P. v. Delgado

 

 

Filed 1/31/14  P. v. Delgado
CA2/5

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JOSE JESUS DELGADO,               Defendant and Appellant.

B244391         (Los Angeles County       Super. Ct. No. PA064403)

 

            APPEAL
from a judgment of the Superior Court of
the County of Los Angeles, Daniel B. Feldstern, Judge.  Affirmed.

            Kathy
Moreno, 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, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Stacy
S. Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

 

 

 

INTRODUCTION

            A jury found defendant and appellant Jose Jesus Delgado
guilty of second degree murder (Pen. Code, § 187, subd. (a)), and found true
the allegation that he personally and intentionally discharged a handgun causing
great bodily injury and
death (Pen. Code, § 12022.53, subd. (d)). 
The trial court sentenced defendant to 40 years to life in state
prison.  On appeal, defendant contends
that the trial court erred in admitting expert gang testimony, restricting
cross examination of witnesses, and making “asymmetrical evidentiary
rulings.”  We affirm.

 

>BACKGROUND

            In March
2009, Edgar Moreira and Keyri Martinez were dating and had a young son
together.  Moreira did not live with Martinez and their
son.  He lived in a house he rented with
Miguel Contreras.  Moreira and defendant
were good friends.  Martinez also knew
defendant—Moreira introduced defendant to Martinez as “Bones.”  Martinez had known
defendant for about six years, and they once lived in the same
neighborhood. 

            During the
afternoon on March 25, 2009, Moreira, Martinez, and their son
went to a swap meet.  On the way to the
swap meet, Moreira received a number of telephone calls from “Bones.”  Once at the swap meet, Moreira received
another phone call from Bones.  During
that conversation, Moreira said, “I’m at the swap meet.”  In a second conversation with Bones, Moreira
identified the specific aisle he was in at the swap meet, and Martinez saw Bones approaching
from the end of the aisle. 

            Moreira and
Bones spoke for about five minutes.  Martinez was within 10
feet of the men during the conversation. 
Moreira’s and Bones’s demeanors suggested to Martinez that the men
were arguing.  Moreira appeared to Martinez to be “upset”
and Bones appeared to be “disoriented,” a condition Martinez had seen Bones
in five to seven times previously. 

            Martinez approached Moreira
and Bones to retrieve her son, and heard Moreira say to defendant, “I’m not a
bitch.  You know I’m not a bitch.  If you want, let’s take this shit
outside.”  Defendant responded, “No,
dog.  You know you’re my dog.  I love you. 
We’re cool.”  As defendant spoke,
he put his arm around Moreira’s shoulder and rubbed the top of his head.  Moreira appeared to calm down.  Bones started walking towards the exit and
Moreira followed him.  Martinez pulled Moreira’s
shirt and said, “Hey, we’re here,” and Moreira stayed with Martinez and their
son.  Later, Martinez, Moreira, and
their son returned to Moreira’s house. 

            After
returning home, Moreira received 14 phone calls, five of which he answered.  According to Martinez, all five
conversations took place inside, and not outside, the house.  Martinez asked Moreira
why the phone was ringing so much. 
Moreira responded, “It’s Bones.  I
don’t know what the fuck he wants.”  Moreira,
Martinez, and their son spent the
night at Moreira’s house. 

            About 6:30 a.m. the next morning, Martinez heard knocking on
the bedroom window followed by someone outside the window saying, “Hey, Chunky.”  Martinez testified that
Moreira was known by the name “Chunky.”  When
he was younger, Moreira was known as “Pumpkin.” 
Martinez then heard the
person outside say, “Hey, Chunky.  Do me
a favor.”  Moreira responded, “Don’t
screw with me, man.  It’s too early.”  The person outside said, “Do me a favor.  Open the door.  I’m high.” 
Moreira responded, “Don’t screw with me, man.  It’s too early.  I have my child.”  The person again said, “Do me a favor.  Open the door.  I’m high.” 
Moreira responded, “Wait for me, Bones. 
I’m going to open the door.”  The
prosecutor asked Martinez if she
recognized the voice of the person who was outside.  Martinez said,
“Yes.”  The prosecutor asked her how she
recognized the voice.  Martinez responded, “I
know Bones, and I just recognized his voice.” 
Martinez never saw Bones
that morning, she only heard his voice. 

            Moreira walked
out of the bedroom and Martinez followed
him.  Moreira told Martinez to stay.  Moreira walked into the living room, and Martinez heard him open
the front door and metal screen door. 
After Moreira opened the doors, Martinez heard Bones
shout, “Fuck you, motherfucker.”  Martinez then heard five
to seven consecutive gunshots.  Martinez checked on her
son and then went into the living room where she saw Moreira in a pool of blood
on the floor. 

            Both doors
were still open, and Martinez walked
outside.  Martinez looked around, but
did not see anyone.  Martinez returned to the
house and checked Moreira’s neck for a pulse. 
Martinez did not feel a
pulse.href="#_ftn1" name="_ftnref1" title="">[1]  Martinez did not know
what to do, and walked in and out of the house for about five minutes.  Martinez went to
Contreras’s room.  Contreras’s
one-year-old son was crying and Contreras appeared to be having a panic
attack.  Martinez told Contreras
that Bones had killed Chunky.href="#_ftn2"
name="_ftnref2" title="">[2]>  Contreras and his son left. 

            After
Contreras and his son left, Martinez searched the
house for a phone and called her friend Sandra Guerrero.  Martinez told Guerrero
that “Bones killed Chunky,” and asked her to pick up Martinez’s son.href="#_ftn3" name="_ftnref3" title="">[3]>  Guerrero arrived about 10 minutes later.  Martinez asked Guerrero
to call the police.  After Guerrero left
with Martinez’s son, Martinez called the
police.  Martinez called Guerrero before
she called 911 because she was concerned for her son—she did not want him
“going through all that” when the police arrived.  Martinez believed that Moreira
was dead when she called Guerrero and the police.  After the shooting and before the police
arrived, Martinez did not move
anything in the residence. 

            Martinez was not sure if
she told the 911 operator who killed Moreira. 
She told the police that she knew the shooter’s first name—“Jose,” and
nickname—“Bones.”  Later that morning,
about 9:00 a.m., Los Angeles Police
Department Detective Humberto Farjardo interviewed Martinez.  Martinez told the
detective that Bones killed Chunky.  She
identified defendant from a six-pack photographic lineup, and wrote next to his
photograph, “This guy goes by Bones, Bryant Street.”  Martinez knew defendant and
Moreira to be members of the Bryant Street gang.  Detective Farjardo had Martinez “detail” for him
what had happened at the swap meet.  Martinez did not say that
she heard Moreira say, “Let’s take this shit outside.” 

            About
11:30 a.m. on the morning Moreira was shot, defendant entered the Burger Crave
restaurant.  Defendant was shaking, mumbling,
and sweating profusely.  He walked
through the restaurant to the restaurant’s patio where he sat for a while
before reentering the restaurant and ordering an orange drink.  As his drink was being prepared, defendant
dropped to the floor and began doing pushups. 


            Defendant
took his drink and sat at a table. 
Shortly thereafter, defendant “very violently” banged his head against
the window about three times.  The window
shattered.  Defendant suffered a “big
gash” on his forehead and bled profusely. 
Defendant walked out of the restaurant, and the restaurant’s owner
called the police.  Defendant walked to
the corner where he got down on his href="http://www.sandiegohealthdirectory.com/">hands and knees and
“head-butt[ed]” the cement four or five times. 
Defendant got up and started to walk back towards the restaurant.  One of the restaurant’s customers locked the
door.  Defendant walked across the street
to a fire station.  When he reached the
fire station, two police cars pulled up. 
The firemen sat defendant down and tried to treat him.  Defendant was fidgety and combative and would
not allow the firemen to treat his injuries. 
Defendant had to be held down. 

            Los Angeles
Police Department Sergeant Stephen Gomez testified that he came into contact
with defendant on August 20, 2008.  Sergeant Gomez “ascertained” that defendant was
a member of the Bryant Street gang.  Defendant told Sergeant Gomez that his moniker
was “Bones.”  Sergeant Gomez was familiar
with the Bryant Street gang.  “Bryant St” was tattooed on
the back of defendant’s neck.  “BST”
which represented Bryant Street was tattooed on
defendant’s abdomen.  Sergeant Gomez’s
contact with defendant was not gang-related. 


            Los Angeles
Police Department Detective John Sawada testified as the prosecution’s expert on
the Bryant Street gang.  According to Detective Sawada, Moreira was a Bryant Street gang member and had
the monikers “Pumpkin” and “Chunky” or “Chunk.” 
The detective knew that defendant was a member of the Bryant Street gang and that
his moniker was “Bones.”  No other Bryant Street gang member had
the same moniker.  Defendant had been a Bryant Street gang member
since 1993, when he was 16 years old. 
Defendant was older than Moreira and a more senior member of the Bryant Street gang. 

            According to
Detective Sawada, if one gang member disrespected another gang member, it would
be seen as an act of defiance.  The
“probable consequences” for such an act could range from a “beat-down” to murder.  Seniority in a gang was determined by the
length of time a person was a member of the gang.  An older gang member received or deserved more
respect than a younger member.  If a
younger gang member challenged a senior member, the challenge would be seen as
an act of defiance and disrespect and would not be tolerated.  Likewise, a younger gang member’s failure to follow
an order from a senior member would not be tolerated.  It would be a sign of disrespect if a younger
gang member said to a senior gang member, “I’m not a bitch.  You know I’m not a bitch.  If you want, let’s take this shit outside.”  The statement, “You have a choice:  You’re either with me or not,” by a senior
gang member to a younger member was an ultimatum that meant, “You’re either
going to go along with the program or you’re going to basically suffer the
consequences.”  The consequences could be
anything from a “beat-down” to murder. 

            At trial,
the prosecutor asked defendant’s sister, Veronica Delgado, “Now, is your
brother a Bryant Street gang
member?”  She responded, “Yes.”  The prosecutor asked her, “Do people know him
as Bones?”  She responded, “Yes

 

>DISCUSSION

I.          Admission of Detective Sawada’s Expert
Gang Testimony

            Defendant contends
that the trial court erred in admitting Detective Sawada’s expert witness
testimony about gangs because there was no evidence independent of his testimony
that Moreira’s murder was gang-related.  Defendant
further contends the trial court erred in admitting Detective Sawada’s
testimony about the gang significance of the phrases “let’s take this shit
outside” and  â€œyou’re either with me or
you’re against me” because it was not properly the subject of expert witness
testimony.  Finally, defendant contends
that the trial court’s admission of Detective Sawada’s testimony about the
“gang mentality regarding disrespect and punishment” violated >People v. Kelly (1976) 17 Cal.3d 24 (>Kelly). 


 

            >A.         Admission
of Gang Evidence

            The “admission
of evidence of a criminal defendant’s gang membership creates a risk the jury
will improperly infer the defendant has a criminal disposition and is therefore
guilty of the offense charged.  [Citation.]” 
(People v. Williams (1997) 16
Cal.4th 153, 193.)  “[E]ven where gang membership
is relevant, because it may have a highly inflammatory impact on the jury trial
courts should carefully scrutinize such evidence before admitting it.  [Citation.]” 
(Ibid.)  “Evidence of the defendant’s gang
affiliation—including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the charged
crime.  [Citations.]”  (People
v. Hernandez (2004) 33 Cal.4th 1040, 1049.) 
“[I]n a gang-related case, gang evidence is admissible if relevant to
motive or identity, so long as its probative value is not outweighed by its
prejudicial effect.  [Citation.]”  (People
v. Williams, supra, 16 Cal.4th at p. 193.)

            “A trial
court’s admission of evidence, including gang testimony, is reviewed for abuse
of discretion.  [Citations.]  The trial court’s ruling will not be
disturbed in the absence of a showing it exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a miscarriage
of justice.  [Citation.]”  (People
v. Avitia (2005) 127 Cal.App.4th 185, 193.)

            Gang
evidence was relevant to prove the identity and motive of the shooter in this
case.  Martinez testified that
she recognized the voice of the person outside the bedroom window as Bones’s
voice.  Martinez testified that
Moreira identified the person who spoke outside the bedroom window as
“Bones.”  That defendant was a Bryant Street gang member with
the moniker “Bones” thus was relevant to proving the identity of the shooter.  (People
v. Hernandez, supra, 33 Cal.4th at p. 1049.)  Testimony that a gang member would punish a
subordinate gang member for disrespect was relevant to proving the shooter’s
motive.  Defendant and Moreira argued at
the swap meet.  Moreira, a member of the Bryant Street gang junior to
defendant, said to defendant, “I’m not a bitch. 
You know I’m not a bitch.  If you
want, let’s take this shit outside.”  According
to Detective Sawada, such an utterance to a senior gang member would be a sign
of disrespect.  The detective testified
that the consequences for one gang member’s disrespect of another gang member
could range from a “beat-down” to murder. 
That a junior member of a gang could be murdered for showing disrespect
to a senior member was relevant to proving a motive for Moreira’s murder.  (Ibid.)  The trial court did not abuse its discretion
in admitting Detective Sawada’s expert gang testimony as it was relevant to
provide identity and motive.  (>People v. Avitia, supra, 127 Cal.App.4th
at p. 193.)

 

            >B.         Evidence
Code Section 801

            Defendant
contends that Detective Sawada’s testimony concerning the meaning of the
phrases, “let’s take this shit outside” and “you’re either with me or you’re
against me”href="#_ftn4" name="_ftnref4"
title="">[4]> were not the proper subject of expert
witness testimony under Evidence Code section 801.  According to defendant, such commonly used
phrases needed no explanation and “in no way assisted the jury in determining
guilt or innocence.”

            Evidence
Code section 801, subdivision (a) permits expert testimony on subjects
“sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.”  We review the
admission of expert witness testimony under Evidence Code section 801 for an
abuse of discretion.  (>People v. Kovacich (2011) 201
Cal.App.4th 863, 902.)

            Detective
Sawada did not testify to the meaning of the phrase “let’s take this shit
outside.”  With respect to the phrase
“you’re either with me or not,” the detective testified that the phrase was an
ultimatum to either go along with the program or suffer the consequences.  The significance of Detective Sawada’s
testimony was not the translation of either phrase as if it were some type of
special gang terminology.  Instead, the
significance of the detective’s testimony was to explain for the jury that when
a gang member uttered such a disrespectful phrase or defied such an ultimatum
the consequence could be murder—a consequence likely beyond the jury’s common
experience with either phrase. 
Accordingly, the trial court did not abuse its discretion in admitting
the testimony.  (People v. Kovacich, supra, 201 Cal.App.4th at p. 902.)

 

            >C.        People
v. Kelly

            According to
defendant, “Officer Sawada’s testimony, reduced to its essence, was that a
particular form of behavior by a younger gang member (disrespect, as
interpreted again by Sawada) would lead to a particular violent consequence or
punishment meted out by a more senior gang member.”  Such “predictive” testimony, defendant
contends, was inadmissible under Kelly,
supra, 17 Cal.3d 24.

            In >Kelly, supra, 17 Cal.3d 24, the
California Supreme Court “held that evidence obtained through a new scientific
technique may be admitted only after its reliability has been established under
a three-pronged test.  The first prong
requires proof that the technique is generally accepted as reliable in the
relevant scientific community.  (>Id. at p. 30].)  The second prong requires proof that the
witness testifying about the technique and its application is a properly
qualified expert on the subject.  (>Ibid.)  The third prong requires proof that the person
performing the test in the particular case used correct scientific procedures.  (Ibid.)”
 (People
v. Bolden (2002) 29 Cal.4th 515, 544.) 
“[A] technique may be deemed ‘scientific’ for purposes of >Kelly/Frye^{[href="#_ftn5"
name="_ftnref5" title="">[5]]}
if ‘the unproven technique or procedure appears in both name and description to
provide some definitive truth which the expert need only accurately recognize
and relay to the jury.’  [Citation.]”href="#_ftn6" name="_ftnref6" title="">[6]  (People
v. Leahy (1994) 8 Cal.4th 587, 606.)

            Detective
Sawada’s expert gang testimony was not and did not purport to be scientific evidence.  Accordingly, it was not subject to the >Kelly test.  Moreover, the California Supreme Court has
held that a gang expert may testify to the “habits” of a criminal street
gang.  (People v. Gardeley (1996) 14 Cal.4th 605, 617.)

 

II.        Cross-Examination of Sergeant Gomez

            Sergeant
Gomez testified that he ascertained from a field interview of defendant that
defendant was a member of the Bryant Street gang, that his moniker
was “Bones,” and that he had a Bryant Street tattoo on the
back of his neck.  Defendant contends
that the trial court violated his constitutional rights of confrontation and
due process by improperly restricting his cross-examination of Sergeant Gomez
concerning the circumstances of that field interview, thus preventing him from
impeaching the officer’s testimony.  Any
error by the trial court was harmless.

            The Sixth
Amendment to the United States Constitution guarantees that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]”  (U.S. Const.,
6th Amend.; Pointer v. Texas (1965)
380 U.S. 400 [extending Sixth Amendment to state proceedings through Fourteenth
Amendment].)  To effectuate this
guarantee, the trial court must afford a criminal defendant the opportunity for
effective cross-examination of adverse witnesses.  (Delaware
v. Fensterer (1985) 474 U.S. 15, 19-20; People
v. Carter (2005) 36 Cal.4th 1114, 1172.)  â€œ[T]he cross-examiner is not only permitted to
. . . test the witness’[s] perceptions and memory, but the cross-examiner has
traditionally been allowed to impeach, i.e., discredit, the witness.”  (Davis
v. Alaska (1974) 415 U.S. 308, 316.)  Accordingly, “a criminal defendant states a
violation of the Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby ‘to expose to the jury the
facts from which jurors . . . could appropriately draw inferences relating to
the reliability of the witness.’ 
[Citation.]”  (>Delaware v. Van Arsdall (1986) 475 U.S.
673, 680.)

            “‘“Confrontation
clause violations are subject to federal harmless-error analysis under >Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705, 87 S.Ct. 824].”  [Citation.]
 We ask whether it is clear beyond a
reasonable doubt that a rational jury would have reached the same verdict
absent the error.’  [Citation.]”  (People
v. Livingston (2012) 53
Cal.4th 1145, 1159.)

            During her
cross-examination of Sergeant Gomez, defense counsel began to ask the officer about
defendant’s mental state at the time the officer contacted defendant and “ascertained”
the gang information.  Defense counsel asked
Sergeant Gomez, “And at that time he told you that he was jumping off—”  The prosecutor objected that the question
called for hearsay.  The trial court
sustained the objection, and then addressed the matter at sidebar on defense
counsel’s request. 

            At sidebar,
defense counsel stated that she intended to use the evidence, in part, to
challenge whether there had been “actual admissions.”  That is, as phrased by the trial court, “how
could they possibly get the personal information from [defendant] if he was out
of his mind[?]”  Defense counsel
represented that the contact between Sergeant Gomez and defendant resulted in
defendant being placed under a mental health hold pursuant to Welfare and
Institutions Code section 5150.  Sergeant
Gomez’s field identification card apparently reflected statements by defendant
as follows:  “Entered person’s reporting
backyard, jumped onto an off house roof, voices going to get him, scared,
cocaine, voices going to kill him.”  The
prosecutor stated that the sole purpose of Sergeant Gomez’s testimony was to
establish that defendant was a gang member and had a moniker.  The trial court again sustained the
objection. 

            Even
assuming that the trial court erred in excluding the proffered evidence, any
such error was harmless under Chapman v. >California>, supra, 386 U.S. at page 24.  That is, even if the proffered evidence had
been admitted and Sergeant Gomez’s testimony had been entirely impeached, Sergeant
Gomez’s testimony was merely cumulative of other unimpeached testimony that
showed that defendant was an active Bryant Street gang member with
the moniker “Bones.”  Martinez, Detective
Sawada, and defendant’s sister all testified that defendant was a member of the
Bryant Street gang and that his
moniker was “Bones.”

 

III.       Cross-Examination of >Martinez

            Defendant
contends that the trial court violated his constitutional rights of
confrontation and to present a defensehref="#_ftn7" name="_ftnref7" title="">>[7]
when it restricted his cross-examination and impeachment of Martinez by excluding
evidence that Martinez made statements
to a police officer the morning of the shooting that were inconsistent with her
trial testimony.  The trial court did not
err.

            “To be
relevant, evidence must have some ‘tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’  (Evid. Code, § 210.)  This definition includes evidence ‘relevant to
the credibility of a witness.’  (>Ibid.; see Evid. Code, § 780 [the fact
finder may consider matters relevant to the truthfulness of the witness’s
testimony].)  [¶]  Conversely, a matter is ‘collateral’ if it
has no logical bearing on any material, disputed issue.  [Citation.]  A fact may bear on the credibility of a
witness and still be collateral to the case. 
[Citations.]”  (>People v. Contreras (2013) 58 Cal.4th
123, 152 (Contreras).)

            A “trial
court has wide latitude under state law to exclude evidence offered for
impeachment that is collateral and has no relevance to the action.  [Citations.] 
This exercise of discretion necessarily encompasses a determination that
the probative value of such evidence is ‘substantially outweighed’ by its
prejudicial, ‘confusing,’ or time-consuming nature.  (Evid. Code, § 352; see People v. Lewis (2001) 26 Cal.4th 334, 374-375 [110 Cal.Rptr.2d
272, 28 P.3d 34] [noting that Evid. Code, § 352 gives trial court broad power
to prevent ‘“‘nitpicking’”’ over ‘“‘collateral credibility issues’”’].)”  (Contreras,
supra, 58 Cal.4th at p. 152.)

            “Also, as
long as the excluded evidence would not have produced a ‘“‘significantly
different impression’”’ of the witness’s credibility, the confrontation clause
and related constitutional guarantees do not limit the trial court’s discretion
in this regard.  ([People v.] Dement (2011)
53 Cal.4th 1, 52 [The ‘“ordinary rules of evidence do not impermissibly
infringe on the accused’s right to present a defense”’]; see [>People v.] Harris (2008) 43 Cal.4th 1269, 1292 [‘“Within the confines of the
confrontation clause, the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, confusing of the issues, or
of marginal relevance.”’]; accord, People
v. Mendoza (2011) 52 Cal.4th 1056, 1090 [132 Cal.Rptr.3d 808, 263 P.3d 1].)”  (Contreras,
supra, 58 Cal.4th at p. 152.)

            Martinez testified that
when she was at Moreira’s house the night before Moreira was shot, she heard
the phone ring 14 times, and that Moreira answered five of the calls and
ignored the other nine.  In a sidebar
discussion, defense counsel stated that she wanted to impeach Martinez’s credibility with
Martinez’s statement to a police
officer the morning of the shooting that “on the prior night the victim was on
the phone constantly outside, and that he was busy storing guns in the top
shelves of his bedroom, along with sorting out drugs.”  Defense counsel argued that “the statement
that the night before the victim was on the phone constantly outside is
inconsistent with her testimony here in court. 
The statement that the night before the victim was busy sorting out his
drugs is inconsistent with her testimony that she removed nothing from the
scene but the child. . . .  [N]o drugs
were found in the residence.”href="#_ftn8"
name="_ftnref8" title="">[8]  The trial court excluded the evidence.  

            Later, defendant
called Officer Luis Rodarte.  Prior to
his testimony, defense counsel stated that she wanted to introduce Martinez’s statement to
Officer Rodarte that “on the prior night the victim was on the phone constantly
outside and that he was busy storing guns in the top shelves of his bedroom
along with sorting out drugs.”  The trial
court ruled that defense counsel could ask the officer about Martinez’s statement
concerning Moreira’s phone usage the night before the shooting.  During Officer Rodarte’s direct examination,
defense counsel elicited testimony from him that Martinez told him that Moreira
had been “on the phone constantly outside” the night before the shooting.  Thus, although the trial court did not permit
defense counsel to ask Martinez about her
statement to the police during her cross-examination, her statement ultimately
was introduced through Officer Rodarte’s testimony.  Accordingly, any restriction on defendant’s
right to cross-examine Martinez was harmless
under California> v. Chapman, supra, 386 U.S. at page 24.  (People
v. Livingston, supra, 53 Cal.4th at p. 1159.)

             The trial court did not permit defense counsel
to examine Officer Rodarte about Martinez’s statement to Officer
Rodarte that Moreira was sorting out drugs the night before the shooting.  It ruled that the evidence was not
“particularly relevant in this trial, either as a matter of proof or as impeachment.”  The evidence was not relevant and the trial
court did not err.  Martinez’s testimony that
she did not move anything inside the residence between the shooting and the
arrival of the police was not inconsistent with her statement to the police
that Moreira was sorting out drugs the night before the shooting.  Assuming that Moreira had drugs in his house
the night before the shooting, Moreira or Martinez may have
consumed, sold, or otherwise disposed of them prior to the shooting. 
Nothing in Martinez’s trial
testimony or statement to Officer Rodarte suggested that Martinez removed any
drugs from the residence between the shooting and the arrival of the police.  Accordingly, the trial court did not abuse
its discretion or violate defendant’s confrontation rights in excluding Martinez’s statement to
Officer Rodarte.  (Contreras, supra, 58 Cal.4th at p. 152.)

 

 

>IV.       The
Trial Court’s “Asymmetrical Evidentiary Rulings”

            Defendant
contends that the trial court made certain evidentiary rulings that “constituted
asymmetrical evidentiary rulings in violation of [his] federal due process
rights.”  Defendant’s failure to object
in the trial court on the ground asserted on appeal forfeited appellate review
of the issue.

            The failure
to object in the trial court that the trial court’s evidentiary rulings
constituted “asymmetrical” evidentiary rulings in violation of the defendant’s
right to due process forfeits appellate review of that issue.  (People
v. Blacksher (2011) 52 Cal.4th 769, 842 [defendant forfeited his claim of “asymmetrical”
application of the rules of evidence in violation of his due process rights for
appellate purposes by failing to raise it below]; People v. Halvorsen (2007) 42 Cal.4th 379, 414 [“We concluded above
that defendant preserved his related claim of state evidentiary error, but
because the constitutional claims defendant now asserts do not simply restate
his evidentiary claim on alternative legal principles, but instead require
consideration of different circumstances—namely, the court’s assertedly ‘asymmetrical’
treatment of the parties’ use of hypothetical questions—he has forfeited the
constitutional arguments for appeal”].)

            Defendant
contends that the trial court made erroneous and inconsistent rulings on his
and the prosecutor’s objections to the admission of certain evidence.  Those rulings, defendant claims, constituted
“asymmetrical” evidentiary rulings in violation of his federal due process
rights.  The trial court’s asserted
“asymmetrical” rulings are as follows:

            1.         Over defendant’s hearsay objection to
proffered testimony, the trial court ruled that Martinez would be
permitted to testify that Moreira told her that defendant was the person who
made several phone calls to Moreira that Moreira did not answer.  The trial court ruled that the evidence was
admissible under the state of mind exception to the hearsay rule in Evidence
Code section 1250 and as a “contemporaneous statement” under the hearsay
exception in Evidence Code section 1241. 


            2.         The prosecutor asked Martinez why she did not
want to look at a transcript that defense counsel showed her earlier in her
testimony.  Martinez responded, “I
just did not understand why.”  The
prosecutor asked Martinez, “[W]hat’s your
state of mind right now . . . ?”  Defense
counsel objected on relevance grounds.  The
trial court overruled the objection.  Martinez began to cry and
said, “This is something that hurts me. 
And every time I come here, it’s like they’re killing—like I seen him
covered in blood in the pictures.  That’s
not something easy for me.  I’m seeing
him—”  Defense counsel objected and moved
to strike Martinez’s testimony on
the ground that “[t]his is improper.” 
The trial court overruled the objection, and denied the motion to
strike. 

            3.         The prosecutor asked Martinez, “[A]s you sit
here today, do you know who, in your opinion, who you heard through the window
and later on shot Edgar Moreira?”  Defense
counsel objected that the question called for an improper conclusion.  The trial court overruled the objection.  Martinez answered,
“Yes.”  The prosecutor asked Martinez, “And who did
you hear outside that window?”  Martinez responded, “To
me, Bones, his official name is the defendant, Jose Delgado.” 

            4.         The prosecutor asked Detective Sawada
the following hypothetical question, “If a younger member of the gang is being
given an order by someone senior to him and the younger member of the gang
doesn’t do what he’s asked to do, again, is that acceptable or tolerated?”  Defense counsel objected that the question
was an improper hypothetical question and called for speculation.  The trial court overruled the objection.  Detective Sawada responded, “No, it wouldn’t
be tolerated.  It would be a sign of
disrespect.” 

            5.         Defense counsel asked Detective Sawada
the following hypothetical question, “Let’s assume that someone receives a
phone call of a shooting at 6:33 a.m.  And let’s assume that that person then makes
12 calls to one particular number . . . and thereafter calls 911 at
approximately 7:57 a.m.  [¶] 
Would you, as the gang expert, be suspicious as to why those phone calls
were made prior to calling 911?”  The
prosecutor objected that the question was argumentative.  The trial court sustained the objection on
relevance grounds.   

            Defendant does
not contend on appeal that the trial court’s challenged evidentiary rulings
constitute reversible error on state law grounds.  Instead, defendant argues that the rulings
constituted “asymmetrical” evidentiary rulings in violation of his federal
right to due process.  Because defendant
did not object in the trial court on that ground, he has forfeited appellate
review of this issue.  (>People v. Blacksher, supra, 52 Cal.4th
at p. 842; People v. Halvorsen, supra,
42 Cal.4th at p. 414.)

 

>DISPOSITION

            The
judgment is affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

 

                                                                                    MOSK,
J.

 

We concur:

 

 

 

                        TURNER, P. J.

 

 

 

                        MINK, J.href="#_ftn9" name="_ftnref9" title="">*