defendant asserted that the witness’s preliminary hearing testimony
obliged the prosecution to “ke[ep] tabs†on her. (Id.
at p. 676.) In rejecting the contention,
our Supreme Court observed that measures had apparently been taken to protect
her before the preliminary hearing, and that her testimony was not critical to
the prosecution’s case. (
Here, as in Fuiava, the grounds for suspecting that Lemus might disappear
before the trial appeared to be resolved by the time she completed her
testimony at the preliminary hearing.
She was then living in a foster home and taking her medication, seemed
to have a good relationship with her foster parents and Detective Schoonmaker,
and was under the supervision of a social worker; in addition, she complied
with the subpoena, acquired immunity from prosecution, and repeatedly appeared
at the preliminary hearing, despite threats to her safety. Furthermore, Lemus’s testimony was not
critical to the prosecution case, as it was cumulative of Villarreal’s
testimony. We therefore conclude that the
prosecution was not required to monitor her or take other steps to secure her
presence at trial.
People v. Mickey (1991) 54 Cal.3d
612, 672, fn. 9, upon which appellant relies, is distinguishable. There, the prosecutor in a murder case
permitted his key witness, who was then in custody, to be released on his own
recognizance over a weekend, despite the witness’s lengthy criminal history and
habitual failure to appear in court. (
the trial court permitted the prosecutor to present the witness’s preliminary
hearing testimony at trial. (
prosecution failed to show due diligence because the witness “was a critical
prosecution witness, and was known to be both unreliable and of suspect
credibility.†(Id. at p. 991.) As explained
above, that is not the case here. In
sum, the trial court correctly determined the prosecution had exercised due
diligence in attempting to secure Lemus’s presence as a witness at trial.
4. Cross-Examination
Appellant
also contends that his counsel’s cross-examination of Lemus during the
preliminary hearing was inadequate, and thus the admission of her testimony
contravened Evidence Code section 1291 and the confrontation clauses of the
United States and California Constitutions.
We disagree.
As our Supreme Court has explained, “[a]dmission of the former testimony of
an unavailable witness is permitted under Evidence Code section 1291 and does not
offend the confrontation clauses of the federal or state Constitutions -- not
because the opportunity to cross-examine the witness at the preliminary hearing
is considered an exact substitute for the right of cross-examination at trial
[citation], but because the interests of justice are deemed served by a
balancing of the defendant’s right to effective cross-examination against the
public’s interest in effective prosecution.
[Citations.]†(
929, 975; accord, People v. Carter
(2005) 36 Cal.4th 1114, 1172-1173.) The
prior testimony is admissible if defense counsel’s motives in cross-examining
the witness at the preliminary hearing were similar to those applicable at
trial (People v. Carter,
was an adequate opportunity to cross-examine the witness, regardless of
whether the defendant “‘availed himself fully of that opportunity’†(
p. 346, quoting People v. Zapien,
Those
requirements were satisfied here. The
motives underlying the cross-examination of Lemus at the preliminary hearing
closely resembled appellant’s objectives at trial, namely, to discredit the
materially similar accounts of Mora’s murder provided by Lemus and
Villarreal. During the preliminary
hearing, appellant’s counsel and his co-defendants’ counsel cross-examined
Lemus on matters related to her credibility, including her mental illness,
status as a runaway at the time of Mora’s murder, drug and alcohol use, and
cooperation with investigating detectives and the prosecution. Nor was appellant denied an adequate
opportunity to cross-examine Lemus at the preliminary hearing. Although Lemus initially asserted her right
against self-incrimination under the Fifth Amendment, she received immunity
from prosecution and complied with the trial court’s order to answer
questions.
Pointing to Louis, supra, 42 Cal.3d
969, appellant argues that he did not have “the same right and opportunity to
cross-examine [Lemus] with an interest and motive similar to those at
trial.†We reject this contention. In Louis,
our Supreme Court expressed “some doubt†that the witness who disappeared after
the preliminary hearing had been cross-examined with “an interest and motive
similar to those [the defendant] had at trial,†noting, inter alia, that the
magistrate who conducted the preliminary hearing imposed limitations on the
cross-examination. (Id. at p. 990.) However,
because the Supreme Court expressly declined to decide whether the
cross-examination was adequate (ibid),
its remarks provide us with little or no guidance regarding that issue. (See Curtis
T. v. County of Los Angeles (2004) 123 Cal.App.4th 1405, 1418 [Supreme
Court’s expression of “serious reservations†regarding rule offers little
assistance regarding rule’s correct application].) Furthermore, Louis is factually distinguishable, as the cross-examination of
Lemus was not limited during the preliminary hearing. In sum, her preliminary hearing testimony was
properly admitted.
C. Instructions
Appellant
contends the trial court incorrectly instructed the jury with former CALCRIM
No. 400, which concerns aider and abettor liability, and with CALCRIM No. 357,
which concerns adoptive admissions. As
explained below, we find no reversible error.
1. Former
CALCRIM No. 400
Appellant
contends the trial court erred in instructing the jury with a modified version
of former CALCRIM No. 400, which stated:
“A person may be guilty of a crime in three ways. One, he may have directly committed the
crime. I will call that person the
perpetrator. Two, he . . . may have
aided and abetted a perpetrator[] who directly committed the crime. Three, he may have conspired with another
person or person[s] to commit the crime.
A person is equally guilty of the
crime whether he . . . committed it personally, or aided and abetted the
perpetrator who committed it, or conspired with another person who committed
it.†(Italics added.) As explained below, he has forfeited his
contention of error.
Pointing to
the italicized phrase, appellant maintains that the instruction incorrectly
informed the jury that it must find him guilty of first degree murder if he
aided and abetted Delgado’s commission of first degree murder. “Generally, a person who is found to have
aided another person to commit a crime is ‘equally guilty’ of that crime. [Citations.]â€
(People v. Lopez (2011) 198
Cal.App.4th 1106, 1118 (Lopez)
italics omitted.) However, in certain
circumstances, the aider and abettor “may be found guilty of a greater or
lesser crime than the perpetrator†(Lopez,
supra, 198 Cal.App.4th at p. 1118),
as an aider and abettor’s guilt “is based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own mental
state†(People v. McCoy (2001) 25
Cal.4th 1111, 1117).
Appellant
asserts that the requisite circumstances are present here. The jury received instructions encompassing
first degree murder and second degree murder based on “implied malice,†that
is, a killing resulting from “an act dangerous to human life†performed “in
conscious disregard of life†(People v.
Thomas (2012) 53 Cal.4th 771, 815).
In view of these instructions, appellant contends that the jury could
have found that Delgado’s crime was more serious than his own, arguing that the
evidence at trial supported the inference that while Delgado planned to kill
Mora, appellant intended simply to assist in some act that endangered
Mora. Appellant thus maintains that
former CALCRIM No. 400 improperly deterred the jury from finding that he
committed only second degree “implied malice†murder.
We conclude
that appellant failed to preserve his contention for appeal. “Generally, a party forfeits any challenge to
a jury instruction that was correct in law and responsive to the evidence if
the party fails to object in the trial court.â€
(People v. Franco (2009)
180 Cal.App.4th 713, 719 (Franco).) There is no dispute that appellant’s defense
counsel raised no objection to the portion of former CALCRIM No. 400 italicized
above. At least three appellate courts
have concluded that the failure to object to former CALCRIM No. 400 and propose
clarifying terms works a forfeiture, reasoning that the instruction is generally
an accurate statement of law, although potentially misleading in some
circumstances. (People v. Loza (2012) 207 Cal.App.4th 332, 350;
Moreover, we
would reject appellant’s contention on the merits were we to address it. Generally, the adequacy of any instruction
given must be judged in the context of all the instructions. (5 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Criminal Trial, § 663, pp. 953-954.) Thus, an instruction is not assessed in
isolation, but is properly viewed in the context of the overall charge (
1007, 1013) and the prosecutor’s closing arguments (People v. Cain (1995) 10 Cal.4th 1, 37). When an instruction is potentially ambiguous
or misleading, the instruction is not error unless there is a reasonable
likelihood that the jurors misunderstood or misapplied the pertinent
instruction. (People v. Reliford, supra,
29 Cal.4th at p. 1013; People v. Avena
(1996) 13 Cal.4th 394, 416-417.)
Here, the
record establishes that the jury was instructed that it must assess appellant’s
liability for Mora’s murder independently of Delgado’s liability for that
crime. In addition to former CALCRIM No.
400, the jury received CALCRIM No. 401, which stated in pertinent part: “To prove that the defendant is guilty of a
crime based on aiding and abetting that crime, the People must prove that: [¶]
perpetrator committed the crime;
[¶] 2. The defendant knew that
the perpetrator intended to commit the crime;
[¶] 3. Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime; [¶]
fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically
fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.†(Italics added.)
During closing
arguments, the prosecutor also emphasized that the jury must evaluate
appellant’s liability for Mora’s murder independently of Delgado’s
liability. During the opening portion of
his closing argument, the prosecutor argued that Delgado was the direct
perpetrator of Mora’s murder, and that appellant was liable for the murder as
an aider and abettor and co-conspirator.
Regarding Delgado, the prosecutor asserted that in shooting Mora, he
“accomplished what [he] set out to do.â€
Regarding appellant and Garcia, the prosecutor told the jury that it
must “look at each defendant . . . individuallyâ€; in addition, he advised the jury not to speculate
regarding their motivations, but to draw “reasonable conclusions†from their
conduct, as disclosed by the gas station video recording and other
evidence. (Italics added.) The prosecutor noted that appellant
repeatedly looked across Atlantic Boulevard while talking to Delgado and
Garcia, arranged for a pick up by Villarreal, and then accompanied Delgado,
whose gun had been retrieved prior to the shooting. He urged the jury to conclude that appellant
and Delgado “work[ed] together and shared a purpose and . . . fulfilled that
purpose in killing . . . Mora.â€
In reply,
defense counsel maintained that appellant’s state of mind was crucial to his
liability as an aider and abettor, and that the evidence did not show that
appellant harbored the “specific intent†to kill Mora. During the final portion of his closing
argument, the prosecutor responded to the challenge that “there [was] no intent
shown,†arguing, “You know what [appellant] is thinking by what he does.â€
In view of the
record, we discern no reasonable possibility that former CALCRIM No. 400 misled
the jury with respect to appellant’s liability for first degree murder as an
aider and abettor. The instructions and
the prosecutor’s arguments, viewed in conjunction, informed the jury that if
Delgado committed first degree murder, Hidalgo was also guilty of first degree
murder only if an individualized analysis of the evidence showed that he shared
Delgado’s intent to kill Mora.
Furthermore, the record discloses no sign that former CALCRIM No. 400
confused the jury, as it requested no clarification regarding that instruction. In sum, appellant has failed to show
reversible error.
name="_ftnref10" title="">[10]
2.
Adoptive
Admission Instruction
Appellant
contends the trial court erred in instructing the jury with a modified version
of CALCRIM No. 357, which described the circumstances under which the jury was
permitted to consider an out-of-court statement as an adoptive admission. As explained below, we discern no reversible
error.
Generally,
“[a] statement by someone other than the defendant is admissible as an adoptive
admission if the defendant ‘with knowledge of the content thereof, has by words
or other conduct manifested his adoption [of] or his belief in its truth.’ [Citations.]
[¶] In determining
whether a statement is admissible as an adoptive admission, a trial court must
first decide whether there is evidence sufficient to sustain a finding that:
(a) the defendant heard and understood the statement under circumstances that
normally would call for a response; and (b) by words
conduct, the defendant adopted the statement as true. [Citations.]â€
(People v. Davis (2005)
36 Cal.4th 510, 535.) When the trial
court determines that there is sufficient evidence of an adoptive admission,
“whether [the] defendant’s conduct actually constituted an adoptive admission
becomes a question for the jury to decide.â€
(People v. Edelbacher (1989)
47 Cal.3d 983, 1011.)
Here, Lemus testified that when appellant and
Delgado returned to Villarreal’s car, appellant remained silent when Delgado
asserted, “I got him. He was screaming.†Similarly, Villarreal testified that
appellant said nothing when Delgado said, “I got him,†and he “fell to the
floor screaming.†In view of this
testimony, the trial court decided to instruct the jury regarding adoptive
admissions.
name="_ftnref11" title="">[11]
At the
threshold, respondent argues that appellant forfeited his contention by failing
to raise it before the trial court.
However, a defendant need not assert an objection to preserve a
contention of instructional error when the error affects the defendant’s
substantial rights. (
requirement for an objection, “[i]nstructional error affects a defendant’s
substantial rights if the error was prejudicial under the applicable standard
for determining harmless error.†(
whether claimed instructional error affected the substantial rights of the
defendant necessarily requires an examination of the merits of the claim -- at
least to the extent of ascertaining whether the asserted error would result in
prejudice if error it was.â€
[Citation.]’†(
address appellant’s contention on the merits to determine whether there was an
impairment of his substantial rights.
(See People v. Anderson (2007)
152 Cal.App.4th 919, 927.)
We
find dispositive guidance regarding the propriety of the instruction from
1166. There, the defendant, a gang
member, was charged with several crimes, including the murder and attempted
murder of two men. (Id. at pp. 1179, 1181-1184, 1194.)
At trial, the prosecution submitted evidence that the defendant and two
members of a related gang attacked the men with firearms. (Id.
at pp. 1179-1182, 1194.) In addition,
the prosecution was permitted to present evidence from an acquaintance of the
defendant regarding a conversation involving the acquaintance, the defendant,
and one of the accomplices. (
described his role in the shooting, but did not mention that the defendant was
involved in the shooting. (
Although the defendant was present, he never attempted to deny or
challenge the accomplice’s remarks. (
inadmissible, our Supreme Court stated:
“[A] fundamental problem with treating as an adoptive admission the
defendant’s failure to contradict [the accomplice’s] recounting of the . . .
offenses is that nothing in [his] remarks referred to [the] defendant or
accused him of anything. There being, in
essence, nothing for [the] defendant to deny, a condition of the hearsay
exception for adoptive admissions did not exist, and
trial court therefore erred in concluding [the accomplice’s] remarks were
admissible as adoptive admissions.†(
We
reach the same conclusion here.
Delgado’s remarks focused exclusively on his own conduct, and reported
facts established as true by other evidence.
According to the testimony from the Portillos and Robert Rodriguez,
Delgado shot Mora, who was discovered lying on the ground. As Delgado’s remarks contained nothing to
prompt a denial from appellant, they were incorrectly admitted for the jury’s
consideration as adoptive admissions.
Pointing
to People v. Fauber (1992) 2 Cal.4th
792, 852-853, respondent maintains that Delgado’s remarks were admissible as
adoptive admissions by appellant even though they contained no direct
accusation against him. We disagree. In Fauber,
a witness testified that she overheard the defendant and two accomplices
discussing how to dispose of the remains and belongings of a person they had
murdered and robbed. (
speaking, she could not identify who made any particular remark. (Ibid.) On appeal, the defendant maintained that the
remarks were inadmissible against him as adoptive admissions “because they were
not accusatory statements and called for no particular reply.†(Id.
at p. 852.) In rejecting the contention,
our Supreme Court stated:
defendant the opportunity to deny responsibility, to refuse to participate, or
otherwise to dissociate himself from the planned activity; he did not do
so.†(Ibid.) In contrast, no such
circumstances are present here. As
Delgado’s remarks referred to his own past conduct, they did not call for any
response from appellant.
However, the
error regarding Delgado’s remarks was harmless, regardless of whether it is
examined for prejudice under the test in People
v. Watson (1956) 46 Cal.2d 818, or the more stringent
beyond-a-reasonable-doubt test for federal constitutional error found in
18. As noted above, the facts asserted
in the remarks were independently proved by other evidence admissible against
appellant. Furthermore, appellant’s
state of mind regarding Mora’s murder was established by his conduct in
connection with the crime, even though the prosecutor’s closing argument also
gave some weight to appellant’s silence in response to Delgado’s remarks. The evidence at trial conclusively showed
that appellant talked with Delgado and Garcia regarding the “dummy,†arranged a
pick up with Villarreal, and crossed Atlantic Boulevard with Delgado, whose gun
had been retrieved from Garcia’s house.
In addition, there was expert testimony that entering into K.W.S.
territory to shoot its members was a method by which Maywood Locos “put in
work†for their gang. Under the circumstances, there is no
reasonable doubt that appellant would not have achieved a more favorable
outcome had the jury been correctly instructed.
Accordingly, the error was not prejudicial.
D.
Sentencing
Appellant
contends the trial court erred in setting his minimum parole eligibility period
and ordering a parole revocation fine.
As explained below, we conclude that appellant’s sentence contains
defects that we may correct on appeal.
1.
Minimum
Parole Eligibility Period
Appellant
maintains the trial court improperly imposed a 15-year minimum parole
eligibility period pursuant to section 186.22, subdivision (b)(5). We agree.
In sentencing appellant, the trial court imposed a term of 25 years to
life regarding his conviction for first degree murder, and a consecutive term
of 25 years to life regarding the gun use finding under section 12022.53,
subdivision (d) and (e). As explained in
People v. Salas (2001) 89 Cal.App.4th
1275, 1281-1282 (Salas), when a
defendant in a gang-related case is subject to a gun use enhancement under
subdivisions (d) and (e)(1) of section 12022.53, but did not personally use or
discharge the gun, subdivision (e)(2) of section 12022.53 prevents the
imposition of the 15-year minimum parole eligibility period under 186.22,
subdivision (b)(5). Here, the jury did
not find that appellant personally used a gun; it found only that a principal
in a gang-related case used a gun and caused great bodily injury
(§ 12022.53, subds. (d), (e)(1)).
For this reason, the trial court incorrectly determined appellant’s
minimum parole eligibility period.
Respondent concedes there was error.
The remaining
question concerns appellant’s proper minimum parole eligibility period. Subdivision (a) of section 3046
provides: “No prisoner imprisoned under
a life sentence may be paroled until he or she has served the greater of the
following:
(1) A term of at least seven calendar years.
(2) A term as established pursuant to any
other provision of law that establishes a minimum term or minimum period of
confinement under a life sentence before
eligibility for parole.†(Italics
added.) Section 190, which establishes a
term of 25 years to life for first degree murder, states that a person so
sentenced “shall not be released on parole prior to serving the minimum term of
confinement†(§ 190, subds. (a), (e), and is ineligible for a custody credit
reduction of the minimum term (People v.
Hutchins (2001) 90 Cal.App.4th 1308, 1315-1316). In contrast, section 12022.53 contains no
such provisions. Accordingly, appellant
is properly subject to a 25-year minimum parole eligibility period under
section 190, subdivisions (a), (e). (See
Salas, supra, 89 Cal.App.4th at pp. 1277-1283 [defendant’s minimum parole
eligibility period determined solely by life term for defendant’s conviction
for attempted murder, without reference to 25-years-to-life enhancement imposed
under section 12022.53, subdivision (d)].)
Because the error here resulted in an unauthorized sentence, we shall
modify the sentence to correct it. (
852; Salas, supra, at p. 1283.)
2. Parole
Revocation Fine
Appellant
contends the trial court erred in imposing a $200 parole revocation fine. Subdivision (c) of section 1202.45 provides
that any such fine “shall be suspended unless the person’s parole
. . . is revoked.â€
However, the court ordered the fine to be stayed “pending the successful
completion of appeal, at which time it will become permanent.†As respondent acknowledges, this was error. For the reasons explained above, we shall
modify the sentence to correct it.
DISPOSITION
The
judgment is modified to reflect that appellant’s minimum parole eligibility
period is 25 years (§§ 190, subds. (a),(e), 3046), and that the $200 parole
revocation fine is suspended unless his parole is revoked (§ 1202.45, subd.
(c)). In all other respects, the
judgment is affirmed. The superior court
is directed to prepare an amended abstract of judgment to reflect the
modifications to appellant’s sentence, and forward a copy of the amended
abstract of judgment to the California Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.
Villarreal, who entered a plea and testified prior to trial. Delgado, Garcia, and Villarreal are not
parties to this appeal.
