Madrigal
Filed 6/5/13 P. v. Madrigal CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ISCANDER FRANCISCO MADRIGAL,
Defendant and
Appellant.
F062969
(Super.
Ct. No. 10CM8673)
APPEAL
from a judgment of the Superior Court
of
County. Louis F.
Bissig, Judge.
title="">*
Maribeth
Halloran, 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, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
Iscander Francisco Madrigal was convicted of
jury trial. The jury further found true
the special allegations that the murder was committed to further the activities
of a criminal street gang (§ 190.2, subd. (a)(22)), and that defendant
personally and intentionally discharged a firearm causing death
(§ 12022.53, subds. (d), (e)(1)).
On appeal, defendant contends his right to confront and cross-examine
witnesses was violated when the trial court allowed a gang expert to testify as
to hearsay statements regarding contacts between defendant and other law
enforcement officers. In addition, he
claims this same testimony violated his due process rights, and further argues
that any failure to preserve these issues constituted ineffective assistance of
counsel. We find that any error in
admitting the contested testimony was harmless beyond a reasonable doubt. Further, we conclude defendant has not
demonstrated his counsel was ineffective for failing to object to additional
testimony. Consequently, we affirm the
judgment.
FACTS
Facts Relating to the Murder
On May 22, 2010, at approximately 11:00 p.m., Juan Zavala and his girlfriend
Daniella Rizo went to the Circle K to purchase some medicine. Zavala went into the store while Rizo waited
outside in the parking lot in the driver’s seat of her white Explorer,
listening to the radio. There was a
white Mustang parked a few spaces over from the Explorer with three people
inside. While in the store, Zavala did
not notice any problems between any of the customers. Zavala exited the store without making a
purchase and went to speak with Rizo in the parking lot. He was about to go back into the store when
he noticed some arguing between one of the men from the Mustang and someone
from another car that was parked next to the Mustang. Zavala wasn’t paying much attention to the
argument as he did not want to become involved.
He did notice that the man from the Mustang was standing on the
passenger side of the car while the person he was arguing with was standing on
the other side of the car. Zavala heard
a shot and the man on the passenger side of the Mustang fell to the ground
while the people in the other car sped off.
The man, later identified as Luis Meza, died. Zavala had not seen any weapons.
Rizo
testified that as Zavala was going back into the store, she heard a loud noise
and then something hit her vehicle. She
looked over and saw a man fall to the ground as a red car sped off. She also noticed that the back passenger’s
and driver’s windows on her Explorer were now broken.
Victor
Arellano was working the night shift at Circle K on the evening of the
murder. He explained that he had parked
his truck in a parking stall in front of the store. During his shift, a small red car parked in
the stall to the right of his truck in front of the store. The white Mustang was in the stall to the
right of the red car. Arellano had
noticed a man exit the passenger side of the red car and enter the store. He identified this man as defendant. Defendant was wearing a white shirt with red
sleeves.
Inside the
store, defendant selected several items of candy and ultimately purchased a
king-size Reese’s candy bar. After
making the purchase, defendant hurried out of the store while Arellano helped
another customer. Arellano heard a loud pop
coming from the parking lot, looked out, and saw two cars rapidly exiting the
parking lot. One was a small red car,
the other was a gray car that had been parked behind the red car and a white
Mustang. He called 911 and went outside
where he noticed the victim lying on the ground bleeding. The victim was on the passenger side of the
white Mustang.
Arellano
explained that the store had a video surveillance system, and two videos from
the night of the murder were played for the jury. The first video was of the area near the
register and depicted a number of customers inside the store. Arellano identified the victim entering the
store wearing a black suit with white patches on the shoulders. He stated the victim had arrived in the white
Mustang. While the victim was still
inside the store, defendant arrived in the red car. Defendant entered the store while the victim
was still inside. The victim left the
store prior to defendant. Just after the
victim left the store, a regular customer entered the store. The man was wearing a gray jacket. This was the man driving the gray car which
was parked behind the white Mustang and the red car, blocking the Mustang and
partially blocking the red car. While
inside the store, defendant spoke to a man with sunglasses on his head, later
identified as Christian Lopez. It
appeared as if Lopez was waiting for defendant in the store. Defendant left the store after making his
purchase. Arellano heard the loud pop
shortly thereafter while he was helping the next customer.
The second
video showed the inside of the store looking out into the parking lot. On the video, the white Mustang is parked in
front of the store when the red car arrived and parked next to it. Defendant exited the passenger side of the
red car and entered the store. Later,
the victim left and the man driving the gray car parked behind the Mustang and
the red car and entered the store.
Shortly thereafter, defendant and Lopez left the store, and defendant
appeared to enter the passenger side of the red car. When Arellano heard the pop, he looked up and
saw the red car leave first, followed by the gray car.
Jennifer
Machado, a Kings County Sheriff’s Deputy, was dispatched to a call of shots
fired at 11:38 p.m. She arrived at the
Circle K within 20 to 30 seconds of the dispatch. Upon arrival, she noticed the victim with a
gunshot wound to his chest, lying on his back next to the passenger side of the
white Mustang. Although his eyes were
open, he had no pulse and was not moving.
She secured the scene and searched the area. She did not find any weapons at the scene or
near the victim, however, she did not search any people at the scene. She noticed the white Explorer had a bullet
hole in each of the two rear windows and the glass was broken.
Kings
County Sheriff’s Deputy Trevor Lopes responded to the murder, finding a slug in
a home across the street from the Circle K.
He assisted in preparing a crime scene diagram and noted the Explorer
was separated from the white Mustang by one parking stall. Kings County Sheriff’s Detective David
Morrell found a nine-millimeter shell casing at the scene in the parking
lot. This item was submitted for
fingerprint analysis, however, no prints were found on the casing. Using a string through the two holes in the
Explorer’s windows, the detective attempted to trace the bullet’s
trajectory. He determined the trajectory
was consistent with where the slug was found in the house across the street. He also searched the victim’s body and found
no weapons, however, he did not search any of the people at the scene.
Kings
County Sheriff’s Deputy Rachel Moroles assisted in the homicide
investigation. On May 23, 2010, at
approximately 6:30 a.m. she arrived at Lopez’s home in Coalinga and found a red
Honda. She found a king-size Reese’s
peanut butter candy wrapper on the passenger side floorboard of the car.
Coalinga
police officer Amy Freeman testified that on May 10, 2010, she contacted
Lopez regarding a possible burglary. During a search of his car, she found a
loaded nine-millimeter gun magazine.
Kings
County Sheriff’s Deputy Chris Fernandes identified victim Meza. Meza had the moniker of “Camaron,†meaning
“Shrimp.†Meza was later determined to
be an active Sureno gang member.
Dr. Burr
Hartman, a forensic pathologist, examined the victim’s body and determined the
cause of death was a gunshot wound to the chest that went through the heart and
severed the left pulmonary artery, causing the victim to bleed to death. The bullet went through the victim’s body
entering just above the left nipple and exiting on the left side of his
back. During the examination of the
victim’s body, Dr. Hartman noticed a “13†tattoo on the web of the thumb
on the victim’s right hand, as well as the words “Huron†and “South Side†on
his back. According to a toxicology
report, the victim had a large amount of methamphetamine in his system at the
time of his death, indicating he had used within hours of his death.
Defendant
and Lopez were both arrested at the home of Steven “Tank†Murrieta in Reedley
on May 25, 2010.
Testimony Regarding Defendant’s Statements Following the Murder
Two
witnesses testified regarding statements defendant made to them shortly after
the murder. The first witness was Julian
Salinas, who at the time of trial was a dropout from the Norteno
In August of 2010, after he was arrested on unrelated charges, Salinas
stated he had information regarding a murder.
At trial, Salinas recounted a conversation he had with defendant and
Lopez the morning after the murder.
At the time
of the conversation, Salinas had known Lopez for approximately 10 years and had
been close friends with him. He also
knew defendant, “because we right there in Coalinga, the northerners and
everything, we hang around.†Lopez
introduced defendant to Salinas. Lopez
had the moniker “Chino†and “C-Lo†and defendant’s moniker was “Bam Bam.â€
On
May 23, 2010, sometime between 7:00 and 8:00 a.m., Salinas received a
telephone call from Lopez asking him to bring him some methamphetamine. Shortly thereafter, “Grumpy†or “Grumps,†a
Norteno associate, arrived and picked up Salinas. Salinas obtained the drugs and went to
Grumps’s apartment in Coalinga where he met defendant and Lopez. Grumps’s girlfriend was present at the home
as well. Both defendant and Lopez looked
“spooked,†and defendant told him that they had shot a “scrap.†“Scrap†is a derogatory term for a Sureno
At first, Salinas did not believe them, but then saw their pictures on
the television and heard the news story that they were wanted for a
homicide. Defendant told Salinas that
while in the store, the victim started “tripping†on defendant and that the
victim was going to call more people, so defendant just shot him. There had been an argument between the victim
and defendant over “gang stuff.†To the
best of Salinas’s knowledge, the argument was about the victim or one of his associates
shooting Lopez’s car approximately one week earlier. In the gang culture, one would not report
such an incident to police; rather, one would simply retaliate. The appropriate level of retaliation would be
to shoot up the house or to kill the person.
Salinas
testified that Lopez had showed him two guns, a .357 revolver and a
nine-millimeter handgun and said they were going to get rid of them. In addition, Lopez and defendant had talked
about burning their clothes and shoes and waiting for someone to pick them up
to drive them out of town or out of state.
They also explained that they had dropped off Lopez’s red Honda at his
mother’s house in Coalinga.
Cesar
Garcia was an active Varrio East Side Reedley Norteno gang member in 2010. He became a member of the gang at age 13 and
used the moniker “Huero.†In 2010,
Garcia decided he wanted to leave the gang, and in doing so, he began working
with law enforcement to help dismantle the gang. In May of 2010, Garcia received a telephone
call from Tank, a fellow Norteno gang member, advising him there were two men
at his home claiming to be Nortenos from Huron and stating they had murdered a
Sureno. As Garcia was a high-ranking
individual within the gang, he was tasked with investigating any newcomers to
be sure they were not police infiltrators.
Prior to going to Tank’s home, Garcia activated a digital recording
device and recorded his conversation with the two men.
At the
house, Garcia met defendant, who introduced himself as Bam Bam, and another man
who called himself Chris and also used the moniker Chino. There were approximately eight to 12 active
Norteno gang members at the house at the time.
The men explained that they had just murdered a Sureno at a gas station,
that the murder was caught on camera, and that they were trying to leave the
area. The murder had occurred one to two
days prior to the conversation.
The tape of
the conversation was played for the jury.
On the
tape, defendant told Garcia that he was from Huron and that he had “murked a
scrapa†and had been caught on camera committing the crime. Garcia explained that “murked†meant
murdered. Defendant explained that while
in the store,
“that skrapa started tripping homie so were like fuck
this nigga you know and when we were walking out this skrapa was still right
there homie & he ficken called a grip of skraps homie & before that bro
like two weeks before that he shot up all the car homie gacho like sprayed it
homie no windows nothing sprayed it bro so we were fuck these niggas as soon
that [¶] … [¶] … as soon that fool tried to run up we were already
inside the car I told this fool to turn around fool that fool tried to run up
again ta ta pa that fool pa.â€
(Capitalization omitted.)
Garcia
explained that a “grip†means a lot, “gacho†means messed up and “sprayedâ€
means shooting a lot of bullets. In
addition, when defendant said that “when that fool tried to run up,†it meant
that the victim was trying to engage in battle with him. Defendant went on to say he only shot the
victim once with a nine-millimeter while defendant was inside the vehicle. The incident began when the victim was
“wolfing†or “talking shit†towards defendant.
According to defendant, another car with approximately six people
arrived just before the shooting. This
would be consistent with someone calling in a “grip.â€
After the
shooting, the duo dropped the car off at Lopez’s mother’s house and disposed of
the gun and their clothes and shoes.
Defendant admitted in the conversation that he was in gang files,
meaning he was a validated gang member.
Garcia gave the men clothes and shoes and allowed them to stay at Tank’s
house. He did so because as a gang
member he was obligated to help out a fellow gang member avoid detection from
the police.
Garcia
explained that in the gang culture, if a Sureno shoots a Norteno’s car, the
Norteno is expected to retaliate by killing the Sureno. The goal is to kill rival gang members. This is what defendant was discussing with
him in the conversation. Killing a
Sureno would benefit the Norteno gang.
According
to Garcia, being a gang member is a “life-style, it’s like you’re [
rival gang member and … you try to inflict violence towards them.†“Putting in work†means committing an act of
violence toward the rival gang. The
whole purpose of the Norteno gang is to intimidate Surenos, to make them stop
“banging†and to do violence upon them.
Committing violence against the rival gang will get a gang member
recognized. However, taking credit for
someone else’s crime is against the rules.
The Nortenos are a very structured gang, providing a code of conduct by
which its members must abide.
Gang Evidence
Officer
Santiago Jurado worked with the Huron Police Department during 2010. Jurado has known defendant since 2005 or 2006
and has had numerous personal contacts with him both contacting and arresting
him on several occasions. Based on his
personal experience with defendant, Jurado testified that defendant was a
member of the Norteno street gang in 2010 and uses the gang moniker Bam
Bam. Gang members use a moniker or
nickname in lieu of using their given name to conceal their identity from law
enforcement. He further testified Lopez
was a friend of defendant and was also a Norteno gang member. Jurado was also familiar with the victim Meza
through several contacts and arrests for possessing an open container and being
drunk in public. Meza was a Sureno gang
member and had the moniker Camaron.
Fresno
Police Department Detective Kyle Kramer is assigned to the Multi Agency Gang
Enforcement Consortium task force. As
part of his duties, he collects and documents information about gang members
and their activities on field identification cards. Kramer is familiar with Cesar Garcia through
his gang investigations. Garcia was an
influential member of the Varrio East Side Reedley criminal street gang, a
subset of the Norteno gang. During
February of 2010, Kramer met with Garcia regarding Garcia’s desire to leave the
gang. Garcia expressed a willingness to
become an informant and, in fact, worked as an informant from February until
November of 2010, when he was placed in witness protection. Garcia received monetary compensation while
working as an informant. In addition,
arrangements were made to lift a parole hold on Garcia at one point.
Detective
Kramer explained there are primarily three gangs in Huron, the Nortenos, the
Surenos and the Bull Dogs. Huron Park
Side as well as Varrio East Side are both subsets of the Norteno gang. Subsets are part of the larger gang except
they tend to use variations on the gang name.
However, they all use the same colors, numbers, and symbols of the gang.
Detective
Charles Buhl with the Kings County Sheriff’s Department testified as an expert
regarding gangs and gang culture. He
explained that the Norteno street gang, under the name Nuestra Familia, began
in prison in the 1960’s to protect themselves from the Surenos, known at the
time as the Mexican Mafia. The Nortenos
associate with the number 14, which represents “N,†the fourteenth letter of
the alphabet, and the color red. Common
symbols used by the Nortenos are one dot followed by four dots to represent the
number 14, or the Roman numeral “X†followed by the number 4 or four dots with
two lines underneath also representing the Aztec number 14. The gang and its members also use a northern
star as a symbol of the gang.
Gang
membership is divided into three categories:
the “wannabe†or distant admirer, the associate who “walks like it,
talks like it, is willing to do crimes to be accepted,†and the actual gang
members who “walk like it, they talk like it, they have either been to prison,
they got a lot of respect, they put in a lot of work, they’ve got the tattoos,
they’ve got the moniker.†“Putting in
work†means committing crimes or going on missions for the gang. Gang members will “fly colors†or show the
color of their gang as well as have prominent tattoos to announce their
presence. Gang members get respect
through spreading fear and intimidation.
The more a person is feared, the more respect they have within the
gang. As a result, those members are
looked up to by other gang members and get certain benefits.
The primary
activities of the Norteno street gang are murder, attempted murder, arson,
vehicle theft, narcotics trafficking, robbery, burglary, driveby shootings, and
felony assault. The Norteno and Sureno
gangs are rivals. The gangs are always
engaged in conflicts with each other.
These conflicts usually escalate from minor fights to homicides. Gang members are always expected to retaliate
against their rivals with escalating force, and the failure to do so is
perceived as a weakness. Gang members
will help other gang members with hiding places, even if they are from other
counties.
Detective
Buhl reviewed the gang contacts and prior convictions of three Norteno gang
members: Giovanni Miranda, Carlos
Basulto, and Julio Enriquez. After
reviewing and detailing their prior contacts, Buhl opined that each was an active
Norteno gang member and had committed specific crimes for the benefit of that
gang. The documents demonstrating the
convictions for these three men were also admitted into evidence. Specifically, Buhl testified that in December
of 2005, a school was broken into. Items
were taken and gang graffiti was left behind.
Miranda, Basulto, and defendant were identified as the perpetrators,
with both defendant and Miranda admitting involvement in the break-in.
Detective
Buhl opined that Lopez was a Norteno gang member based on some specific
contacts Lopez had with law enforcement.
Specifically, Lopez associated with other known gang members, chased
rival gang members while yelling gang slurs, and burned a porch belonging to a
rival gang member. In addition, he noted
Lopez had gang-related tattoos.
Detective
Buhl also reviewed reports and spoke to other law enforcement officers
regarding defendant. He briefly
recounted seven specific incidents that he considered gang contacts regarding
defendant, which are described more fully below. He also reviewed photos of defendant
depicting his tattoos. Buhl explained
that defendant had numerous tattoos indicating his gang membership, including
tattoos of one dot and four dots on his hands, a tattoo of a northern star on
his calf, a tattoo of Huron Park Side on his forearm, “Norte†on his chest and
tattoos of “X†and “4†on his arms.
Huron Park Side is a subset of the Norteno gang. Based on this information, Buhl opined
defendant was a member of the Norteno street gang.
After
speaking with other officers and the family members of the victim as well as
reviewing specific law enforcement contacts, Detective Buhl opined the victim
was an active Sureno gang member. The
victim’s tattoos were also indicative of his Sureno gang membership. The Sureno gang is an extremely violent gang
with the primary purpose of eradicating Nortenos.
The
detective opined that a Norteno who was wearing a red and white shirt, who was
riding in a red car, who ran into a Sureno with whom he had a history in a
parking lot of a minimart, and who shot the Sureno after exchanging looks and
words, committed the shooting for the benefit of the Norteno gang. This act would benefit the gang by showing
the strength of the Norteno gang and also by removing a rival gang member from
the street. Committing the shooting
while wearing red would advertise that the shooting was committed for the
benefit of the gang. In addition, if the
person later talked about “murking a scrap,†it advertises the shooting was
committed for the gang, and demonstrates knowledge the victim was a member of
the rival gang. Committing the crime in
the presence of another Norteno gang member further demonstrates the crime was
to benefit the gang. Based on the facts
he reviewed, the detective had no doubt about his opinion that the crime was
committed for the benefit of the Norteno street gang.
Defense Evidence
Socorro
Rebolledo was dating Jorge Marquez (Grumpy) in 2010. On May 23, 2010, she and Marquez visited
a family member at a hospital. She
denied ever seeing either defendant, Lopez or Salinas on that date, or meeting
with the three at her apartment. She did
not know if Marquez was a Norteno gang member.
Marquez testified he visited his sister in the hospital on the evening
of May 22, 2010. He was home all
day the next day and no one came over to his home. He denied that defendant, Lopez and Salinas
came to his apartment.
Kings
County Sheriff’s Deputy Robert Balderama testified he assisted in processing
the red Honda recovered from Lopez’s mother’s home for gunshot residue. After collecting the kit, he provided it to
the lead investigator.
The parties
stipulated that a defense investigator attempted to serve a subpoena on
Murrieta in Reedley but was unable to locate him.
DISCUSSION
I. Any Error in Admitting the
Contested Testimony Was Harmless Beyond a Reasonable Doubt
At trial,
“gang contacts†were referred to by a number.
The issue of defendant’s prior specific contacts with police was
discussed three times. The first was
during an in limine conference where defendant objected to gang contact numbers
5, 6, 8, 9 and 11 “under level hearsay.â€
contacts occurred during the initial direct examination of Detective Buhl. Defendant objected as the detective was
recounting a specific gang contact regarding Giovanni Miranda, which ultimately
was the same contact as contact number 5 involving defendant. During a sidebar, defendant clarified that
the objection was on hearsay and Crawford
(Crawford v. Washington (2004) 541
U.S. 36) grounds as to that particular contact.
The final discussion regarding this testimony occurred immediately
before Buhl resumed his testimony, at which time defendant objected
specifically to three contacts involving defendant. After the court ruled the contacts were
admissible, defendant lodged a hearsay objection on the record to each of the
contacts during the testimony.
The
contacts which were ultimately recounted to the jury were as follows.
Contact
number 2 occurred on March 1, 2006, and involved defendant confronting his
mother regarding her speaking to a rival gang member’s mother about a bike
theft. Defendant slapped his mother,
wielded an aluminum bat at her, and left the home. There was never an objection to this
testimony on the record.
Contact
number 3 occurred on the same day.
Defendant, with other Norteno gang members, was contacted by Huron
police officers near fresh graffiti indicating Norteno association. Officers found an aluminum bat, spray paint,
and beers nearby. There was no objection
to this testimony.
Contact
number 5 occurred on July 26, 2006, and involved a report that defendant
along with Giovanni Miranda and others assaulted a victim with rocks, bricks,
and a bike peg. The victim was unsure of
who actually hit him. The victim
reported the attackers stated, “Hey, scraps, you want some problems†during the
assault. The statement was uttered by
Miranda, not defendant. Defendant
objected to this testimony. This same
contact was also recounted regarding Miranda’s gang contacts.
Contact
number 6 occurred on October 4, 2006, where Huron police officers
responded to a vandalism report. The
victim claimed defendant had thrown rocks at his vehicle. Defendant was later arrested and admitted to
being a Norteno and to knowing the victim was a Sureno. The victim further reported the problem was
over the rival gang association of the two.
Defendant objected to this testimony.
Contact
number 10 occurred on December 2, 2007, when Huron police officers
responded to a complaint of a bike theft.
The victims reported that defendant along with others stole a
bicycle. During the ordeal, defendant
reached for a bulge in his pocket, simulating that he had a firearm, and stated
he would shoot them. When defendant was
arrested, he admitted he was a Norteno gang member and that he took the
bicycle. The victims had laughed at him
and he wanted to intimidate them because he is a Norteno and the victims were
Surenos. He also called the victims
“bitch ass scraps.†He admitted he liked
using fear and intimidation to his advantage.
There was no objection to this testimony.
Contact
number 11 occurred on January 19, 2010, and involved a Huron police
officer responding to a claim that a victim was assaulted with a
two-by-four. The victim identified
defendant as one of his attackers.
According to the victim, defendant stated, “What do you bang, this is
Norte?†He further stated “this is Bam
Bam, I’ll get you on the streets.â€
Defendant objected to this testimony.
The final
contact was contact number 12, occurring on January 24, 2010. According to a police report, defendant was a
passenger in a vehicle stopped for a traffic violation. Officers noted defendant was wearing a red
sweatshirt during the contact and there were some ski masks in the
vehicle. Officers documented a number of
defendant’s tattoos with photographs.
There was no objection to this testimony.
Initially,
we find that defendant has failed to preserve any claim of error regarding
contact numbers 2, 3, 10, and 12.
Defendant never objected to any of these contacts, rather, counsel
specifically limited her objections to the testimony as to contacts numbers 5,
6, and 11. Defendant contends trial
counsel objected to “the gang contacts testimony of the gang expert†and specifically
objected to “the admission of multi-layered hearsay contained in Officer Buhl’s
STEP Act Report of gang contacts concerning [defendant’s] participation in gang
criminal activity.†However, the record
does not support defendant’s claim that he objected to each of the gang
contacts. Rather, the record discloses
defendant only objected to three contacts.
During
trial, and prior to resuming Detective Buhl’s testimony, defendant’s counsel
placed hearsay objections to some of the anticipated testimony on the
record. After a discussion with the
prosecutor regarding exactly which contacts were going to be used as a basis
for Buhl’s testimony, defendant’s counsel specifically objected to only three
of those contacts, numbers 5, 6, and 11.
Indeed, counsel expressly noted she was not objecting to at least two of
the other contacts.
title="">[5] Thus, it is clear that these were the only
contacts complained of at the trial level.
This conclusion is supported by the fact counsel only objected to these
same contacts during the trial testimony.
As defendant never objected at trial to the admission of the remainder
of the testimony, he is precluded from raising the objection for the first time
on appeal. (Evid. Code, § 353; People v. Alvarez (1996) 14 Cal.4th 155,
186 [confrontation clause claim not preserved for appeal without timely and
specific objection]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1118
[confrontation clause claim waived absent objection].)
As to the
challenged testimony, defendant argues the admission of the testimony violated
the confrontation clause. He reasons
that the hearsay statements consisted of testimonial statements offered for
their truth without an opportunity to cross-examine the declarant in violation
of Crawford v. Washington,
offered for their truth but, rather, were offered as a basis for the expert’s
opinion and therefore do not fall under the class of statements governed by
been rejected in People v. Thomas
(2005) 130 Cal.App.4th 1202, 1210, which held that an expert may rely on
hearsay in forming the basis of an opinion and may relay that hearsay to the
trier of fact in explaining the foundation for that opinion. This holding has been consistently followed
by the California appellate courts. (
1104 [following the rule in Thomas
although disagreeing with its reasoning]; People
v. Sisneros (2009) 174 Cal.App.4th 142; People
v. Ramirez (2007) 153 Cal.App.4th 1422; People
v. Cooper (2007) 148 Cal.App.4th 731; see People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [experts may base
their opinions “‘on reliable hearsay, including out-of-court declarations of
other persons,’†and may “‘state on direct examination the reasons’†for their
opinions].)
Defendant
argues the recent
States Supreme Court opinion in Williams
v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221] rejected the reasoning of
a four-justice plurality of the court found the admission of “[o]ut of court
statements that are related by the expert solely for the purpose of explaining
the assumption on which that opinion rests are not offered for their truth and
thus fall outside the scope of the Confrontation Clause.†(Id.
at p. ___ [132 S.Ct. at p. 2228].) In a
concurring opinion, Justice Thomas found the statement at issue did not violate
the confrontation clause as it lacked the requisite degree of solemnity and
formality to be considered a testimonial statement, but rejected the
plurality’s reasoning that the statement was not offered for its truth. (Id.
at p. ___ [132 S.Ct. at pp. 2255-2256] (conc. opn. of Thomas, J.).) In a dissenting opinion, four justices also
rejected the plurality’s reasoning that the statement was not admitted for its
truth, and further found the statement was testimonial within the meaning of
v. Illinois, supra, at p. ___
[132 S.Ct. at pp. 2268, 2274.] (dis. opn. of Kagan, J.).) We need not determine whether the remaining
three contacts that were properly preserved for appeal violated the
confrontation clause as it is clear the admission of that testimony was harmless
beyond a reasonable doubt.
It is well
settled that confrontation clause violations are subject to the federal
harmless error analysis under Chapman v.
California (1967) 386 U.S. 18, 24. (
608, overruled on other grounds in Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305.)
It is the People’s burden under Chapman
to prove beyond a reasonable doubt that the error did not contribute to the
verdict. (Chapman, supra, at p.
24.) “‘Since Chapman, we have repeatedly reaffirmed the principle
that an otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.’
(Delaware v. Van Arsdall[ (1986) 475 U.S. 673,] 681.) The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error?’ (Neder v. United States (1999) 527
U.S. 1, 18.)†(People v. Geier,
supra, at p. 608; cf.
208, 239 [admission of statements in violation of Crawford requires reversal unless it can be found beyond a
reasonable doubt that “the jury verdict would have been the same absent any
errorâ€].) “To say that an error did not
contribute to the verdict is … to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in
the record.†(Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other
grounds in Estelle v. McGuire (1991)
502 U.S. 62, 72, fn. 4.) We must
undertake our own review of the record and determine what impact the evidence
had “on the minds of an average jury.†(
250, 254.) In conducting a harmless
error review, we must look to the record as a whole. (United
States v. Hasting (1983) 461 U.S. 499, 509.) In applying this standard, we find that any
error in admitting the contested statements was harmless beyond a reasonable
doubt.
Our Supreme
Court has recently applied the Chapman
harmless error standard in light of a claimed Crawford violation in People
v. Rutterschmidt (2012) 55 Cal.4th 650.
There the defendant was charged with two counts of murder, conspiracy to
commit murder, and the special circumstances of multiple murder and murder for
financial gain. (Id. at p. 656.) One of the
theories relied upon by the prosecution was that the defendant drugged one of
the victims prior to the killing. (
evidence of a laboratory director who testified that an analysis of the
victim’s blood, performed at the laboratory by another analyst, indicated the
presence of certain drugs. (
need to address whether the testimony violated the confrontation clause of the
Sixth Amendment as any error in admitting the testimony was harmless beyond a
reasonable doubt. (Id. at p. 661.) The court
cited the overwhelming nature of the evidence against the defendant in finding
the exclusion of the evidence would not have affected the outcome of the trial
beyond a reasonable doubt. (
We find Rutterschmidt
instructive.
The issues
presented at trial were whether defendant was in fact the person who shot the
victim, whether the shooting was committed in self-defense or in the heat of
passion, whether the killing was premeditated, and whether the shooting was for
the benefit of the gang. We will
consider each of these issues in turn.
The
testimony relating to the three prior gang contacts had no bearing on whether
defendant was the person who shot the victim.
There is no question defendant was at the store moments before the
shooting as he is seen on video both inside the store making a purchase and
outside of the store getting into the passenger side of the red car. That it was defendant who committed the
shooting was evident from his recorded statements admitting to the murder. Defendant stated he “murked a scrapa†in his
conversation with Garcia. He admitted he
used a “nine†to commit the crime, which corresponded with the nine-millimeter
shell casing found at the scene. In
addition, he admitted the murder to Salinas the morning after the crime, and
Salinas noted that defendant and Lopez had two guns—a .357 and a
nine-millimeter—with them. None of the
challenged evidence went to the fact that defendant was the shooter. Thus, there can be no doubt that the verdict
was not affected by the challenged evidence on this point.
The three
contacts that defendant objected to, which occurred long before any events in
the present case, had nothing to do with whether the killing was premeditated,
in self-defense, or in the heat of passion as they did not address defendant’s
specific relationship with this victim.
Each of these contacts briefly
rival gang member where defendant uttered gang slurs. Almost identical information was relayed to
the jury through contact number 10, where defendant admitted to stealing a
rival gang member’s bicycle, simulated a weapon, uttered gang slurs, and
admitted using his gang status to spread fear and intimidation. There was no objection to this evidence. The jury also heard, without objection, that
defendant was involved in and admitted to a break-in at a school with Miranda
and Basulto. This break-in was also gang
related. Further, defendant was found
near fresh gang graffiti in another contact and was found wearing gang colors
in yet another gang contact. Thus the
testimony was merely cumulative of other evidence before the jury.
Furthermore,
the evidence could have had no bearing on the issue of self-defense, heat of
passion, or premeditation under the specific facts of this case. There was overwhelming, uncontradicted
evidence of the long-standing rivalry between the Norteno and Sureno street
gangs. Detective Buhl testified that the
rivalry between the gangs extended to the gangs’ inception in the 1960’s. Both Garcia and Buhl testified to the rivalry
between the two and that each gang had the goal of eradicating the other. Even defendant pointed out this rivalry in
making his claim of self-defense.
name="_ftnref8" title="">[7] This rivalry, of course, provided a motive
for the shooting in this case.
Moreover,
it was quite clear at trial that there was a specific motive for the shooting. As both the prosecution and defense argued to
the jury, the victim was perceived as being responsible for shooting at Lopez’s
mother’s car shortly before the murder.
This was a specific act of aggression by the victim, a Sureno gang
member, against the Nortenos. It was
this particular incident that was presented as both the basis of self-defense
and the motive for the shooting.
Defendant repeatedly brings up this prior incident in his taped
conversation when discussing the murder.
In
discussing their conversations with defendant, both Salinas and Garcia noted
that the argument that preceded the shooting was not only gang related, but
also related to the prior shooting of Lopez’s mother’s car. Garcia further explained that based on his
conversation with defendant, the murder here was in retaliation for the prior
shooting of Lopez’s mother’s car. Thus
it is clear from the record any error in admitting cumulative nonspecific acts
of gang violence could have had no impact on the findings of motive,
premeditation, and self-defense or heat of passion by the jury.
Likewise,
any error in admitting the evidence was also harmless beyond a reasonable doubt
as to the special circumstance finding.
First, we find overwhelming evidence that defendant was an active
Norteno gang member and that the crime was committed for the benefit of the
street gang. The record is replete with
references to defendant’s gang status, both from the witnesses and from
defendant’s own statements in the recorded conversation. Defendant admitted he was in gang files, he
stated that he “murked a scrapa,†and defendant was considered a fellow gang
member by both Salinas and Garcia.
Defendant sought out Garcia, a fellow gang member, for help in hiding
from police even though he did not know Garcia.
Garcia provided defendant with clothes and a place to stay because gang
members are obligated to protect other members even if they do not know them or
they are from other counties. Defendant
had five gang-related tattoos, including two that announced the name of his
gang. Defendant was wearing red, the
color of his gang, at the time of the crime and was with another active Norteno
gang member. Moreover, Officer Jurado
testified without objection that defendant was a Norteno gang member based on
his numerous personal contacts with him.
As the evidence of his gang membership was overwhelming, the
complained-of contacts could have had no effect on the verdict.
While
Detective Buhl did use these contacts in providing his opinion that defendant
was a gang member, these were not the only bases of his opinion. There were numerous other contacts, not
objected to, which formed the basis of his opinion in addition to defendant’s
gang tattoos, his gang clothing, and the circumstances of the crime.
Defendant’s
primary contention regarding prejudice is that the evidence of the three
objected-to gang contacts were used as a basis for finding defendant knew
members of the gang participated in a pattern of criminal activity. However, a close examination of the record
demonstrates any error was harmless. By
all accounts the primary purpose of the gang is to engage in criminal
activity. First, Detective Buhl
testified the primary purpose of the gang is to commit crimes, specifically,
murder, attempted murder, arson, vehicle theft, narcotics trafficking, robbery,
burglary, driveby shootings, and felony assault. To become a member of the gang, one must “put
in work†by committing crimes for the gang.
The detective recounted numerous instances where others committed crimes
for the gang. This was further supported
by Garcia, a former high-ranking gang member himself, who explained that in
gang culture one has to “put in work, meaning you go find a rival gang member
and … you try to inflict violence towards them.†In addition, he explained that the purpose of
the gang is to do violence on the other gang.
Indeed, the entire recorded conversation between defendant, Lopez and Garcia
demonstrates the purpose of the gang is to commit crimes. Defendant repeatedly acknowledges his
readiness to commit violence against rival gangs.
According
to both Garcia and Detective Buhl, the gang is a very structured entity. Garcia testified that members have to abide
by a code of conduct, and “if you want to be a northerner, … you will abide by
our rules and regulations or else we’ll get rid of you.†Gang members are expected to respond to
violence with greater violence. Garcia
further explained that being a part of a gang is a life style choice that
includes making money selling drugs, showing colors, having noticeable tattoos,
and being involved in a life of crime.
“Going to jail, coming out, in and out, getting shot, going to
funerals …. [S]elling drugs…. [¶] … [¶] It’s all for the
gang.†Garcia explained that members are
indoctrinated that this is their cause and members have great pride in their
gang. This sentiment was echoed in
defendant’s own words when he states:
“All I know bro this time Im fuckin were they’re at I
pulled the trigger I told the homie the other homie I told that fool I’m sure
homie don’t trip this foo is going to get murked right homie fuck this nigga I
was tired of these foos go to Avenal and we get poped hell each time these
foo’s aint fucking around with us.…
[¶] Wrong with this bro. Im
like if I let these motherfuckers run up again they’re gonna fuck up our ride
& fuck us I cant let that happen I
have heart homie. Pah… [¶] … [¶] Pah…I told his homie too
I murk that nigga I murk that nigga and sure enough find out later on the
homie’s all texting me hey the home boy passed away ….†(Italics added, some capitalization omitted.)
Based on
the evidence produced, it is inconceivable that one could conclude defendant
was a member of the gang yet have no knowledge that its members “engage in or
have engaged in a pattern of criminal gang activity.†Defendant’s closing argument contradicts such
a finding. In attempting to argue it was
not in fact defendant who committed the murder, counsel argued that he could
have merely been boasting to Garcia to gain benefits within the gang and to
“look tough. Tough to the head guy in
Reedley.†Such an argument demonstrates
the strength of the evidence that defendant knew that members of the gang
participate in a pattern of criminal
activity. In addition, defendant’s
own words belie any argument that he did not know the gang members engaged in a
pattern of criminal activity.
Defendant
admitted to Garcia in the recorded conversation that he was in “gang files,â€
which meant he was a validated gang member.
He also admitted in his conversation that he had participated in gang
activities previously. Defendant stated,
“Im kool bro Im if anything I felt guitas about it’s for
the homie right here, Ive been through shit
like this already (unaudible).
[¶] … [¶] I, I never been through shit like to fuckin fuckin
getting caught on camera that’s another thing homie Ive done dirt already Ive been done shit like that fuck camera
thing nuh uh thats why I (inaudible) I was like fuck Im fucked this time
man. Its like I really dont think about,
I dont want to think about (inaudible).â€
(Italics added, some capitalization omitted.)
In addition
to the overwhelming evidence recounted above, we note that the jury deliberated
for only an hour and 11 minutes before reaching its verdict, again indicating
the strength of the evidence.
Considering the record as a whole, it is clear that the complained-of
testimony did not contribute in any meaningful way to the issue of guilt. We are confident that any error was harmless
beyond a reasonable doubt in light of such overwhelming evidence at trial.
v. Rutterschmidt, supra, 55
Cal.4th at p. 661.)
II. Defendant Was Not Denied
Effective Assistance of Counsel
Defendant
claims his trial counsel’s failure to object to the remaining gang contacts
detailed by Detective Buhl constituted ineffective assistance of counsel. We disagree.
“Under both
the Sixth Amendment to the United States Constitution and article I, section
15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.†(People v.
Ledesma (1987) 43 Cal.3d 171, 215.)
To establish ineffective assistance of counsel, “‘a defendant must show
both that his counsel’s performance was deficient when measured against the
standard of a reasonably competent attorney and that counsel’s deficient
performance resulted in prejudice to defendant….’†(People v. Lewis (2001) 25 Cal.4th
610, 674.) Defense counsel’s failure to
object rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th
394, 444-445.) “[W]hen the reasons for
counsel’s actions are not readily apparent in the record, we will not assume
constitutionally inadequate representation and reverse a conviction unless the
appellate record discloses ‘“no conceivable tactical purposeâ€â€™ for counsel’s
act or omission.†(People v. Lewis, supra, at pp. 674-675;
accord, People v. Ray (1996) 13 Cal.4th 313, 349 [“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 omissionâ€].)
Here,
counsel specifically objected to only three of the contacts presented by the
prosecution. There was clearly a
difference between the contacts defendant objected to and the ones where no
objection was voiced. The common
denominator between all the contacts to which trial counsel objected was that
each relayed information from a victim of crime to a law enforcement
officer. While such evidence certainly
could have been admitted in a case such as this to prove the prior contacts
with police, defense counsel objected to the hearsay nature of the statement,
seeking a chance to cross-examine the victim as to the event. The other contacts to which counsel lodged no
objection, however, contained either statements made to law enforcement by
defendant himself, or personal observations by law enforcement as to
defendant’s conduct.
name="_ftnref10" title="">[9] Counsel’s understanding of this significant
difference is reflected on the record when counsel expressly stated she had “no
basis†to object to contact number 10, as that recounted defendant’s own
statements.
For
example, in contact number 10, which occurred on December 2, 2007, defendant
told arresting officers that he was a Norteno, that he had taken the victim’s
bicycle because he had laughed at defendant, defendant wanted to intimidate him
due to his reputation as a Norteno, that he had called the victim a “bitch ass
scrap,†and defendant admitted he wanted to intimidate the victim, a
Sureno. Certainly defendant’s own
statements were admissible against him as a party admission. (Evid. Code, § 1220.) As such, the statements are fully admissible
for their truth. The same holds true for
the remainder of the contacts as they recounted either admissions or personal
observations of defendant’s conduct.
A tactical
reason not to object to the contacts is apparent. As counsel noted on the record, she was aware
her client’s statements were fully admissible against him. While defendant’s counsel could have objected
to the statements coming in through Detective Buhl instead of the officer who
took the statement, counsel very likely may have forgone that step knowing that
the prosecution would have in fact brought in the officer who took the
statement. There is nothing on the
record to indicate that any officers in this case were in any way
unavailable. Rather, it is apparent that
at least two officers who had had prior contacts with defendant and Lopez in
fact testified in this case. By choosing
to allow the statements to be admitted through Buhl instead of the officer who
took the statement or who in fact made the personal observations, defendant’s
counsel called far less attention to the evidence. At trial, Buhl recounted each contact very
briefly. Requiring the prosecution to
call each officer who had each contact with defendant would have served only to
highlight this testimony.
is instructive. There, during the
penalty phase of a murder trial, the prosecution introduced testimony from an
expert regarding the defendant’s mental state and intoxication. (Id.
at p. 901.) During his testimony, the
expert revealed he had reviewed trial testimony of the defendant’s cellmate,
and he testified about accounts of the murder the defendant had provided to his
cellmate. (Id. at pp. 920-921.) There
was no objection to the testimony. (
failure to object to the hearsay testimony was not “facially incompetent.†(Id.
at p. 921.) As the court explained,
counsel must have realized that an objection to the testimony would not have
prevented its admission, as the prosecution would have either produced the
cellmate or introduced his prior trial testimony if he was unavailable. (Ibid.) Either would have only stressed the
testimony. Thus there was a valid
tactical reason for not pursuing the objection.
Because a
valid tactical reason exists for defense counsel’s lack of objection,
defendant’s claim of ineffective assistance of counsel must fail. (People
v. Ray, supra, 13 Cal.4th at p.
349.)
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
WISEMAN, Acting P.J.
________________________________
POOCHIGIAN, J.
name="_ftn1" title="">*Retired
judge of the Kings Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
name="_ftn2" title="">[1]All
further references are to the Penal Code unless otherwise indicated.
