Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA080714, Arthur M. Lew, Judge.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Randy Madriles was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187. The jury found true the allegations that appellant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d) and the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b). The trial court sentenced appellant to 25 years to life in state prison for the murder plus an enhancement term of 25 years to life in prison for the firearm use. This was appellant's second trial in this matter. He was first tried with Brian Cabrera. Cabrera was convicted in that trial. Appellant's jury hung.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, raising numerous claims of error. We affirm the judgment of conviction.
Facts
The murder in this case took place in the 11600 block of Virginia Avenue in Lynwood. A number of Young Crowd gang members, including Brian Cabrera, lived in this block. Patrice Arriola also lived on this block with her mother Sharon Yeargain. Members of the Young Crowd gang liked to hang out at Patrice's house while her mother was at work.
In late May or early June 2005, appellant was trying to date Patrice. One day, he was alone with her and another gang member, Abel Jimenez ("Ghost"). Patrice understood a statement by Jimenez to be a romantic overture on behalf of appellant. She started laughing and said that she was not interested in appellant. Appellant replied: "Fuck you, then, bitch. Watch when I see you with another vato. I'm going to kill him and make sure you see it."
Patrice was familiar with murder victim Enrique Garcia. On June 6, 2005, Patrice saw Enrique go to the house of one of her neighbors, the Zarates family. He planned to spend the night there. Sometime that night, Enrique spoke with Patrice on her porch. Appellant arrived on a bicycle and asked Patrice where "Ghost" was. She replied that she did not know. Patrice told police that appellant rode off on his bicycle, then returned in a black sedan with Jimenez and two other men. Appellant then asked Enrique where he was from. Enrique answered: "I don't bang but I'm down for Lynwood." The men stated that they were members of the Young Crowd gang. At trial, Patrice testified that before appellant rode off on his bicycle, he asked Enrique where he was from. Appellant then rode off silently after Enrique responded.
Later, Enrique accompanied Patrice and her friend Tina to Shirley Nunley's residence, which was also in the 11600 block of Virginia. Patrice and Tina were going to spend the night at Nunley's house. Enrique and Patrice made several trips back to Patrice's house to retrieve forgotten items. As they walked back and forth, they passed appellant and a group of gang members standing by the black sedan which was now parked in front of Cabrera's house. The group gave them dirty looks. Patrice felt uncomfortable and as if the group were stalking them.
Once their trips were complete, Enrique and Patrice talked outside Nunley's house for about 15 minutes. Patrice could still see the Young Crowd gang members standing around the car in front of Cabrera's house. Patrice said good-bye to Enrique, went inside, and at some point went to sleep.
Later than night, Patrice's mother Sharon returned home. In the early hours of June 7, 2005, men in a dark-colored car asked Sharon: "Where is the homeboy in the blue shirt?" Sharon replied that she did not know what he was talking about. Someone in the car said: "There he is." They drove toward Shirley's house. Shortly thereafter, Sharon heard gunshots. Shirley also heard the gunshots. She went to the front window and saw a dark-colored car speed away.
Los Angeles County Sheriff's Deputy Rafael Cardenas responded to the 11600 block of Virginia about 1:30 a.m. He saw the body of a man in a blue shirt lying face down in a pool of blood in the street. The man was Garcia, who had died from six gunshot wounds. Sheriff's Deputy Martin Rodriguez recovered six .380 caliber casings from near and around the location of the body.
Deputy Cardenas spoke with Patrice, who identified the victim. Patrice told the deputy about Enrique's encounter with appellant near her porch and the dirty looks Enrique received while walking with her. Patrice also told the deputy about her romantic rejection of appellant.
Detective Rodriguez interviewed Patrice later. She told him that on June 4, appellant, Madriles, a gang member named Bogo and "Ghost" were standing in front of her house and that all but appellant had guns. She gave the detective an account of the events of June 6 which was very similar to the one she had given Deputy Cardenas. She soon started receiving threats about her cooperation, however.
About 5:00 a.m. on August 18, 2005, Adriana Murillo was arrested at her residence for Enrique's murder. The arrest was prompted by witness statements identifying the car used in the shooting as resembling Murillo's car and by her association with Cabrera. She was interviewed by Detective Rodriguez and Deputy Labbe at the police station. Ultimately, Adriana told Detective Rodriguez that on the day of Enrique's murder, but before the murder occurred, appellant asked her to help him get a firearm and a stolen vehicle. He called her later that day and told her that he had obtained a gun. After the shooting, he called her and apologized for using a car which resembled hers. He told her that Garcia had disrespected him and that he had to do what he did. After the interview, Murillo was released from custody and never charged.
A social worker from the Department of Children and Family Services arrived with or shortly after the arresting officers and took temporary custody of Adriana's son.
At trial, Murillo claimed not to recall most of the statements she made during the interview with the detectives. She claimed that she was high on methamphetamine. She did claim to remember threats and abuse from Detective Rodriguez.
Los Angeles County Sheriff's Deputy Robert Bayes testified as a gang expert at trial. Based on his knowledge and experience, Deputy Bayes opined that appellant was a member of the Young Crowd gang, the primary activities of the Young Crowd gang included murder and assault, and gang members had been convicted of those crimes. He also opined, in response to a hypothetical about a crime involving the facts of this case, that the crime was committed for the benefit of the Young Crowd gang.
Appellant did not testify or call any witnesses in his defense.
Discussion
1. Sufficiency of the evidence – gang enhancement
Appellant contends that there is insufficient evidence to support the jury's true finding that the murder was committed to benefit a criminal street gang within the meaning of section 186.22, because there is insufficient evidence to show that one of the Young Crowd gang's primary activities is specified criminal activities required by section 186.22, subdivision (f). He further contends that such a conviction denied him due process of law.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
"[S]ubdivision (f) of section 186.22 defines the term 'criminal street gang' as 'any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more' criminal acts enumerated in subdivision (e) of the statute, and which has 'a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.'" (People v. Gardeley (1996) 14 Cal.4th 605, 616, fn. and italics omitted.)
Evidence of both "past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activity." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)
"Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on 'his personal investigations of hundreds of crimes committed by gang members,' together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)" (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, Deputy Bayes had extensive training and experience with gangs. He had been working in the Lynwood area for 10 years. He had spoken with numerous Lynwood Young Crowd gang members and arrested them. He had learned their history, their territory's boundaries and their rivals. Based on his knowledge and experience, Deputy Bayes opined that the primary activities of the Young Crowd gang were narcotic sales, vehicle thefts, robberies, burglaries, graffiti, assault with a firearm and murder. Bayes identified Abel Jimenez, the defendant in a 2005 murder case, and Manuel Coleman, the defendant in a 2005 assault with a deadly weapon case, as gang members. This is very similar to the evidence offered in Gardeley, supra, and is sufficient to show that the primary activities of the Young Crowd were the criminal activities specified in section 186.22.
The prosecution offered certified records of the men's convictions for those crimes.
We do not agree with appellant that Deputy Bayes's opinion about the gang's primary activities was inadequate or unsupported. To the extent that appellant contends that the opinion in In re Alexander L. (2007) 149 Cal.App.4th 605 requires more details about the gang's crimes, he is mistaken.
The expert in Alexander L. stated only that he knew that gang members had "committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations." The Court of Appeal found that an adequate factual foundation was not presented for the expert's opinion because it was impossible to tell the source of his claimed knowledge of the gang activities. (Id. at p. 611.) That is not the case here.
We find Detective Bayes's testimony to be substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt of the gang allegation. Accordingly, we see no error under the California or federal Constitution.
2. Appellant's earlier possession of a firearm
Appellant contends that the trial court abused its discretion under Evidence Code sections 352 and 1101 by admitting evidence that he had displayed a gun to other Young Crowd gang members two weeks before Garcia's murder. He contends that the evidence denied him due process and a fair trial. We see no abuse of discretion.
Here, appellant moved in limine to exclude the gun because it was prejudicial, irrelevant and was character evidence. The prosecution was not proceeding on the theory that a particular gun had been used. The prosecution contended that appellant's possession and display of a gun was relevant to the gang allegation and to show that appellant had access to guns. The court agreed that the gun display was relevant to show that appellant was "still associated with a gang, and not afraid to use lethal force."
Evidence Code section 1101, subdivision (a), states the general rule that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Nothing in section 1101 "prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . ." (Evid. Code, § 1101, subd. (b).)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A trial court's exercise of discretion in admitting or excluding evidence will not be disturbed on appeal unless the court exercised its discretion in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) The fact that another court might have ruled differently "reveals nothing more than that a reasonable difference of opinion was possible. Certainly, it does not establish that the court here 'exceed[ed] the bounds of reason.' [Citation.]" (People v. Clair (1992) 2 Cal.4th 629, 655.)
It is well-established that the rule against character evidence does not bar the admission of evidence that the defendant possessed a gun that could have been used to commit the charged crime. As our Supreme Court has explained: "'When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]'" (People v. Cox (2003) 30 Cal.4th 916, 956, quoting People v. Riser (1956) 47 Cal.2d 566, 577.)
Here, there was no evidence as to the type of gun displayed by appellant before the murder. Thus, it could have been the weapon used in the murder. Further, the prosecution did not rely on any particular type of gun being used in the murder. Thus, the gun evidence was admissible under the reasoning of Cox.
To the extent that appellant contends that People v. Henderson (1976) 58 Cal.App.3d 349 compels a different result, he is mistaken. In Henderson, the defendant was arrested in his home holding a gun which was determined to be the gun used in the charged crimes. The Court of Appeal found error in the admission of evidence that a second gun was found in another part of the defendant's home. (Id. at pp. 353, 360.) Here, the gun displayed by appellant was never ruled out as the murder weapon.
Further, even when a gun is shown not to be the actual murder weapon, evidence of possession of the gun may still be admissible if it is otherwise relevant. (People v. Cox, supra, 30 Cal.4th at p. 956.) Here, appellant's display of the gun in front of and with other Young Crowd gang members was relevant to show that he was still an active member of that gang, and to show the criminal nature of the gang. It also showed that he had access to guns.
Appellant contends that his gang membership and access to guns was not reasonably subject to dispute. The prosecution was required to prove every element of the offense and enhancement. Further, at the time of the pretrial motion in limine, there was no way for the prosecution to know with certainty what appellant would or would not dispute during trial. Appellant certainly did not represent to the court at the hearing on his motion in limine that he would not dispute his gang membership, the criminal nature of his gang or his access to guns.
Appellant contends that even if the gun evidence had some probative value, that value was minimal and far outweighed by the undue prejudice of the evidence, and so its admission was an abuse of discretion under Evidence Code section 352. We do not agree.
"The prejudice which section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Branch (2001) 91 Cal.App.4th 274, 286, internal quotation marks omitted.) Rather, undue prejudice refers to evidence "which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." (Ibid.) The facts that appellant had access to firearms and associated with (armed) gang members was relevant. As such, it may have damaged his defense. It did not simply evoke an emotional bias against appellant as an individual.
Since we see nothing improper in the admission of the gun evidence, we see no violation of appellant's rights to due process or a fair trial.
3. Deputy Bayes's opinion testimony
Appellant contends that the prosecutor's hypothetical question about a gang benefitting from murder was too specific and that Deputy Bayes's response to the question constituted an improper opinion on ultimate fact issues. He further contends that this testimony denied him due process, a fair trial and a right to a jury determination of all the issues. Appellant did not object and so has forfeited this claim on appeal. (People v. Saunders (1993) 5 Cal.4th 580, 590; Evid. Code, § 353.) Appellant contends that if his claim is forfeited, he received ineffective assistance of counsel. We do not agree.
We cannot agree with appellant that an objection would have been futile. Almost immediately before Detective Bayes's testimony, the trial court on its own initiative expressed concern that the detective would opine that appellant was the shooter. This indicates receptiveness to an objection. Even assuming, as appellant contends that he had no chance to object until after the response was made, he could still have objected, moved to strike and requested an admonition. He did not do so. Finally, we do not agree with appellant that the error he described was "gradually injected into trial, rendering earlier specific or serial objections futile." We see nothing gradual about the hypothetical or Bayes's answer thereto.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]"'" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
The prosecutor asked Deputy Bayes a hypothetical question that involved assuming that "this defendant Randy Madriles" committed various acts, including shooting Garcia. As appellant points out, the hypothetical was long and detailed. The details were supported by evidence already offered in the case, however. Bayes began to answer, but the trial court interrupted. At a sidebar and then out of the presence of the jury, the court expressed concern that Bayes might "blurt something out like in his opinion [appellant] killed him. Which I won't allow. The only opinion I'm going to allow, of course, is whether the crime was committed for the benefit [of the gang]." The court admonished Bayes to give an opinion only as to whether the crime was committed for the benefit of a criminal street gang.
The prosecutor assisted in narrowing Bayes's answer by narrowing her question. She said: "The facts that I gave you, assuming that those are accurate, would you have an opinion whether or not the shooting of Enrique Garcia would be in association with the Young Crowd criminal street gang – and/or provide a benefit to the Young Crowd criminal street gang." Bayes replied: "I believe it would provide a benefit to the Young Crowd street gang."
The prosecutor followed up by asking: "And why is that?" Bayes then gave the following reply, which is the basis of appellant's claim of error: "We have defendant Madriles confronting the victim, asking him where he is from, also saying that I'm from Young Crowd, he's letting the victim know that you're in my area, you're in that gang's area, and I don't know who you are. [¶] Him being hit on – or he tried to hit on Patrice and was disrespected by her, and that – now, him being angry, he's going to learn in front of his other homeboys – he's going to want to gather his respect back. So he needs to somehow get that respect back in their eyes. So by him going out and watching the victim walk up and down the street, and then going on and confronting the victim and shooting the victim, then his name will now be out there as he will put in work and shoot people for the gang and his name – will give him more stature in the gang itself, that he's going to go out there and he'll do whatever the gang needs to elevate their stature and also get his respect back in the gang culture."
Appellant acknowledges that "[t]he court's fears the expert would actually state appellant was responsible were not realized." He contends, however, that "the effect of this colloquy validating the prosecution's theory of appellant's personal motive is the same as if he had" testified that appellant was responsible. We do not agree.
We do agree with appellant that the hypothetical question and Bayes's response, both of which referred to appellant rather than to a hypothetical gang member, were improperly phrased. They both should have referred simply to a gang member. However, even assuming for the sake of argument that trial counsel's failure to object was deficient performance, we see no reasonable probability that appellant would have received a more favorable outcome.
We note that our Supreme Court has repeatedly pointed out that "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 443.)
At most, the prosecutor's question was just that, a question. The jury was instructed that statements and questions by an attorney are not evidence and questions should be considered only as it helps understand the answer. The jury was also instructed that they should not assume to be true any insinuation suggested by a question. We presume they followed that instruction. (See People v. Ledesma (2006) 39 Cal.4th 641, 684.)
As to Bayes's response to the question, we do not agree with appellant that the testimony was the equivalent of testifying that appellant was responsible. Motive is not an ultimate fact or issue in a crime. (People v. Lewis (2001) 26 Cal.4th 334, 370.) It is an intermediate fact which, together with other facts, may support an inference of intent. (Ibid.) Many people have motives for murdering another; few act on their motives.
Bayes's testimony essentially explained how a romantic rejection could provide a gang motive for a confrontation and killing. The answer assumed such a romantic rejection from the hypothetical. It is well-established that expert testimony is admissible to show "the motivation for a particular crime." (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658.) Thus, had the testimony referred to a non-specific gang member, it would have been entirely proper. Under the unusual facts of this case, however, we have no doubt that the jury would have understood such a generic reference as referring to appellant. Thus, little would have been gained in this case by "sanitizing" Bayes's testimony.
Appellant makes other claims of error regarding the testimony. We see no merit to those claims, and thus no ineffective assistance by trial counsel in failing to object on those grounds. Counsel is not required to make futile objections. (People v. Price (1991) 1 Cal.4th 324, 386-387.)
Appellant contends that the testimony violated Penal Code section 29. That section provides in pertinent part that "any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged." We see no application of section 29 to this case. Further, as we explain, supra, motive is at most an intermediate fact from which intent can be inferred. It is not the equivalent of intent.
Appellant contends that Bayes lacked foundation or qualifications to give testimony "this categorical on appellant's personal motive here." His citations suggest that appellant believes that only a psychiatrist or psychologist could testify about motive. (People v. Williams (1989) 48 Cal.3d 1112, 1136 [police officer should not have been allowed to testify to emotional make-up of rape victims; psychiatric training was needed for such testimony].) As we discuss, supra, the motivation for a crime is a proper topic for a gang expert's testimony. (People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-658.)
Appellant further contends that the testimony was not helpful or necessary for the jury to understand questions of motive they could resolve themselves. We do not agree that a jury would understand that a romantic rejection would be viewed as a sign of disrespect in gang culture, or what the implications of disrespect are within that culture. Thus, expert testimony was proper.
Appellant also contends that the evidence amounted to improper profile evidence. He contends that Bayes's testimony "predicted" that Madriles would shoot Garcia because of Patrice's rejection. We see nothing predictive about Bayes's testimony. We understand it as explaining how Madriles's shooting of Garcia would have benefitted the Young Crowd gang. There is nothing improper in that.
4. Co-defendant Cabrera's prior murder conviction
Appellant contends that Bayes's testimony that Cabrera had been convicted of an unspecified murder was incurably prejudicial and should have resulted in a mistrial. He further contends that the evidence denied him due process and a fair trial. We do not agree.
During her examination of Bayes, the prosecutor asked: "And what's your opinion based on that [Cabrera] is a member of the Young Crowd street gang?" Bayes replied: "He self-admitted to me, and also he was arrested and charged for murder and convicted." The prosecutor asked Bayes a question about Abel Jimenez's gang membership. Appellant's trial counsel then requested a sidebar, and complained: "This witness just commented on the fact – just testified to the fact that Brian Cabrera was convicted of murder." The court agreed, but pointed out that "he didn't say he was convicted in this case." Appellant's counsel agreed. The court suggested that the prosecutor just ask Bayes leading questions, so that he would not "blurt something out and cause a mistrial." The prosecutor agreed.
A prosecutor's failure to warn a witness to refrain from giving inadmissible evidence in his answers can constitute misconduct. (People v. Warren (1988) 45 Cal.3d 471, 481.) Appellant contends that the prosecutor's failure to warn Bayes to refrain from mentioning Cabrera's conviction was such misconduct. Appellant's failure to raise this claim in the trial court has forfeited it. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Indeed, appellant's failure to raise the claim doomed it even in the absence of the forfeiture doctrine. There is nothing in the record to show whether the prosecutor warned Bayes or not. Her question to Bayes did not ask about Cabrera's murder conviction and could not reasonably have been expected to elicit a reference to that conviction. Thus, appellant has failed to show prosecutorial misconduct.
Even without prosecutorial misconduct, a witness's volunteering of inadmissible evidence can constitute incurable prejudice. (People v. Williams (1997) 16 Cal.4th 153, 211.) Appellant contends that Bayes's reference to Cabrera caused such prejudice. We do not agree.
As the prosecutor noted, Bayes did not testify that Cabrera was convicted of Garcia's murder. He did not offer any details of the murder conviction at all. There was no basis for the jury to believe that the conviction was for Garcia's murder.
Appellant points out that there was evidence that Cabrera was investigated for Garcia's murder. He contends that this evidence may have caused the jury to believe that Cabrera's conviction was for Garcia's murder. The trial court instructed the jury that "There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which the defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial." The jury is presumed to have followed the court's instruction. (See People v. Ledesma, supra, 39 Cal.4th at p. 684.)
The California Supreme Court has found that prejudice is curable even when the jury learns an earlier jury convicted the defendant himself of the same crime for which he is on trial. The Court stated: "The jury was given the standard instruction, 'You must decide all questions of fact in this case from the evidence received in this trial and not from any other source.' We presume the jury followed that instruction. There is no reason to believe that the jurors, who observed each of these witnesses, felt compelled to ignore the court's instruction and defer to the judgment of a different jury that resulted from a different trial." (People v. Ledesma, supra, 39 Cal.4th at p. 684, fn. omitted.) The jury in this case was given the same instruction.
Further, the reference to the murder conviction was given to support Bayes's assertion that Cabrera was a gang member. The court limited the jury's use of gang evidence with CALJIC No. 17.24.3: "Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members, other than the crime for which defendant is on trial. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [¶] . . . [¶] You are not permitted to consider such evidence for any other purpose."
Given the vague nature of the reference to Cabrera's prior murder conviction, we see little if any prejudice to appellant. Any such prejudice was cured by the limiting instructions given by the trial court. Appellant was not denied due process or a fair trial.
5. Cumulative error
Appellant contends that the cumulative effect of the improper opinions and references from the gang expert rendered the trial grossly unfair and denied him due process and require reversal even in the absence of objections.
Although we have found minor impropriety in the hypothetical question and the mention of Cabrera's conviction, we have found little prejudice to appellant, and that prejudice was cured by the instructions in the case. The two improprieties together could not have possibly caused gross unfairness in appellant's trial.
6. Murillo's statements to police
Appellant contends that witness Adriana Murillo's statement was involuntary and unreliable, and so violated his right to due process, and that his trial counsel was ineffective in failing to object to the admission of this statement. We do not agree.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope, supra, 23 Cal.3d at p. 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694; People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citations.]" (People v. Thomas, supra, 2 Cal.4th at pp. 530-531, internal quotation marks omitted.)
A defendant's due process rights are violated by the admission of a third-party witness's statement if the statement is coerced and its admission will deprive him of a fair trial. (People v. Badgett (1995) 10 Cal.4th 330, 344.) On appeal, an appellant must demonstrate that the statement admitted at trial was inherently unreliable at the time it was given; an involuntary statement is unreliable. (Id. at p. 347; People v. Lee (2002) 95 Cal.App.4th 772, 786-787.) This is so because "the primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings." (People v. Badgett, supra, 10 Cal.4th at p. 347.) The burden of proving involuntariness of a third party statement is on the defendant. (Ibid.)
"A statement is involuntary when among other circumstances, it was extracted by any sort of threats . . ., [or] obtained by any direct or implied promises, however slight. . . . Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the totality of [the] circumstances. Coercive police activity is a necessary predicate but does not itself compel a finding that a resulting confession is involuntary." (People v. Jablonski (2006) 37 Cal.4th 774, 813-814, internal citations and quotation marks omitted.) "Additionally, 'such activity must be, as it were, the "proximate cause" of the statement in question, and not merely a cause in fact.' [Citations.]" (Id. at p. 814.)
Here, appellant's claim fails because his counsel could have made a reasonable tactical decision to allow Murillo's statement into as evidence to support his broader attack on Detective Rodriguez's investigation. Appellant advanced a "rush-to-judgment" defense at trial.
Appellant's counsel asked why Detective Rodriguez did not put the early part of his discussion with Murillo on the record if it was "on the up and up." He then argued that Detective Rodriguez had "gotten to where he's gotten, by intimidating people. [¶] Not looking at the evidence. Not trying to solve a case. Him. He's trying to make a case against someone instead of getting out there solving them." Counsel mentioned that it took a year before Phil Spector or Robert Blake were arrested because police were investigating. He added "Here this officer here, he did absolutely nothing to investigate." He pointed out that there was no evidence placing Murillo at the scene at the time Enrique was shot, but that Detective Rodriguez arrested her anyway. He said: "[T]he people in our community are entitled to have competent police officers, competent detectives. This detective was not competent."
Appellant's trial counsel also argued that since Detective Rodriguez "was just concerned about making a case," he failed to pursue other suspects, including other members of the Young Crowd gang and members of the Rolling 60's gang. Counsel also argued that similarities between Patrice's statement and Murillo's statement suggested that Detective Rodriguez might have used the same tactics against Patrice that he used against Murillo. He said: "The Central Park rapist. Remember those four young men who confessed? They had all the details. . . . They weren't involved in it. . . . Where do you think they got those details? They got them from the police. Because the only thing the police is concerned about is solving the case."
Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 386-387.) Here, counsel could have determined that an objection or motion to exclude would have been futile. We would find such a determination reasonable, since we see no reasonable probability that the trial court would have accepted Murillo's account of the interview as true. Thus, we would also find that there is no reasonable probability that appellant would have received a more favorable outcome if his counsel had objected.
A tape recording of Detective Rodriguez's interview of Murillo was introduced at trial, but did not contain the first 15 to 20 minutes of the conversation between Murillo and the detective. Murillo's own testimony was the only evidence to support a claim of coercion. Rodriguez denied any coercion. Thus, any ruling on an objection to Murillo's statement would involve a credibility determination.
Murillo claimed that Detective Rodriguez told her that if she did not cooperate with police, she would spend the rest of her life in a cell. He called her a "ho" and a "piece of shit mom" and told her that he would "ruin [her] life" and make sure that she never saw her son again. Murillo also claimed that she had been using methamphetamine for three days before the interview.
Murillo's testimony at trial was not credible. She claimed that she did not remember any of her statements to detectives about the murder, yet she had no trouble recalling the detective's supposed threats to her. Thus, we see no reason to believe that the trial court would have found a claim of coercion credible.
Murillo claimed not to remember the events of the night of the murder, and so took no position as to the truth or falsity of her statements to detectives.
If this issue were not waived by appellant's counsel's failure to object, and we were reviewing the voluntariness of Murillo's statement, we would apply an independent standard of review, in light of the record in its entirety. But we would accept the trial court's factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. (People v. Jablonski, supra, 37 Cal.4th at p. 814.) We would not find Murillo to be credible.
To the extent that appellant contends that Detective Rodriguez's testimony alone shows coercion because he threatened her, we do not agree.
The detective testified that he told Murillo that she could go to prison for a long, long time and that her son would be looking at her through glass. He also told her that there was a possibility that her son would be taken away from her. The detective's statements are factual statements about the consequences of a murder conviction. Appellant has not cited, and we are not aware of, any cases finding the recitation of the punishment for a crime to be a threat.
Appellant also contends that showing her a brand new photograph of her son was coercive. We do not agree.
When Murillo was arrested, a social worker with the Los Angeles County Department of Children and Family Services took her son to the police station pending a routine criminal background check of the other family members in Murillo's house. Detective Rodriguez took the photograph of Murillo's son while he was at the police station with the social worker. He claimed that he took the photograph to reassure her about the child's welfare. When he showed her the photo, he told her that her son was in another room at the police station. There is certainly nothing improper about reassuring Murillo. Detective Rodriguez's act may also have been a reminder to Murillo of what she could lose and an appeal to her emotions, but even so in context it was neither a threat nor a promise.
Appellant further contends that Detective Rodriguez abused Murillo by calling her names and questioning her mothering skills. The detective acknowledged that he called Murillo a "tweaker," that is, a methamphetamine user. It was not disputed that Murillo was a methamphetamine user. The detective also acknowledged that he questioned her mothering skills in driving around under the influence with her son in the car, and going with him into an area of gang rivalries. Appellant has not cited, and we are not aware of, any cases finding accurate criticism of a suspect to be coercive.
Finally, appellant contends that she was intoxicated at the time of the interview. The social worker in charge of Murillo's son testified that Murillo did not appear to be under the influence when she was arrested. Further, evidence of intoxication is not sufficient to show that a suspect's statement was coerced or involuntary. (People v. Weaver (2001) 26 Cal.4th 876, 921.)
Since we see no reasonable probability that an objection to Murillo's interview statements would have been successful, and ourselves would find those statements to be voluntary, appellant's claim of ineffective assistance of trial counsel fails.
7. CALJIC No. 2.11.5
Appellant contends that the trial court erred in instructing the jury with CALJIC No. 2.11.5 because it chilled jurors' consideration of Murillo's bias as a potential accomplice. He further contends that this error violated his federal constitutional rights to due process, a fair trial, and confrontation. We see no error under state or federal law.
Respondent claims that appellant has waived this claim by failing to object in the trial court and request clarifying or modifying language. Section 1259 permits review of an instruction given by the trial court even though it was not objected to, if the substantial rights of the defendant were affected thereby. "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim -- at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Hence, we review the claim.
The trial court used the 2004 version of CALJIC No. 2.11.5, which provides: "There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial." (Emphasis added.)
Appellant premises his claim of error on People v. Hernandez (2003) 30 Cal.4th 835, a case considering a pre-2004 version of CALJIC No. 2.11.5. While the 2004 versions tells the jury not to "speculate or guess," the earlier instruction told the jury: "do not discuss or give any consideration as to why the other person is not being prosecuted." The problem with this language arises when a nonprosecuted participant testifies at trial. Then, the language in the earlier version might cause a jury to feel that it could not give consideration to admitted evidence that, for example, the witness had been granted immunity in exchange for testimony, since the grant of immunity was the reason the witness was not being prosecuted. A grant of immunity would be highly probative of witness bias and therefore is appropriate for a jury to consider. (People v. Fonseca (2003) 105 Cal.App.4th 543, 549.)
The 2004 version of CALJIC No. 2.11.5 does not prohibit discussion or consideration, only speculating or guessing. We see no potential problems with this language. Jurors should not speculate or guess on any topic.
Further, there is no error in using even the pre-2004 version of CALJIC No. 2.11.5 as long as the court also instructs the jury with CALJIC Nos. 2.20 and 1.01. (People v. Crew (2003) 31 Cal.4th 822, 845.) CALJIC No. 2.20 instructs the jury that it can consider any evidence of witness credibility, including the existence of a bias, interest, or other motive. CALJIC No. 1.01 tells the jury to consider the instructions as a whole. Both instructions were given in this case.
Since the 2004 version of CALJIC No. 2.11.5 does not preclude the jury from considering evidence of bias on the part of a nonprosecuted participant who testifies at trial, we see no violation of appellant's rights to due process, a fair trial, or confrontation.
8. Prior statements by Arriola and Murillo
For purposes of exhaustion of state remedies, appellant contends that the admission of prior inconsistent statements by Arriola and Murillo violated his federal constitutional rights to due process, a fair trial and confrontation of the witnesses against him. He specifically contends that the witnesses' lack of recollection precluded meaningful cross-examination.
As appellant acknowledges, the United States Supreme Court has stated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9.) The Supreme Court has also rejected the claim that a witness does not truly appear for cross-examination when the witness denies any memory of the prior statement. (U.S. v. Owens (1988) 484 U.S. 554, 559-560.)
As appellant also acknowledges, our colleagues in Division Four of this District Court of Appeal have reached the same conclusion as the Supreme Court in Owens. (People v. Perez (2000) 82 Cal.App.4th 760, 765-766; see People v. Martinez (2005) 125 Cal.App.4th 1035, 1050.) We agree with the reasoning of those federal and state cases and reject appellant's claims of error.
9. Cumulative error
Appellant contends that the cumulative effect of the errors at trial deprived him of due process and a fair trial. We do not agree.
The errors in this case were minor, and remain minor when accumulated. Appellant received a fair trial.
Disposition
The judgment is affirmed.
I concur: KRIEGLER, J.
MOSK, J., Concurring
I concur.
The claims of ineffective assistance of counsel are more appropriately dealt with on habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 265-266.) The reference to Madriles’s murder conviction is problematic. Whether there was prejudicial ineffective counsel in connection with any forfeitures in this regard can better be addressed on habeas corpus.