Opinion
G043189 Super. Ct. No. 08CF1939
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. CONRADO CUICA, Defendant and Appellant.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Conrado Cuica fired several shots at a person who had been arguing with his nephew Marino Cuica. The shots missed Marino's antagonist but struck and injured a teenage girl who was in the area. Appellant claims 1) there is insufficient evidence to support his conviction for attempted murder, 2) the court erred in allowing the prosecution to call Marino to the stand after he invoked his right against self-incrimination, and 3) instructional error mandates reversal. We reject these claims and affirm the judgment.
FACTS
On June 23, 2008, appellant and Marino were staying at appellant's parents' house in Santa Ana. Around 8:30 that night, a dark gray pickup truck pulled up to the house, and Marino began talking to the driver from the front yard. Before long, their conversation turned hostile, both men yelling and cursing. The truck driver was also revving his engine loudly and rocking his vehicle back and forth. Appellant emerged from his parents' house, walked toward the truck, exchanged words with the driver, and fired several shots at him. As the truck drove away, appellant continued to shoot toward it. One of the bullets went through a neighbor's window, striking 14-year-old Jessica T. in the stomach. Glass from the shattered window also injured Jessica's younger sister.
The primary issue at trial was identification. Jessica's mother, Griselda Equihua, testified the person who was initially arguing with the driver was "very chubby" and lived across the street from her, and the man who emerged from the house just prior to the shooting was bald. At trial, she said these two men were standing about four feet apart at the time of the shooting, and she could not tell which one of them fired the gun. However, in the wake of the shooting, she told a responding officer she thought the shooter was the "bald guy."
Nancy Velasquez witnessed the shooting from two houses away. She testified the shooter was not heavy. She also said he had short hair but was not bald (which she defined as having no hair at all). When asked at trial if she recognized appellant as the shooter, she said she was not sure because she did not get a good look at the shooter's face during the incident.
Jessica testified she saw two men arguing in the street just before the shooting occurred. She did not see the third man because there was a vehicle blocking her view.
The police investigation revealed seven shots were fired at the scene. Three bullet casings were found in the driveway and sidewalk area of appellant's parents' home, and four casings were found in the street. Marino's hands were tested for gunshot residue about half an hour after the shooting, and the results came back negative.
Appellant was arrested three days after the shooting. At the time, he had a shaved hairstyle and looked differently than he did at trial. He initially told police he was not present at the shooting. Then he admitted he was there but claimed he was the person getting shot at. Describing how he was attacked, he first said there was a lone gunman on foot shooting at him. Then he changed his story and said there were three people shooting at him, one of whom was in a car. Appellant admitted to being a member of the 7th Street gang in the past but said he was no longer a member of that outfit. However, in comparing 7th Street to its main rival F-Troop, appellant remarked "7th Street are the real killers. We're crazier than the Troop."
Police Officer Eric Paulson investigated the shooting and determined the forensic and eyewitness evidence did not support appellant's version of events. Based on appellant's statements, his past associations with 7th Street, his gang tattoos, and conversations with members of his family, Paulson believed appellant was a member of 7th Street at the time of the shooting. He also opined the shooting benefited that gang.
Appellant and Marino were both charged in connection with the shooting. Marino pleaded guilty and was given immunity from further prosecution. Nevertheless, when called to the stand at appellant's trial, he refused to testify, invoking his right against self-incrimination.
The jury convicted appellant of attempted murder, negligent discharge of a firearm, possessing a firearm as a felon and street terrorism. It also found he personally discharged a firearm. However, the jury found not true allegations the crimes were carried out to benefit a criminal street gang. The court sentenced appellant to an aggregate term of 25 years in prison.
I
We may quickly dispense with one of appellant's arguments. He claims the trial court erred in failing to instruct the jury that in order to convict him of street terrorism (Pen. Code, § 186.22, subd. (a)), it must find his crimes were gang related. However, in People v. Albillar (2010) 51 Cal.4th 47, the California Supreme Court ruled the crime of street terrorism, unlike the gang enhancement set forth in Penal Code section 186.22, subdivision (b), does not require the specific intent to promote, further or assist a gang-related crime. Therefore, the trial court did not err in failing to instruct otherwise.
II
Appellant's primary argument is that there is insufficient evidence to support the jury's finding he was the shooter. We disagree.
In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record '"in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Stuedemann (2007) 156 Cal.App.4th 1, 5.) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"'" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
According to the eye witnesses in this case, the two men who were involved in the shooting attack on the truck driver were rather distinctive, in that one of them was very heavy and the other was bald or had very short hair. Booking photos admitted into evidence revealed that appellant had a medium build and a shaved head with some dark hair stubble visible at the time of his arrest, whereas Marino was, as Equihua described him, "very chubby" and had a full head of thick, black hair.
Equihua told police she thought the shooter was the "bald guy," and Velasquez testified the shooter was not heavy. These descriptions point to appellant as the shooter. While Velasquez did not believe the shooter was "bald," she explained that, in her mind, the description "bald" only applies to people who have no hair at all. She would not use the term to describe someone with very short hair, which is what appellant was sporting in his booking photo. Therefore, her opinion that the shooter was not "bald" does not materially assist appellant.
In addition to the identification evidence, appellant admitted he was present at the scene of the shooting, in the very locations where Equihua and Velasquez saw the shooter. And he immediately fled the scene of the shooting and lied to the police following his arrest three days later, which are both indicative of a guilty conscience. (People v. Mendoza (2000) 24 Cal.4th 130, 180 [flight]; People v. Avila (2006) 38 Cal.4th 491, 563 [false statements to police].)
Add in the fact Marino tested negative for gunshot residue shortly after the shooting, and he refused to testify despite being given immunity from prosecution, and the jury could reasonably conclude appellant was the shooter. Although this was not a "slam-dunk" case by any stretch of the imagination, there is substantial evidence to support the jury's determination appellant fired the shots that injured Jessica and her sister. We therefore reject appellant's challenge to the sufficiency of the evidence to support his convictions.
III
Appellant also claims the trial court erred in allowing the prosecution to call Marino to the witness stand and permitting the jury to draw an adverse inference from his refusal to testify. However, we find no error in this regard.
As noted above, Marino was originally charged along with appellant in connection with the shooting. Facing the charge of conspiracy to commit murder, he ultimately pleaded guilty to being a felon in possession of a firearm. As part of his plea, Marino waived his right to appeal, effectively bringing his case to a close. However, when the prosecution signaled its intention to call him as a witness in appellant's case, Marino said he would not testify on Fifth Amendment grounds. That triggered a special hearing on the issue, outside the presence of the jury.
At that hearing, Marino formally invoked his right against self-incrimination. While he admitted he was appellant's nephew, he refused to answer any questions regarding the shooting. The court sustained Marino's invocation of the Fifth Amendment. However, it also granted the prosecution's request for immunity and ordered Marino to testify at appellant's trial.
Despite being granted immunity, Marino indicated he would still not testify against appellant. The issue then became whether Marino should nonetheless be required to take the stand and invoke the Fifth Amendment in front of appellant's jury. Defense counsel argued this would be highly prejudicial in that it would allow the jury to speculate that appellant was the shooter. However, the prosecutor insisted that a "witness doesn't get to just refuse to testify because they don't care to." The trial court agreed. Given that Marino had been granted immunity, the court determined his Fifth Amendment privilege was no longer valid and he could be held in contempt of court if he refused to testify.
That prospect did not faze Marino. At trial, the prosecutor called him to the stand and asked him two questions: 1) did he recognize appellant; and 2) did he recognize his own booking photo. In response, Marino said, "I refuse to answer any questions." Even though the court threatened Marino with contempt, he stood his ground and remained silent. At that point, the court excused the jury and Marino was taken into custody for contempt proceedings.
After discussing the matter with counsel, the trial court determined the prosecutor could invite the jury to draw a negative inference from Marino's refusal to testify, and in closing argument, the prosecutor did just that. She told the jurors, "You can absolutely draw a negative inference from [Marino's refusal to testify]. He was protecting his uncle. That is why he did that. [¶] What he saw was damaging to his uncle's case, and he didn't want to incriminate the family member. You can absolutely consider that."
Appellant challenges two aspects of the court's ruling. First, he maintains it was improper for the court to allow the prosecution to call Marino to the stand after he invoked his Fifth Amendment right not to testify. And second, the court erred in allowing the prosecutor to invite the jury to draw a negative inference from Marino's failure to testify. Appellant argues these rulings undermined his right to a fair trial, in violation of due process, but we cannot agree.
"No person other than a defendant has a right to refuse to be sworn as a witness. [Citations.]" (People v. Lopez (1999) 71 Cal.App.4th 1550, 1555.) If a witness waives his Fifth Amendment right or receives immunity, the witness no longer has a privilege against self-incrimination, and he can be called to the stand, even if he has already stated he will not testify. (Id. at p. 1554.) In addition, "'[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.' [Citation.]" (Ibid.; accord People v. Morgain (2009) 177 Cal.App.4th 454, 466-468.)
In this case, Marino was not subject to further prosecution arising from the shooting because his case was already over, and he had been granted immunity for his testimony. Therefore, it was proper for the prosecution to call him to the stand, despite his clear intention not to testify. "'A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.' [Citation.]." (People v. Lopez, supra, 71 Cal.App.4th at p. 1556.) Moreover, since Marino was in a position to offer relevant testimony - given his presence at the scene of the shooting - the prosecutor "was entitled to urge the jury to draw an adverse inference about why [he] refused to testify." (People v. Morgain, supra, 177 Cal.App.4th at pp. 467-468.) There was, in short, nothing wrong with how the court handled Marino's refusal to testify.
On a related note, appellant correctly points out the prosecution introduced evidence showing that before trial, Marino told Officer Paulson that appellant was a member of the 7th Street gang. At trial, Paulson said he relied on this statement, along with other evidence, in forming his opinion appellant was a gang member.
Generally, "the admission of a prior statement made by a witness who stonewalls at trial and refuses to answer any question on direct or cross-examination denies a defendant the right to confrontation which contemplates a meaningful opportunity to cross-examine the witness." (People v. Rios (1985) 163 Cal.App.3d 852, 864, fn. omitted.) However, "[t]he United States Supreme Court has made it clear that a defendant's confrontation rights apply to testimonial statements offered for their truth. [Citations.]" (People v. Sisneros (2009) 174 Cal.App.4th 142, 153, italics added.) The confrontation clause does not bar the use of prior statements that are offered for other purposes, such as to provide the foundation for an expert's opinion. (Ibid.)
Here, Marino's pretrial statement was used by Officer Paulson to formulate his opinion about appellant's gang status, not for the truth of the matter asserted.
Therefore, even though Marino refused to testify and could not be questioned about the statement, its admission did not violate appellant's confrontation rights. No cause for reversal has been shown.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. O'LEARY, J.