Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. F05909418-6 Edward Sarkisian, Jr., Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Noe Ramon Lopez, a West Fresno Norteño, fired several shots from a revolver into a car where Angelo Gonzales, an Eastside Fresno Bulldog, and Farrah Brown were sitting. Gonzales died. Brown suffered serious injuries. A jury found Lopez guilty of first degree murder (Pen. Code, § 187, subd. (a)) of Gonzales and guilty of attempted murder (§§ 187, subd. (a), 664, subd. (a)) of Brown. In each count, the jury found true a criminal street gang allegation (§ 186.22, subd. (b)(1)) and a personal and intentional discharge of a firearm causing great bodily injury or death allegation (§ 12022.53, subd. (d)). The court imposed a 25-to-life term on the murder plus a 25-to-life term on the firearm enhancement and a consecutive seven-year (middle) term on the attempted murder plus a 25-to-life term on the firearm enhancement for an aggregate seven-year determinate sentence and an aggregate 75-to-life indeterminate sentence.
Later statutory references are to the Penal Code except where otherwise noted.
On appeal, Lopez raises five issues. (1) The gang expert’s reliance on hearsay violated his rights to confrontation and cross-examination. (2) The gang expert’s reliance on jail classification as evidence of gang membership violated his privilege against self-incrimination and his right to due process. (3) Buttons worn at trial by Gonzales’s family members showing Gonzales’s photograph violated his right to due process. (4) Denial of Lopez’s motion to admit exculpatory hearsay of child eyewitnesses to show third-party culpability and to refute key prosecution identification of him as the shooter violated his rights to confrontation and due process. (5) Imposition of consecutive terms on the murder and the attempted murder violated his rights to due process and jury trial.
DISCUSSION
1. Gang Expert’s Reliance on Hearsay
Lopez argues that the gang expert’s reliance on hearsay violated his rights to confrontation and cross-examination. The Attorney General argues the contrary.
Before trial, Lopez filed a motion in limine objecting to the gang expert’s use of hearsay as violative of his rights to confrontation and cross-examination and requesting an order requiring the gang expert to “divulge the source of any hearsay statements upon which his opinion rests.” At a hearing outside the presence of the jury, the gang expert testified, inter alia, to the ten-point system the Department of Justice establishes for determining gang membership, to the ways in which gang members gain stature within the gang, and to the dynamics of rivalries between different gangs. The court denied relief on the ground that relevant case law imposed no limitations like those Lopez requested. At trial, he again objected, but the court, after hearing additional argument, let the original ruling stand.
At trial, the gang expert testified, inter alia, that Lopez was “an active West Fresno Norteños criminal street gang member” who was “known to correspond with other gang members while in custody” and who was “identified by several other reliable sources.” Gang experts “validate people as gang members” through “document research” and reliance on “[p]olice reports, field identification cards,” and “materials maintained by MAGEC [Multi-Agency Gang Enforcement Consortium]” that are “[c]onsidered reliable information.” Court records, too, help gang experts determine gang membership. With reference to Lopez, the gang expert “was able to obtain additional points based upon the ten-point criteria” after having “done additional research” and “contacted other people.”
The crux of Lopez’s argument is that the gang expert’s reliance on testimonial hearsay violated his rights to confrontation and cross-examination as articulated by a line of cases from the United States Supreme Court. (See, e.g., Davis v. Washington (2006) 547 U.S. 813 (Davis); Crawford v. Washington (2004) 541 U.S. 36 (Crawford); Tennessee v. Street (1985) 471 U.S. 409 (Street).) The crux of the Attorney General’s argument is that nothing in the high court’s line of cases prohibits a gang expert from relying on hearsay as a basis for his or her opinions identifying a person as a gang member. (See, e.g., People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez); People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).)
The Attorney General’s argument, not Lopez’s, is persuasive. “The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay.” (Thomas, supra, 130 Cal.App.4th at p. 1209, citing People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd. (b).) Consistently with the settled rule, Lopez questioned the gang expert, and the gang expert testified, about the hearsay information and sources he now challenges on appeal. Since a gang expert “is subject to cross-examination about his or her opinions” and “the materials on which the expert bases his or her opinion are not elicited for the truth of their contents” but rather “are examined to assess the weight of the expert’s opinion,” no denial of Lopez’s rights to confrontation and cross-examination occurred. (Thomas, supra, at p. 1210.)
As Thomas observes, Crawford states that the confrontation clause “‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” (Thomas, supra, 130 Cal.App.4th at p. 1210 , quoting Crawford, supra, 541 U.S. at p. 59.) Lopez argues, however, that the prosecutor introduced the hearsay information and sources on which the gang expert relied to prove the truth of the gang expert’s opinions. (Cf. Davis, supra, 547 U.S. at pp. 821-832; Crawford, supra, 541 U.S. at pp. 51-52; Street, supra, 471 U.S. at p. 414.) “But any expert’s opinion is only as good as the truthfulness of the information on which it is based. Thus in Thomas, the expert’s opinion that the defendant is a member of a gang has value only if the jury believes the hearsay on which the expert relied. Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.” (Ramirez, supra, 153 Cal.App.4th at p. 1427, citing Thomas, supra, 130 Cal.App.4th at p. 1210.)
2. Gang Expert’s Reliance on Jail Classification
Lopez argues that the gang expert’s reliance on jail classification as evidence of gang membership violated his privilege against self-incrimination and his right to due process. The Attorney General argues the contrary.
Before trial, Lopez filed a motion in limine objecting to the gang expert’s use of his admissions of gang membership for jail classification as violative of his privilege against self-incrimination and his right to due process. At a hearing outside the presence of the jury, the gang expert testified that jailers request gang membership information to preclude problems that might arise from housing members of different gangs together. Lopez twice admitted gang membership in response to requests by jailers.
Acknowledging that MAGEC officers took advantage of gang membership information that jailers acquired from those interviews, the gang expert testified that he did not know whether jailers advised inmates of their constitutional rights before requesting gang membership information and that he did not instruct jailers how to conduct jail classification interviews. The court denied relief on the ground that relevant case law imposed no limitations like those Lopez requested. At trial, he again objected, but the court, after hearing additional argument, let the original ruling stand.
At trial, the gang expert testified, inter alia, that among the ways in which gang experts “validate people as gang members” are “document research” and reliance on “jail classification forms” and “materials maintained by MAGEC” that are “[c]onsidered reliable information.” Admissions “during jail classification interviews” help gang experts determine gang membership.
A four-justice plurality opinion in Pennsylvania v. Muniz (1990) 496 U.S 582 (Muniz) recognized the existence of “a ‘routine booking question’ exception which exempts from Miranda’s coverage questions to secure the ‘“biographical data necessary to complete booking or pretrial services.”’” (Id. at p. 601 (plur. opn. of Brennan, J.).) The plurality opinion noted that “‘recognizing a “booking exception” to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.’” (Id. at p. 602, fn. 14.)
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Citing Muniz, the Attorney General seeks refuge in the plurality opinion with the comment, “Routine booking information is not incriminatory.” Lopez acknowledges a post-Muniz California Supreme Court holding that neither a detective’s casual comment to a defendant during booking that he “‘looked like a traffic ticket’” nor his ensuing question, “Is it just a warrant?,” constituted an interrogation. (People v. Bradford (1997) 14 Cal.4th 1005, 1034 (Bradford).) “Neither the detective’s statement nor his question was ‘reasonably likely to [elicit] an incriminating response,’” the court emphasized. (Id. at p. 1035, quoting Rhode Island v. Innis (1980) 446 U.S. 291, 301 (Innis).) Citing out-of-state cases, however, Lopez argues that Bradford is distinguishable.
Since a pre-Muniz case from our court resolves the issue in reliance on Innis, no need arises to look beyond our borders. In People v. Morris (1987) 192 Cal.App.3d 380 (Morris), a jailer asked a defendant during booking, “Who are you accused of killing?,” and received the answer, “I killed my sister-in-law.” (Id. at p. 388.) The jailer insisted his question was “solely for the purpose of jail security and not to elicit information from defendant that might be used against him.” (Ibid.) Morris observed, “The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspect’s responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda admonishments.” (Id. at pp. 389-390.)
Since the jailer in Morris knew or should have known that his inquiry was reasonably likely to elicit an incriminating response, the admission of the suspect’s response was error but, on the record in that case, harmless beyond a reasonable doubt. (Id. at pp. 390-393, citing Chapman v. California (1967) 386 U.S. 18.) Likewise, the jailers here knew or should have known that inquiring about Lopez’s gang membership was reasonably likely to elicit incriminating responses, and the court’s admission of his booking admissions was error, but the record is replete with other evidence of his gang membership – (1) his admissions of gang membership on other occasions; (2) his admission of the placement of his gang moniker and gang graffiti on a wall; (3) gang tattoos on his body such as “1” and “4” for the 14th letter of the alphabet (the “N” in Norteño), “W” and “S” for “WS” (“Westside”), and “WSN” for West Fresno Norteño; (4) a photograph of him socializing with gang members and making a “W” (“Westside”) gang sign with his hand; and (5) his correspondence with other gang members while in custody. On that record, the court’s error in admitting his answers to inquiries by jailers about his gang membership was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 289, 309-310, citing, e.g., Chapman, supra, at p. 23, fn. 8.)
3. Buttons with Murder Victim’s Photograph
Lopez argues that buttons worn at trial by Gonzales’s family members showing Gonzales’s photograph violated his right to due process. The Attorney General argues the contrary.
During a noon recess at trial, Lopez’s attorney brought to the court’s attention his observation that spectators he assumed were members of Gonzales’s family were wearing buttons bearing a photograph of a person he assumed was Gonzales. He requested that the court issue an order barring the wearing of those buttons in court. The prosecutor countered that “to grieve and to deal with this tragedy” those spectators had a right to wear those buttons. On a record showing that three spectators among five or six sitting together were wearing those buttons, which were about three inches in diameter, the court noted the absence of any attempts “to draw attention to themselves, or to display emotions to the jury,” opined that the buttons did not “brand [Lopez] with any unmistakable mark of guilt” but instead showed nothing “other than the normal grief occasioned by the loss of a family member,” and denied the defense request in the absence of a showing of prejudice.
Candidly acknowledging “there is no controlling United States Supreme Court precedent” on the issue, Lopez submits that, “at this point, it is an open question whether private-actor conduct in a courtroom can be inherently prejudicial” and argues for a rule “that spectator displays of the victim’s likeness before the jury’s verdict is rendered [are] inherently prejudicial.” (See Cary v. Musladin (2006) 549 U.S. 70, __ (Musladin) [166 L.Ed.2d 482, 488-489; 127 S.Ct. 649, 653-654] [disclaiming federal habeas corpus jurisdiction since high court never established test for inherent prejudice applicable to spectator courtroom conduct].) Such a rule, he argues, would balance the interests of the prosecution, the defense, and spectators alike. He cites no authority showing that such a rule exists, however, and we are aware of none.
In the absence of such a rule, both parties discuss People v. Houston (2005) 130 Cal.App.4th 279 (Houston), a pre-Musladin prosecution for the murder of a defendant’s estranged wife. (Id. at p. 283.) At trial in Houston, “certain spectators” wore buttons measuring “two and one-quarter inches in diameter” and placards measuring “about three inches wide and four and one-half inches long,” all bearing his estranged wife’s likeness. (Id. at p. 294.) The trial court denied the defendant’s request for an evidentiary hearing to develop evidence of grounds for a new trial on the basis of spectator misconduct. (Id. at pp. 310-311.) The trial court stated “that the buttons and placards were merely an ‘innocent means of remembrance’ of [his estranged wife], that he had twice admonished the jury not to consider them, that no misconduct had occurred, and that even if there had been misconduct, ‘it wasn’t of such a character as to prejudice the defendant or influence the verdict in this case.’” (Id. at p. 311.)
Here, as in Houston, “Nothing in the record indicates that the jury was actually prejudiced by the buttons and placards.” (Houston, supra, 130 Cal.App.4th at p. 311.) So Houston analyzed whether the trial court’s admonitions “cured any inherent prejudice” from the displays of buttons and placards and held in the affirmative. (Ibid., italics added.) However, two cases prominent in Lopez’s argument and Houston’s analysis alike are no longer good law. (Id. at pp. 311-316, citing Musladin v. Lamarque (9th Cir. 2005) 427 F.3d 653 (spectators wearing buttons visible to jury with photographs of deceased at murder trial violate due process), vacated by Musladin, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 487; 127 S.Ct. at p. 652]); Norris v. Risley (9th Cir. 1990) 918 F.2d 828 (spectators wearing buttons visible to jury bearing words “Women Against Rape” at sexual assault trial violated due process), overruled in part by Musladin, supra, at p. __[166 L.Ed.2d at p. 489; 127 S.Ct. at p. 654].)
Lopez nonetheless argues that Houston is distinguishable on the ground that the trial court in that case admonished the jury but the trial court here did not. (Houston, supra, 130 Cal.App.4th at pp. 316-318.) That is a distinction without a difference since, on a record of strong evidence of Lopez’s guilt, no inherent prejudice requiring an admonition arises. Brown told a homicide detective that Lopez approached the car where she and Gonzalez were sitting, said something about Bulldogs, and positioned himself near the open door of the car just as shots were fired when no one else was in the immediate vicinity. She did not see the gun but told the detective that Lopez was the only person right there by the car, that he was a big man who filled up the area by the car, and that no one else was close enough to have reached around him to fire the gun. Adriana Valencia, a passenger in the car in which Lopez arrived just before the shooting, testified that Lopez stepped out of the car and yelled something about Bulldogs, that she heard gunshots, and that Lopez got back into the car and said he “killed him” and “shot the girl, too.” “Don’t say nothing,” he told her. On that record, spectator misconduct, if any, was harmless beyond a reasonable doubt. (Cf. Houston, supra, at p. 320, citing Chapman, supra, 386 U.S. at p. 24.)
The defendant’s trial attorney in Houston filed a declaration stating he asked the trial court “for orders that the displays be removed or, if the court was not so inclined, for admonitions to the jury,” but the reviewing court noted, “Any such discussions between the court and counsel outside the presence of the jury are not contained in the record.” (Id. at p. 310 & fn. 7.) Here, Lopez requested an order requiring removal of the buttons, not an admonition. In light of our holding, the difference, if any, between the record here and the record in Houston is immaterial.
4. Motion to Admit Exculpatory Hearsay
Lopez argues that denial of his motion to admit exculpatory hearsay of child eyewitnesses to show third-party culpability and to refute key prosecution identification of him as the shooter violated his rights to confrontation and due process. The Attorney General argues the contrary.
Over the prosecutor’s hearsay objections during cross-examination of the gang expert, Lopez elicited some of the evidence at issue. A girl spending the night at the home of a relative who lived near the scene of the crime told an officer after the shooting that she heard three shots, looked outside, and saw a male with spiky hair and a black jacket standing in the street outside. A boy living near the scene of the crime told an officer after the shooting that he heard a car approach, looked outside, saw Hispanic males in the driver’s and front passenger’s seats of a car, and saw a driver with spiky hair and a black jacket get out, pull a small handgun out of his pocket, point the gun through the window of another car, and say, “What’s up, homey.” A girl visiting a relative who lived near the scene of the crime told an officer after the shooting that she saw four Hispanic males in a car and saw one in his twenties wearing a gray sweatshirt get out, point a gun toward the driver’s side of another car, yell, “What’s up fool,” and begin shooting.
Lopez asked the gang expert if he had considered the information in each of the reports about which he had testified on the issues of whether the crime was gang-related and whether other people might have been responsible. He replied in the affirmative. At that juncture, during a colloquy outside the presence of the jury about the basis for gang expert testimony, Lopez filed the motion at issue arguing that the admission of the exculpatory hearsay was a constitutional and statutory imperative. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 690; Evid. Code, § 1240.)
Over various defense objections during redirect examination of the gang expert, the prosecutor elicited additional testimony. Children living in a gang neighborhood feel pressure to run with a gang and fear pointing the finger at a gang member even after witnessing the commission of a crime. A boy living near the scene of the crime told an officer after the shooting that the victim was a Bulldog gang member who had gotten into an altercation with some West Fresno Norteño gang members about three blocks away. A girl who apparently knew of the gang nature of the neighborhood identified the victim as a Bulldog gang member.
After careful review of the authorities on which Lopez’s motion relied, the court ruled “the proposed exculpatory hearsay evidence” inadmissible. Here he argues that hearsay evidence about a person with spiky hair who drove the suspect car implicated a known suspect on third-party culpability theory since Lopez neither had spiky hair nor drove the car and that hearsay evidence about four Hispanic males in the car refuted Valencia’s testimony that she saw the shooting from inside the car.
First, we address the statutory ground of Lopez’s challenge to the court’s ruling. (Evid. Code, § 1240 [“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Italics added.)].) “‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), italics added.) By showing only that officers arrived minutes after the shooting and that officers took the statements at issue sometime on the night of the shooting, but by not showing that the statements at issue met the statutory requirements of spontaneity and stress of excitement, Lopez fails to discharge his burden on appeal of showing that the court’s ruling was an abuse of discretion. (Id. at pp. 318-319.)
Second, we address the constitutional ground of Lopez’s challenge to the court’s ruling. Although few rights are more fundamental than that of an accused to present witnesses in his or her own defense, the accused and the prosecution alike nonetheless “‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ (Chambers v. Mississippi [1973] 410 U.S. 284, 302.)” (People v. Ayala (2000) 23 Cal.4th 225, 269.) Specifically, the accused “‘does not have a constitutional right to the admission of unreliable hearsay statements.’” (Ibid.)
To the contrary, since the “right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions,” the accused’s “interest in presenting such evidence may thus ‘bow to accommodate other legitimate interests in the criminal trial process’” like the “broad latitude” lawmakers have to “establish rules excluding evidence from criminal trials.” (United States v. Scheffer (1998) 523 U.S. 303, 308, italics added.) Rules so established “do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” (Ibid.) Evidence Code section 1240 “is the codification of an established common law exception to the hearsay rule.” (Poggi, supra, 45 Cal.3d at p. 318.) Without a showing that the statements at issue met the statute’s reasonable requirements of spontaneity and stress of excitement,Lopez fails to establish that the court’s ruling violated his rights to confrontation and due process.
5. Imposition of Consecutive Terms
Lopez argues that imposition of consecutive terms on the murder and the attempted murder violated his rights to due process and jury trial. The Attorney General argues the contrary.
The California Supreme Court has held that neither Cunningham v. California (2007) 549 U.S. 270 “nor the relevant prior high court decisions apply to the imposition of consecutive terms.” (People v. Black (2007) 41 Cal.4th 799, 806 (Black).) With commendable candor, Lopez argues that he challenges Black solely to preserve the issue for federal review. Duly noted. The doctrine of stare decisis obliges us to reject his argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Wiseman, J.