Opinion
C056051
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY ALMEDA, Defendant and Appellant.
Not to be Published
Defendant John Anthony Almeda shot and wounded Angelo S. in a drive-by shooting, leaving Angelo paralyzed. An information charged defendant with attempted premeditated murder, discharge of a firearm from a motor vehicle, and possession of a firearm by a convicted felon. (Pen. Code, §§ 664/187, subd. (a), 12034, subd. (c), 12021, subd. (a)(1).) The information further alleged defendant committed the offenses in association with a criminal street gang. (§ 186.22, subd. (b)(1).) A jury found defendant guilty, and the trial court sentenced him to life with the possibility of parole, with a consecutive term of 25 years to life. Defendant appeals, contending: the court erred in denying his motions for a continuance and a mistrial, the court violated his constitutional right to confront and cross-examine witnesses, and cumulative error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following a drive-by shooting that injured Angelo S., an information charged defendant with attempted premeditated murder (count one), discharge of a firearm from a motor vehicle (count two), and possession of a firearm by a convicted felon (counts three and four). As to counts one through three, the information alleged defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang. It further alleged as to counts one and two that defendant was a principal in the offenses and that he intentionally and personally discharged a firearm. (§ 12022.53, subds. (b), (c), (d), (e)(1).) Defendant entered a plea of not guilty.
A jury trial followed. Testimony and evidence presented at trial revealed the following scenario.
The Shooting
One evening in the summer of 2006, 16-year-old Angelo S. delivered some baby clothes to the home of defendants cousin Rudy, for Rudys pregnant sister. Angelo previously belonged to the Franklon gang, a subset of the Norteños. Rudy believed Angelo belonged to the Norteño gang because he wore baggy pants and carried a rag in his pocket. Rudy had been previously validated as a Norteño gang member.
As Angelo stood in the street, talking on the phone in front of Rudys house, he saw a car drive by. Angelo heard about six gunshots and fell to the ground. The gunfire wounded Angelo in the back, leg, and stomach, leaving him paralyzed.
At trial, Angelo testified he did not see who was driving the car. However, prior to trial Angelo told a detective that even if he knew who shot him, he would not reveal the shooters identity. At trial, Angelo testified he did not know defendant and did not recognize him. He also denied telling Rudy someone named Perry shot him.
Rudy testified he was upstairs checking on his grandmother when he heard loud popping noises. In an earlier statement to detectives, Rudy stated he was outside when the shots were fired.
A neighbor identified Rudys house as the Almeda house. For five or six years, the neighbor saw defendant at the house several times a week. The neighbor heard the shots but did not see a car. He ran outside to help Angelo, who did not answer when asked who shot him.
Immediately after the shooting Manuel Lopez and his daughter saw a white car with a "T-top" speed away. Since the car windows were tinted, the pair could not see who was driving. Lopezs daughter testified she recognized the car but had seen only an older, grey-haired man driving it before. Previously, she told an investigator she had seen defendant driving the car prior to the night of the shooting.
A police officer located two .40-caliber shell cases on the ground near Angelo. The cases were fired from the same gun. Officers also found a red towel and an expended bullet at the scene.
At trial, Rudy testified he did not see Angelo lying in the street and denied he saw a car drive by the house. Previously, Rudy told detectives defendant drove the car and the shots came from the passenger side through the back window. Rudy also stated the car was a T-top. At trial, Rudy denied making the statements.
The Aftermath
About two weeks after the shooting, detectives arrested defendant. Initially, the officers conducted a traffic stop for the car defendant was believed to be driving. They arrested Perry Trujillo, the driver, and detained a passenger, Irene Medina. Trujillo was a Norteño gang member.
Shortly after officers arrested Trujillo, they arrested defendant at a nearby residence. Defendant had keys for a Nissan Murano in his pocket that he wanted to give to a friend. Officers impounded the Murano as evidence. When they later obtained a search warrant for the vehicle, they located under the front passenger seat a .380-caliber handgun containing nine live rounds. The gun yielded no identifiable prints.
Defendants girlfriend, Jevon Brown, testified she owned the Murano. Before leaving on a trip the day before defendants arrest, Brown gave the car to her mother. She never gave defendant permission to drive the car while she was gone. Brown did not own a gun. A detective testified Brown told him she gave her mother the car keys so that defendant could pick up the car and put new rims on it. Brown also told the detective the gun found in the car must have been defendants. At trial, Brown denied the comments.
Gang Evidence
A gang expert testified that he believed defendant, Perry, Rudy, and Angelo all belonged to the Norteño gang. The expert also testified that various Norteño factions sometimes clash. According to the expert, Angelo was responsible for shooting defendant in the leg about a year before Angelo was shot. Based on the evidence, the expert opined that the shooting was committed for the benefit of, and in association with, the Norteño gang.
Defense Case
Defendant presented his own gang expert. Defendants expert stated the term "Norteño" refers to an identity as opposed to a particular gang. Based on the evidence, the expert could not determine the shooting was related to gang activity.
Verdict and Sentencing
The jury found defendant guilty on all counts and found all allegations to be true. The court sentenced defendant to life with the possibility of parole on count one. The court sentenced defendant to an additional term of 25 years to life for the firearm enhancement, to be served consecutively. The trial court sentenced defendant to the middle term of two years on count four, to be served concurrently to the sentence on count one. Defendant was also sentenced to the middle term of five years for count two, an indeterminate term of 25 years to life for the corresponding firearm enhancement, the middle term of two years for count three, and the middle term of three years for the gang enhancement, all stayed pursuant to section 654. Defendant filed a timely notice of appeal.
DISCUSSION
Motions for Continuance and Mistrial
Defendant argues the trial court erred in denying both his motion for a continuance and motion for a mistrial. According to defendant, the court denied him his right to present a defense by proceeding to trial even though an alibi witness was considered unavailable. Defendant contends that under Evidence Code section 240, the witness should not have been deemed unavailable.
Background
An investigator for Trujillo interviewed Faye Roediger, who stated defendant was with her at a hotel in Sacramento at the time of the shooting. Roediger also provided the investigator with a statement from the hotel, showing she had been registered on the date in question and had charged movies, music, and phone calls to her room.
According to Roediger, she met Trujillo around noon the day of the shooting. The pair picked up defendant and a woman named Monica, and the quartet went to a hotel. Roediger rented a room and for the rest of the day the group stayed in the room. Around 11:00 p.m., Roediger left to get dinner.
Roediger gave a similar account to defendants investigator. Roediger stated she and her friend Christina picked up Trujillo on the afternoon of the day of the shooting. They picked up defendant, Monica, and Irene Medina that evening. Everyone went to the hotel, and Roediger and defendant split the cost of the room. Everyone stayed in the room until 11:00 p.m., when Roediger and Christina went out to buy food. Roediger stayed in the room for an hour after she returned. She went home, leaving everyone else in the room.
Defense counsel served Roediger with a subpoena commanding her presence at trial on March 26, 2007. Roediger failed to appear. The trial court issued a bench warrant. On April 26, 2007, during opening statement at trial, defense counsel informed the jury he intended to call Roediger as a witness, and she would testify that defendant was with her at a hotel at the time of the shooting.
On May 8, 2007, the trial court determined that there were two outstanding warrants for Roedigers arrest. The court also stated: "As a material witness [Roedigers] testimony is highly relevant and important to the defense since the defense in this case appears to be alibi."
Roedigers attorney told the court that she was under medical supervision and was not able to leave the medical facility. He stated Roediger was not "avoiding court forever" but was "simply asking for a recess until shes medically cleared."
The following day, the trial court recalled and dismissed the bench warrant since Roediger was unable to leave the medical facility. The Betty Ford Center in Rancho Mirage sent a letter to Roedigers attorney, stating: "This letter is to inform you that Faye Roediger is presently attending the Intensive Outpatient Program at the Betty Ford Center. She was admitted May 07, 2007 and her projected discharge date is June 29, 2007."
Defendant moved for a continuance and, in the alternative, for a mistrial. The court allowed additional time for counsel to determine whether a conditional examination of Roediger was a possibility. Roedigers attorney stated he believed the facility would not allow the use of video cameras.
On May 14, 2007, defense counsel stated he did not know Roedigers location. Roedigers attorney notified the court that Roediger remained at the facility, the facilitys attorneys had been contacted, and that it would be a "long and involved process."
The court denied both of defendants motions. The court found Roediger unavailable. Next, the court inquired as to whether any exception to the hearsay rule would permit the admission into evidence of Roedigers prior statement to an investigator, and concluded no exception applied.
The court also indicated it was not inclined to order the county sheriff to travel to a far county to retrieve the witness. The court noted that not only was the witness far away, but Roediger was also receiving drug therapy and medical personnel would not allow her to travel. The court excluded Roedigers prior statements to investigators.
Unavailability of Roediger
At the outset, the parties disagree over the meaning of the courts determination that Roediger was "unavailable." Defendant argues the trial court erred in finding Roediger unavailable, invoking Evidence Code section 240, subdivision (a). The People disagree, arguing section 240 does not apply.
Defendant concedes a finding of witness unavailability under Evidence Code section 240 "more often arises in cases where a party moves to introduce prior testimony of a witness who cannot testify in person at trial, [but] nothing in that statute limits that definition to those situations, and the definition is equally applicable to the facts here."
Unfortunately, defendant provides absolutely no authority for his assertion that Evidence Code section 240 applies to the situation in the present case. Nor did the trial court invoke section 240 during the discussions over Roedigers "availability." The court simply determined Roediger was unavailable as a witness at that time. Section 240 is not relevant to the resolution of this appeal.
Continuance
Defendant argues the court erred in denying his motion for a continuance. When a party seeks a continuance to secure the attendance of a witness, the party must show: (1) he or she has exercised due diligence to secure the witnesss attendance, (2) the witnesss expected testimony is material and not cumulative, (3) the testimony can be obtained within a reasonable time, and (4) the facts to which the witness would testify cannot otherwise be proven. (People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).)
We review a courts denial of a motion for a continuance under an abuse of discretion standard. (Jenkins, supra, 22 Cal.4th at p. 1037.) Defendant bears the burden of showing the court abused its discretion, i.e., that the courts decision exceeds the bounds of reason under the circumstances. (People v. Beeler (1995) 9 Cal.4th 953, 1003; In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
Here, although the trial court expressed its belief that Roedigers testimony was material, defendant cannot show Roedigers testimony could have been obtained within a reasonable time. Roediger was enrolled in the Intensive Outpatient Program at the Betty Ford Center with a scheduled release date of June 29, 2007, 51 days from the date of defendants motion for a continuance.
Under the circumstances, the court did not abuse its discretion in denying the motion. The court allowed counsel almost a week to gather more information about Roedigers availability and the possibility of a conditional exam. The courts decision not to continue the trial for 51 days when all the evidence except for Roedigers testimony had been presented was not an unreasonable abuse of discretion.
Mistrial
Defendant also argues the trial court abused its discretion in denying his motion for a mistrial based on Roedigers unavailability to testify. According to defendant, the courts denial of his motion prevented him from receiving a fair trial.
Due process affords a defendant a meaningful opportunity to present a complete defense. (California v. Trombetta (1984) 467 U.S. 479, 485 [81 L.Ed.2d 413, 419].) The trial court should grant a motion for a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged by an error. We review the courts denial of a mistrial motion for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 282.)
Defendant argues the lack of Roedigers testimony deprived him of the ability to present a complete defense. However, although Roediger did not testify regarding defendants alleged alibi, nothing prevented defendant from presenting testimony by the other occupants of the hotel room on the day in question. Defendant argues "[t]here could be myriad other reasons why appellant could not, or chose not to, offer the testimony of others present in the hotel room that evening." Regardless of the reasons defendant chose not to use other avenues to pursue an alibi defense, we cannot, under the circumstances, find the trial court abused its discretion in denying defendants motion for a mistrial.
Medinas Testimony
Defendant contends the trial court violated his right to confront and cross-examine witnesses by allowing the prosecution to question Irene Medina after she refused to take the oath and answer any questions.
Background
The prosecution called Medina as a witness. However, Medina refused to swear or affirm that she would tell the truth. After the court excused the jury, Medina informed the court she did not want to say anything. The court informed her she could be held in contempt, but Medina reaffirmed her intent not to testify. The court proposed bringing the jury back in and allowing Medina to refuse to answer questions in its presence. Defendant objected that Medina was not a witness and should not be made to refuse to answer questions in front of the jury.
The jury returned to the courtroom and the court asked Medina if she would take the oath. Medina refused. The court allowed the prosecution to proceed "[i]n view of the absence of the oath." Defendant again objected, "based on the fact theres no witness present." The court found the witness had been lawfully produced, and the prosecution asked Medina whether she was interviewed by a police detective. Medina refused to answer.
The court ruled Medina in contempt of court for her failure to answer. Following another defense objection, the prosecution played seven seconds of a DVD depicting Medinas interview with detectives. No sound played.
The prosecution asked Medina: "Miss Medina, does the defendant Mr. Johnny Almeda have a white T-top vehicle? [¶] A. Im not answering. [¶] The Court: All right. Miss Medina, Im going to direct you to answer that question. [¶] Are you going to refuse to do that? [¶] The Witness: Yes. [¶] The Court: "Go ahead, Mr. Thinh [prosecutor]. [¶] Q. (By Mr. Thinh) Miss Medina, does the defendant Mr. John Medina have a black gun? [¶] A. Im not — not answering. [¶] The Court: All right. Miss Medina, again Ill order you to answer the question. [¶] Are you going to refuse to do that? [¶] The Witness: Yes. [¶] Q. (By Mr. Thinh) Miss Medina, did the defendant Mr. Johnny Almeda ever tell you that his white T-top was gone after the shooting of Angelo [S.]? [¶] A. Im not answering."
The prosecutor concluded by asking Medina whether she knew what the word "snitch" meant, and Medina again refused to answer. After excusing the jury, the court remanded Medina into custody for five days. The court then brought the jury back in; instructed it that because only a witnesss answers are evidence, anything contained in the questions was not evidence; and sent the jury home for the day.
Once the jury left the courtroom, the prosecutor informed the court he intended to present a witness to authenticate Medinas statement to detectives reflected in the DVD. Defense counsel objected, arguing Medinas statements contained inadmissible hearsay. The court stated Medinas refusal to testify rendered her legally unavailable, thereby permitting her recorded interview to be introduced as a prior inconsistent statement.
Defense counsel moved for a mistrial, arguing the court violated defendants right to confront witnesses by allowing the prosecutor to question Medina without her being sworn. According to defense counsel, the questions strongly suggested facts known to the prosecutor that Medina refused to divulge. The jury, defense counsel argued, would not be able to ignore this inference, even though instructed to do so by the court. The court denied the motion after reiterating it had instructed the jury that the prosecutions questions were not evidence.
The prosecution did not call any other witness regarding the taped interview. The DVD of the interview was never played for the jury and was ultimately withdrawn.
Discussion
Under the confrontation clause of the Sixth Amendment to the United States Constitution, a defendant has the right to confront and cross-examine witnesses presented against him. (Douglas v. Alabama (1965) 380 U.S. 415, 418 [13 L.Ed.2d 934, 937] (Douglas ).) A defendant states a violation of the confrontation clause by showing he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, exposing to the jury information from which the jury could judge the reliability of witnesses. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684].)
Defendant contends the court violated this right to confront witnesses by allowing the prosecutor to question Medina after she refused to take the oath and the court found her in contempt. According to defendant, the only impression the jury could have derived from the prosecutions questions to Medina was that Medina told detectives defendant had a T-top car and owned a black gun. Defendant argues "the jury inevitably must have concluded that she was not going to admit in court to having made these statements for fear of being labeled a `snitch."
Both parties agree that a prosecutor is not required to accept at face value a witnesss refusal to testify, and may compel a witness to refuse to answer specific questions. However, a prosecutor cannot, under the guise of cross-examination, elicit before a jury what is tantamount to devastating direct testimony without depriving the defendant of the right to confront the witness. (People v. Rios (1985) 163 Cal.App.3d 852, 868-869.)
Defendant argues the prosecutions questioning of Medina elicited just such devastating direct testimony. We disagree.
Defendant argues the present case presents error comparable to that found in Douglas and People v. Barajas (1983) 145 Cal.App.3d 804 (Barajas). In Douglas, after the defendants codefendant refused to answer any questions regarding the alleged crime, the prosecution produced an alleged confession signed by the codefendant. While cross-examining the nonresponsive codefendant, the prosecution read from the document, pausing frequently to ask the codefendant if those were his words. The codefendant continued to refuse to answer, and the prosecution managed to read the entire document to the jury. (Douglas, supra, 380 U.S. at pp. 416-417.)
The Supreme Court reversed the conviction. The court found the alleged confession constituted the only direct evidence that the defendant had fired a gun during the commission of the crime. Although the prosecutions reading of the alleged confession was not technically testimony, the court noted the prosecutions reading of the confession might well have been the equivalent in the jurys mind of testimony that the codefendant made the statement and that it was true. (Douglas, supra, 380 U.S. at pp. 419-420.)
In Barajas, the witness who identified the defendant as one of the robbers involved in a murder subsequently recanted the identification. In his opening statement, the prosecution stated he would call a witness who would identify the defendant as one of the robbers. The prosecution called the witness, but the witness refused to answer any questions. The court allowed the prosecution to ask the witness whether his refusal to testify was the result of direct threats. The witness again refused to testify. (Barajas, supra, 145 Cal.App.3d at pp. 806-808.)
The appellate court reversed. The court noted a prosecutor may not, under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony. The prosecutor, through his opening statement and questioning of the nonresponsive witness, told the jury the witness had seen the crime and identified the defendant, but refused to testify out of fear for his life. (Barajas, supra, 145 Cal.App.3d at p. 810.)
We do not find the facts before us comparable to those considered by the courts in Douglas and Barajas. Here, the jury was instructed not to consider the prosecutions questions as evidence. Moreover, admissible evidence from other sources was presented to the jury on topics covered by the questions. The inadmissible questions were not the only source of information to the jury.
The prosecution asked Medina if defendant had a T-top vehicle and if he had a black gun. In an interview with detectives, Rudy identified defendant as the driver of the T-top, the car from which the shots were fired. Exhibits entered into evidence showed defendant holding a black gun. Given this prior testimony and evidence, we disagree with defendant that the prosecutions questioning of Medina elicited "devastating" evidence against defendant. We find no violation of defendants constitutional right to cross-examine witnesses.
Cumulative Error
Finally, defendant contends the cumulative effect of errors committed by the trial court denied him a fair trial. We find no error on the part of the trial court and thus no cumulative error.
DISPOSITION
We note an error in the preparation of the abstract of judgment. The court sentenced defendant to life with the possibility of parole on count one and to an additional term of 25 years to life for the firearm enhancement, to be served consecutively. Paragraph 6 of the abstract erroneously reflects a sentence of 25 years to life, with possibility of parole, on counts one and two, plus enhancement time. The trial court is directed to prepare a corrected abstract of judgment modifying paragraph 6 to reflect a term of life with the possibility of parole on count one, plus enhancement time shown on the abstract, and to forward a certified copy of said corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur:
BLEASE, Acting P.J.
BUTZ, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.