Opinion
G053600
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ALVAREZ, Defendant and Appellant.
Law Offices of Michael D. Grahn, Michael D. Grahn and Christian E. Kernkamp, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Peter Quon, Jr., Assistant Attorney General, Randall E. Einhorn and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CF2496) OPINION Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge; Richard M. King, Judge. Affirmed. Law Offices of Michael D. Grahn, Michael D. Grahn and Christian E. Kernkamp, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Chief Assistant Attorney General, Peter Quon, Jr., Assistant Attorney General, Randall E. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Daniel Alvarez of first degree murder and possession of a firearm by a probationer. Defendant was found to have personally discharged a firearm causing death in the commission of the murder. The court sentenced defendant to an indeterminate term of 50 years to life.
Defendant asserts the court abused its discretion by denying his motions to strike a witnesses' testimony and for a mistrial, the prosecutor committed misconduct, defense counsel rendered ineffective assistance of counsel, and insufficient evidence supports the verdict.
We conclude the court erred by denying defendant's motion to strike, but the error is harmless beyond a reasonable doubt. We reject defendant's remaining contentions and affirm the judgment.
FACTS
1. Crime and Investigation
Around 1:30 a.m., on May 8, 2012, Santa Ana Police Officer David Prewett discovered the body of Bruno "Toro" Ugalde in the driveway of an apartment complex parking garage on Pine Street in Santa Ana. Ugalde had been shot once in the face from close range. The bullet entered Ugalde's jaw, severed his carotid artery and jugular vein, and exited through the back of his neck.
Ugalde, defendant, and a majority of the prosecution's witnesses had known ties to the Lopers criminal street gang. As we will explain, the prosecutor used gang monikers as a form of identification during the trial.
As Prewett looked around, he noticed a large pool of blood near the right rear tire of a parked Toyota Camry. There was blood on the Camry's door, what appeared to be damage from a bullet ricochet on the back window, and blood stains leading from the Camry to Ugalde's body. Prewett found a .45-caliber shell casing and slug nearby.
Prewett saw and recognized Ronald Rogers, a resident of the apartment complex, walking around and looking under cars parked in the complex's parking garage. Prewett told Rogers to leave, and Rogers complied. Prewett said Rogers had not been near the Camry.
About two weeks after the murder, Santa Ana Police Corporal Roland Andrade conducted a recorded interview with Ugalde's girlfriend, Lorena Galvan, and her brother, Gerardo Galvan.
Lorena and Gerardo knew defendant as "Stranger." Around 1:00 a.m. on May 8, defendant burst into their apartment, which is about a two-minute bicycle ride from the parking garage where Ugalde's body was found. Defendant argued with Gerardo and his grandmother, and defendant asked to borrow a phone. Between 1:25 a.m. and 1:33 a.m., defendant placed 12 calls using Gerardo's grandmother's cell phone. He made nine calls to his mother's cell phone and three to her landline.
We refer to the Galvans by their first names for clarity.
Gerardo said defendant paced back-and-forth and appeared to be nervous. Defendant muttered something like "I need to get out of here." When Gerardo asked defendant what happened, defendant said some fool had laughed at him. Gerardo and Lorena told Andrade defendant also went into the bathroom and urinated on his hands.
According to Andrade, there is a wide-spread misconception that urine eliminates gunshot residue.
Defendant asked Gerardo for a ride, and he tried to give Gerardo a methamphetamine pipe. Eventually, Gerardo demanded defendant leave the apartment. Defendant complied and rode away from the Galvan's apartment on a dark-colored bicycle. Gerardo had never seen defendant ride a bicycle before.
Andrade also interviewed Alan "Grims" Juarez. Juarez said defendant had taken Ugalde's bicycle the morning of the murder, and Juarez helped Ugalde reclaim it. Later that evening, Juarez, defendant, Ugalde, Daniel Sixtos, Natalie Martinez, and Sandro "Loony" Sandoval met at the Pine Street apartment laundry room to smoke methamphetamine and talk. Juarez said defendant appeared to be holding some sort of object in the waistband of his pants, but Juarez never saw the object. Juarez left the laundry room with Martinez, his girlfriend, sometime between 11:00 p.m. and 12:00 a.m.
When questioned, Martinez confirmed she, Juarez, Sandoval, and Ugalde met in the laundry room of the Pine Street apartment complex to hang out and smoke methamphetamine a few hours before the murder. Martinez did not know everyone there, and a Hispanic male she did not know either talked, or agued, with Ugalde about Ugalde's bicycle.
Martinez did not identify defendant as the Hispanic male from a photographic lineup. --------
Sixtos initially denied seeing defendant on the day of the murder, but he later confirmed defendant was one of a group of people gathered in the Pine Street apartment complex laundry room a few hours before the murder. Like Juarez, Sixtos saw defendant holding an object in the waistband of his pants, and he did not see the object. Sixtos also heard defendant talking to Ugalde about Ugalde's bicycle.
According to Sixtos, Sandoval and defendant met Ugalde inside the Pine Street apartment complex's parking garage a few hours later. Sixtos denied going inside the parking garage. While he was standing outside and acting as a "lookout," Sixtos heard gunfire and fled on his bicycle.
Andrade showed Sixtos footage from surveillance cameras stationed around the Pine Street apartment parking garage. Sixtos identified himself as one of two individuals seen leaving the parking garage on bicycles after the shots. Sixtos did not identify the second individual, but the bicycle this person was riding resembled Ugalde's bicycle.
Miguel Quesada told investigators he and several other individuals discussed Ugalde's murder the day after it occurred, and they went to defendant's apartment to talk about it. Defendant told Quesada Ugalde had not been a good "homie." Defendant appeared to be under the influence of drugs, and he asked Quesada to take him someplace. Quesada refused to take defendant anywhere. As Quesada left defendant's apartment, he saw Ugalde's bicycle leaning against a wall.
Santa Ana Police Officer Clinton Achziger interviewed Joselyn Fregoso, defendant's ex-girlfriend. She said she had seen defendant hide a gun under his couch in January 2012. She told Achziger defendant and Sixtos were together at the Pine Street apartment complex parking lot prior to the shooting, and that defendant disappeared after May 8.
From these interviews, investigators identified defendant as a potential suspect, but he could not be located. A $10,000 reward for information leading to defendant's arrest was offered, but it produced no immediate results.
However, in January 2013, Victor Ontiveros Sanchez contacted the Santa Ana Police Department from his home in Mexico City, Mexico. Sanchez told detectives defendant had appeared at the home of a mutual relative in Mexico City sometime between May 10 and 15 in 2012. Over the course of several months, defendant and Sanchez engaged in numerous conversations, some fueled by alcohol. During these conversations, defendant told Sanchez, and other family members, he fled California because he shot and killed someone named, "Toro," outside an apartment complex. Defendant also accessed Facebook and identified Ugalde as the man he shot.
Defendant told Sanchez he had gotten into an argument with Ugalde over a former girlfriend, and he claimed to have hidden the gun he used to kill Ugalde at his current girlfriend's house. Defendant also told Sanchez about the $10,000 reward for information leading to his arrest.
Sanchez said defendant bragged about the murder at times, but Sanchez could not tell if defendant was telling the truth. However, after defendant started to cause problems for his Mexican relatives, Sanchez decided to contact the Santa Ana Police Department.
Defendant was arrested at Los Angeles International airport. One of defendant's aunt's collected the $10,000 reward.
2. Trial Testimony
Sanchez testified in accordance with his pretrial statement to police, but Juarez, Martinez, Sixtos, Lorena, and Gerardo recanted their prior statements at trial. When asked if they made certain statements, the witnesses either denied making the statements attributed them, or claimed not to remember what had happened.
At trial, Juarez admitted hanging out in the Pine Street apartment complex laundry room with Martinez, defendant, Ugalde, Sixtos, and Sandoval. However, he denied hearing Ugalde and defendant talk about Ugalde's bicycle, he could not recall seeing defendant take Ugalde's bicycle, and he never saw defendant holding an object in his waistband.
During direct examination, Sixtos confirmed he had been with a group of people smoking methamphetamine in the laundry room, but he testified Ugalde was not among them. He also denied hearing defendant and Ugalde argue about Ugalde's bicycle, and that he saw defendant holding something in his waistband. Sixtos denied telling police defendant, Ugalde, and Sandoval met in the Pine Street apartment complex parking garage, and his role as a lookout while the meeting took place. When shown the surveillance camera footage, Sixtos denied being one of two men seen riding away from the parking structure on bicycles. Sixtos remembered telling the police about meeting with other people after the murder, and going to defendant's house, but he did not remember defendant saying Ugalde was not being a good homie.
However, Sixtos invoked his Fifth Amendment right to remain silent during defense counsel's cross-examination.
Lorena admitted hearing her brother and grandmother talking to someone in the early morning hours of May 8, 2012. However, she denied identifying defendant as that person, or hearing an argument. Lorena testified she never left her bedroom and did not know what happened.
Gerardo denied knowing defendant, and he could not remember telling the police anything other than he had been asleep.
3. Defense Counsel's Closing Argument and Jury Instructions
Defense counsel asserted the absence of DNA evidence, or an eyewitness, and the fact there were three people in the garage when Ugalde was shot, meant the prosecution had failed to prove his identity as the shooter.
In the alternative, defense counsel argued defendant was guilty of nothing more than voluntary manslaughter under a theory of provocation. Pointing to defendant's statement he killed Toro during an argument over a girlfriend, defense counsel explained, "[m]aybe it was an argument. Maybe it was, you know a reflexive act."
In keeping with the evidence, and the defense theories of the case, the court instructed the jury on first and second degree murder, and voluntary manslaughter based on provocation and heat of passion.
DISCUSSION
1. Motion to Strike Sixtos's Testimony-Confrontation
As noted, Sixtos invoked his Fifth Amendment right to remain silent during defense counsel's cross-examination at trial. The court denied defense motions to strike Sixtos's testimony and for a mistrial. Defendant asserts the court's rulings violated his constitutional right to confront the witness. We agree, but find the error harmless beyond a reasonable doubt.
a. Background
On the afternoon Sixtos was scheduled to testify, he appeared with Deputy Alternate Defender Sherri Marigay. Marigay had been appointed to represent Sixtos on an unrelated probation matter. The court explained the circumstances of the case, and Marigay offered to stay in court while Sixtos testified.
Well into Sixtos's direct examination, the court took a break and held a conference in chambers. Marigay expressed concern that her client was in danger of self-incrimination, perjury, and making a false report. The prosecutor said he had no intention of charging Sixtos with perjury, and the court told Marigay, "Your concern is noted, but I don't think you have to worry about it so far." After one or two more questions, court adjourned for the day.
The following morning, outside the presence of the jury, Marigay told the court she had reviewed the police report, and she was recommending Sixtos assert his Fifth Amendment right to remain silent. A lengthy discussion ensued about Sixtos's invocation of his Fifth Amendment right, whether Sixtos should or could be granted immunity, and what to do in the event Sixtos refused to answer any questions on cross-examination. Ultimately, the court decided to let Sixtos be subjected to cross-examination, and depending on the questions defense counsel asked, Sixtos may or may not have the right to invoke the Fifth Amendment.
Marigay sat next to Sixtos as he testified. Defense counsel asked if Sixtos remembered being interviewed by Andrade, and Sixtos said he did. Defense counsel asked Sixtos if he "recall[ed] telling Detective Andrade or Detective Rondou that you were present in the garage where the shooting took place . . . ." Sixtos responded, "I invoke my Fifth Amendment right to remain silent." Defense counsel asked Sixtos if he told investigators he had been a lookout, and whether he was present in the garage "at the time that the shots were fired." Sixtos asserted his Fifth Amendment privilege to both questions.
Defense counsel showed Sixtos a drawing and asked if Sixtos knew who drew it. Sixtos said he did not. When counsel asked Sixtos if he remembered answering Andrade's questions about the drawing, Sixtos asserted his Fifth Amendment privilege. However, when defense counsel followed up by asking if Andrade made the drawing, Sixtos responded, "Yes."
Defense counsel next asked Sixtos if he remembered something about a bicycle. Sixtos responded, "No." When defense counsel asked Sixtos if he remembered telling investigators there was no argument, only a discussion, between defendant and Ugalde, Sixtos invoked his Fifth Amendment privilege.
Sixtos also invoked his Fifth Amendment privilege when defense counsel asked if he remembered telling officers he did not see defendant shoot Ugalde, if he knew someone named Looney (Sandoval), if Looney shot Ugalde, if Sixtos was present when Ugalde was shot, if he knew where the shooting took place, if he heard the shots, and if he knew who was in the garage at the time of the shooting.
At this point, defense counsel moved to strike Sixtos's testimony, arguing Sixtos's invocation of his Fifth Amendment privilege deprived defendant of his Sixth Amendment right to confront witnesses. The prosecutor suggested the court delay giving a ruling while the prosecutor considered offering Sixtos use immunity, and the court agreed.
The following day, the court stated it was inclined to deny the defense motion to strike. In the court's view, defense counsel could ask Andrade what Sixtos had told him before trial regarding the same questions Sixtos had refused to answer during trial. Defense counsel argued the ability to cross-examine Andrade would not protect his client's constitutional rights because Sixtos's assertion of his Fifth Amendment privilege prevented defense counsel from going "deeper into the questions that he did give to Mr. Andrade."
The trial court labeled defense counsel's argument "pretty much speculative." The court observed, "The way this developed is an unfortunate circumstance because it has resulted in a witness testifying in direct examination with counsel in the courtroom, and then on cross examination, he takes the Fifth Amendment." The court acknowledged the situation was "kind of . . . unique." But the court also believed defense counsel would be able to "get what you need out of Andrade."
The prosecutor then decided to not grant Sixtos use immunity, and the court agreed to take the matter under submission and review the transcript of Sixtos's testimony. Following the court's review of the transcript, the court stated, "almost the entirety of [Sixtos's] testimony dealt with what he told Andrade," and denied the defense motions to strike Sixtos's testimony and for a mistrial.
b. Law and the Standard of Review
A criminal defendant has a constitutional right to confront and cross-examine witnesses against him or her. (U.S. Const., 6th & 14th Amends.; Pointer v. Texas (1965) 380 U.S. 400, 403-405.) However, these rights must yield to a witness's legitimate claim his or her testimony might lead to self-incrimination. (People v. Hill (1992) 3 Cal.4th 959, 993, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
A witness's refusal to answer questions on material issues on cross-examination may be grounds for striking all or part of the witness's testimony. (People v. Price (1991) 1 Cal.4th 324, 421.) In determining whether to strike a witness's testimony for refusing to answer questions on cross-examination, the court should consider the motive of the witness and the materiality of the answer. (People v. Seminoff (2008) 159 Cal.App.4th 518, 525 (Seminoff).) Striking the witness's testimony is a "'drastic'" solution, which is to be used after "less severe" means are considered." (Seminoff, at p. 526.)
If the court's refusal to strike a witness's testimony presents an issue of federal constitutional error, we utilize independent review in analyzing the question. (People v. Cromer (2001) 24 Cal.4th 889, 901-902 [independent review, not abuse of discretion, standard applicable to whether witness was legally unavailable].)
c. Analysis
The critical question is whether Sixtos's cross-examination would have led to material evidence "so closely related to the commission of the crime that the entire testimony of the witness should be stricken." (United States v. Cardillo (2d. Cir. 1963) 316 F.2d 606, 611, 613 (Cardillo).)
Sixtos's pretrial statements to police placed defendant at the Pine Street apartment's parking garage before, during, and after the shooting. During trial, and before he invoked the Fifth Amendment, Sixtos admitted smoking methamphetamine in the laundry room with several people. But he denied making any of the other statements attributed him, and he refused to answer questions about his own whereabouts when the murder occurred. His testimony linking defendant to the murder scene was not merely a collateral matter, but evidence intricately connected to the charges against defendant. (Cardillo, supra, 316 F.2d at pp. 611-613.)
More importantly, the court's denial of defendant's motion to strike the entirety of Sixtos's testimony permitted the prosecution to introduce his pretrial statements through Andrade as inconsistent statements. Sixtos was an important witness, and defendant's inability to cross-examine Sixtos at trial denied defendant his Sixth Amendment right to confront an adverse witness.
Nevertheless, federal constitutional error is subject to harmless analysis. (Chapman v. California (1967) 386 U.S. 18, 24.) Under Chapman, an error is harmless when the reviewing court determines beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.) An error does not contribute to the verdict when the record reveals the error was unimportant in relation to everything else the jury considered. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
Defendant argues only Sixtos's statements put him at the crime scene during the murder. Consequently, this evidence was crucial to prosecution, and its importance cannot be overstated. We disagree.
Sixtos was important, but his testimony was not essential in light of other inculpatory evidence produced at trial. Sanchez testified defendant appeared in Mexico within days of Ugalde's murder, and he spent several months with relatives. During that time, defendant boasted to several relatives that he killed someone named Toro outside an apartment complex in California. He even identified Ugalde as his victim from a picture on Facebook, and acknowledged the $10,000 reward offer.
In addition, Lorena and Gerardo said defendant woke them up a few minutes after the shooting, and he demanded a phone. When they loaned defendant a cell phone, he called his mother 12 times in a few minutes. He also used their bathroom to urinate on his hands. The next day, a witness saw Ugalde's bicycle at defendant's apartment, and there was ample evidence defendant and Ugalde had argued about Ugalde's bicycle earlier that day. In this case, the overwhelming evidence of defendant's guilt renders any error in the court's failure to strike Sixtos's testimony, or grant his motion for a mistrial, was harmless beyond a reasonable doubt.
2. Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct by using the word "homie" and by referring to people by their gang monikers. He also asserts the prosecutor misled the court during a discussion about defendant's 2012 gun possession. For reasons discussed below, we find both contentions meritless.
a. Standard of Review
"A prosecutor commits reversible misconduct under California law if he or she makes use of 'deceptive or reprehensible methods' in attempting to persuade either the trial court or the jury, and there is a reasonable possibility that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]" (People v. Rundle (2008) 43 Cal.4th 76, 190 (Rundle), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 (Doolin).)
"Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as the denial that ensues from a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action '"'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" [Citations.]" (Rundle, supra, 43 Cal.4th at p. 190, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421.)
b. Forfeiture
The Attorney General first asserts defendant forfeited both arguments by failing to make a timely objection and request for admonition at trial. "'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
There are exceptions to the general rule. A defendant "will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.]" There is no need to object and request an admonition "if '"'an admonition would not have cured the harm caused by the misconduct,'"' or "if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request."' [Citations.]" (Hill, supra, 17 Cal.4th at pp. 820-821.)
In this case, defense counsel objected to the prosecutor's questions using gang monikers and the word homie on Evidence Code section 352 grounds. Defense counsel once insinuated the prosecutor's persistent questioning about homies caused Quesada to say the word "gang," and defense counsel objected on grounds of "improper argument" after the prosecutor's inadvertent reference to "gang subculture" during closing argument. However, neither of these objections were sufficient to alert the court to possible prosecutorial misconduct, and defendant fails to demonstrate an objection and request for admonition would have been futile. Even so, we consider the merits of the claim to forestall any potential ineffective assistance of counsel claim.
c. Gang Monikers and Homies - Background
As noted, Ugalde, defendant, and a majority of the prosecution's witnesses had known ties to the Lopers criminal street gang. But the prosecution did not charge defendant with the substantive gang crime, or allege the gang enhancement. Consequently, the court made an in limine order excluding all gang evidence at trial.
Within one or two witnesses, the prosecutor began referring to various witnesses by their gang monikers. During a break, and outside the presence of the jury, the prosecutor told the court he was using gang monikers because some of the witnesses could not identify people by their given names.
Defense counsel objected to the prosecutor's use of gang monikers on Evidence Code section 352 grounds. The court sustained the objection and excluded any reference to gang monikers, unless the testifying witness did not know someone's proper name. Nevertheless, the prosecutor frequently used gang monikers in conjunction with proper names without further objection. The court did not mention excluding the word homie.
Following the court's ruling, the prosecutor asked Juarez if the word homie was "kind of like the same thing, as a brother," and Juarez said, "Yeah." Juarez said he knew defendant from his neighborhood. Juarez told the prosecutor he did not want to testify, and the prosecutor asked him, "If Toro was like a brother to you, like a homie, why don't you want to be here to testify." Juarez responded that testifying is crossing a line that should never be crossed.
During Quesada's testimony, the prosecutor asked if he considered defendant to be his homie. Quesada said defendant was just a friend. The prosecutor asked Quesada, "Why won't you call him a homie?" Quesada responded, "Yeah, a homie is someone that's in a gang."
At this point, the court stopped proceedings for an in chambers discussion. The court said the prosecutor had asked "one question too many." The prosecutor explained, "[t]here's a difference between [a homie] and a friend. So right now he considers [defendant] a friend, but he no longer holds him in that high regard as a homie. That's where I was going. I didn't bring up anything related to gangs, but there's a reason why [Quesada] has a complete lack of memory about this."
Defense counsel moved for a mistrial based on Quesada's spontaneous reference to gangs. Defense counsel did not think there was a way to "unring that bell." The court denied the mistrial motion, but also observed, "I have mixed emotions about whether or not gang evidence should come out here. I told you before that I'm going to keeps gangs out of this case, if at all possible, but by the same token, . . . these witnesses [have] come in and . . . testif[ied] . . . they know nothing about nothing."
The court also understood the jury may not understand why the witnesses were reluctant to testify against defendant, and the court agreed with the prosecutor that friendship would not be a sufficient reason. The court noted Quesada's reference to homies being in gangs, but pointed out that defendant had not been identified as a gang member. The prosecutor asserted he had no intention of introducing any further gang evidence, and the court cautioned the prosecutor "to be careful with the direct examination."
When trial resumed, the prosecutor continued to refer to people by their gang monikers and use the word homie without further objection. Then, during Sixtos's testimony, the prosecutor asked why Sixtos went to defendant's house the day of the murder, and Sixtos responded, "Because we were gathering all the homies together because of this incident."
Defense counsel objected on grounds Sixtos's answer had been nonresponsive to the prosecutor's question and requested a hearing outside the presence of the jury. Once in chambers, defense counsel again expressed concern about the prosecutor's questions and frequent references to homies would lead to inadmissible gang evidence.
The court expressed little concern about the prosecutor's use of the word homie because, "maybe they were homies because of the fact that homies referred to in today's vernacular are just people that live in the same neighborhood that come in a certain environment." Nevertheless, the court told the prosecutor to refer to a bunch of people instead of group of homies, or to use the names of those involved.
When questioning resumed, the prosecutor asked Sixtos, "Do you remember telling the police you had a meeting with the homies?" Sixtos responded, "Yes, sir." The prosecutor continued, "And at that meeting do you remember [defendant] saying that Toro was not a homie. He was not a homie?" Sixtos said, "No, sir."
The word homie and gang monikers also came up during closing argument. At one point, the prosecutor said, "[t]his is Bruno Ugalde. This is Toro. He's just a kid. Everybody liked him. Everyone cared about him, considered him a homie. That word, the reason I brought that out was in the gang subculture - excuse me, in the neighborhood subculture, it's more than just a friend. It's more than just a friend. It's somebody you rely on. It's somebody you count on."
The prosecutor's inadvertent reference to gang subculture prompted the court to confer with counsel outside the presence of the jury. Defense counsel argued the prosecutor's reference to gang subculture effectively told the jury defendant had some gang affiliation. Defense counsel did not believe the prosecutor's remark was intentional, but asserted it was "improper argument" and necessitated a mistrial.
The court believed the prosecutor's error could be cured by admonition, and pointed out that the prosecutor had immediately self-corrected in front of the jury. Defense counsel declined an admonition on tactical grounds. The court advised the prosecutor to be "really, really careful about this," and denied defendant's motion for a mistrial
d. Analysis
Defendant asserts the prosecutor acted in a deceptive manner and violated the court's pretrial ruling excluding gang evidence by using gang monikers, and the word homie. He equates gang monikers and the word homie with gang evidence. However, other than two unintentional references to gangs, there was no gang evidence introduced.
The jury was not told the prosecutor was using gang nicknames to refer to people, and the prosecutor went out of his way to clarify the word homie merely meant something more than just friendship. While the court repeatedly expressed concern over the admission of gang evidence, the court never specifically prohibited the prosecutor from using the word homie. As the court pointed out, the term homie is now used in every day conversation, and is not necessarily associated with criminal street gangs.
Moreover, the prosecutor's use of gang monikers was necessary to identify people at trial. In short, defendant fails to demonstrate the prosecutor made "use of 'deceptive or reprehensible methods'" to persuade the jury. Thus, no prosecutorial misconduct occurred.
Alternatively, even if prosecutorial misconduct had occurred, defendant was not prejudiced. In light of the overwhelming evidence of defendant's guilt, there is no reasonable possibility defendant would have obtained a more favorable result if the prosecutor had not used gang monikers and the word homie when questioning witnesses, and in closing argument. (Rundle, supra, 43 Cal.4th at p. 190, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421.)
e. Misleading the Court-Background
The prosecutor moved in limine to admit evidence defendant possessed a firearm and used it to threaten Fregoso in January of 2012. The prosecutor wanted to show defendant had knowledge of firearms, and he argued this evidence was relevant to premeditation and deliberation.
Defense counsel objected on grounds of relevance (Evid. Code, § 210) and prejudice (Evid. Code, § 352). The prosecutor withdrew his request, and indicated he would only use the incident for impeachment purposes in the event defendant testified.
During cross-examination, defense counsel asked Achziger if Fregoso told him defendant once came to her house to hide a weapon. Achziger said he could not remember. Defense counsel followed up with, "Did you ask her if, in fact, or ask her if [defendant] ever went to her house to hide a weapon?" Achziger repeated that he could not remember.
In chambers, the prosecutor said: "One of my [Evidence Code section] 402 motions involved a situation where . . . Fregoso and . . . defendant, specifically in January 2012 where he and she were together at his house, that he pulled a gun, that he threatened her with the gun, and that he ultimately hid the gun under a couch." (Italics added.) The prosecutor also believed this evidence would bolster Sanchez's testimony about defendant hiding a gun at his girlfriend's house.
On redirect, the prosecutor asked Achziger, in "your interview in September of 2012, did . . . Fregoso specifically tell you she was with . . . defendant at his residence, that she saw him with a gun, and that he hid it under the couch?" (Italics added.) Achziger responded, "Yes, sir." On recross-examination, defense counsel clarified the incident happened in January 2012, and that defendant had a revolver, not a semiautomatic as was used in the homicide.
Later, when defense counsel asked Fregoso if defendant went to her house in May 2012. Fregoso responded, "No, sir." Counsel followed up with: "He never went and asked if he could hide a gun there?" Fregoso responded, "No, sir."
f. Analysis
Our review of the record, as summarized above, reveals the prosecutor did not misrepresent the location of the 2012 gun incident. The prosecutor did not say the incident occurred at Fregoso's home. Although the court did momentarily confuse the location of the prior incident, it was not the prosecutor's fault. Plus, the prosecutor used the correct facts when he examined the witness. Again, there was no prosecutorial misconduct.
3. Ineffective Assistance of Counsel
Defendant argues his attorney provided ineffective assistance of counsel by (1) not introducing evidence Sanchez was related to the woman who obtained the $10,000 reward; (2) not clarifying the facts of the 2012 Fregoso gun incident, and failing to object to this evidence on hearsay grounds; and, (3) not discrediting Sixtos, or mentioning Sandoval, during closing argument.
a. Standard of Review
To be entitled to relief based on a claim of ineffective assistance of counsel, the burden is on the defendant to show "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)
In addition, when ineffective assistance of counsel is raised on appeal, "a conviction will be reversed . . . only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Prieto (2003) 30 Cal.4th 226, 261.)
b. Analysis
As often occurs with ineffective assistance of counsel claims made on direct appeal, defendant has failed to demonstrate there could be no satisfactory explanation for defense counsel's actions, or omissions. For instance, defendant does not explain how Sanchez's credibility would have been impacted if defense counsel had emphasized the familial relationships involved. Sanchez did not receive the $10,000 reward, and nothing suggests the actual reward recipient, defendant's aunt, had anything to do with Sanchez. In addition, the prosecutor told the jury defendant's aunt received the reward. So there was no reason for defense counsel to address the issue.
As for evidence of the 2012 gun incident, even assuming the court mistakenly believed the incident occurred at defendant's girlfriend's house instead of defendant's home, the error is of no moment. Regardless of where the incident occurred, evidence defendant possessed a gun within months of the murder was relevant. While the evidence may have bolstered Sanchez's testimony a little more if defendant had actually hidden a gun at his girlfriend's house, Sanchez's testimony gained credibility regardless of where the incident occurred.
With respect to defense counsel's failure to object on hearsay grounds to evidence of the 2012 gun incident, defendant fails to demonstrate a timely hearsay objection would have resulted in the exclusion of this evidence. At trial, Fregoso denied the incident occurred, but she was impeached with her prior statement. (Evid. Code, § 1235 [hearsay exception for prior inconsistent statements].) Plus, defense counsel emphasized the incident occurred months before the murder, and it involved a different type of firearm from the type used to murder Ugalde.
Defendant also asserts counsel's closing argument did not properly focus on Sixtos testimony and Sandoval's presence in the garage at the time of the shooting. However, closing argument is quintessentially a matter of trial tactics. (People v. Freeman (1994) 8 Cal.4th 450, 498 [the decision of how to argue to the jury after the presentation of evidence is "inherently tactical"].)
Reasonable trial tactics are readily discernable in this case. First, defense counsel did mention Sandoval during closing argument, and he reminded the jury three people were in the parking garage when Ugalde was killed.
Furthermore, defense counsel also asserted defendant could have killed under provocation. As noted, Sanchez testified defendant told him there had been an argument over a girlfriend, and other evidence suggested defendant and Ugalde had a disagreement about Ugalde's bicycle.
Given the state of the evidence, defense counsel could have reasonably decided to emphasize the provocation theory of the case. In sum, defendant has failed to show his attorney had no reasonable tactical purpose for his decisions, or a reasonable probability of a more favorable result. (Strickland, supra, 466 U.S. 668.)
4. Sufficiency of the Evidence to Prove Defendant Committed Murder
Pointing to the absence of DNA evidence, fingerprints, the murder gun, or an eyewitness connecting him with the murder, and the numerous discrepancies between the prosecution witnesses's pretrial statements and testimony, defendant asserts no substantial evidence sustains the verdict. Again, we disagree.
a. Standard of Review
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.)
We view the evidence in the light most favorable to the judgment and make all reasonable inferences in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The testimony of a single witness is sufficient to sustain a conviction, even if the testimony is internally inconsistent or contradicted by other evidence. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
b. Analysis
In this case, the prosecution presented substantial evidence defendant wanted to take Ugalde's bicycle, and that they had at least a discussion about the bicycle in the Pine Street apartment complex's laundry room before the murder. The surveillance video from the parking garage showed two males riding bicycles immediately after the shooting, and one of the bicycles looked like Ugalde's bicycle. Another witness testified defendant had possession of Ugalde's bicycle on the morning after the murder.
Lorena and Gerardo said defendant woke them up a few minutes after the shooting. He was nervous and used one of their cell phones to call his mother 12 times in a few minutes. Defendant also urinated on his hands, which some people believe gets rid of gunshot residue, and he fled the country after the murder to live with relatives in Mexico. While defendant was in Mexico, he told Sanchez and other relatives he killed someone named Toro outside an apartment complex, and he identified Ugalde as the victim from Facebook. This constitutes substantial evidence defendant murdered Ugalde.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.