Opinion
2d Crim. No. B257185
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MICHAEL BREWER, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Timothy M. Weiner, David E. Madeo, Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1358729)
(Santa Barbara County) OPINION FOLLOWING TRANSFER FROM SUPREME COURT
Christopher Michael Brewer appeals a judgment following conviction of second degree murder (count 1) and felony dissuading a witness by force or threat (count 2), with findings that he personally used a deadly weapon (knife), committed the criminal offenses to benefit a criminal street gang, and served a prior prison term. (Pen. Code, §§ 187, subd. (a), 189, 136.1, subd. (c)(1), 12022, subd. (b)(1), 186.22, subd. (b)(1), 667.5, subd. (b).)
All statutory references are to the Penal Code unless stated otherwise.
Brewer contends in part that the prosecution street gang expert witness improperly testified regarding testimonial hearsay. In a nonpublished opinion, we rejected this contention, among others. (People v. Brewer (Nov. 5, 2015, B257185).) On February 3, 2016, our Supreme Court granted Brewer's petition for review, but deferred consideration pending its decision in People v. Sanchez, review granted May 14, 2014, No. S216681. Thereafter, on September 21, 2016, the court transferred Brewer's appeal to us with directions to vacate our opinion and reconsider the appeal in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
Following transfer, the Attorney General sought further proceedings in the trial court to settle the record on matters affecting Brewer's Sanchez contentions. On March 21, 2017, the court filed a settled statement with this court. The settled statement provides that the parties agreed prior to trial that the prosecution gang expert witness could: 1) state and rely upon hearsay statements that Brewer's cellmate and police informant, Arthur Nevarez, made to another law enforcement officer, in lieu of calling Nevarez (who was available) as a witness; and 2) testify regarding predicate gang offenses rather than presenting evidence of certified prior conviction records. Police reports and prior conviction records were provided to Brewer through pretrial discovery, and before trial Brewer reviewed the prosecutor's PowerPoint slides regarding the predicate offenses.
The parties have now submitted supplemental briefs following transfer. We have complied with our Supreme Court's directions and determine that: 1) error in admitting testimonial hearsay evidence was either waived or is harmless beyond a reasonable doubt; 2) sufficient evidence supports Brewer's conviction of felony witness dissuasion; and 3) error in admitting evidence of Brewer's responses to jail authorities regarding his gang affiliation is harmless beyond a reasonable doubt. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In the late afternoon of December 9, 2011, Brewer stabbed Alberto Diaz, Jr. in the neck, severing a major blood vessel. The stabbing occurred outside a Santa Maria motel. Diaz stumbled a short distance toward a fast-food restaurant before collapsing. A restaurant employee summoned emergency medical assistance, but Diaz soon died from his stab wound. Brewer and Diaz were members of both the Guadalupe and Sureño criminal street gangs.
Circumstances of the Murder and its Aftermath
(Count 1)
In December 2011, Patricia Perez lived with Brewer's brother, Jacob Brewer, at the Santa Maria Budget Inn. Brewer also stayed at the motel from time to time, but in a different room.
We shall refer to Jacob Brewer as "Jacob," and Christopher Brewer as "Brewer," not from disrespect, but to ease the reader's task.
Diaz, whose moniker was "Stormy," was a criminal street gang member known for violence and "having chaos around him." Diaz was in trouble with his street gang, "Sureños," and had a "green light" or "hit" ordered against him by the gang hierarchy.
In the afternoon of the murder, Diaz and his friend, David Padilla, rode their bicycles to the motel and then walked to Perez's room. Perez, Gabriel Almaguer, Angelina Velasquez, and Jacob were inside the room. Perez urged Diaz and Padilla to leave because she did not want "trouble."
Almaguer quietly asked Perez if Diaz was Stormy and Perez confirmed Diaz's identity. Almaguer wanted "to approach" Diaz, but Perez warned Almaguer that she did not want "anything like that going down in [her] room." Almaguer, Jacob, and Velasquez then left, followed by Diaz and Padilla a few minutes later.
Almaguer and Jacob entered Brewer's room and informed him and Rudy Ramos that Stormy was in the motel. Brewer asked for a "blade," and Almaguer gave him a three-inch folding knife. When Almaguer realized that his fingerprints were on the knife, he asked Brewer to return it. Brewer replied, "Don't trip. I got this, my boy."
Almaguer left the room to smoke a cigarette. Brewer, Ramos, and Jacob also left the room and walked across the parking lot. Diaz and Padilla had retrieved their bicycles by then and were riding away. Brewer called out to Diaz, "Hey, what's up, homie? You don't know how to say, 'What's up?'" Diaz turned around and rode his bicycle toward Brewer. As Diaz approached, Brewer drew the knife and stabbed Diaz in the neck, "like a fastball pitch." Brewer and the other men then ran away. Diaz cried out, "He got me, he stuck me."
At the time, Jessica Manna was walking to visit her aunt, Stacy Hamrick, who was the motel manager. Manna saw Diaz clutch his chest and fall to the ground. Jacob then ran past Manna and Hamrick. In response to their questions regarding Diaz, Jacob stated, "You didn't see nothing. Nothing happened." Jacob went into a motel room and shut the door.
Diaz stumbled a short distance and collapsed near a fast-food restaurant. A restaurant customer attended to him, but found him unresponsive. An employee summoned emergency medical assistance and rendered first aid until paramedics arrived, but Diaz died shortly thereafter at the hospital.
In the days following the murder, police officers spoke with Brewer's former girlfriend, Brooke Cummings, at her home. The interview was recorded. Cummings stated that in the evening following the murder, Brewer stayed with her. She also saw and spoke to him at times for several days thereafter. Brewer admitted to Cummings that he had "murdered" someone and was "in some deep shit." He also stated that he did not care, and that Diaz was "stupid" and "nobody gives a shit about him." Brewer added that Diaz "[h]ad it coming." He also denied killing Diaz in self-defense, stating: "[I]t wasn't self defense. I murdered him."
Cummings informed police officers that Brewer, at times during their relationship, had discussed his criminal street gang involvement. He said his involvement was "really deep," but sometimes professed a desire to leave the gang. Cummings identified Brewer's gang as "Sureños Guad." At trial, the prosecutor played the recording of Cummings's interview with police officers.
Cummings also testified at trial that Brewer admitted that he was a Guadalupe gang member who was "really deep" into the gang. She also confirmed that Brewer admitted that he had killed a man and "was in deep shit." Brewer stated to her that the victim "[h]ad it coming."
Expert Witness Gang Testimony
Santa Maria Police Detective Michael Parker was assigned to gang suppression detail. Parker was familiar with "Guada" and Sureño criminal street gang members and the victims of their crimes, having spoken to or arrested hundreds of gang members. He testified that a "green light" is "an open invitation for any gang member who falls under the Sureño [gang] umbrella to take action [against a rule breaker or a member out of favor]."
Parker opined that victim Diaz was a member of the Guada and Sureño criminal street gangs, based upon his admissions and prominent facial tattoos declaring his gang affiliation. Informants had reported to police officers that Diaz was the subject of a green light order from the gang hierarchy and had been targeted for assault.
Parker also opined that Brewer is a member of the Guada and Sureño criminal street gangs and that his moniker is "Boogie." Parker rested his opinion upon these factors: an incident where Brewer wrote gang graffiti on a school wall; Brewer's admission in a 2009 probation report that he associated with Guada gang members; Brewer's admissions to jail housing deputies; Brewer's admissions to cellmate Nevarez that he was "Boogie from Guada" and that he was in custody for killing Stormy who was "a disgrace" to the gang; Brewer's statements in telephone calls, texts, and a video recording; Brewer's email address (BrewBooG13@[]); and a statement by Brewer's brother, David Brewer, that Brewer was a Guada gang member.
"There is no legal impediment to placing an informant next to a fellow inmate. '[I]n the often competitive enterprise of ferreting out crime' [citation], the police are permitted to use a subterfuge to obtain an inculpatory statement as long as the subterfuge is not likely 'to produce an untrue statement.'" (People v. Arauz (2012) 210 Cal.App.4th 1394, 1399, fn. 3.)
Based upon a hypothetical similar to the circumstances of the present crime, Parker opined that Diaz's murder benefitted the Sureño criminal street gang because it instilled community fear, discouraged witnesses from cooperating with law enforcement, and increased the reputation of the local gang (Guada) and the gang member who killed Diaz.
Defense Evidence
Gregorio Estevane, a licensed private investigator, testified as a defense expert witness regarding gang murders in Sureño criminal street gangs. Estevane opined that Brewer was not an active member of any street gang, based in part on Brewer's statement reported in the 2009 probation report. He also stated that it was not likely that Diaz would have been alive had a green light been ordered against him several years earlier. Estevane opined that Brewer's flight following the stabbing does not imply that he was a gang member or that the crime was committed to benefit a criminal street gang.
At trial, Brewer testified that he was "in and out" of the Budget Inn, used methamphetamine daily, and sold drugs that were given to him by Ramos. Brewer denied that he belonged to any criminal street gang or that he committed any gang-related crimes.
Brewer testified that in the afternoon of the murder, he heard Diaz outside the motel speaking in an angry voice. Brewer took Almaguer's knife because he was frightened. Brewer then left his room and walked away to avoid a confrontation with Diaz.
As Brewer was leaving the area, Padilla asked for a cigarette. Diaz then approached Brewer and appeared angry. Diaz demanded that Brewer look at him and pay attention to him. Brewer believed Diaz's behavior was threatening. When Diaz "reach[ed]" toward Brewer, Brewer swung the knife at Diaz. Brewer then ran and discarded the knife. Brewer testified that he did not intend to kill Diaz and did not weigh the consequences of his actions beforehand.
Psychologist Marianne Davis reviewed Brewer's criminal and mental health records and interviewed him and his mother. Davis opined that Brewer suffers from post-traumatic stress disorder, bipolar disorder, and methamphetamine and cannabis abuse. These afflictions, she opined, might cause him to overreact or misperceive an act as threatening.
Brewer also informed Davis that he was in good standing with a criminal street gang but was not affiliated with the gang. She opined that he minimized his gang involvement.
Dissuading a Witness
(Count 2)
During his confinement in county jail, Brewer telephoned his friend, Angelina Tejeda. In a recorded telephone conversation on January 20, 2012, Brewer stated that "both the girls" were "ratting on [him]," and that he thought "Brooke's gonna testify in court." Brewer stated that he "should slap that bitch" and instructed Tejeda, "If you ever see her, tell her I said 'Hi.' You know what I mean. . . . [T]hat kind of a 'Hi.'" At trial, the prosecutor played a recording of Brewer's jail conversation with Tejeda.
Detective Parker also testified that Tejeda was an admitted member of the Northwest criminal street gang and that she had gang-related tattoos declaring her affiliation.
Conviction and Sentencing
The jury convicted Brewer of second degree murder (count 1) and felony dissuading a witness by force or threat (count 2), and found that he personally used a deadly weapon regarding the murder, committed the crimes to benefit a criminal street gang, and served a prior prison term. (§§ 187, subd. (a), 189, 136.1, subd. (c)(1), 12022, subd. (b)(1), 186.22, subd. (b)(1), 667.5, subd. (b).) The trial court sentenced Brewer to a prison term of 24 years to life, consisting of 15 years to life for second degree murder, one year for the personal weapon use enhancement, one year for the prior prison term served, and seven years to life for felony witness dissuasion. The court also imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (suspended), a $80 court security assessment, and a $60 criminal conviction assessment; and awarded Brewer 880 days of presentence actual custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) During sentencing, the court noted that the criminal street gang enhancement would affect Brewer's minimum parole eligibility. (§ 186.22, subds. (b)(4)(C) & (b)(5).)
Codefendants Jacob Brewer and Almaguer pleaded guilty prior to trial which then proceeded against Brewer and Ramos. The jury acquitted Ramos.
Brewer appeals and contends that: 1) the trial court erred by permitting the prosecution gang expert witness to recite prejudicial testimonial hearsay evidence in violation of the Sixth Amendment and Sanchez; 2) insufficient evidence supports his conviction of count 2, felony dissuading a witness; and, 3) the gang-affiliation questions posed to him during the booking process are inadmissible and prejudicial pursuant to People v. Elizalde (2015) 61 Cal.4th 523, 527 (Elizalde).
DISCUSSION
I.
Brewer argues that the trial court erred by permitting gang expert Parker to recite testimonial hearsay evidence in violation of the Sixth Amendment and Sanchez. He points to the hearsay evidence of the predicate crimes, his jail booking admissions, information contained in field identification cards, statements in probation reports, and his brother's statement to police officers. Specifically, Brewer relies upon Parker's testimony that he (Brewer) introduced himself as "Boogie from Guada" to cellmate Nevarez, and stated that he killed Diaz who was "a disgrace." Brewer also challenges Parker's hearsay testimony summarizing seven predicate crimes committed by Sureño gang members including murder, attempted murder, and robbery, among other crimes. In addition, Brewer contests Parker's hearsay testimony regarding the gang membership of Diaz and Ramos. Brewer argues that Sanchez compels reversal of not only the true street gang finding, but also the substantive crimes due to the prejudicial nature of gang evidence.
Brewer asserts that although he did not object to Parker's testimony on Sixth Amendment grounds, an objection would have been futile. (People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442, on other grounds, but Court of Appeal opinion ordered to remain precedential (Cal. Rules of Court, rule 8.1115(e)(3)) [prior to Sanchez, an objection to gang expert testimony on confrontation grounds would have been futile].) For purposes of argument, we consider Brewer's contentions on their merits.
In Sanchez, supra, 63 Cal.4th 665, 686, our Supreme Court held that a gang expert witness may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." Thus, an expert "is generally not permitted . . . to supply case-specific facts about which he has no personal knowledge." (Id. at p. 676.) The court defined "case-specific facts" as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.)
Sanchez also held that the trier of fact must necessarily consider the basis for expert testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the Sixth amendment right of confrontation. (Sanchez, supra, 63 Cal.4th 665, 684.) The admission into evidence of a testimonial hearsay statement by a declarant who is not available at trial violates the confrontation clause of the Sixth Amendment unless the criminal defendant had a prior opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. . . . If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, at p. 686, fn. omitted.)
For several reasons, we reject Brewer's contentions.
First, Brewer waived his hearsay claims to evidence of the predicate crimes and to evidence of Nevarez's statements by agreeing to this particular presentation through Parker's testimony. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 [distinguishing waiver from forfeiture].) "Ordinarily, criminal defendants may waive rights that exist for their own benefit." (Ibid.) The settled statement indicates that the parties agreed prior to trial to this method of presentation of predicate crimes evidence and informant testimony.
Second, the admission of certain testimonial hearsay evidence through Parker's testimony could not have contributed to the guilty verdict and is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Brewer admitted to cellmate Nevarez that he was a gang member and that he was in custody for Diaz's murder. Brewer also appeared in a video recording, played for the jury, asking "How's the G-life in Guada?" Parker testified that "G-life" means "gangster life." Brewer also sent a text message to "L'il Clowner" two days following Diaz's murder, stating, "Stay G." Brewer selected "BrewBooG13" as his email address. Parker testified that "Brew" indicated Brewer's name, "Boo" indicated his moniker, "Boogie," and G13 indicated his gang. Brewer's former girlfriend informed police officers that he admitted that he was deeply into his gang but spoke of leaving it. Brewer also admitted to Doctor Davis that he was in good standing with his gang. Finally, Parker opined that Brewer was a gang member based upon a review of police files and probation reports, among other evidence. (Sanchez, supra, 63 Cal.4th 665, 685 [expert witness "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].)
Recitation of case-specific hearsay evidence regarding the gang membership and gang crimes of Diaz and Ramos (who was acquitted) is also harmless beyond a reasonable doubt. Diaz displayed prominent facial gang tattoos - "Guada" on his cheek and "Sureño" on his forehead. Brewer also informed his cellmate that he was in custody for killing Diaz, who was "a disgrace" to the gang. The prosecutor presented Diaz's prior conviction prison records into evidence to establish that he was in protective custody while imprisoned. Perez and Ramos testified that Diaz was a gang member who was in trouble with his gang. Parker also testified to a predicate gang crime committed by Ramos.
II.
Brewer contends that insufficient evidence supports his conviction of felony dissuading a witness by threat or force. (People v. Young (2005) 34 Cal.4th 1149, 1210 ["The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying"].) He asserts that the evidence merely establishes his anger toward Cummings, or his suggestion that Tejeda should speak to Cummings if Tejeda "ever" saw her.
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Sanchez (2016) 63 Cal.4th 411, 453-454; People v. Johnson (2015) 60 Cal.4th 966, 988.) Our review is the same in a prosecution primarily resting upon circumstantial evidence. (Johnson, at p. 988; People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young, supra, 34 Cal.4th 1149, 1181 ["Resolution of conflicts and inconsistencies in the testimony [are] the exclusive province of the trier of fact"].) We must accept logical inferences that the jury might have drawn from the evidence even if we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.)
Section 136.1, subdivision (a)(1) punishes a person who "[k]nowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial . . . ." Section 136.1, subdivision (c)(1) punishes the crime as a felony if the act "is accompanied by force or by an express or implied threat of force or violence, upon a witness . . . ." There is no talismanic requirement that a defendant utter the words "Don't testify" to commit the offense. (People v. Thomas (1978) 83 Cal.App.3d 511, 514.) The crime is committed upon proof that a defendant's words or actions support the inference that he sought to prevent or dissuade, by an express or implied threat of force or violence, a potential witness from attending trial. (Ibid.)
Sufficient evidence and reasonable inferences therefrom establish that Brewer attempted to dissuade Cummings's testimony by an implied threat of force or violence, within section 136.1, subdivisions (a) and (c). During the jail conversation, Brewer acknowledged that Cummings had spoken with police officers ("ratting on [him] right now") and would testify against him at trial. Brewer knew that he had made damaging statements to Cummings that would implicate him in the murder of Diaz, weaken his theory of self-defense, and support his involvement in a criminal street gang. Tejeda was an admitted member of the Northwest criminal street gang and displayed gang tattoos. The prosecutor played a recording of the jail conversation at trial, and the jury heard the nuances and inflections of Brewer's voice. The jury was free to interpret the words spoken in view of the surrounding circumstances and draw reasonable inferences therefrom. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341, superseded by statute on other grounds as noted in People v. Franz (2001) 88 Cal.App.4h 1426, 1442.) We do not substitute our views for those of the trier of fact. (People v. Albillar, supra, 51 Cal.4th 47, 60.)
III.
Brewer argues that his answers to the gang-affiliation questions posed to him during past and present police booking procedures are inadmissible pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 478-479 (Miranda) and Elizalde, supra, 61 Cal.4th 523, 527. He claims the error contributed to the guilty verdict because the booking evidence is "compelling" compared to the "disconnected scraps" of other evidence regarding his gang affiliation. (Chapman v. California, supra, 386 U.S. 18, 24 [standard of review].)
Elizalde considered whether a defendant's answers to routine booking questions regarding gang affiliation are admissible in the prosecutor's case-in-chief. "Here we consider whether routine questions about gang affiliation, posed to defendant while processing him into jail on murder charges, come within Miranda's well-recognized booking exception. We hold that the questions exceeded the scope of the exception and that officers should have known these questions were reasonably likely to elicit an incriminating response because of California's criminal gang statutes and defendant's pending charges. While officers were permitted to ask these questions for institutional security purposes, defendant's un-Mirandized responses were inadmissible against him during the case-in-chief." (Elizalde, supra, 61 Cal.4th 523, 527.)
The erroneous admission of a defendant's booking statements obtained in violation of the Fifth Amendment is reviewed for prejudice pursuant to the reasonable doubt standard of Chapman v. California, supra, 386 U.S. 18, 24. The test requires the prosecutor to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. (Elizalde, supra, 61 Cal.4th 523, 542.)
Elizalde concluded that the application of Miranda to admissions of gang membership made in response to routine booking questions depends in part on the crimes for which the defendant was arrested. (Elizalde, supra, 61 Cal.4th 523, 534 [in California, gang membership often has penal consequences].) The record here does not contain complete information regarding Brewer's earlier arrests and bookings during which he admitted gang association or membership. For purposes of argument, we will assume that the booking officers could reasonably have expected to elicit responses that could have been used against Brewer in criminal proceedings. (Id. at p. 527.)
Any error here is harmless, however, because Brewer's criminal street gang membership was established beyond a reasonable doubt by other independent evidence. This evidence includes Brewer's statements to his cellmate, his statements to his former girlfriend, his email address, and his statements in a video recording. Moreover, Parker opined in general terms that Brewer was a street gang member. (Sanchez, supra, 63 Cal.4th 665, 685; Elizalde, supra, 61 Cal.4th 523, 542 [police officer expert witness opined that defendant was a gang member].) This evidence establishes that the jury would have reached the same conclusions absent evidence of Brewer's responses to custodial booking questions and that the error did not contribute to the verdict. (Elizalde, at p. 542 [application of Chapman harmless error test].)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Rick Brown, Judge
Superior Court County of Santa Barbara
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Timothy M. Weiner, David E. Madeo, Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.