Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA314873, Bob S. Bowers, Judge.
Patricia A. Scott, 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, Assistant Attorney General, Chung L. Mar, Joseph P. Lee and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Patrick Donald Evans appeals from the judgment entered following his convictions by jury on count 1 – second degree murder (Pen. Code, § 187) and count 2 – attempted murder (§§ 664, 187) with findings as to each offense that he personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), and with findings as to each offense that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)), personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)), and personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (d) & (e)(1)) and the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). The court sentenced appellant to prison for 65 years to life, plus 17 years. We affirm the judgment.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on December 24, 2006, Russell Connine (the decedent), Carlos Renteria, Juan Rodriguez, and Daniel Cruz were at a party at 2626 West Avenue 30. Connine and Renteria were members of the Avenues gang. A fight between females occurred at the party and, following that fight, the shooting at issue in this case occurred. Renteria and Connine were shot, and Connine was mortally wounded. The medical examiner removed three projectiles from Connine’s body.
Police interviewed Rodriguez and, during the recorded interview, Rodriguez indicated as follows. Rodriguez was at the party and had just descended some stairs and rounded a corner when he saw the victim (apparently Connine) throw a punch before the victim was shot. The victim appeared to be dead. Appellant was the shooter. Rodriguez circled a photograph depicting appellant on a photographic lineup. The gun was long and skinny. Rodriguez pointed out on a diagram the locations of the victim and shooter during the shooting. At trial, Rodriguez testified he knew appellant from high school.
At the trial, Rodriguez denied remembering the party or police interviewing him on December 24, 2006. There was ample evidence Rodriguez’s denials were motivated by a fear of retaliation. The recorded interview was played to the jury.
Police interviewed Cruz and, during the recorded interview, Cruz indicated as follows. The tall shooter was bald. There were two guns, i.e., one like a shotgun and one like a handgun. The shooter jumped back with the firearm as if he had possessed a shotgun. A second shooter apparently shot Renteria, and that shooter had a handgun. After the shooting, Cruz went to a friend’s house and “told [friends] I was, like, ‘Yeah, I think it was Patrick who did it.’ ”
At the trial, Cruz denied observing either of the shooters or any guns. According to Cruz, on December 24, 2006, police took his keys away and refused to return them unless he gave a statement. Cruz described a tall shooter so police would return Cruz’s keys to Cruz. He did not tell police the truth. The recorded interview of Cruz was played to the jury.
Edgar Leon and Eduardo Abea attended the party. Both knew appellant and neither saw appellant at the party. Abea conceded appellant could have been somewhere where Abea could not have seen him, Abea did not see every person who attended the party, and appellant may have been a person who had attended but whom Abea had not seen.
Los Angeles Police Officer Luis Rivera investigated the shooting. He went to the scene early on the morning of December 24, 2006 and saw Connine’s body near some stairs which were near the rear of the residence. Nine.22-caliber casings were recovered from the driveway, and one.45-caliber casing was found near the center of the driveway. A large caliber bullet was recovered from the center of the driveway.
On December 29, 2006, police conducted a “probation compliance check” of Toonerville gang (Toonerville) member Jason Montanez at 4111 Chevy Chase. A sawed-off.22-caliber semiautomatic rifle with a 10-round magazine was found in the rear residence. The magazine was empty. The nine.22-caliber casings recovered from the shooting scene were fired from that rifle. The three projectiles recovered from Connine had class characteristics similar to those produced by the rifle, and the three projectiles could have been fired from it. Another rifle, a handgun, narcotics, two boxes of ammunition (9 millimeter and.357 magnum, respectively), and gang writing were found in the residence.
While police were at Montanez’s residence, appellant passed by in a van. Police followed the van and later found it parked at 4050 Bemis, about two blocks from Montanez’s residence. Police subsequently found appellant near the driveway of 4050 Bemis. Police ordered appellant to put his hands up, but he fled.
Appellant pushed his way into apartment 7 at 4056 Bemis. Appellant, who had a shaved head, put his finger to his lips and indicated to the resident to be quiet. Appellant paced inside the apartment and looked out the window. At one point appellant washed his hands and used the bathroom. Police detained appellant in the apartment.
On December 29, 2006, Montanez, in jail, spoke to his girlfriend Vanessa. A tape recording of the conversation reflects as follows: “Unknown Female: Hello. [¶] Operator: One moment please. From an inmate at the Glendale City Jail. [¶] Unknown Female: Somebody calling... [¶] Operator: This call may be recorded. [¶] Unknown Female:...from the city jail. [¶] [Montanez:] Hello.... Vanessa. [¶] Unknown Female: Hold on. It’s Ray. [¶] Vanessa: Hello. [¶] [Montanez:] Hey. [¶] Vanessa: What happened? [¶] [Montanez:] Uh, I’m screwed. I am totally fucking screwed. [¶] Vanessa: What happened?! [¶] [Montanez:] God. Um, the, the guys, remember how I told you that these guys came over yesterday? [¶] Vanessa: Yes. Patrick and whatever. Yeah. [¶] [Montanez:] Yeah. Well. They left three fucking guns. I got busted with three guns. And then somebody. Oh don’t say no names please.” (Some capitalization omitted.)
Appellant was a member of the Toonerville gang. Appellant was about 6 feet 3 or 4 inches tall, weighed about 250 pounds, and was Caucasian, although most Toonerville members were Hispanic. Police did not know anyone named Patrick who was a member of, or associated with, Toonerville other than appellant.
Los Angeles Police Sergeant John Cuenca, a gang expert, testified as follows. Montanez’s residence was a Toonerville hangout and “stash house.” A stash house was a “so-called safe location or trusted location where you might leave anything from narcotics, weapons, anything you don’t want necessarily to be associated with you, but that you still need access to.” Cuenca previously had contacted appellant at this house. Montanez was an older and trusted Toonerville member.
According to Cuenca, the Avenues and Toonerville gangs were rival gangs. The residence at 2626 West Avenue 30 was in Avenues territory. It was uncommon for a Toonerville member to innocently enter Avenues territory. The presence of a gang member in a rival gang’s territory was an insult to the rival gang. If a Toonerville member went to the address of 2626 West Avenue 30, violence was expected because, in gang culture, the Toonerville member would be there on a mission, i.e., to commit a violent crime against a person who was likely an Avenues member. A Toonerville member travelling in Avenues territory usually would be armed. A gang member who committed a crime in a rival gang’s territory received more respect.
If a Toonerville member went to a party in Avenues territory and there were Avenues members present, this would be disrespectful to the Avenues members. Any Avenues member present would be expected to inflict violence on the Toonerville member and, if the Avenues member was unarmed, that violence would include punching the Toonerville member. The Toonerville member would be expected to retaliate in an escalating fashion, and if the Toonerville member were armed, he would kill. A gang member committing a crime like the present one at a large party with 100 to 150 people would have proof he committed it and that he did not care who was watching.
Cuenca testified the.22-caliber rifle in the present case was an offensive, not a defensive, weapon. Gang members selected specific weapons to commit specific crimes. A larger weapon demonstrated superiority. A gang member taking such a weapon to a party in rival gang territory to commit a crime would achieve a higher status within his gang.
If a gang member entered rival gang territory with a rifle such as the one in the present case, and the gang member shot and killed a rival gang member and then shot another rival gang member three times but the latter survived, the shooter committed the crimes for the benefit of the gang. If, in addition, the gang member concealed the murder weapon in a stash house, this indicated the crimes were committed at the direction of, or in association with, the gang. If the gang member took such a rifle to a party, he would do so with the specific intent to promote, further, or assist in, criminal conduct by gang members because the rifle was a large, formidable, and offensive weapon which the gang member was openly using, and this showed he was going to the party on a mission.
ISSUES
Appellant claims (1) the trial court erred by admitting into evidence the conversation between Montanez and Vanessa, and (2) the trial court erred by permitting the gang expert to testify as to appellant’s intent to promote, further, or assist in, criminal conduct by gang members.
DISCUSSION
1. The Conversation Between Montanez and Vanessa Was Admissible.
a. The Conversations Were Not Testimonial.
We have recited in our Factual Summary the December 29, 2006 jailhouse conversation between Montanez and Vanessa. A tape and transcript of that conversation were admitted into evidence over appellant’s hearsay objection. The trial court concluded Montanez’s statements fell within the hearsay exception for statements against penal interest (Evid. Code, § 1230). The court concluded Montanez’s statement was reliable and not testimony, the statement subjected Montanez to a risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true, and a person in Montanez’s position would not have reasonably expected the statement to be used at the trial.
Appellant, focusing in pertinent part on that portion of the conversation that occurred from the time Vanessa said “What happened?” to the time Montanez said, “Oh don’t say no names please” (hereafter, the challenged conversation), claims the trial court admitted into evidence the challenged conversation in violation of his right to confrontation because the statements therein were testimonial for purposes of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). We disagree.
In Crawford, the high court “held that the confrontation clause... bars the admission of out-of-court ‘testimonial’ statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.” (People v. Giles (2007) 40 Cal.4th 833, 840.) Crawford preceded Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis).
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court stated, in relevant part, “We derive several basic principles from Davis. First, as noted above, the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. [Fn. omitted.] Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. [Fn. omitted.].” (Id. at p. 984, italics added.) Cage noted that, according to Crawford, “ ‘[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.’ [Citation.]” (Cage, at p. 984, fn. 14, italics added.)
In the present case, neither Montanez nor Vanessa was a law enforcement officer or agent. The present conversation was an automatically recorded jailhouse conversation between friends. It is not entirely clear whether Montanez and Vanessa were even aware their conversations were being recorded. Even if they were aware, their statements were not, in purpose or form, analogous to trial testimony, and lacked the formality and solemnity characteristic of such testimony. The statements of Montanez and Vanessa were not “given and taken primarily” (Cage, supra, 40 Cal.4th at p. 984) for the “purpose” (ibid.) ascribed to testimony, i.e., to establish or prove some past fact for possible use in a criminal trial. Indeed, Montanez told Vanessa not to mention names.
Appellant, citing to pages 720 and 721 of the reporter’s transcript, asserts in his opening brief that “[Los Angeles Police Detective Rafael Quintero] testified that he specifically directed that Montanez’s jailhouse telephone calls were to be recorded[.]” However, although Quintero testified, he nowhere testified as appellant asserts Quintero did. Moreover, page 720 of the reporter’s transcript reflects the following exchange during the prosecutor’s direct examination of Quintero: “Q When [Montanez] was housed at the Glendale City Jail, did you do anything to make sure that his telephone calls from jail were recorded? [¶] A Yes. [¶] Q What did you do? [¶] A Well the jail calls are automatically recorded so I didn’t do anything as far as actually recording them. All I did was listen to his recordings and download them.” (Italics added.)
The transcript of the recording does not clearly reflect that Montanez was on the phone and listening when the operator said “From an inmate at the Glendale City Jail” and “This call may be recorded.” The transcript appears to reflect Vanessa came on the line only after the above quoted comments by the operator.
We conclude this recorded jailhouse conversation between friends did not contain statements which were testimonial for purposes of Crawford, and the admission in evidence of the tape and transcript of the challenged conversation did not violate appellant’s rights to confrontation or due process. (Cf. Cage, supra, 40 Cal.4th at p. 984; People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19; People v. Garcia (2008) 168 Cal.App.4th 261, 291; People v. Jefferson (2008) 158 Cal.App.4th 830, 843-844; People v. Rincon (2005) 129 Cal.App.4th 738, 757.)
b. The Conversations Were Admissible Under Evidence Code Section 1230.
Although appellant did not raise the issue in his opening brief, respondent claims the conversations at issue were admissible hearsay under the hearsay exception for statements against penal interest (Evid. Code, § 1230 ), and appellant, in his reply brief, disputes this. We review the admission of evidence pursuant to a hearsay exception under an abuse of discretion standard. (People v. Lawley (2002) 27 Cal.4th 102, 153.)
There is no dispute Montanez was “unavailable” within the meaning of Evidence Code section 1230.
Fairly read, the record reflects that on December 29, 2006, Montanez was a probationer, police conducted a “probation compliance check” of his residence, and police found there three weapons, i.e., two rifles and a handgun. One of the rifles was the previously mentioned.22-caliber rifle used to kill Connine. Police arrested Montanez after the search.
The trial court in the present case reasonably could have concluded the terms of Montanez’s probation included commonplace requirements that, e.g., he obey all laws and not possess firearms or illegal narcotics. Against that background, the trial court also reasonably could have understood the challenged conversation to indicate appellant and others had left three guns at Montanez’s residence, Montanez therefore possessed them, police discovered them, and, as a result, he was in serious trouble because he had violated a condition(s) of his probation. That is, the trial court reasonably could have concluded the challenged conversation was a statement against penal interest and that the references to Patrick were an integral part thereof.
We conclude the statements of Montanez and Vanessa in the challenged conversation were against Montanez’s penal interest, and were admissible under the statement against penal interest exception to the hearsay rule. (Cf. People v.Geier (2007) 41 Cal.4th 555, 584-585; People v. Cudjo (1993) 6 Cal.4th 585, 606-607; People v. Greenberger (1997) 58 Cal.App.4th 298, 335, 340-341; People v. Wilson (1993) 17 Cal.App.4th 271, 275-276.)
To the extent appellant complains that Vanessa, not Montanez, stated, “Yes. Patrick and whatever. Yeah, ” Montanez adopted that statement in his subsequent remarks. Finally, in light of our analysis, there is no need to reach the issue appellant raises concerning whether he received ineffective assistance of counsel by his trial counsel’s failure to object below to the challenged conversation on confrontation grounds.
2. The Gang Testimony Was Admissible.
Appellant, citing People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), claims the trial court erroneously admitted gang testimony. We disagree. During numerous exchanges between the prosecutor and Cuenca at the trial, the prosecutor elicited gang testimony from Cuenca on various issues. Instead of clearly setting forth the various separate exchanges about which appellant complains, he culls portions of each and combines them in his opening brief as the basis for his complaint.
Accordingly, appellant complains, “the prosecutor improperly elicited Officer Cuenca’s opinion about the ultimate issue of guilt and intent in this case by presenting hypothetical circumstances which mirrored in all respects the evidence in this case, including the address of the residence where the incident occurred, the name of the gang of appellant’s alleged affiliation [Toonerville], the name of the gang to which Connine and Renteria belonged [Avenues], and the fact of a Toonerville’s presence at a party held in the Avenues territory and the mental state involved, including being present only to execute a ‘mission.’ [Citations.] Hearing the ‘hypothetical’ circumstances and based upon the prosecutor’s inquiry, the officer testified that a Toonerville member would not go into Avenues territory for an ‘innocent purpose’ or solely to ‘go to a party.’ [Citation.] He testified that if a Toonerville member went to a party at 2626 Avenue 30 carrying a large offensive weapon, he would be on a mission for his gang with the intent to assault an Avenues gang member. [Citations.]”
Appellant also complains, “Cuenca, upon invitation from the prosecutor who enumerated the prosecution evidence complete with gang names in the guise of setting forth hypothetical circumstances simply told the jury that... appellant had the intent to benefit the gang, and acted in association with the gang in going on a mission at 2626 Avenue 30.” Leaving aside the issue of whether appellant has waived his claims here by failing to present them with proper citations to the record, we address his claims on their merits below.
In People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez), our Supreme Court said, “In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. ‘Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion.’ [Citations]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370] [‘The use of expert testimony in the area of gang sociology and psychology is well established.’].)” (Gonzalez, supra, 38 Cal.4th at p. 944.) “Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, ... beliefs and practices, criminal enterprises, rivalries, and the like—can help prove... motive, ... specific intent, ... or other issues pertinent to guilt of the charged crime. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Here, the gang evidence was relevant to prove appellant’s mental state and intent, as well as his conduct. Cuenca’s testimony in response to hypothetical questions did not explicitly refer to the mental state or conduct of appellant, but provided a proper basis from which the jury reasonably could infer the expected mental states and conduct of Toonerville members (appellant being such a member), including Toonerville members’ intent to promote, further, or assist in, criminal conduct. (Cf. People v. Gardeley (1996) 14 Cal.4th 605, 619.)
Appellant’s citation to Killebrew is inapposite. Killebrew reversed the judgment in a case (unlike the present one) in which (1) the sole evidence of the elements of a crime was the testimony of a police gang expert, (2) the expert erroneously testified as to the ultimate issues of the defendant’s subjective knowledge and intent, and (3) the trial court admitted that testimony under the mistaken notion that all officers’ opinions on gangs were admissible. (Killebrew, supra, 103 Cal.App.4th at pp. 649-659.)
The issue of whether a trial court erred by permitting use of hypothetical questions of the prosecution expert witness is pending before our Supreme Court in People v. Vang, review granted, September 15, 2010, S184212.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.