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People v. Cisneros

California Court of Appeals, Second District, Seventh Division
Feb 9, 2011
No. B215151 (Cal. Ct. App. Feb. 9, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA079794 Judge Bruce F. Marrs.

Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.


JACKSON, J.

INTRODUCTION

A jury found defendant Albert Benjamin Cisneros II guilty of second degree murder (Pen. Code, § 187; count 1) and two counts of attempted murder (§§ 187 & 664) and further found true the firearm allegations alleged in each count (§ 12022.53, subds. (b), (c) & (d)). The trial court thereafter sentenced defendant to state prison for a total of 99 years and four months to life.

All further statutory references are to the Penal Code unless otherwise specified.

On appeal, defendant makes the following contentions: (1) the trial court erred prejudicially in restricting cross-examination of a key prosecution witness and excluding third-party culpability evidence, violating his constitutional rights to confrontation, to present a defense and to due process of law; (2) his murder and attempted murder convictions must be reversed because CALJIC No. 1.22 did not properly describe the intent element of the offenses, violating his constitutional rights to a jury trial and to due process of law; (3) the prosecutor committed prejudicial misconduct in the presentation of evidence and argument to the jury, violating his constitutional right to due process; and (4) defense counsel’s failure to object to the prosecutor’s misconduct deprived him of the effective assistance of counsel. We agree with defendant’s first contention and reverse.

FACTS

A. Tagging Crew Rivalry

The Outlaws and K.H.A. are rival tagging crews in Baldwin Park. Tagging crews are “miniature gang[s]” which engage in “bad stuff or criminal activities.” Ricky Moreno (Moreno), Kyle Miller (Miller) and Jesse Romes (Romes) were members of the Outlaws. Jose Retama (Jose) was a member of K.H.A.

In June and July 2006, Jose lived on the 3400 block of Robinette Avenue in Baldwin Park with his older brother Juan Retama (Juan), several other brothers and sisters, and their mother, Silvia Retama (Mrs. Retama). K.H.A. members, including Jose Morfin (Morfin), often spent time at the Retama family home. Defendant, who was not a member of any tagging crew or gang, lived next door to the Retamas.

B. Violence Erupts

In the three weeks before the commission of the crimes for which defendant was convicted, members of the Outlaws perpetrated acts of violence against members of K.H.A. and the Retama family. On one occasion, Juan was walking home from a local deli about three blocks from his home. Morfin called Juan and told him that Outlaws were chasing him. Juan met Morfin at the corner of Frazier Street and Tracy Street. Four juveniles, including Moreno and an individual called Scrappy, had “beat [Morfin] down hard.” Juan called the Baldwin Park Police Department. Officers came to Juan’s house and took a report.

About three nights later, Jose had returned home from a party. He and his friends were outside in the yard listening to music when a group of Outlaws, including Moreno and Romes, pulled up in five cars. The Outlaws “started beating up on everybody.” They brandished guns, knives and sticks. They also chased two of the individuals who had been in the front yard into the backyard and beat them. The Outlaws also entered the Retama residence and pointed a gun at Juan’s mother and sister. Juan reported the incident to law enforcement.

In the week prior to the shooting, Juan and his brother Oscar, who have nothing to do with the Outlaws or K.H.A., had returned from their family’s donut shop and were outside when Romes and Scrappy showed up in a car. Romes ran to Juan’s house, pointing a gun. Juan called the police, who pulled Romes over down the street. Juan accompanied the police and identified the person who had brandished the gun.

Juan later obtained a shotgun and a.38 caliber pistol for protection. Defendant was not present during any of these incidents. Shortly after the shooting, the Retama family moved.

C. The Night of July 13, 2006

On July 13, 2006 around 9:00 p.m., Moreno, Miller and Romes, who then were teenagers, were walking down the 3400 block of Robinette Avenue when K.H.A. members, Morfin, Jose, Victor Jiminez (Jiminez) and possibly a fourth man pulled up in Jiminez’s Camry. Jose signaled to his brother Juan, who was outside playing basketball, that Moreno, Miller and Romes were Outlaws.

Following an exchange of verbal insults between the rival crew members, the three Outlaws reached into their waistbands, pulling out two baseball bats and one gun amongst them. Jiminez pulled out a handgun and gave it to a heavyset man, who pointed it at the Outlaws and fired two shots. Moreno was hit and fell to the ground. Miller, who heard a shot go past his ear, along with Romes, ran away.

Jiminez and the shooter got back into the Camry and drove off. A third man picked up bullet casings on the street and entered the Retama residence. Juan also entered his house. He was worried about retaliation by the Outlaws and called 911.

A woman wearing “nurse’s scrubs” drove up and parked where the Camry had been parked. She got out of her car and picked up additional bullet casings from the ground where Jiminez, Morfin and the shooter had been standing. The woman thereafter entered the Retama home.

D. The Police Investigation

When the police arrived, they found Moreno lying face down on the ground. Moreno, who was unconscious, was wearing a backpack and gripping a baseball bat. He died two days later as a result of a single gunshot wound to his head. The bullet fragments removed from his head were from a.22 caliber bullet commonly used in revolvers and semiautomatics. A live.22 caliber bullet was found at the scene, but no guns or expended casings were located.

Police officers interviewed numerous witnesses and neighborhood residents, including defendant and Juan, and visited Jiminez’s home and took pictures of his car. Officers also asked various witnesses to view a photographic lineup, containing six pictures, one of which depicted defendant. Two independent witnesses, A.G., a minor, and Vicente Serrano (Serrano) did not identify defendant. A.G. noted, however, that another individual in the six-pack resembled the shooter.

Miller, an Outlaw who was involved in the altercation and who previously had been convicted of assault with a deadly weapon, identified defendant as the shooter from a photographic lineup. Miller and Serrano both said the shooter wore a T-shirt, but did not notice any tattoos. Defendant’s forearms are tattooed extensively.

The picture used in the lineup was defendant’s California Department of Motor Vehicles photograph.

The police questioned Juan after the shooting. Juan said he did not see anything and did not know the identity of the shooter. Juan was adamant that his brother Jose had been playing basketball with him the entire time. Juan also stated that Jose had gone with friends to pick up donuts and a drink from the donut store and that the shooting occurred after Jose and his friends returned home from the donut store. Juan also denied seeing defendant around the time of the shooting. Juan only saw defendant the morning of the shooting.

Los Angeles Sheriff’s Detective William Marsh believed that Juan was withholding information. Detective Marsh and his partner, Detective William Cotter, interviewed Juan numerous times between July 16, 2006 and August 28, 2007. They repeatedly questioned Juan about his brother Jose and about defendant, and they questioned Jose directly. Juan expressed fear and concerns about retaliation. On more than one occasion, Juan told Detectives Marsh and Cotter that he wanted to ensure the safety of his family before he would tell the detective what he had seen. The detectives helped relocate Juan and his family on more than one occasion.

Juan agreed to give Detective Marsh a surveillance videotape from the family’s donut shop, which would have shown Jose, Morfin and Jiminez together less than one hour prior to the shooting. When the detective went to retrieve the videotape, Juan said there had been a malfunction and the tape was not available.

Juan repeatedly denied that defendant was involved in the shooting and that he saw defendant before or after the shooting. Following the detectives’ persistent questioning, Juan revealed that he had seen defendant “out there” but had not seen him with a gun.

More than one year after the shooting, Juan named defendant as the shooter. On August 28, 2007, Juan informed the detectives that he had witnessed the shooting. Juan also admitted that he had handled the gun, a.22 or.25 caliber semiautomatic handgun belonging to Morfin, a few days prior to the shooting. Juan also stated that one of the Outlaws had a handgun. He explained that he had not previously shared this information, in that he had been using drugs, resulting in paranoia, and he was afraid of retaliation by defendant or the Outlaws. Juan identified defendant from the same photographic lineup from which Miller identified defendant.

According to Juan, the “kids from the Outlaws were intimidating.” They repeatedly chased his family out of their home while they were packing and moving. Juan wanted to ensure his family’s safety before he told the police what he had witnessed. The police relocated Juan’s family twice due to threats.

E. Juan’s Testimony

Juan pled no contest to the charge of being an accessory after the fact with no guaranteed sentence. Pending sentencing, he was released on his own recognizance in exchange for his promise to testify in this case. In accordance with a leniency agreement with the People, Juan hoped to receive a probationary sentence without jail time for testifying truthfully.

Juan testified that defendant shot Moreno. He recounted that there were four men in Jimenez’s Camry-Jimenez, Morfin, Jose and defendant. Using a hand gesture, Jose signaled that they were Outlaws and then went inside his home at Juan’s urging. Defendant asked the Outlaws what they wanted. The Outlaws responded, “Shut up, fat

f---, it’s not your beef... turn the f--- around.” Juan then testified that defendant asked, “What did you call me?” When the insults continued, defendant said, “F--- Outlaws, ” pointed a gun at them and fired twice.

Juan also identified the woman in the “nurse’s scrubs, ” who picked up casings from the street, as defendant’s friend, Rachel. Rachel told Juan she was unable to recover a live round she saw underneath a police car.

According to Juan, defendant called him on his cell phone two days after the shooting and inquired whether he had said anything to the authorities. Juan denied having done so. During a subsequent phone call, Juan told defendant that the Outlaws had bats and a gun. Defendant said he was unaware the Outlaws had a gun.

About two weeks after the shooting, defendant and Rachel visited Juan together and separately. Defendant asked Juan to get in the car and go for a ride because “the neighborhood wants to talk to you.” Juan interpreted this as intimidation. Both defendant and Rachel intimated that Juan should keep his mouth shut.

F. Miller’s Testimony

At trial, Miller identified defendant as the shooter, as he had at the preliminary hearing. Miller was not sure defendant was the shooter, as he had not seen him before. Defendant was thinner at trial and in the photographic lineup than the shooter had been. Miller noted, however, that defendant “look[ed] exactly like he fit[] the description of what [Miller] remember[ed]” the shooter to look like.

Miller claimed that between the time of the shooting and the preliminary hearing, he did not see defendant in person. He later admitted, however, that sheriff’s deputies had placed him in a holding tank with defendant right before the preliminary hearing at which he identified defendant. Miller explained that he did not recognize defendant in the holding tank because “I never seen this guy. I just heard about him....”

Miller had been an active gang member involved in criminal activity, including assault with a deadly weapon and attempted murder. Although he claimed he had changed as a result of Moreno’s shooting, he admitted that he had been arrested for giving false information to a police officer and “a lot more stuff than that” after Moreno’s shooting.

G. A.G.’s Testimony

A.G. was playing in his front yard of his house on the 3400 block of Robinette Avenue when he saw three teenage males walking down the street. Each one carried a backpack. A.G. then saw a car turn onto Robinette Avenue from Tracy Street and park between two driveways. Three males got out of the car, one of whom was bald and “chubby, like fat.” An argument ensued between the three males that got out of the car and the three teenagers that were walking down the sidewalk.

After seeing the three teenagers walk into the street and two of them take out bats, A.G. sensed that something was about to happen and ran to his house. As he climbed his porch steps, he heard two gunshots. A.G. later saw a person lying in the street.

H. Serrano’s Testimony

Around 9:00 p.m. on July 13, 2006, Serrano was parked on the 3400 block of Robinette Avenue on the west side of the street, waiting for a friend from work. While sitting in his truck, Serrano saw three teenage boys walking southbound on Robinette Avenue. Serrano also saw a couple of kids and an older individual in a driveway playing basketball. Serrano observed a Toyota Camry turn onto Robinette Avenue from Tracy Street and park. Of the three men that exited the Camry, one was thin, and one was heavyset. The heavyset individual appeared to be Hispanic and was “bald, like a very, very short cut.” The individuals from the Camry approached the three other males, and the two groups exchanged words.

As the three teenagers continued to walk down the street, the males from the Camry gestured as if they wanted to fight but received no response. One of the individuals who had been playing basketball approached the group from the Camry, one of whom gave a handgun to the heavyset person, who in turn fired it multiple times in the direction of the three teenagers. Serrano did not know if any of the three teenagers had anything in their hands, in that he had lost sight of them.

After the shooting, one of the individuals from the Camry picked up something from the middle of the street and went inside a house. Serrano surmised he was picking up bullet casings. The other two occupants of the car, namely the gunman and the driver, hurriedly left in the Camry.

About five minutes later, a woman dressed in nursing garb drove up in a small blue car and parked where the Camry had been parked. After getting out of her car, the woman picked up some items from the street and then entered the same house as the man from the Camry who also had picked up something from the street. Serrano could no longer see any of the three teenagers.

After the police arrived, Serrano’s friend came outside. Serrano did not tell the police he had seen the shooting and asked if he and his friend could leave to go to work. The police gave them permission to do so.

Serrano was unable to identify the shooter or his cohorts, as he did not see their faces.

I. Cellular Telephone Evidence

Sprint cell phone records for one Albert “Disneros, ” with a La Puente address, which was listed on defendant’s driver’s license, disclosed that several calls were made from the cell phone on the evening of July 13, 2006. These records also showed the location of the Sprint cell tower where each call originated and terminated.

When a cell phone call is made, it goes to the local tower with the strongest signal. This may not be the closest tower geographically. A cell phone can be up to ten miles away from the tower carrying its signal.

According to Sprint records, at 9:10 p.m. on July 13, 2006, a call from the cell phone to Rachel Roybal’s cell phone was initiated on the Rio Hondo tower located about one mile from the crime scene. This call terminated on the Ramona tower, half a mile from the crime scene. These records do not indicate how close the actual handset was to the tower.

DISCUSSION

A. Evidentiary Rulings

l. Background

When the police first interviewed Miller, he unequivocally identified the person who shot Moreno as “Basko.” Romes, who did not testify at trial, similarly identified the shooter as Basko. Miller and Romes later disclosed that they had identified the shooter as “Basko” because prior to the shooting, Moreno told them that the heavyset man who got out of Jiminez’s car was “Basko.” Miller and Romes had never seen or met Basko prior to the shooting. When Miller and Romes were asked to view two photographic lineups, which contained photographs of Basko, whose real name is Mariano Vilches (Vilches), neither identified Basko as the shooter. Miller subsequently identified defendant in a different photographic lineup, but Romes did not.

This individual’s name is spelled in various ways in the appellate record-e.g., Basko, Baskoe, Bosko, Basco, Bosco or Boscoe. For ease of reference and consistency, we will refer to him exclusively as Basko unless his name is used in a quote.

At the preliminary hearing, Miller identified defendant as the shooter. He also testified that six days after the shooting he viewed a photographic lineup from which he selected photograph number one as the shooter. When asked if the individual he identified in the photographic lineup was present in court, Miller stated that defendant was the individual depicted in photograph number one.

At the preliminary hearing, Miller also testified that a couple of days before the shooting, Moreno told Miller that “Bosco was a fat ass bitch.” When Moreno prior to the shooting identified Basko, Miller knew who he was talking about because the person who took out the gun and fired was the only heavyset person. The other individuals were thinner.

On the date of trial, the People filed a motion in limine to exclude evidence of alleged third party culpability and Moreno’s statement pursuant to Evidence Code sections 352 and 1200. The court granted the People’s motion, reasoning that Moreno’s statement was not an excited utterance and thus was inadmissible hearsay. The court further noted that there was no indication that Moreno personally knew Basko, warranting exclusion of Moreno’s statement under Evidence Code section 352.

While Miller was testifying at trial, the prosecutor requested an Evidence Code section 402 hearing, regarding any proposed impeachment of Miller. Defense counsel offered Miller’s prior statements implicating an individual named “Basko” as a prior inconsistent statement and Moreno’s statement as an excited utterance. The trial court restricted cross-examination of Miller and excluded the evidence under Evidence Code sections 352 and 1200. The court ruled that Miller’s prior statement was not inconsistent, and Moreno’s statement was not an excited utterance. As we now explain, the trial court was wrong on both counts.

2. Spontaneous Statement

Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” Defendant contends that Moreno’s statement identifying the shooter as “Basko” was admissible as a spontaneous statement. We agree.

As previously detailed, on July 13, 2006, Outlaws Moreno, Miller and Romes were walking through K.H.A. territory on Robinette when a car turned on to Robinette and parked nearby. According to Miller, when Moreno saw the K.H.A. members get out of the car Moreno stated, “There’s Basko.” Moreno’s statement clearly purported to describe or identify the individual he was looking at. Moreover, this statement was unquestionably made by Moreno while under the stress of excitement caused by seeing members of K.H.A. In the three weeks, prior to the shooting, the Outlaws on no less than three occasions initiated violent confrontations with K.H.A. members. Two of these were armed confrontations that occurred at the Retama residence located on the very street on which Moreno, Miller and Romes were walking. Under these circumstances, Moreno reasonably would have been concerned for his safety and the possibility of an imminent confrontation, which as we know occurred and resulted in Moreno’s death. Inasmuch as Moreno’s statement was made “‘before there had been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance’” (People v. Poggi (1988) 45 Cal.3d 306, 318), we conclude that the trial court improperly ruled that Moreno’s hearsay statement was inadmissible as an excited utterance (People v. Lynch (2010) 50 Cal.4th 693, 751-752).

3. Prior Inconsistent Statement

Defendant also contends that Miller’s initial and unqualified statement to detectives that “Basko” was the shooter should have been admitted as a prior inconsistent statement, in that it was inconsistent with his in-court identifications of defendant as the shooter. This contention, too, is well taken.

Evidence Code section 1235 states that “[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” That later provision provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”

Miller’s initial out-of-court identification of the shooter as “Basko” unquestionably was inconsistent with his in-court identifications of defendant as the shooter. Although at a subsequent time, Miller explained that his statement to law enforcement officers was based wholly on a statement made by Moreno, his initial identification was not qualified in any way and thus should have been admitted as a prior inconsistent statement. Upon admission of the prior inconsistent statement, Miller could then have been questioned about the reasons for his initial identification. We conclude the trial court abused its discretion in excluding Miller’s prior inconsistent statement identifying Basko as the shooter.

4. Third Party Culpability Evidence

Evidence that someone other than the defendant committed the crime cannot constitutionally be excluded if it is capable of raising a reasonable doubt as to the defendant’s guilt. (People v. McWhorter (2009) 47 Cal.4th 318, 367-368; People v. Page (2008) 44 Cal.4th 1, 38.) The decision whether to exclude third party culpability evidence cannot be based on the perceived strength of the prosecution case. The probative value of the evidence must be independently evaluated. (Holmes v. South Carolina (2006) 547 U.S. 319, 328-330 [126 S.Ct. 1727, 164 L.Ed.2d 503].) Thus, third party culpability evidence must be admitted if on its own it would be capable of raising a reasonable doubt as to the defendant’s guilt without regard to the strength of prosecution evidence. (Ibid.; see also Page, supra, at p. 38.)

Evidence of Moreno’s spontaneous statement identifying Basko and evidence that Miller initially identified Basko as the shooter could well have raised a reasonable doubt as to defendant’s guilt and thus should not have been excluded. Establishing the identity of the shooter was necessary to secure a conviction. The reliability of Moreno’s identification of Basko and Miller’s initial acceptance of it, and whether it raised a reasonable doubt as to defendant’s guilt, should have been for the jury to decide, not the trial court.

5. Reversible Error

The question remaining is whether the trial court’s erroneous evidentiary rulings warrant reversal. We conclude that they do.

The constitutional rights to confront witnesses and to due process guarantee a criminal defendant the right to cross-examination and to present a defense. (People v. Box (2000) 23 Cal.4th 1153, 1203, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) To be sure, evidence proffered to show third party culpability “‘may be excluded [without violating the federal Constitution] where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.’” (Holmes v. South Carolina, supra, 547 U.S. at p. 327; see also People v. Prince (2007) 40 Cal.4th 1179, 1243 [“‘[W]e... reject defendant’s various claims that the trial court’s exclusion of the proffered [third party culpability] evidence [under Evidence Code, §§ 350, 352] violated his federal constitutional rights to present a defense.... There was no error under state law, and we have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.”’”]; People v. McWhorter, supra, 47 Cal.4th at pp. 367-368 [“‘We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.... ’ [¶] ‘The evidence must meet minimum standard of relevance; “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” [Citation.] We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352.’”].)

In this case, the evidence that Vilches/Basko was the shooter, rather than defendant, was neither speculative nor remote and did not simply consist of evidence of motive or opportunity. Nor did it go to a minor or subsidiary point. There was direct evidence the murder victim, as well as the attempted murder victims, identified the perpetrator as someone other than defendant. Although rulings involving third party culpability evidence generally are reviewed for state law error, the error in this case rises to the level of an unconstitutional deprivation of the right to present a defense. (See People v. Fudge (1994) 7 Cal.4th 1075, 1103 [completely excluding evidence of an accused’s defense “theoretically” can rise to the level of a constitutional violation although “excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense”]; see generally Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636] [exclusion of testimony as to circumstances of confession violated defendant’s right to present defense where testimony was offered to show the confession, although voluntary, was unworthy of belief; “[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”].)

Baldwin Park Police Officer D. Campa interviewed Miller and Romes at Los Angeles County Medical Center. Miller told Officer Campa that he was unable to recognize the driver and one of the passengers, but he was able to identify the other passenger as “‘Basco’ from ‘KHA.’” Officer Campa further reported that “Romes said he immediately recognized one of the passengers as ‘Basco’ from ‘KHA.’” Like Miller, Romes was unable to identify the driver or the other passenger. Both Miller and Romes told Officer Campa that Basko pulled out a dark semi-automatic handgun and fired in their direction twice.

Given that the error here is of federal constitutional magnitude, the harmless error analysis must proceed under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705], rather than People v. Watson (1956) 46 Cal.2d 818. Chapman mandates that the People “prove beyond a reasonable doubt that the error... did not contribute to the verdict obtained.” (Chapman v. California, supra, 386 U.S. at p. 24.) Under this standard, the need for reversal and remand for retrial is compelled.

Although the People have explanations for why Moreno’s identification of Basko as the shooter does not require a finding that defendant is not guilty, it is certainly within the realm of possibility that the jury would not have accepted those explanations if allowed to hear the third party culpability evidence. Bearing in mind that the question is not whether there is a reasonable probability that the jury would conclude that Basko was the shooter, but only whether there is a reasonable probability the jurors would have had a reasonable doubt as to defendant’s guilt had the evidence been admitted, the error is prejudicial and reversal is required.

Serrano and A.G., two independent witnesses to the shooting, did not identify defendant. Although Serrano testified the shooter wore a T-shirt, he did not mention that the shooter had tattoos. Defendant’s arms are heavily tattooed.

Romes never identified defendant as the shooter. Although Miller did pick defendant out of a photographic lineup and identified defendant at the preliminary hearing and at trial as the shooter, he did not mention the shooter’s tattoos even though he claimed to see the shooter extend his arm and fire the weapon. Miller also failed to recognize defendant when the two men mistakenly were placed together in a holding cell prior to the preliminary hearing.

As to Juan, the defense theory was that he too was responding to police pressure and/or a desire to protect his brother, Jose, who was a member of K.H.A. and who the police believed was more heavily involved in the shooting incident. Juan may also have been protecting Vilches who had visited Jose at the Retama residence. None of this could be explored at trial, however, in that the trial court’s rulings precluded all third party culpability evidence.

According to a police report prepared by Detective Reynaga, Miller told the detective that the gunman said, “KHA! F--- you, Ricky! This is KHA.” Detective William Marsh, testified at trial, however, that he conducted an investigation as to whether numerous individuals, including defendant, had ties to the Outlaws or K.H.A. Based on that investigation, Detective Marsh testified that, as to defendant, “I found that he had no ties.” The obvious question is why defendant, if he were the gunman, would shout out the name of a tagging crew to which he did not belong. These additional facts considered in conjunction with the excluded third party culpability evidence could have raised a reasonable doubt in the minds of the jury.

Vilches, however, is a member of K.H.A. According to reports prepared by sheriff’s deputies, Vilches was the person who first suggested to police that someone who lived on Robinette near the Retamas was the shooter. Whether Vilches made this statement because defendant in fact was the shooter or because Vilches was trying to shift the investigation away from himself is unknown. Additionally, Vilches’s alibi witness, Diego Barajas (Barajas), informed sheriff’s deputies that Vilches left the apartment where they had been doing drugs “during the afternoon and through the night.” They spent most of their time in the parking lot of the apartment complex. Vilches left “‘around the time it was getting dark.’” When Vilches returned he had a handgun and was “‘all scared.’” Barajas also described Vilches as “bothered.”

Subsequent to the shooting, police arrested Vilches. He denied any involvement in the shooting and being on Robinette Avenue at the time of the shooting.

According to Baldwin Hills Police Detective Leon, while driving Barajas home following an interview, Barajas told him that Vilches said he “‘shot someone’” Barajas subsequently denied making that statement, explaining that Vilches had been told he was being named as the shooter by others. None of this evidence was allowed at trial. In fact, there was no mention of Vilches’s name or moniker as Moreno’s actual killer.

Defense counsel was able to question Miller and Juan at trial and suggest that their identifications of defendant as the shooter were incorrect and motivated by a desire to protect others, most notably Juan’s brother Jose who is a member of K.H.A. Defense counsel’s cross-examination of these witnesses unquestionably was hampered by his inability to introduce evidence that Moreno identified Basko as the shooter and that Miller initially accepted this identification. Although defense counsel did advance the defense of mistaken identity, no true third party culpability evidence was admitted. (See People v. Bradford (1997) 15 Cal.4th 1229, 1325 [criminal defendant has the right to present evidence of third party culpability if the evidence is capable of raising a reasonable doubt about his or her own guilt].)

The cell phone evidence placing defendant near the scene is not particularly probative one way or the other. Defendant lived next door to the Retamas. That defendant called his girlfriend about the time of or shortly after the shooting, by itself, is also not very significant. The evidence suggesting that defendant’s girlfriend then came to the crime scene and picked up shell casing, though damning, is not conclusive evidence of defendant’s guilt. Moreover, only Juan identified the woman as defendant’s girlfriend. Juan may have made up that detail, just as he may have falsified his identification of the shooter to protect someone else. The two would seem to stand or fall together. Defense counsel made this point in closing argument, noting how odd it was that the woman went inside the Retama house after cleaning up the crime scene, a home that she had never previously entered, rather than going to defendant’s home next door. But this argument, like his challenge to the identification itself, was severely hampered by the exclusion of the third party culpability evidence suggesting that a K.H.A. compatriot of Jose was the shooter.

Because there is a reasonable probability that a jury may have found defendant not guilty if the excluded evidence had been admitted, we concluded that the federal constitutional error committed here cannot be deemed harmless. (Chapman v. California, supra, 386 U.S. at p. 24.)

B. Remaining Issues

In light of our decision to reverse defendant’s conviction and to remand for a new trial, we need not reach the merits of defendant’s claims of instructional error, prosecutorial misconduct and ineffective assistance of counsel.

DISPOSITION

The judgment is reversed and the matter remanded to be tried anew.

We concur: PERLUSS, P. J., WOODS, J.

On the night of the shooting, Detectives Reynaga and Harvey went to the hospital to check on Moreno’s status and to talk to Officer Campa who apprised the detectives that two additional victims had accompanied Moreno’s family to the hospital. The detectives asked Miller and Romes to accompany them to the police station to interview them about the shooting. Miller and Romes complied.

The detectives first spoke to Miller. According to Detective Reynaga’s report, Miller recounted that “a heavyset male Hispanic” got out of the driver’s seat of the car that parked on Robinette Avenue. Miller then heard “Moreno say ‘That’s Baskoe from KHA.” Miller stated he had never seen Basko before, but he “[knew] of Baskoe from KHA.” Miller then stated that “Baskoe began to say, ‘KHA! F--- you, Ricky! This is KHA.” Miller thought a fight was going to ensue, but when he saw Basko pull out a gun and a flash, he ran.


Summaries of

People v. Cisneros

California Court of Appeals, Second District, Seventh Division
Feb 9, 2011
No. B215151 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Cisneros

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALBERT BENJAMIN CISNEROS II…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Feb 9, 2011

Citations

No. B215151 (Cal. Ct. App. Feb. 9, 2011)