Opinion
G054576
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ASAEL COTO ALVARADO, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12CF1604) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Asael Coto Alvarado was convicted of conspiracy to commit murder, attempted murder, and carjacking. Defendant raises two arguments on appeal. Finding no merit in these arguments, we affirm the judgment.
First, defendant argues the trial court committed reversible error by admitting the testimony of a Santa Ana police officer that he believed defendant was hiding something during his police interview. Admission of this testimony was error, but we conclude the error was not prejudicial because defendant's lack of candor during the interview was obvious to the jury even in the absence of the officer's testimony, and because there was ample evidence connecting defendant to the crime.
Second, defendant argues that he was prejudiced when his police interview was played for, and provided in written form, to the jury without deleting alleged hearsay statements in violation of Crawford v. Washington (2004) 541 U.S. 36, 68. Admission of the testimony was error; however, admission of the evidence was harmless beyond a reasonable doubt. Therefore, defendant has no claim based on ineffective assistance of counsel.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In October 2011, José Gomez was living in a motel at the northeast corner of Bristol Street and Segerstrom Avenue in Santa Ana (the motel). Gomez detailed cars there; he was accused of scratching a resident's car.
On October 21, 2011, Gomez and his family went out to dinner. They returned to the motel to retrieve their jackets before going out again. Gomez drove into the parking lot and remained in the car while his family went to their room in the motel. While Gomez was waiting in the car, two men approached him. One had a gun. Gomez subsequently identified the man with the gun as Kevin Jesse Sevilla and the other man as Adrian Rendon. Sevilla told Gomez to be quiet and get out of the car. After Gomez exited the vehicle, Rendon got into the driver's seat and started the car. Sevilla told Gomez to go around to the passenger's side of the vehicle and get in. Gomez refused to get into the car. Sevilla said to Rendon, "He doesn't want to get in. What do I do?" Rendon replied, "Cap him." Sevilla shot Gomez, and the bullet grazed Gomez's head. Sevilla got into the car and Rendon drove away.
Gomez's wife, Terre Gomez (Terre) was leaving their apartment when she heard a gunshot and saw her husband on the ground. Terre saw their car driving away and ran after it. She saw their car at a gas station next to the motel. She walked towards the car; as she did, she passed Sevilla who was saying, "I shot." Terre asked if he was the one who shot Gomez, but Sevilla kept walking and continuing to say "I shot" as if he were in a daze. A gun was later found in the bushes at the gas station.
Sergio Sotelo pled guilty to participating in the attempted murder of Gomez, and testified for the prosecution at defendant's trial. In addition, a transcript of Sotelo's interview by Santa Ana police officers was admitted into evidence at trial. In 2011, Sotelo and defendant had been friends for about three years. They had worked together at a local restaurant. While Sotelo was in prison for another crime, defendant had helped Sotelo and his family monetarily.
In September 2011, Sotelo was released from prison. Defendant provided Sotelo with a cell phone and money, and Sotelo began running errands for defendant. Defendant lived at the motel and was running a prostitution ring out of it. Sotelo would drive around the area looking for police activity to alert defendant. Rendon also worked for defendant at the motel as a lookout.
In October 2011, defendant met with Sotelo and Angel Pineda at a laundromat across the street from the motel. Defendant said an incident had occurred in which his girlfriend's car was scratched by an individual who was "messing with him" and had been interfering with his business. Defendant told Sotelo and Pineda that he wanted Gomez carjacked at the motel, kidnapped, taken to another location, and then killed. Defendant pointed out Gomez's car to Sotelo and Pineda from across the street. Sotelo and Pineda agreed to the plan.
On October 21, 2011, Sotelo asked his cousin Sevilla to come along and offered him a couple of hundred dollars. Sotelo picked up Sevilla in defendant's car, and then met defendant at the restaurant where they had worked together; defendant gave Sotelo a gun wrapped in a knife set case. Defendant told Sotelo that Rendon would show up at the parking lot of a pancake house on the southeast corner of Bristol and Segerstrom to assist Sotelo in the attack on Gomez. Defendant reiterated that the plan was to kidnap Gomez in his own car, take him to a secluded area, and kill him.
Sotelo and Sevilla arrived at the pancake house parking lot between 5:00 p.m. and 7:00 p.m. on October 21. Rendon showed up shortly thereafter, and Sotelo and Sevilla got into Rendon's car. Pineda was supposed to show up as well but never arrived. Rendon and Sevilla decided who would do what. Sotelo was supposed to be defendant's eyes and ears and report back to defendant to keep him updated.
At some point, Gomez pulled into the motel parking lot. Sotelo got out of Rendon's car and got back in defendant's car. Rendon and Sevilla drove from the pancake house parking lot to the gas station next to the motel. Sevilla and Rendon got out of Rendon's car and went towards the motel, after which Sotelo was unable to see them. Sotelo then heard two gunshots. Sotelo drove towards the motel and could see Gomez on the ground. Sotelo was driving around looking for Sevilla and Rendon when Sevilla called Sotelo on his cell phone. Sotelo picked up Sevilla at a fast food restaurant on the northwest corner of Bristol and Segerstrom but did not find Rendon. Sevilla told Sotelo that he, Sevilla, was the shooter. After dropping off Sevilla, Sotelo returned to defendant and told him what had happened. Defendant was angry the job had not been done correctly.
Sotelo was arrested in May 2012. He spoke to detectives and made an agreement to testify in exchange for pleading guilty to attempted murder with a sentence of nine years.
Defendant was interviewed by Santa Ana police detectives on May 24, 2012. The audio of that interview was played for the jury, and the jury was also provided with a transcript of the English translation of the interview. Defendant told detectives the following.
In 2011, defendant stayed at the motel for a little while with his girlfriend. She told him a man at the motel had scratched her car very badly. The detectives told defendant they were investigating the assault of someone at the motel related to the car incident. Defendant stated he did not do anything and he was not responsible. Defendant said that if he had a problem with the guy he would have handled it himself, and would not have sent someone else to do it for him. Detectives told defendant they had retrieved his fingerprints off of a gun and had obtained DNA that might be his. Defendant denied owning a gun. He stated a man tried to sell him a gun when he was at the laundromat with Pineda, and both he and Pineda handled the gun, but defendant did not buy it. Defendant stated that he knew Sotelo and sometimes loaned Sotelo his car. Defendant also knew Rendon.
Defendant initially denied knowing anything about the incident the detectives were investigating. After the detectives told defendant they had video footage of his car in the parking lot of the motel, defendant stated he had lent Sotelo his car the night of the incident with Gomez because Sotelo wanted to see his girlfriend. Defendant did not know Sotelo was going to confront Gomez. When Sotelo returned, he was with his cousin, Sevilla, who was a gangster from Long Beach. Sotelo said they had "a problem" or a fight with the guy who scratched defendant's car. Sevilla was talking about Rendon and said they had left Rendon somewhere. Sotelo and Sevilla told defendant they had "fucked up" Gomez. Defendant later told the detectives that Sevilla said he had shot Gomez. Defendant asked why, and he was told that Rendon said Gomez was selling drugs.
Defendant stated that he had pointed out Gomez to Sotelo and Rendon as the man he thought had scratched his girlfriend's car. Rendon already had problems with Gomez stemming from a conflict over selling drugs at the motel, and Rendon planned to "fuck up" Gomez. Defendant then commented, "well fuck him up." However, defendant maintained he did not send anyone to scare or kill Gomez, and he did not give Sotelo a weapon.
The detectives told defendant it was extremely coincidental that the guy who had been shot had had problems with defendant, that the shooting happened where defendant lived, that defendant's car had been used by the shooter, that defendant had handled the gun, and that defendant had said, "well fuck him up," but that defendant had no involvement in the shooting. In response, defendant agreed he had said "fuck him up," but claimed he had never offered anyone money to hurt Gomez.
Later in the interview, defendant stated that the plan was to scare Gomez or "fuck him up," not to kill him, because Gomez had "fucked up" defendant's car. Defendant did not think Sotelo would take defendant's car to the scene, did not know they were going to use weapons, and did not know what night they were going to get Gomez. Finally, near the end of the interview, defendant stated, "I sent them to fuck him up, not to kill him."
Defendant, Rendon, Sevilla, and Sotelo were charged in an information with conspiracy to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a); count 1), attempted murder (id., §§ 664, subd. (a), 187, subd. (a); count 2), and carjacking (id., § 215, subd. (a); count 3). As to the attempted murder count, the information alleged it was committed willfully, deliberately, and with premeditation. (Id., § 664, subd. (a).) Defendant was tried separately. A jury found defendant guilty of all three counts, and found the sentencing enhancement allegation to be true. The trial court sentenced defendant to 25 years to life in state prison for conspiracy to commit murder.
As noted ante, Sotelo pled guilty and received a nine-year sentence in exchange for his testimony. Rendon and Sevilla were tried together. Both were convicted of all charges, and all sentencing enhancement allegations were found true. In an unpublished opinion, we affirmed the judgments of conviction, but remanded the case to the trial court for further proceedings related to future youth offender parole hearings. (People v. Rendon and Sevilla (June 26, 2018, G054006) [nonpub. opn.].)
Defendant was also sentenced to a concurrent indeterminate term of life with the possibility of parole in seven years on the charge of attempted murder, and a concurrent determinate term of five years for carjacking. Execution of the sentences for attempted murder and carjacking was stayed pursuant to Penal Code section 654.
DISCUSSION
I.
THE ADMISSION OF THE POLICE DETECTIVE'S TESTIMONY THAT DEFENDANT WAS "HIDING
SOMETHING" DURING HIS POLICE INTER VIEW WAS HARMLESS BEYOND A REASONABLE DOUBT.
At trial, the prosecution offered into evidence an audio recording of defendant's May 24, 2012, interview with Detectives Francisco Gomez and Adrian Silva. The court permitted Detective Gomez to testify, over defendant's objection, that he believed defendant was hiding something from the detectives during the interview.
Neither a lay witness nor an expert witness may testify that another witness is or is not telling the truth. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; People v. Melton (1988) 44 Cal.3d 713, 744-745; People v. Zambrano (2004) 124 Cal.App.4th 228, 238-240.) On appeal, the Attorney General essentially concedes that the trial court erred by admitting Detective Gomez's opinion that defendant was "hiding something" based on his demeanor in his police interview. Admission of this testimony was error. Therefore, we turn to the issue of whether the error was prejudicial.
The respondent's brief reads, in relevant part, "the testimony . . . was arguably inadmissible; however, it was harmless."
We review the record to determine whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) While the erroneous admission of evidence normally does not rise to the level of a potential federal Constitutional error (see People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Melton, supra, 44 Cal.3d at pp. 744-745 [both applying state law standard of People v. Watson (1956) 46 Cal.2d 818, 836]), the evidence we are considering here addressed a crucial issue at trial—defendant's credibility and veracity.
The Attorney General argues that even under Chapman, the error was harmless beyond a reasonable doubt.
Sotelo's accomplice testimony had to be corroborated. (Pen. Code, § 1111.) During closing argument, the prosecutor argued that defendant was lying during his police interview, and that his statements to the police could therefore corroborate the accomplice testimony of Sotelo. The prosecutor did not rely on Detective Gomez's testimony that defendant was hiding something during his interview as proof that defendant was lying.
Defendant's own statements to the police amply corroborated Sotelo's testimony in many key respects tending to connect him to the crime. Defendant admitted meeting Sotelo and Pineda at a laundromat across the street from the motel and handling the gun that was used to shoot Gomez. Defendant also admitted pointing out Gomez's car to Sotelo and Rendon. Finally, although he denied ordering anyone to kill Gomez, defendant admitted telling Sotelo and Rendon to "fuck him up." Defendant's admissions in his police interview corroborated Sotelo's accomplice testimony and connected defendant to the crime. Additionally, Sotelo testified that when defendant provided the gun to him, it was wrapped in what Sotelo described as a "knife set briefcase." The police officer described a knife case found in defendant's vehicle in May 2012 as "more of like a black canvas-style holder with pockets where you stick the knives in it and then you roll it up." In light of defendant's admissions and the evidence of the knife case found in defendant's car, all of which corroborated Sotelo's testimony, any error in admitting testimony by Detective Gomez that he believed defendant was "hiding something" was harmless beyond a reasonable doubt.
During his police interview, Sotelo described the case as follows: "But you know, I don't, like, uh, we cooks, we use, uh, one that folds out. We have all our knives, it was in between them."
Further, Detective Gomez's opinion that defendant was hiding something during his interview was not prejudicial because it was obvious to the jury that defendant was not being forthright and forthcoming in his interview. On virtually every relevant topic, defendant began his responses to the detectives' questions by denying any knowledge. Then, as the detectives became more pointed in their inquiries, defendant changed his story incrementally and significantly. Whether or not defendant was hiding something during his interview was an issue the jury itself could easily resolve.
The Attorney General argues that the testimony of the victim, José Gomez, corroborated Sotelo's testimony. However, nothing in Gomez's testimony would tend to connect defendant to the commission of the crime. (CALCRIM No. 335.) Specifically, Gomez testified he had never contacted the police about illegal activities at the motel, could not remember having had an argument with defendant, and had no personal conflicts with any other residents of the motel. Gomez testified that a woman had complained that he had scratched her car while he was detailing it, but he had no idea who that woman was. The Attorney General does not provide references to specific testimony by Gomez corroborating Sotelo's testimony regarding defendant's involvement in the crime, as opposed to testimony corroborating Sotelo's general testimony regarding the crime. --------
II.
TRIAL COUNSEL'S FAILURE TO SEEK REDACTION OF DEFENDANT'S POLICE INTERVIEW
TRANSCRIPT DID NOT RESULT IN THE DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL.
Defendant argues that his rights to confrontation and a fair trial were violated because the audio recording and written transcript of his police interview, which allegedly contained hearsay statements from nontestifying witnesses, was not redacted. Defendant's trial counsel did not object to these allegedly hearsay statements; defendant argues that he was denied effective assistance of counsel.
In the interview, the police detectives told defendant that Sotelo, Pineda, Rendon, and defendant's girlfriend had each stated that defendant had ordered the attack on Gomez. The Supreme Court has held that testimony given during a police interrogation cannot be admitted at trial without a showing that the witness is unavailable and without providing the defendant with an opportunity to cross-examine that witness. (Crawford v. Washington, supra, 541 U.S. at p. 68.) If these statements were actually made by the individuals identified, and relayed by the detectives to defendant, they would violate Crawford v. Washington. The record does not reflect that the jury was told these statements were invented by the detectives as a ruse. Whether the alleged statements by Sotelo, Pineda, Rendon, and the girlfriend were part of the detectives' ruse to get defendant to confess, of which the jury was unaware, or were actually made by those individuals to the detectives, their admission violated defendant's Sixth Amendment right to confrontation.
Crawford error is subject to review under the Chapman standard. (People v. Song (2004) 124 Cal.App.4th 973, 984-985.) We conclude the error was harmless beyond a reasonable doubt because the testimony against defendant was overwhelming. Defendant's coconspirator, Sotelo (who was one of the individuals the police said had implicated defendant), testified in detail regarding defendant's involvement in the planning of the attack on Gomez. Sotelo's testimony was corroborated by other evidence not including the challenged portions of the police interview and by defendant's own admissions that he sent Sotelo and Rendon to "fuck up" Gomez.
Defendant claims his trial counsel was ineffective for failing to request that the hearsay statements be redacted from the audio tape and the transcript. To prevail on a claim of ineffective assistance of counsel, defendant must prove: (1) his attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney's deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.) Because we have concluded defendant suffered no prejudice under Chapman, he cannot prevail on his claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.