Opinion
B160036.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER RANGEL and CARLOS TOLEDO, Defendants and Appellants.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Javier Rangel. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Toledo. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.
Francisco Rangel and Carlos Toledo (collectively referred to as appellants) appeal from the judgment entered after a jury convicted both of second-degree murder (Pen. Code, § 187 , subd. (a)) and attempted premeditated murder. (Pen. Code §§ 664/187, subd. (a).) Both were sentenced to state prison for 65 years to life plus life with the possibility of parole.
Both appellants contend that there is insufficient evidence to support the verdicts, the trial court erred in admitting hearsay evidence, and the trial prosecutor improperly commented on appellants silence. Each of these contentions is without merit and therefore the conviction should be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On May 29, 2000, Erick Ponce and brothers, Sean and Daniel Ohayon, all members of the Harpys gang, drove to a video store in Los Angeles. After leaving the store, they drove around looking for rival gang members on their turf. Appellants Rangel and Toledo were members of a rival gang, A.T.C. In the area of 38th Street and Budlong, from about 30 feet away, Ponce recognized Rangel and Toledo walking on the street. Ponce said, "Thats them," jumped out of the car, and ran towards Rangel and Toledo intending to beat them up. However, after running about 15 feet, Rangel pulled out a gun and Ponce stopped. Toledo told Rangel to "shoot them" and Ponce turned to run away. Ponce heard a gun shot and realized it was in the direction of the car. He ran towards the car, but fell. He got up and decided instead to run down the street towards Exposition. At the same time, Sean Ohayon drove away with his brother Daniel, who had been wounded in the head, to the nearest police station where Daniel died. Meanwhile, Rangel and Toledo chased after Ponce. Toledo caught up with Ponce, tripped him, and kicked and punched him as he lay on the ground. After about a minute had passed, Rangel caught up with Ponce, stood above him and shot him behind his right ear.
Ponce was the only witness to identify appellants. Appellants argued that their guilt had not been proven beyond a reasonable doubt and that Ponces statements were not credible. The trial court overruled appellants objection to the introduction of a tape recording used to impeach Ponce. Also, the trial court overruled appellants objection to the prosecutors comments, in closing arguments, about the lack of witnesses and evidence presented by appellants.
DISCUSSION
1. Standard of Review
"The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . Our task . . . is twofold. First, we must resolve the issue in the light of the whole record. . . . Second, we must judge whether the evidence . . . is substantial. . . . (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110.)" (People v. Proby (1998) 60 Cal.App.4th 922, 928, italics in original, internal quotation marks omitted.)
2. Insufficiency of Evidence
a. Credibility of Witness
Initially, in court, Ponce positively identified appellants as the assailants. But, the day after, Ponce recanted and testified he was positively sure it was not them. When asked about his contradictory statements, Ponce admitted he was initially lying and that he felt an obligation to help the People convict somebody because Daniel Ohayon was dead. Upon redirect examination by the People, Ponce confirmed that during the previous night he received a phone call from Sean Ohayon advising him "to do the right thing." He admitted that word was out on the street that he could get hurt if he testified. Though the appellants objected to this line of questioning on grounds of hearsay, the trial court allowed limited use of it in evaluating the credibility of Ponce and his state of mind at that time. Appellants contend that Ponces recanted identifications were too inherently suspect to be determined as substantial evidence for the convictions.
This 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. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)" (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) The credibility of a witness is for the trier of fact to determine. (Ibid.) If the trier of fact credits Ponces initial statements, then this court cannot reject that decision unless there exists " either a physical impossibility that it is true, or its falsity must be apparent without resorting to inferences or deductions." (Ibid .)
It is not inherently improbable that Ponces original testimony was true but that he recanted out of fear for retaliation by other gang members. A gang expert, called by the prosecutor, explained that a snitch could be considered one who came to court, took the stand, testified, and identified a gang member. He testified in support of Ponces behavior and stated that a gang member who becomes a snitch could be killed and faces other forms of retaliation. Furthermore, Ponces clear and positive identifications at the hospital are sufficient under the substantial evidence test to support the convictions. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 906 P.2d 1290 [holding that the sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test].) It was within the jurors role to decide that such statements made just shortly after the incident, where the mind is fresh, were accurate and truthful. Additionally, it was not unreasonable for the jury to believe those statements since Ponce was consistent in identifying Rangel and Toledo, until he was reminded of the ramifications of being a snitch.
b. Self-Defense
Appellants argue that the shooting of Daniel Ohayon was not murder because it was justified self-defense. "To be acquitted of responsibility for a persons death based on self-defense, the defendant must have acted pursuant to an actual and reasonable belief in the need to defend himself under circumstances that would lead a reasonable person to fear the imminent infliction of death, or great bodily injury. ( §§ 197, 198, 199; People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, 921 P.2d 1.)" (People v. Watie (2002) 100 Cal.App.4th 866, 877.) "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771, 872 P.2d 574, italics in original.)
The evidence does not establish a foundation for either self-defense or imperfect self-defense. The evidence does not support either a reasonable or unreasonable belief that appellants were in imminent danger of death or great bodily injury when the shootings occurred. Though Ponce jumped out of the car and ran towards appellants, intending to scuffle with them, he stopped when Rangel pulled out his gun. While Ponce may have been the initial aggressor, control of the situation shifted to Rangel and Toledo after the gun was pulled and Rangel stopped. At that point there was no longer an apparent need for appellants to defend themselves. Appellants became the aggressors when Toledo yelled "shoot them" and Rangel did so.
Appellants also argue that the murder was at most manslaughter based on sudden quarrel or heat of passion. "The heat of passion requirement for manslaughter has both an objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327, 185 Cal. Rptr. 436, 650 P.2d 311.) The defendant must actually, subjectively, kill under the heat of passion. (Id . at p. 327.) But the circumstances giving rise to the heat of passion are also viewed objectively." (People v. Steele (2002) 27 Cal.4th 1230, 1252; People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.)
In this case, there was not sufficient provocation such that " the heat of passion . . . would naturally be aroused in the mind of an ordinary, reasonable person, under the given facts and circumstances, or in the mind of a person of ordinary self-control. (People v. Valentine , 28 Cal.2d 121, 169 P.2d 1; People v. Danielly, 33 Cal.2d 362, 202 P.2d 18.)" (People v. Brunk (1968) 258 Cal. App. 2d 453, 456-457, 65 Cal. Rptr. 727.) In Brunk, a bartender was shot by a patron when the bartender tried to force the patron to leave the bar. (Id. at p. 454.) The appellate court refused to reduce the conviction from second-degree murder to manslaughter, finding that the bartenders weight (280 pounds) and intention to throw the patron out of the bar was not sufficient provocation for heat of passion defense. (Id. at p. 456.) Here, there was no initial argument, only the threat of an assault. But Ponce stopped when Rangel pulled the gun, and the threat ceased to exist. Then Rangel deliberately shot at the car after Toledo commanded him to do so. The jury was instructed on manslaughter and rejected it. The facts support the jurys determination.
c. Attempted Premeditated and Deliberate Murder
Appellants argue that there is insufficient evidence to support the conviction of attempted premeditated and deliberate murder of Erick Ponce. This is not the case.
"An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission. (People v. Dillon (1983) 34 Cal.3d 441, 452-453, 194 Cal. Rptr. 390, 668 P.2d 697.)" (People v. Kipp (1998) 18 Cal.4th 349, 376, 956 P.2d 1169.) "Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.]" (People v. Jones (1999) 75 Cal.App.4th 616, 627.)
In People v. Lashley (1991) 1 Cal.App.4th 938, 945, the court concluded that "conduct prior to the shooting, . . . combined with the testimony that he took aim before firing, and the seriousness of the victims injuries constitutes substantial evidence on the issue of intent." Here, appellants acts went beyond mere preparation. After shooting at the car, appellants chased after Ponce, who was unarmed and yelling for help. After Ponce fell to the ground, Toledo kicked and hit him until Rangel arrived and deliberately shot him in the head.
In reviewing the sufficiency of the evidence of premeditation and deliberation, the appellate court must determine whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) Three types of evidence typically aid in determining premeditation and deliberation: (1) facts about how and what defendant did prior to the actual killing to show planning activity; (2) facts about the defendants prior relationship and/or conduct with victim to show motive; (3) facts about the nature of the killing from which the jury could infer from facts of type (1) and (2). (People v. Anderson (1968) 70 Cal.2d 15, 26-27, 73 Cal. Rptr. 550, 447 P.2d 942.) These factors need not all be present, or in any special combination; nor must they be accorded a particular weight. (People v. Garcia, supra, 78 Cal.App.4th at p. 1427.) Furthermore, the process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . (People v. Thomas (1945) 25 Cal.2d 880, 900, 156 P.2d 7; accord, People v. Perez [(1992)] 2 Cal.4th [1117] at p. 1127.)" (People v. Mayfield (1997) 14 Cal.4th 668, 767, 928 P.2d 485.)
Here, there is substantial evidence that Ponces attempted murder was deliberate and premeditated. First, Rangel shot in the direction of the car after Toledo yelled "shoot them." Second, there was evidence of motive. Appellants committed these acts in the context of gang members protecting their turf. As testified to by the gang expert, appellants were able to increase their status in the A.T.C. gang and further its goals. Third, the manner of the attempted killing also shows preexisting reflection. Appellants chased after Ponce when he broke off his attempted assault. Toledo then attacked Ponce on the ground and continued to do so until Rangel arrived and deliberately shot him. There was no conversation between appellants to indicate hesitation as Rangel jogged up to Ponce, stood over him, and pulled the trigger.
3. Inadmissible Hearsay
The trial court admitted a portion of a taped interview to impeach Ponces testimony. It was allowed on grounds that it went to his state of mind. On the first day that Ponce testified, he clearly and positively identified appellants. However, that night he received a phone call from Sean Ohayon advising him "to do the right thing" in regards to his testimony. The next day, Ponce recanted his identifications in court. During lunch, the detective and prosecutor questioned Ponce about his sudden change in testimony. They taped that interview and the prosecutor sought to use it as evidence of Ponces change of heart. Both appellants objected to this, but the prosecution argued that if the tape were to come in, only that portion equivalent to the first six pages of the transcript should be admitted. Appellants wanted certain other portions of the tape to be admitted and so argued. In the end, the trial court decided to allow the first six pages to be played. The trial court also granted appellants request to admit the portions they desired, and then ruled that the prosecutor could admit the remainder. Appellants chose not to play the portions the court had allowed them to play.
"The trial court is vested with broad discretion in determining the admissibility of evidence. (People v. Karis (1988) 46 Cal.3d 612, 637, 250 Cal. Rptr. 659, 758 P.2d 1189.) This is particularly true where . . . underlying that determination are questions of relevancy, the state of mind exception to the hearsay rule and undue prejudice. [Citation.] The lower courts determination will be reversed only upon a finding of abuse. (People v. Edwards (1991) 54 Cal.3d 787, 820, 819 P.2d 436; People v. Karis [(1988) 46 Cal.3d 612, 250 Cal. Rptr. 659, 758 P.2d 1189] at p. 637.)" (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.) "A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse (People v. Alvarez (1996) 14 Cal.4th 155, 201, 926 P.2d 365) and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jones (1998) 17 Cal.4th 279, 304, 949 P.2d 890.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10, 971 P.2d 618.) "[A] miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Appellants argue that the entire tape was inadmissible hearsay. Alternatively, they argue that the court erred ruling that if they played certain portions of the tape, the prosecution could play others. We disagree.
The taped interview was admissible under the state of mind exception to the hearsay rule, Evidence Code section 1250. The court concluded that the evidence was offered to prove or explain recantation by Ponce of his testimony. We agree. During the interview, Ponce stated he was risking his life by testifying and feared retaliation of loved ones if labeled a snitch. Furthermore, he acknowledged that his recantation was to distance himself from the case and be out of danger. The tape evidenced Ponces existing state of mind and explained his recantation.
The ruling by the court that if the defense played other portions of the tape the prosecution could then introduce portions not previously played was appropriate. Evidence Code section 356 states that "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." The purpose of the statute is to prevent misuse of selected aspects of a conversation to create a misleading impression. (People v. Arias (1996) 13 Cal.4th 92, 156, 913 P.2d 980.) Thus, the court properly ruled that the prosecution could augment the record with portions of the interview not played by appellants.
Appellants also argue that the tape should have been excluded under Evidence Code section 352, which allows the trial court discretion to "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." Admission of the tape did not require an inordinate amount of time nor was it unduly prejudicial. Appellants had the option to recall Ponce to clarify and cast doubt on his statements, instead they chose not to. It also cannot be said that the trial court abused its discretion in a manner as stated in People v. Rodriguez, supra, 20 Cal.4th at pages 9-10. The trial court did not exercise its discretion in an arbitrary or absurd manner. Furthermore, the court correctly limited the use of the evidence by instructing the jury to only consider it in determining Ponces credibility and state of mind.
4. Griffin Error
"The Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accuseds silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California (1965) 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) This rule is codified in Evidence Code section 913, subdivision (a): "no presumption shall arise because of the exercise of the privilege, and the trier of fact may not draw any inference therefrom as to the credibility of the witness or as to any matter at issue in the proceeding." But "it is well established . . . that the rule prohibiting comment on defendants failure to testify does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Szeto (1981) 29 Cal.3d 20, 34, 171 Cal. Rptr. 652, 623 P.2d 213.)" (People v. Morris (1988) 46 Cal.3d 1, 35, 249 Cal. Rptr. 119, 756 P.2d 843, disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5, 887 P.2d 527.) We conclude no Griffin error occurred.
The comments made by the prosecutor related to the state of the evidence and are similar to those made in People v. Morris, supra, 46 Cal.3d at pages 35-36. There, as here, the prosecutor commented on the lack of evidence to suggest the defendants did not commit the murder, as well as on the lack of an alibi. (Id. at pp. 35-36.) The language is strikingly similar and in Morris the court concluded the prosecutors comments did not violate Griffin principles. (People v. Morris, supra, 46 Cal.3d at p. 36.) The prosecutors comments follow the principle enunciated in People v. Ford (1988) 45 Cal.3d 431, 449, 247 Cal. Rptr. 121, 754 P.2d 168, which allows counsel to invite the jury to make logical inferences about the evidence and comment on the lack of witnesses. The prosecutor did not argue that there was evidence that only the defendants could provide by taking the stand as a witness. (See People v. Bradford (1997) 15 Cal.4th 1229, 1339, 939 P.2d 259 ["a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand."]) Instead the comments were about the lack of alibi witnesses and other evidence apart from what the appellants could testify to on the stand.
5. Cumulative Error
Appellant Toledo concludes that if no single error asserted is sufficiently prejudicial that taken cumulatively, the error prejudiced appellants right to a fair trial and compel reversal. This claim has no merit because this court has found no errors.
DISPOSITION
The judgments are affirmed.
We concur: VOGEL (C.S.), P.J., EPSTEIN, J.