Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF1229 Richard Toohey, Judge.
William J. Kopeny & Associates and William J. Kopeny for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob, Jennifer A. Jadovitz and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
I. BACKGROUND
There was a gang shooting in an alley in Santa Ana, Christmas night, 2005. Two cars driven by members of the Delhi gang drove into an alley claimed by a rival gang called (appropriately enough) the “Alley Boys.” Two Delhi members got out of their car: a young man in his mid-teens carrying a shotgun, and an older man -- that is, in his mid-20’s, old by gang standards -- with some sort of handgun. The young man fired his shotgun twice; the older man emptied about 10 rounds. As a result of the shootings, Alley Boy member Pedro Terran died by a dumpster in the alley.
There was an eyewitness to the shooting, a man named Enrique who was cleaning out the inside of his car. About three months later, in a police interview, Enrique would point to a picture of defendant Juan Avelar as the older of the two shooters.
He is a witness in a gang case. All quotations from transcripts will substitute “Enrique” for the listed last name.
And there was also something close to an admission on Avelar’s part -- certainly a statement placing him in enemy territory, in an alley, out of the car and a witness to a shooting of an Alley Boy gang member, that Christmas night. Avelar did not come home to his girlfriend until about 2 or 3 in the morning. Avelar told her that he had gone to a cemetery, then went, along with others, into Alley Boys territory. He told her that “one of the little homies” got shot. He told her he did get out of the car, but he did not shoot. He also told her to cover for him by telling police he was home.
Avelar would later be convicted of first degree murder for a gang purpose, as well as being an active participant in a criminal street gang. Given Avelar’s use of a handgun and a prior serious felony conviction, he received a 30 years-to-life term in state prison plus a consecutive life term without possibility of parole.
As one might imagine, Avelar’s appeal primarily focuses on the eyewitness Enrique’s identification of him as the older shooter. We previously issued an unpublished opinion, People v. Avelar (Dec. 14, 2009, G039835) [2009 WL 4761426] affirming the judgment of conviction, but granted rehearing to take a second look at Avelar’s arguments regarding the fairness of Enrique’s initial identification of Avelar’s photo at the police interview. Having done so, we again affirm the judgment of conviction.
II. ENRIQUE’S INITIAL IDENTIFICATION
A. Preliminary Comments
Two and one-half months after the Christmas shooting, Enrique met with two Santa Ana police detectives on March 13, 2006. A tape of the interview was made and transcribed by an employee of the Orange County District Attorney’s office. We will call this transcript the “DA’s Transcript.” It would be this transcript that would form the basis of a written motion, filed in early December 2007, to exclude all evidence of Enrique’s identification of Avelar, both out-of-court and in the upcoming trial. The theory was that the procedure of the interview was impermissibly suggestive.
However, just before the hearing on the motion to exclude, a different transcript of the same audiotape surfaced, this one prepared by an employee of the Santa Ana Police Department. We will call this transcript the “Santa Ana PD’s Transcript.” Avelar’s trial counsel made reference to this tape on the morning of December 6, as the court convened to consider Avelar’s motion to exclude evidence of Enrique’s identification.
Avelar’s trial counsel’s comments were equivocal as to which version he preferred, though he seemed to lean toward the Santa Ana PD’s version. (“I found some differences [between the two transcripts] and some things that I heard were marked as inaudible on the transcript [not exactly clear which of the two he was talking about, though it probably was the DA’s version]. Then I tried to compare those notes against the Santa Ana Police Department prepared transcript of the [Enrique] interview which I received yesterday, went over that and found some significant issues there....”].) And the Santa Ana PD’s version is the one preferred by Avelar’s appellate counsel.
The same ground would later be covered in a pretrial hearing in which one of the detectives present, David Rondou, would give his version of what happened at the interview.
The record thus contains, remarkably, no less than three different versions of the same critical event: The interview of Enrique by Santa Ana police in March 2006.
At the same time, Avelar’s central argument in this appeal is the assertion of undue pressure at that interview, a highly factual matter. We will therefore take a page from Kurosawa’s book, and provide three accounts of that event, Rashomon-style. We apologize to readers if this means covering much of the same territory three times, but it is perhaps the best way of approximating the true flavor of the interview.
Of course, as with all appellate retellings of facts, there is the historian’s problem of selection of material. Short of simply reprinting the two sets of transcripts of the interview and the pretrial testimony about the interview (which really would be unreadable), we have chosen to tell the story as it happened: As a series of questions and statements exchanged by Enrique with the two officers. Readers should bear in mind that the ellipses in the transcripts are not deletions of text -- they are the marking of pauses as the tape was transcribed.
Readers will also note that there is some commentary of our own describing the various comments exchanged between witness and detectives. One reason is simple readability. But there is an important, substantive legal reason as well. It is the defense who bears the burden of establishing the unreliability of the identification procedure. (People v. Cunningham (2001) 25 Cal.4th 926, 989-990 (Cunningham) [“The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.”].) And -- just as importantly for our analysis here -- it is fundamental in such a context (with the defense bearing the burden) that, on appeal, all inferences and conflicts are drawn in favor of the trial court’s judgment (here, that the interview was non coercive). Our descriptions are reasonable inferences of what the record shows. (Well, at least we think they are -- and in any event we have tried to frame them as neutrally as possible while still keeping a sense of narrative.)
There is yet another reason for subjecting readers to the several narratives: to ward off something we might call the “compression effect.” We are all familiar with the compression effect from television: Imagine a scene where two detectives stake out a residence over the course of, say, two days. The viewer (inaccurately) experiences the scene as happening in a few moments.
The same thing can happen in print. In a brief, the most coercive (or seemingly coercive) bits of an interview might be crammed into a single paragraph, the psychological effect on the reader being a sense that the interviewee was subjected to (as they used to say before Miranda) the “third degree.” But if one tells the same story in something closer to “real time, ” the reader may derive a different, but more accurate, impression. What at first might seem like undue pressure may, if the story is more fully told, dissolve into something more resembling gentle prodding.
One final note. We take the basic introductory account from the DA’s Transcript, largely because it was the transcript with which the trial judge was most familiar going into Avelar’s exclusion motion (though the trial judge managed to read pieces of the Santa Ana PD’s Transcript during the hearing). We then provide accounts taken from the DA’s Transcript and the Santa Ana PD’s Transcript.
The first transcript was marked “A” the second “1A.” In proceedings outside of the jury on the procedure, Judge Toohey commented that “I have not reviewed what I’ll mark as People’s -- as court’s 1A and 2. I haven’t reviewed the tape or the 1A transcript.” Later the judge would review “portions” of it -- presumably the parts where the two differ.
B. The Interview of Enrique on March 13, 2006
The interview opened with some chit-chat between one of the two detectives, David Rondou of the Santa Ana Police Department, about Enrique’s current circumstances. The conversation quickly moved to what Enrique was doing the previous Christmas night. “I was washing the car, I was vacuuming the, the car, and uh, I saw two vehicles....”
Enrique was with a gentleman named Juan Carlos. Enrique was “inside the car like my butt out.”
Enrique looked up toward the passenger side. Two cars came by, right behind each other. Suddenly “two guys” came up to Enrique while he was in his car; two others stayed on the other side of their cars.
One of the two who approached Enrique had a shotgun and one had a handgun. The guy who had the shotgun was a “little short guy” in his teens.
The older guy was taller. In Enrique’s words, “Maybe my height.” When asked how tall he -- Enrique -- was, he said, “I’m five-nine.”
The short young guy asked, “Where you from?”
“Nowhere, ” Enrique answered. The short guy got back in his car. Enrique went back in the garage.
When Enrique walked back out again, he heard shots. He heard “boom, boom the first two shots from the shotgun, ” then a series of shots from the handgun: “pow-pow-pow.” Enrique thought “he’s probably unloaded the whole handgun.”
Enrique had only seen the “same two guys” who initially approached him, and he initially told the detectives (in their words) he “didn’t recognize either of ‘em.” But soon detective Rondou asserted the Enrique “knew one of the guys there.”
1. The DA’s Transcript Version
When asked if he could recognize a picture of “either of the guys, ” Enrique said, “maybe the youngster.”
Rondou thought Enrique was familiar with one of the persons shown. “And we know that and we’ve talked to a lot of people. But we need the honest truth from you and I think everything you’ve told us is true, as to actually how this whole thing happened, very true. Except I think you know who one of those guys are.”
Enrique hesitated. “I...”
Rondou volunteered that Enrique seemed not “really willing to take that step with us yet, ” apparently referring to some sort of explicit acknowledging on Enrique’s part that he actually knew one of the shooters.
And Enrique actually agreed with that sentiment. “You know why? It’s like I said, I’m not taking that step? It’s not because I’m afraid to whatever you’re gonna do, you know that? I don’t care cause they... Probably that person knows me...”
A few moments later, Enrique invited the detectives to show him a picture of the person they thought he knew and stated he probably could identify that person: “I am being honest so that’s what I’m saying. Okay. If you show me a picture from one of the, one of my classmates in junior, that guy, when I went to, I could probably tell you, you know what? These are the persons that I went to school with....”
The conversation then slid into the subject of Enrique’s education (he got to the seventh grade, then went to juvenile hall), but Rondou soon returned to the subject of pictures: “But what, you want to look at some pictures and see if you can recognize either of the guys that were, that hit you up? Wait want to show you this uh, this group of pictures.”
Rondou then apparently realized he need to observe some formalities: “I got read this thing. It says, you’re being shown photographs of, oh uh, persons in an effort to identify the suspect or suspects involved in the case we are talking about. Should you see any suspects in this case, we’d like you to point that person out to us.”
Enrique agreed. “All right.”
Detective Flynn then apparently put photos in front of Enrique. “Let me show you.”
Enrique made some oblique comments about the pictures. “All right, these that I remember, the guy in the back. This guy. They know... I can’t recognize... I... that I’m looking at right now, the three, would be these two right here because of the...”
Rondou soon filled in the thought: “Sharp chin?” Enrique agreed.
Rondou asked, “I didn’t see who you’re pointing at.” Enrique soon told him that none of those gentleman were among the two who had “hit” him up.
Then Rondou noticed that Enrique seemed to be returning to one picture in particular. “There’s one that you keep coming back to, I don’t want to... Who is that?
“Uh-huh.”
Rondou asked: “The bottom right, that you just pointed to? What about him, Enrique?”
“I’m looking at ‘em, I can probably say... that it was probably the one.”
Rondou asked, “Who’s this?” and quickly followed with, “Probably say what?”
“I don’t know what to say, ” Enrique replied.
“Say what, Enrique?” Rondou asked.
Enrique appeared to be thinking out loud: “The youngster, uh, the... Only he was shorter. See I don’t know about this guy, how tall he is.”
Rondou zeroed in on the picture Enrique seemed to be staring at -- a picture on the bottom right. “So his guy on the bottom right, that you pointed out, looks like the youngster? Is that what you’re saying?”
Enrique still seemed to still be thinking out loud. “Yeah, the little guy was like, the one of the side was like more of a... like he...”
A few moments later Enrique returned to the subject of the picture he had starred at. “Yeah, I come back to ‘em cause, I’m trying to picture ‘em. They had dark clothes that day. I’m trying to picture ‘em with a hat.”
Rondou took the comment as his cue. “Well, let’s do this. Gonna take my finger and... across the top, what do you say? Yeah? Look like the older guy?”
Enrique’s comment was: “I don’t...”
“The guy standing behind the youngster? Hey, Enrique?”
“Well he must have been like, he ain’t no stupid... That guy that did... was... ” replied Enrique.
Rondou asked the big question: “So this looks like the guy standing in the back, which is the old man then? Yeah? Is that a yeah? Huh? Enrique, if we sit here, do you know him? If you do, you do, if you don’t, you don’t.”
If Rondou was fishing for an unequivocal identification, he didn’t get it. “I don’t” replied Enrique.
The conversation went into the events of the evening, the younger shooter, and Enrique’s own association with gangsters. “They, they always get the little youngsters to do their stupid things” said Enrique.
Rondou saw an opening. “Right. And it seemed like this dude here was orchestrating it, getting him to do it?”
This time, Enrique agreed. “Yeah, he was....”
The interview soon changed to mention of various past associates of Enrique’s, and another recounting of the events of the evening. Toward the end, detective Flynn returned to the picture in the lower right. “And we need one more thing for you can do. If you could circle around the picture that you pointed out so we know? And then your initials right here and today’s date.”
2. The Santa Ana PD Transcript Version
As noted, the Santa Ana PD version appears to be fuller, with less material ascribed as inaudible. We will begin with detective Rondou’s question: “Enrique, who did you recognize (inaudible) that night?”
We have also incorporated handwritten interlineations for some of the ostensibly “inaudible” parts proposed by defense counsel at the pretrial hearing.
Enrique’s answer seemed to be a disclaimer: “I didn’t recognize any of ‘em at all (inaudible) and like you said and uh... I hang around there.”
Enrique then seemed like he wanted to leave. “But just I go cause I have like (inaudible).”
Rondou got to the point: “Understandable. We’re not trying... looking to cause you any grief but we know you knew one of the guys there. Maybe not as a friend but you knew who he was and you told other people that you knew one of the guys.”
Enrique’s response seemed to suggest someone else had told him the identity of one of the shooters: “Actually, somebody from Alley Boys came up to me and told me if I recognized him cause right after all that happened the next day, they (inaudible) hey, who was it, dude (inaudible) that’s it. He goes, you didn’t recognize him? I go, nah. And you can talk to anybody, they would tell you.”
Rondou seemed to be unimpressed with the answer: “Enrique, we have already.”
“Okay.”
“And that’s why we’re sitting in front of you.”
“That’s what I’m saying.”
Rondou then sounded what appears to be a note of stern reassurance: “If you recognize one of ‘em, you’re not saying that that person did anything wrong. They could have just been there but you recognized one of ‘em and one of ‘em recognized you and you know that just like we do.”
Enrique folded. “Yeah. And that’s... it’s just like you’re saying right now, okay. If one of ‘em recognized me and I told him, you know what, I ain’t from nowhere like you just said right now, they’re gonna say, nah, he’s from Alley Boys.”
Rondou took the tack that the person who had told the police about Enrique knowing one of the shooters also absolved Enrique from membership in the Alley Boys. “This person knew you weren’t from Alley Boys.”
Enrique agreed. “That’s what I’m saying.”
There was then some talk of Enrique’s experience (“I got out of probation. I got shot.”), then Rondou played to Enrique’s moral conscience:
“You know what the bottom line is, Enrique. What happened to Tiny [the victim] wasn’t right, especially on Christmas, and I know you knew who one of the guys was.”
Enquire did not seem to resist the suggestion: “And, actually, you know what, when he said that, cause I go, you know what, he was...”
Rondou seemed unconvinced and perhaps testy: “But you’re still going around and around it.”
“I’m not going around it, I’m just saying I don’t know the person who was...”
Rondou then tried a different tack -- maybe the witness and the shooter were at school together. “I don’t know if you know him personally but you knew who one of ‘em was based on a prior seeing him maybe every day. Let me ask you this. Did you go to school with one of ‘em?”
“I used to go to uh... McFadden, ” Enrique let on.
“With one of them, ” Rondou interjected.
“And it wasn’t one of ‘em, ” Enrique countered, “there was a bunch of kids that I used to hang around with ‘em.”
“Strictly one of these guys was in the car, ” Rondou said.
Rondou hastened to reassure Enrique that the detectives weren’t trying to implicate him. “Did you tell anybody that you recognized one of ‘em? Enrique, you had to cause we’ve been told. You know what I mean? Listen, we’re not trying to front you.”
Enrique seemed to agree. “You’re not trying to front me.”
Rondou then brought up the subject of recognition. “Not at all. But if you recognize one of the guys...”
Enrique wondered how: “But how am I going to recognize him like... it’s like I told you (inaudible) some of the guys might have... one of ‘em came up to me the next day and goes, did you recognize one of ‘em. I go, no. Are you sure? He started asking me the same description that you’re asking me. How old was he? Was he short? Was he tall? Was he a youngster? How was he... like the one behind him, was he an older guy, younger guy, how was he? I told him the description and he goes I know who it is but he never told me who it was.”
The conversation then refocused on the younger shooter (“The first guy that came up and hit you up, ” as detective Flynn put it), but a few minutes later, Rondou came back to the issue of Enrique’s recognition of one of the shooters: “Who... who was the guy that you recognized there, Enrique? What’s his nickname?”
“I don’t know, one of my buddies told me the next day, the guy that (inaudible) I don’t... you guys probably know him, Spooky.”
“From?” Rondou asked.
“From Alley Boys. He lives... he lives around the corner, ” said Enrique, apparently referring to the buddy who had told him the nickname.
Rondou volunteered an answer. “Spooky? So you guys were talking about him?”
“He’s the one that told me, you know what, how was he? How did he look?” Enrique answered.
Rondou refocused on the shooter. “Who was the guy? What’s the guy’s nickname that you recognize, Enrique? And... like we said, you’re not saying he did anything wrong. He’s just there.”
Enrique caught on to Rondou’s dissimulation. “Well, nah, is he... he did ... he did do something wrong. That... that’s attempted murder, all right.”
Rondou returned to the subject of the nickname. “What’s the guy’s nickname that you recognized?”
“I don’t know, honestly.”
Rondou was not satisfied, and tried flattery. He pointed out that Enrique was “a smart guy, ” “obviously intelligent, very well spoken, ” and then said: “This isn’t something that you just forget about. It happened... it happened 3... 3 months ago.”
Enrique stayed his course. “Three months ago like, you know what, like honestly that’s it.”
Rondou was unconvinced. “You knew... you knew the guy.”
Enrique gave an oblique answer (“Whatever goes by with ‘em, that’s what (inaudible) whatever (inaudible)”) and Rondou pressed the point again: “You... you know the nickname. What was the nickname of the guy that you... you told people you recognized.”
A reason for Enrique’s reluctance emerged -- caution: “I don’t want to just say a name and blame somebody else if I don’t...”
Rondou seemed to back off. “All I’m saying is what nickname did you tell? What nickname did you say you recognized and you went to school with him? You went to school with him and recognized him.”
The response was enigmatic: “The only name and the one, the guy that I... that I went to school with that I remember (inaudible) Marc... Marco.”
“What nickname did you tell?” asked Rondou.
“I didn’t tell anybody.”
“Either Smokey or anybody else, ” Rondou postulated.
“I didn’t tell nobody.”
Rondou called Enrique’s bluff: “I think you’d be shocked who’ve talked to, Enrique. And... and like we wouldn’t share with you anything, just like we’re not going to share with other people what you said.”
Enrique stuck to his story: “But it’s like you’re saying, how can I say a name that I don’t even know the guy.”
Rondou also stuck to his position, and played the moral card again: “Because I know you recognize one of these guys and it... it bothered you enough that you said something about it. That’s wrong, man. What happened to that guy’s wrong. That wasn’t right. Regardless of what lifestyle he picked, that was wrong.”
“See, I know that.”
Rondou kept up his appeal to Enrique’s conscience: “There’s little kids out there, and, you know what, it’s not right.”
Enrique’s answer hinted he knew more: “And it’s like I’m saying, that wasn’t right but it... honestly, like I’ll be straight out with you, it was probably a set up.”
“Maybe” said Rondou, and then soon returned to his theme that Enrique did really know one of the shooters: “It’s not going to eliminate, Enrique, no matter how much, it’s not going to take away the fact that you recognized one of these guys.”
Flynn now intervened. “That guy recognized you.”
Rondou quickly followed: “And he recognized you. What makes you think we haven’t talked to that guy, Enrique? What makes you think that guy is the one that said go talk to Enrique, he saw me there. I went to school with him. Enrique, be honest, man, so you can head back to... to work and we’ll be out of your hair.”
A few moments later, Rondou brought up the topic of pictures.
“Let me ask you this. If... if you saw a picture of either of the guys that got out and hit you up, would you recognize him?”
“I would say maybe the youngster, ” Enrique replied. “The one in the back.”
Enrique soon added, though: “I’m going to... if you show me some pictures and if I remember the person that I went to school with, I’ll tell you who it is.”
“Let me ask you this” Rondou responded.
“But I can’t say it was him.”
The conversation soon went to the theme that Enrique knew one of the shooters, but wasn’t identifying him.
“And... and that part you’re not really willing to take that step with us yet.”
Enrique finally acknowledged he did know one of the shooters: “You know why, it’s like I said, I’m not taking that step. It’s not because I’m afraid to (inaudible) you know what, I don’t care cause they, like I say, probably that person knows me.”
So why wouldn’t Enrique take that “step then?”
The answer was that he didn’t even know the youngsters “anymore.”
But Enrique was open to seeing a picture of one of his old junior high classmates: “If you show me a picture of one of the... one of my classmates in junior... McFadden when I went to, I could probably tell you, you know what, these are persons that I went to...”
“Well, you want to look at some pictures and see if you can recognize either of the guys that were... that hit you up?” asked Rondou.
Flynn then followed with the photo layout: “I got to read this to you. It says you are being photographs of uh... persons in an effort to identify the suspect or suspects involved in the case we’ve been talking about. Should you see any suspects in this case, we would like you to point that person out to us, all right.”
Rondou came back with: “It doesn’t necessarily mean they did anything. Just these... these were guys at the other end of the alley that hit you up. Make sense?”
Enrique agreed. “Yeah.”
As he looked at the pictures, Enrique noted one fellow’s “sharp chin” and appeared to stare at the picture in the lower right. Rondou asked, “Are any of these... any of these guys the guy that hit you up? Or with the youngster that hit you up?”
Flynn soon interjected, “There’s one you keep coming back to there though, Enrique.”
Rondou immediately followed: “Who is that, the bottom right, that you just pointed to? What about him, Enrique?
Enrique seemed willing to commit. “I’m looking at him and I can probably say and it’s probably one... the one...”
But Rondou did not know which one, and asked, “So this guy on the bottom right that you pointed out looks like the youngster. Is that what you’re saying?”
Enrique’s response was enigmatic. “The other guy, the one in the back, was (inaudible).”
Rondou sought to clear things up: “Not necessarily, the front or the back. Is there anybody that you recognize as being there, Enrique? And just cause they’re in this lineup doesn’t mean these guys are... are part of it. If they are, if you recognize someone, you recognize someone. If there’s no one in there that uh... you recognize, then you say so.”
Enrique said “These are like... face....” And then quickly added, “He comes to me, like I... I seen him somewhere else.”
Rondou cautioned: “I just want you to be honest, Enrique.”
Enrique then said something that seemed to exclude the person being the younger of the two. “To be honest with you... I don’t recognize. I’m trying to think the youngster was a little bit darker (inaudible) and he was right... right behind us (inaudible) in the back (inaudible).”
Rondou then asked, “Now does he look like the guy, the older guy, that was with the youngster, is that what you’re saying?
“You keep coming back to him, Enrique, ” Flynn quickly interjected.
“I come back to him, ” Enrique said, “cause I try to picture him. They had dark clothes that day. I try to picture him with a hat, you know.”
“Let’s do this, ” Rondou proposed, “I’m gonna take my finger and put it across the top of his head. What do you say? Yeah? Look like the older guy, the guy standing behind the youngster? Hey Enrique.”
Enrique seemed to focus on the younger shooter. “He did..., ” Enrique replied, “he didn’t even speak that much. The guy that did most of the talking was a little youngster.”
Rondou filled in: “So this looks like the guy standing in the back, which is the old man then? Yeah.... All right. Enrique, as we sit here, do you know him? If you do, you do. If you don’t, you don’t.”
“I don’t.”
“Okay. All right. But he appears to be the guy standing in the back.”
Enrique’s reply was: “Might.”
The interview then segued into a recap of events of the night in question. Enrique commented, when it was pointed out that he “hung out with gangsters” that “youngsters do stupid things.”
To which Rondou asked, “Right. And it seemed like this dude here was orchestrating it, getting him to do it?”
Enrique’s response was inaudible.
There was more talk of events that night. Rondou eventually asked, “Can you do me a favor? Just put your name down here so we know this your map or whatever, anywhere you want, your name and today’s date.”
Flynn showed him where to sign. Then Rondou added: “This is what he read to you about the photographs and then if these were numbered 1, 2, 3 from the top, 4, 5, 6. Put that number there for the guy that uh... you said was the guy standing in the back. And then one more thing, Enrique. If you can circle around the picture that you pointed out so we know and then your initials right here and today’s date.”
C. Detective Rondou’s Pretrial Testimony
About the Interview
In a hearing on his motion to exclude Enrique’s identification, Avelar’s defense counsel sought to call both detective Rondou and Enrique himself. The trial judge allowed Rondou to be called. The prosecution objected to calling Enrique and the trial judge agreed. The trial judge cited People v. Cooks (1983) 141 Cal.App.3d 224, 305-307 for the proposition that he “didn’t even have to give” Avelar a chance to call Rondou, much less Enrique, and accordingly denied the request.
Rondou was asked whether or not it was true that Enrique “told you on several occasions throughout the course of this interview that he could not make an identification.”
Rondou answered: “I don’t recall him saying that, no.”
After that, Avelar’s counsel soon established that the two detectives had suggested Enrique went to school with the older suspect.
Asked about the actual photo selection, Rondou said that Enrique had initially pointed to three of the six photos, but “ultimately eliminated those three.”
And it came out that Enrique was scared during the interview. “I wanted him to understand that we there to get the truth. And I understood he was scared. I know at one point during the interview, he indicated to me that the person -- he said something to the effect of something of the fact that person probably knows me.”
On the subject of Enrique’s initial fixation on the photo ultimately selected, Rondou was asked: “What, if anything, had [Enrique] done prior to with regard to Mr. Avelar’s photo, prior to Flynn making that statement [Flynn’s statement was “There’s one you keep coming back to there though, Enrique. Correct?”], Rondou’s answer was: “He was staring at it.”
When asked about the thumb head crop, Rondou elaborated: “I took my finger and I put it across the top of Mr. Avelar’s head covering where the bill of a cap would be. Probably the middle of his forehead, and covered his head.” Enrique had, after all, described the older suspect as wearing a baseball cap. (Enrique would change this part of the story in his own trial testimony, and claim it was a beanie.)
In any event, Enrique pointed to the picture of Avelar, “indentified him and then ultimately circled and initialed him.”
The trial judge ruled that the interview did not “rise to the level of a due process violation, ” opining that “there isn’t even really an identification of the defendant to begin with.”
D. Enrique’s Trial Testimony
1. Direct
At trial, Enrique again described the older shooter as five feet, nine inches tall. At trial, though, he said the older shooter was “wearing a beanie with a hooded jacket, ” as distinct from a baseball cap.
Enrique again related the basic events: A youngster with a shotgun approached him, there was an older guy with a handgun.
Soon came an unequivocal in-court identification of Avelar:
“Take a look at the person who’s seated over here at counsel table in the green and white checkered shirt. Could you see him from where you’re seated?”
“Yes.”
“Do you recognize him?”
“Yes.”
“How do you recognize him?”
“Just, I had seen him before from that night to right now. And then just by looking at him right now describing him in that clothing.”
“Is the person who’s seated here in court who was standing behind the youngster?”
“Yes.”
Two interesting aspects of Enrique’s own situation were soon brought out by the prosecutor. Enrique admitted to being “affiliated” with the Alley Boys “years back.” And Enrique had not come forward after the shooting because he was afraid for his safety.
2. And Cross
And several more interesting aspects of Enrique’s past were brought out on cross examination:
-- In 1994 he had committed a felony with others in the Alley Boys gang.
-- Enrique knew that the victim’s gang nickname was Tiny.
-- One of Enrique’s family, his cousin, was an Alley Boys gang member. And this big revelation:
-- On Christmas day 2005 -- the day of the crime -- Enrique was “doing speed.” In that regard, Enrique did not “remember the quantity.”
We should point out here that all these facts were brought out without any objection or hindrance from the prosecutor.
The prosecutor did successfully object to a question to the effect that Enrique had “lied to the police officers” by “leaving” out his drug use during the interview in March 2006. On the other hand the prosecutor was not successful in his objection (on the grounds of speculation) to a question trying to establish that Rondou had an agenda when he put “thumb over Mr. Avelar’s forehead in that picture: “Didn’t that suggest to you the idea that perhaps detective Rondou wanted you to pick Mr. Avelar out?”
The prosecutor must have been relieved that he was overruled when the answer came back: “No.”
3. And on Redirect
Redirect examination gave Enrique a chance to explain what he remembered of the circumstances behind his eventually circling Avelar’s picture.
“Did the detectives first point out this picture to you and ask you if you had, is the guy?”
“Yes.” The Enrique went on: “I looked at it and then I don’t remember if it was this officer or the other officer told me, you kind of glanced at this. Is it this guy? Then I kept moving to the rest. I looked back at them and I go, I can’t tell because that person had a beanie, had something over his head. That’s the reason why I told them. So that’s when he actually put his thumb. And he goes, now do you think you recognize him? I go, you know, you’re just putting your thumb there. It’s like it’s hard for me to tell if you just put your thumb. I just noticed that night he had either it was his beanie on or hood on.”
Later in redirect, the prosecutor was able to pinpoint who first pointed at the picture of Avelar in the lineup.
“So I’m going to reask the question. Who was the first person in the room to point, physically point, to photograph number six?
“I was.
“You were?
“Yes.”
“How do you know that?
“That was when I actually, when I looked at all six of them and I glanced at them, I went back and I pointed actually with my finger. But then I go, I’m not pretty sure. That’s when I looked at the other two. And then I still went back to the same person at the bottom.”
The prosecutor then returned to the subject of Enrique’s intoxication on the day of the murder. The question was direct:
“Okay. When this shooting happened back on Christmas night of 2005, were you under the influence of methamphetamine at that point?”
“Yes.”
“So you were high at that time?”
“Yes.”
Avelar’s defense counsel, however, managed to successfully object to two questions related to that intoxication: First: Did Enrique’s being high affect his ability to remember what happened? Second: And was Enrique hallucinating at the time? (Though Enrique managed to utter a “no” answer before it was stricken.)
Finally, redirect resulted in one more unequivocal identifications of Avelar by Enrique.
“When you were out there that night, did you see the face of the guy holding the handgun?”
“Yes.”
“Is that the person seated here in court right now”
“Yes.”
Finally, the prosecutor tried to ask Enrique about the discrepancy between his statement that the shooter was five-feet nine inches tall and Avelar’s own height (he is about six feet two), but the defense counsel successfully objected to the question as calling for speculation.
4. And on Recross
When Avelar’s defense counsel got his turn, he asked a question dealing with Enrique’s own supplier of drugs: “So, it’s fair to say, isn’t it, that Juan Florez [the dealer] felt comfortable with you at that location and felt comfortable in the knowledge that you knew he was dealing drugs? This time the prosecutor successfully objected to the question as calling for speculation.
On the other hand, there was no objection to the point put to him by defense counsel that Enrique had been “getting high quite a few times” before the night in question. Enrique’s answer was forthright: “Before that night, yes.”
And the trial court overruled the objection to this question: “Well, when you were high, loaded, under the influence of methamphetamine on the night of this shooting, it wasn’t your first time being loaded or high with regard to methamphetamine, was it?”
III. AVELAR’S OWN ADMISSIONS
We should add that part of the prosecution case was testimony from Avelar’s former (and on Christmas night 2005 current) girlfriend. We have already recounted the highlights, but here is a quick summary: On Christmas night 2005 Avelar came home at 2 or 3 in the morning, and told his girlfriend that “If the police came, to say I was with him.” Avelar further told his girlfriend that he “got into some shit with Alley Boys and that some shit happened.” In this event, Avelar said that “they shot somebody.” Further elaboration was that he and some others had gone to a cemetery, then went over into Alley Boys territory. Avelar even told her that when they “first got to the alley, he got out of the car” and didn’t know “if the guy was from there.” He further said that “one of the little homies” was shot, but he denied doing the shooting himself.
IV. THIS APPEAL
After his conviction, Avelar filed this appeal. As noted, we issued an earlier opinion, then granted rehearing to take another look.
On appeal Avelar presents four arguments, though three of the four center on Enrique’s “identification” of him: (1) The initial picking of Avelar’s picture was unduly suggestive, and therefore concomitantly tainted the subsequent in-court identification; (2) the trial court’s preclusion of defense counsel’s calling Enrique before the trial began was error; and (3) the trial court impermissibly “curtailed” the defense effort to impeach Enrique with his drug use and its consequent effect on his ability to recall events of the day. The fourth argument is that trial counsel was ineffective in four different ways that are specified in the text (not individually in subheadings) of the opening brief.
Since the rule is that new issues will not normally be considered when raised for the first time in a petition for rehearing (e.g., Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10 [“Issues raised for the first time on appeal or rehearing will normally not be considered.”]), we will address the issues raised in the opening brief directly, as distinct from addressing the various deficiencies in our prior opinion asserted by the petition for rehearing -- except to note one ironic instance involving the undue suggestiveness argument.
The irony is that the petition for rehearing faults our prior opinion for assuming that the March 2006 interview “constituted an ‘identification’ of Avelar.” That point is remarkable, because the more tentative Enrique’s initial “selection” (our word) of Avelar’s picture was at that interview, the less likely he would have been to become psychologically wedded to an identification of Avelar at trial. (Cf. United States v. Wade (1967) 388 U.S. 218, 229 [“once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on”].) The point is underscored because one of the reasons which the trial judge gave for rejecting Avelar’s motion to exclude was the lack of a positive “identification” of Avelar made by Enrique in the interview (“there isn’t even really an identification of the defendant to begin with).”
A. Undue Suggestion?
The test for undue suggestiveness in an identification proceeding comes from the distillation of federal high court jurisprudence in Cunningham, supra, 25 Cal.4th 926. If one reads the passage from Cunningham carefully, there is a two-step procedure for pretrial identification cases. Courts must first ask whether the “procedure” was both “unduly suggestive and unnecessary.” Only if the procedure fails that test do courts then ask: “whether the identification itself was nevertheless reliable under the totality of the circumstances.” (Ibid., italics added.) Those circumstances include, but are not necessarily limited to, such factors as (a) “the opportunity of the witness to view the suspect at the time of the offense, ” (b) “the witness’s degree of attention at the time of the offense, ” (c) “the accuracy of his or her prior description of the suspect, ” (d) “the level of certainty demonstrated at the time of the identification, ” and (e) “the lapse of time between the offense and the identification.”
Here is the passage: “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (Cunningham, supra, 25 Cal.4th at p. 989, italics added.)
To the same effect is People v. Cooks, supra, 141 Cal.App.3d at pages 305-306, which notes that even if “defendant sustains his burden of showing that the pretrial identification was suggestive, ” the prosecution may still present an in-court identification that is “otherwise reliable.”
The Cunningham two-step is significant here, because Avelar, neither at trial nor in his appeal, has tried to argue that the interview procedure with Enrique was unnecessary. Obviously it was necessary. Detectives had a lead to an eyewitness in a gang murder. They would have been derelict if they hadn’t called Enrique in for an interview or otherwise shown him a set of photos with their suspect among them.
We therefore might stop here: At worst the procedure was “unduly suggestive but necessary” and that is not enough to carry the burden under Cunningham.
There is actually an even stricter formulation voiced in People v. Cooks, supra, 141 Cal.App.3d at page 305, which asks whether a pretrial identification is “‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification’” (italics added). That formulation recognizes that pretrial identification procedures may involve permissible suggestiveness. And clearly the identification procedure passes muster under this test as well. Here, we may ask: What was the worst thing that detectives Rondou and Flynn did? Answer: They had it in mind during the interview that Enrique did know the witness, and bulldoggedly kept pressing him to divulge who that person was. But, we note, there was no pressure or coercion when, after Enrique still refused to name names, they proffered the idea of showing some photos. As neutral readers who will have by now slogged through the three retellings of the interview with Enrique will have gathered, the identification was, as the trial judge recognized, nowhere near a due process violation. The interview was, considered as a whole, quite fair. At worst there was gentle prodding, some appeal to Enrique’s greater moral sense (what happened “ain’t right”), but certainly no coercion or “pressure.”
Consider, in that regard, two things that aren’t apparent in any version of the interview: The first one is the absence of any evidence that Enrique was in some sort of hurry to leave. The fact that he might want to leave and go to work is only mentioned in two (three?) places, and then only obliquely. One doesn’t find him repeatedly making reference to the clock, or a need to be somewhere.
The second is the absence of any threats: In fact, several times detectives Rondou and Flynn hastened to reassure Enrique (all that talk of not “fronting” him) that Enrique was not in trouble.
The clincher, of course -- and detective Rondou’s testimony to the court easily confirmed this -- was that Enrique on his own stared at Avelar’s picture. And we note in that regard that there is no serious argument that the make up of the photos was slanted; the pictures were all of Hispanic males with facial hair of about the same age as Avelar.
And Rondou’s evidence also takes care of that point about the cropping of Avelar’s picture via a finger over the hairline. Enrique was already starring at him, and the finger crop was necessary given Enrique’s statement that the older shooter had a hat on.
We may finally note that much of Avelar’s opening brief’s complaint is essentially a “jury argument” centering on the second (back-up) Cunningham prong. The effort is a valiant one, but unavailing. Again, considered as a whole, the interview “identification” (as it were) was reasonably reliable. Yes, it was dark. But nothing so concentrates the mind as being surprised by two gang bangers in an alley, both visibly armed, on Christmas night, particularly one you went to junior high school with (i.e., the reference to “McFadden”). And the quick shooting in succession would no doubt etch events into one’s memory even more. To be sure, there was a discrepancy in Enrique’s estimate of the shooter’s height and Avelar’s actual height, but that was something the jury could take into account -- and, moreover, the defense itself made the tactical decision to object to letting Enrique explain the difference.
B. Calling Enrique Pretrial
As noted, the trial judge allowed the defense to call detective Rondou pretrial, but precluded the defense from calling Enrique. Was this decision a violation of due process or statute? Hardly. As to statutory law, any pretrial hearing concerning evidence to be proffered is, by the terms of section 402 of the Evidence Code, a “may” matter within the discretion of the court.
A hearing is mandatory, however, in criminal cases involving the confession or admission of the defendant. Here is the complete text of the statute:
As to due process, we are forced to engage in some deconstruction of the opening brief (see pages 39 through 42) in order to fully explain the argument.
The opening brief first assumes the interview caused Avelar to “‘stand out’” to Enrique. As the preceding section shows, we do not accept that assumption.
Next, the opening brief then points to several facts brought out in Enrique’s trial testimony. Most notable of these was, of course, Enrique’s use of methamphetamine on Christmas day. The other facts are that Enrique believed the officers were watching his eyes during the photo lineup (this is not record referenced, but is a reasonable inference from Rondou’s own testimony that Enrique was starring at Avelar’s picture), that Enrique knew the gang nickname of the victim (also not record referenced, but a reasonable inference given Enrique’s own past “affiliation” with the Alley Boys) and the fact that Enrique was “able to draw conclusions not shown in the transcripts (or only represented by ‘inaudible’) when he was allowed to refresh his recollection during trial” (yet again not record referenced, but which we may take to be based on Enrique’s unequivocal in-court identifications of Avelar in contrast with his mere staring (and eventually circling) Avelar’s photo at the interview).
The brief next reiterates the factually-based jury-style arguments to the effect that Enrique’s identification was not reliable -- arguments that were all available to be made to the jury -- and then segues to the conclusion that Enrique’s presence at the pretrial hearing was absolutely necessary for that hearing to be fair. The brief then follows by positing that Enrique’s trial testimony demonstrates the prejudicial effect of not allowing him to be examined pretrial, backs that up with the point that the reason the trial court didn’t allow him to be called was that he would testify anyway, suggests that the Cooks opinion was overread by the trial court (Cooks’ rule that there is no constitutional requirement for a hearing only applies, says the brief, absent “conflicting evidence of suggestiveness”) and then finally, we think, gets to the essence of the point: Only Enrique, called at the pretrial stage, could have explained what was said in the inaudible parts of the taped interview.
To be sure, the trial judge might have bullet-proofed the issue if he had allowed Enrique to be called. (As noted, though, having a hearing in the first place was statutorily within his discretion.) But that is appellate court hindsight. As our explorations around the two versions of the transcript have shown, there is nothing that got onto the transcripts that would give rise to undue suggestiveness -- in fact, there is very little that was suggestive at all. (Saying to a witness that the police know the witness knows the person is not the same as saying to the witness that a given person did the crime.) For all of detective Rondou’s persistence in refusing to accept Enrique’s disavowals of knowing who Avelar was, we find nothing in the transcripts in which the detectives were (literally or otherwise) pointing to Avelar -- it was only after Enrique stared at his picture that a forehead finger crop prompted Enrique to make an “identification” -- such as it was.
So, the issue really boils down, then, to whether the bits and bobs of inaudible lacunae in the two transcripts, with the bare theoretical possibility that all sorts of bad stuff might have taken place during these “inaudible” parts, constitutionally compel reversal so that the trial judge can have a second chance to evaluate the fairness of the interview.
The answer to that is no, at least here. Nothing in the two accounts (and even if one takes ones pick of the worst of either) suggests any monkey business in the inaudible parts, and the opening brief certainly makes no attempt to identify any parts of either transcript where there might be any kind of reasonable inference that some surreptitious suggestiveness was going on under the cover of “inaudible.” That is, to return to a point many pages ago: The defense has clearly not carried, under Cunningham, its burden of showing the identification procedure was unreliable.
C. Curtailment of Impeachment?
The argument that the trial judge somehow “curtailed” the defense’s attempt to impeach Enrique on his drug use simply doesn’t bear up under scrutiny. The cross-examination of Enrique by defense counsel (pages 214 through 232 of the reporter’s transcript) is remarkably free of any objections by the prosecutor to questions about Enrique’s drug use. Basically, defense counsel had carte blanche to highlight Enrique’s methamphetamine use, with all its potential for clouding Enrique’s memory, to the jury.
There were a number of objections on redirect, which were made, remarkably enough, by defense counsel. The prosecutor asked Enrique if he was “high at the time, ” and Enrique answered yes. Then the prosecutor asked “did that affect your ability to remember what happened to you, ” and it was defense counsel who objected, and the court sustained the objection. Then the prosecutor asked Enrique if “were you hallucinating at that time” and defense counsel successfully moved to have Enrique’s no answer stricken. The prosecutor also asked Enrique whether the methamphetamine made “things less clear or more clear in [his] eyes at that time, ” and again defense counsel successfully objected.
The two objections made by the prosecution which the opening brief points to as somehow both erroneous and prejudicial were made on recross. One was whether Enrique was “a regular drug user using increasing quantities of drugs on before that night.” The exact question was: “So you were a regular drug user using increasing quantities of drugs on or before that night, correct?” The prosecutor successfully objected, giving lack of relevance as a reason, but the trial court chimed in: “compound also.” Notably, the preceding question -- unobjected to -- was: “I mean before that night, had you been getting high quite a few times?” Enrique’s answer was: “Before that night, yes.”
The other objection was: “Can you give the jury any estimate as to how many times before Christmas of 2005 you used methamphetamine?” That was successfully objected to on relevance and “352” grounds.
As noted, viewed as a whole, there certainly was no preclusion of the defense’s attempt to impeach Enrique on his drug use, and all sorts of facts damaging to his credibility were brought out, as Oliver Cromwell said about his own portrait, warts and all.
The two questions that were successfully objected to were both defective in form and in any event harmless to a fare-thee-well. The question about “increasing quantities” was indeed compound. Defense counsel freighted the question with one idea too many: (1) Was the question whether Enrique was a “regular” drug user? Or (2) was the question whether Enrique had an “increasing” dependence on drugs?
And the question about “how many times” Enrique used methamphetamine was way too broad in chronological scope, and hence properly objected to under section 352 of the Evidence Code. An exploration of the unabridged version of Enrique’s entire experience of methamphetamine would easily have created the sort of sideshow that section 352 gives trial judges authority to prevent.
Moreover and in any event, the key facts remained for defense exploitation: Enrique was high the night of the shooting, and he had been taking drugs in the days leading up to the shooting. If the defense could not win the case by exploiting Enrique’s established intoxication and his established use in the nights leading up to it, it certainly wasn’t going to win it by cataloging his drug use from years back.
D. Ineffective Assistance?
Avelar’s final points center on four areas of asserted ineffective assistance. Each point should have been presented under its own subheading rather than submerged in the text under one general ineffective assistance heading (a rare slip for Avelar’s appellate counsel) but we will address each point separately anyway.
1. Failure to object to a gang expert pointing out that Avelar has gang tattoos, including one which might represent the “Mexican Mafia” while another looks like a “prison tattoo.”
Really. Avelar is covered with gang tattoos and has done time in state prison (there is no dispute on those points) and a gang expert’s opinion that one tattoo could represent the Mexican Mafia or looks like a prison tattoo is precisely the sort of opinion gang experts are supposed to be able to offer. Yes, the opinions did convey a sense of Avelar’s bad character -- but bad character is precisely what gang tattoos are intended by their wearers to convey: The wearer is one tough person who is not to be trifled with. But just because an expert opinion is damaging doesn’t make it unfounded (there is no argument on that point) or unduly prejudicial.
2. Calling Avelar’s mother, which allowed the fact that Avelar was on parole in February of 2006 to come to the light of the jury.
It is an interesting question whether, as we said in our earlier opinion, “overwhelming evidence supports the verdict” or whether the evidence doesn’t quite reach the “overwhelming” level. What is clear, though, is that defense counsel faced a formidable case against his client. Given an eyewitness identification and admissions from a former girlfriend (yes, we know -- a jilted former girlfriend, so what?), Avelar’s trial counsel found himself on his own two yard line, fourth and about 98. He had no choice but to call Avelar’s mother who could at least provide some support for Avelar’s denial of shooting anyone, and might cast doubt on his current membership in a street gang. There were of course tactical costs to such a strategy, one of which was the exposure of Avelar’s own parole status, but those costs, considered in their context within the case as a whole, readily paled in comparison to the hope against hope the jury might be jiggled into a reasonable doubt. After all, when one’s client is covered with gang tattoos, the risk of allowing the disclosure of parole status is pretty small, and there was some need for some evidence that Avelar wasn’t -- as would naturally be assumed by the jury -- still a member in good standing with the Delhi gang.
3. Not objecting to questions about a “parole search” of Avelar’s room. Again, his being on parole was small potatoes compared with the gang tattoos that were obvious. Besides which, the search was a parole search.
4. Allowing Avelar’s mother to testify that Avelar’s girlfriend said that Avelar and the mother were pulled over by police and asked about “a murder.”
First, we note the obvious: While Avelar’s opening brief suggests the testimony about the pulling over was inadmissible, it doesn’t actually say why. And we see no reason it was inadmissible -- it was clearly relevant to the girlfriend’s testimony. Besides which, as we have pointed out, the case against Avelar was so -- “formidable” if one doesn’t like the word “overwhelming” -- that some sort of Hail Mary was in order.
V. DISPOSITION
Where there is no error at all, there is obviously no cumulative error, so we need not say any more on that point.
The judgment of conviction is affirmed.
WE CONCUR: BEDSWORTH, J.FYBEL, J.
“(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. “(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. “(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.”