Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. VA078382 Dewey L. Falcone, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmond G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
George Carrillo appeals his conviction of first-degree murder. On appeal, Carrillo asserts that the trial court erred in preventing him from cross-examining a police detective about the victim’s fears of a rival gang. Appellant specifically claims his counsel was incompetent in failing to assert an argument based on Evidence Code section 356 to justify this cross-examination. Finally, appellant argues the excluded statements would have supported a third-party culpability defense. As set forth below, the section 356 objection would have been properly denied, and thus his counsel was not ineffective for failing to assert it. Additionally, the excluded statements fail to support a third-party culpability defense, so any error in excluding the statements would have been harmless. Accordingly, we affirm.
All statutory references are to the Evidence Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Appellant George Carrillo, nicknamed “Turtle,” was a member of the Marijuana Locos, a Hispanic gang in South Gate. The victim, Andy Bravo, nicknamed “Gato,” was also a member of the same gang. Bravo and appellant were friends.
On August 30, 2003, Bravo came to the South Gate Police Department to speak to Robert Tait, a detective in the gang unit with whom he had a long-standing relationship. Detective Tait met Bravo in the lobby of the station which is visible from the street outside. Detective Tait and his partner, Detective Anthony Mendez, then took Bravo to a private interview room in the back of the station. There, Bravo provided details about crimes in which appellant had recently been involved. Bravo also stated he was trying to quit the Marijuana Locos gang and “turn himself around.” He noted he was afraid of appellant.
During the interview, Bravo received a call on his cell phone that notably changed his demeanor. According to the detectives, he appeared nervous: his eyes “got real big,” and he “turned white.” Bravo told the caller he was in the lobby of the police station trying to get his car out of impound. Then, Bravo immediately left the station and walked to the passenger side of a white pickup truck parked in front of the station. Bravo spoke to the passenger for a few minutes and then went back to the lobby of the station to finish the interview. He appeared even more scared and nervous than before.
The following evening, Bravo returned to the police station to speak with Detective Tait. Bravo told Tait that appellant might be aware that Bravo had previously spoken to the police. Bravo also said he “felt funny” being around appellant following the call he had received during his last interview at the police station. After this discussion, Bravo drove Detectives Tait and Mendez by the houses of various Marijuana Locos gang members, including appellant’s house. Bravo also pointed out the home of Mario Luna, a member of the Aztlan gang (nicknamed “Yogi”) who was friends with Bravo and Bravo’s cousin, Anthony Rubio. Finally, Bravo directed detectives to a location where he had been attacked the night before by three members of the South Side Players, a rival gang.
On September 1, 2003, Bravo went to the home of his girlfriend, Wendy Michel, in a blue pickup truck. He told her he was going to his uncle’s house and then to Subway restaurant with appellant but would be back later in the evening. While at Subway, Bravo called Michel between 9:30 and 10:30 p.m., and Michel heard appellant laughing in the background. She recognized the laugh because she had met appellant before and had noted his laugh was “funny.” Security video from Subway also showed Bravo and appellant, at the restaurant around 10:15 p.m. Bravo briefly returned to Michel’s house around 10:30 p.m. There, Bravo told Michel that he was headed for his cousin’s house and proceeded to leave in a blue pickup truck with appellant and Mario Luna. Bravo called Michel again from his cell phone around 10:45 or 11 p.m. Michel called him back around 11 pm, and they spoke for about a minute. Bravo said appellant was bringing him back to her house. Again, Michel heard appellant laughing in the background. Around 11:20 p.m., Michel called Bravo, but the call went straight to voicemail. Michel kept calling, but got no response.
Around midnight appellant’s brother, William Mendoza, received a phone call from appellant, asking for a ride. Mendoza picked up appellant in front of a donut shop near appellant’s house and drove appellant to Mendoza’s home. Appellant spent the night there and then went to work the following morning with his brother.
On the morning of September 2, 2003, Carlos G. called the police upon discovering a dead body (later determined to be that of Bravo) lying in an alley in South Gate. Police found blood near the head of Bravo’s body but little by his feet. Investigating the alley, police discovered a blood-stained latex glove at the opposite end of the alley from the body. Police also found broken automotive safety glass on Bravo’s pants, along with a piece of latex on his sweatshirt. Bravo’s wallet and jewelry were still on his body, and his cell phone was found underneath his body. The police did not find any ballistics evidence.
The autopsy revealed that Bravo had been killed by three gunshot wounds to the left side of his head sometime between 11 p.m. and 1 a.m. the prior evening. The gun, believed to be most consistent with a .25 automatic, was shot at least two-and-a-half feet from Bravo since there was no stippling or soot around the entrance wounds. The medical examiner recovered all three bullets from the victim’s head. Because there was little blood by Bravo’s feet, the examiner believed the victim had not been shot while standing in the alley. Also, the examiner found abrasions on the back of Bravo’s head which were consistent with being hit with a rough surface such as glass or a rock. The examiner believed that Bravo’s body had been moved about one foot after the shooting, by pulling on his left arm.
The police investigation ensued. Officers spoke with both Anthony Rubio, Bravo’s cousin, as well as Mario Luna. Rubio told the police that he had been with Bravo at Luna’s home the night of the shooting. He also recalled that he, Bravo, Luna, and appellant went to East Los Angeles that evening to purchase marijuana. He was certain that appellant picked up Bravo that evening in a new, dark truck and that appellant was the last person he saw with Bravo as they left together in the truck. Luna likewise recalled Bravo leaving in a truck with appellant that same evening.
On September 3, 2003, prior to appellant’s arrest, police were conducting surveillance of appellant’s home and observed appellant and his wife leaving their apartment in a Honda Accord. The police stopped the car, took appellant into custody, and then searched the car. There, they found a single latex glove in the trunk. Detectives also searched appellant’s apartment. The police discovered a bag of latex gloves in the bathroom.
Police arrested appellant that afternoon. The police did not conduct a gunshot residue test as too much time had passed since the shooting. Appellant did eventually submit to DNA testing, and the police determined that appellant’s DNA and fingerprints were not on the glove found on the alley. However, the blood on the latex glove found in the alley matched Bravo’s DNA.
Police also questioned appellant’s brother, Mendoza, regarding the case. Mendoza confirmed that on August 30, 2003, he drove appellant to the South Gate police station in a white pickup truck to get appellant’s car out of impound. Mendoza went into the station and upon returning to the truck, Mendoza saw appellant talking to a person standing by the truck. He then saw this person return to the police station. Mendoza also confirmed that appellant had called him around midnight the following Monday asking for a ride. Mendoza said he had also received a call from appellant on Wednesday of the same week, in which appellant relayed that he was in jail for the murder of his best friend. Appellant then told Mendoza that he could not have done it because he had spent the entire day with Mendoza. During his first interview with police, Mendoza told detectives he had been with appellant that entire Monday, which was false. However, Mendoza, uncomfortable with this statement, contacted the detectives the following day to explain that he had in fact only been with appellant on Monday evening.
Ultimately, appellant was charged with one count of murder and one count of possession of a firearm by a felon.
The information also alleged a gang and firearm enhancement. It was stipulated at trial that appellant had a prior felony conviction, and the court struck the gang enhancement.
Around the time of the preliminary hearing in the case, graffiti was discovered near the homes of both Rubio and Luna which said “Fuck rats” and “Fuck Aztlan” with Aztlan crossed out. Additional graffiti on the sidewalk included the nicknames “Yogi” and “Lazy,” which were also crossed out. According to Detective Tait, this crossing out meant that “Yogi” and “Lazy” were marked for death because they were perceived as snitches. Both Rubio and Luna informed Detective Kenney about this graffiti. Since both were fearful for their lives, neither wanted to testify. However, both did testify at the preliminary hearing and at trial, but they proceeded to change their stories. Rubio denied his previous statements to the police that he had been with Bravo on the night of his death and that Bravo had left with appellant that evening. Rubio also denied that the graffiti had made him fearful for his safety. Luna denied seeing Bravo leave with appellant that evening, but he still acknowledged he had been with Bravo and Rubio at his home. Both said they were simply confused and upset at the time of the original questioning and thus had not told the truth before.
At trial, Detective Robert Kenney testified concerning his interviews with Anthony Rubio. He described Rubio’s statements in which Rubio stated Bravo had left with appellant on the night of September 1, 2003 -- statements which Rubio recanted at trial. On cross-examination, the defense questioned Kenney about Rubio’s statements concerning a run-in that Bravo had had with the South Side Players. The defense counsel stated, “He expressed to you some fears that his cousin had regarding South Side Players and also another gang.” The prosecution objected on hearsay grounds and the trial court sustained the objection.
The jury found appellant guilty and he now appeals.
DISCUSSION
Before this court, appellant contends the trial court improperly limited the cross-examination of Detective Kenney. Defense counsel asked Detective Kenney, “And [Rubio] expressed to you some fears that [Bravo] had regarding South Side Players and also another gang.” The prosecutor objected on hearsay grounds. The trial court sustained the objection, and defense counsel did not respond. On appeal, Carrillo first contends that the court’s ruling was erroneous under section 356.
Preliminarily we observe the court of appeal reviews evidentiary rulings for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.) Section 1200 subdivision (a) defines hearsay as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Unless an exception applies, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)
Here, the question defense counsel posed to Detective Kenney concerning Bravo’s fears sought a double hearsay response: (1) what Bravo (the victim) said to Rubio about the rival gang; and (2) what Rubio said to the detective relating the substance of Bravo’s statement. Neither below nor before this court has appellant suggested any exception to the hearsay rule that would have made this evidence admissible.
Instead, appellant contends section 356 would render such testimony by Detective Kenney admissible. Section 356 provides: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
Section 356’s purpose is “to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.) This section applies “only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced.” (People v. Samuels (2005) 36 Cal.4th 96, 130.) A court may exclude statements relating to other matters. (Ibid.)
Below the prosecution on direct examination elicited testimony from Detective Kenney that Anthony Rubio saw appellant giving Bravo a ride home on the evening of Bravo’s murder. Appellant argues that this testimony created a misleading impression that only the appellant could have murdered Bravo. Thus, appellant contends the defense should have been able to examine Detective Kenney further under section 356 regarding Rubio’s other statements to the police. Specifically, appellant believes the defense should have been able to elicit testimony regarding Bravo’s fear of the South Side gang to countervail this “misleading impression” created by the prosecution. Appellant further argues that this excluded testimony would be highly probative evidence of third-party culpability. Neither of these arguments has merit.
First, the statements regarding Bravo’s fears of a rival gang does not have any connection to the testimony elicited from the detective. As stated earlier, the prosecution questioned Detective Kenney regarding Rubio’s statements concerning what happened on the evening of Bravo’s death. Information about Bravo’s fears does not serve to put the rest of Rubio’s statements in context or serve to clarify them. Therefore, had the defense elicited such testimony under section 356, the trial court would not have erred in rejecting that argument. (See People v. Parrish (2007) 152 Cal.App.4th 263, 273-274, 276.)
Moreover, we do not agree with appellant that the admitted testimony created a misleading impression that only appellant could have murdered the victim. Indeed the court admitted other evidence that showed the victim may have harbored fears of a rival gang (i.e., evidence was presented that Bravo had recently been attacked by members of the South Side Players). In addition, the defense presented evidence that the South Side Players were gang rivals of the Marijuana Locos. Thus, any evidence of Bravo’s fear of the South Side Players would be cumulative of other evidence on the issue and thus would not likely change the outcome.
Concomitantly, we reject appellant’s claim that his trial counsel was ineffective because he failed to challenge the prosecution’s hearsay objection during the cross-examination of Detective Kenney under section 356. To show ineffective assistance of counsel, a defendant must first demonstrate that counsel’s performance was deficient because the “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1084) 466 U.S. 668, 687-688.) The defendant must also demonstrate prejudice flowing from the deficient performance. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Prejudice is shown when there is a reasonable probability that, but for the counsel’s deficiency, the defendant would have received a more favorable outcome. (Ibid.) Appellant’s ineffective counsel claims fail. First, the appellant failed to show that his counsel’s performance was deficient. Failure to object to evidence or a ruling rarely suggests incompetence on the part of counsel. (People v. Frierson (1991) 53 Cal.3d 730, 747.) Rather, the presumption lies in favor of counsel’s action as a tactical decision. However, even if counsel’s performance was deemed deficient for failing to raise a section 356 objection, the appellant still failed to demonstrate prejudice. As explained above there is not a reasonable probability that, but for counsel’s error, the outcome would be different in this case. As described earlier, additional evidence regarding Bravo’s subjective fears were unnecessary to the case. Substantial evidence of the rival gang and Bravo’s recent run-in with that gang had already been admitted into evidence. Any further evidence of his fear of this gang would not reasonably have changed the outcome. The jury was free to draw such inferences regarding Bravo’s fear and to decide whether the evidence was sufficient to convict appellant for this murder. Thus, the appellant has failed to prove ineffective assistance of counsel as to this issue.
Second, regarding the third-party culpability theory, a criminal defendant possesses the right to present evidence that a third-party is responsible for committing the crimes charged. For this evidence to be admissible, “the third party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 833.) However, not all evidence is admissible to prove third-party culpability. Evidence of “mere motive or opportunity to commit the crime in another person is insufficient” and need not be admitted. (Ibid.) To warrant admission, the defendant must show direct or circumstantial evidence linking the third person to the crime. (Ibid.) The decision whether to admit this evidence rests with the discretion of the trial court and will not be reversed absent a showing of abuse. (Id. at p. 834.)
Here, in our view, evidence regarding Bravo’s fear of the South Side gang would provide “mere motive” to commit a crime. There is simply no direct or circumstantial evidence linking South Side Players, or any particular member of that gang, to the particular crime in this case. Thus, the appellant has not shown that the excluded evidence would have assisted him in asserting a third-party culpability theory.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.
On October 4, 2003, police recorded a conversation between appellant and his wife at the county jail. They discussed a La Puente case involving a man found guilty of murder. In that case, police failed to analyze gun powder found on a suspect’s clothing for several months after his arrest. Appellant asked his wife, “Can they tell like how long [the powder] had been there?” He continued, “Because it was fresh, I guess. It should’ve been.” His wife then stated, “Yeah, I know and if it was, that’s not good.” Another discussion followed later in which appellant said to his wife, “There was some?” She replied, “Remember the —.” Appellant interjected, “What? Oh my God. Man, I thought you had got rid of those. I didn’t know they were there. I swear. I swear. I did not know those were there.” His wife replied, “They can test to see if it was the same one or not.” Appellant then asked, “[F]rom the same box?” His wife said, “No, not the same box. The same manufacturer.”
Following this conversation, the deputy present also seized a piece of paper from appellant’s pocket which contained handwritten notes. The notes included the question “how long does gunpowder last” and the word “blood,” both written twice. Also, the writing contained Bravo’s nickname, “Gato,” with the phrase “homies 2 kill” underneath.