Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge, Super. Ct. No. SCS158094
McCONNELL, P. J.
During a party to celebrate the baptism of his wife's nephew, Rogelio Cuevas Espinoza repeatedly fired a semi-automatic handgun. One of the bullets hit Pedro Arturo Rivera in the eye. A jury convicted Espinoza of mayhem involving the intentional and personal discharge of a firearm that caused great bodily injury (Pen. Code, §§ 203, 12022.53, subd. (d)), and assault with a semi-automatic firearm involving the personal use of the firearm and personal infliction of great bodily injury. (Id., §§ 245, subd. (b), 12022.5, subd. (a)(1); 12022.7, subd. (a)). The jury deadlocked on a count of attempted murder and the court declared a mistrial on that count. The court sentenced Espinoza to a four-year middle term for mayhem and a consecutive term of 25 years to life for personally discharging a firearm and causing great bodily injury during the mayhem. (Id., § 12022.53, subd. (d).) The court stayed the remaining terms for the other counts and enhancements. (Id., § 654.)
Espinoza contends his convictions must be reversed because the trial court erroneously admitted redacted audio tape recordings of police interviews of witnesses as prior inconsistent statements, and prior recollection recorded and nonhearsay statements; allowed the jury to hear these tapes during deliberations; instructed the jury on the use of the prior statements; and denied his motion for a new trial based on the playing of the tapes to the jury. We affirm the judgment.
FACTS
On March 10, 2001, Rosea Barajas gave a party at a hall in National City to celebrate the baptism of her son. Barajas's sister, who was married to Espinoza, was the child's godmother. Espinoza attended the party but there was conflicting evidence about whether he was expected there. Rivera and his brother, Adan Rivera, were told Espinoza would not attend the party. The Rivera brothers would not have attended had they believed Espinoza was going to be present because there were ill feelings between Adan and Espinoza due to a fight between the two about a year earlier.
At times we use first names to distinguish parties with the same last name.
Soon after the Rivera brothers arrived at the party, a fight erupted inside the hall involving them, Espinoza and others. There was conflicting evidence as to whether Adan or Espinoza started the fight. Eventually, other people intervened and broke it up. Espinoza was injured during the fight, and one witness described seeing a gash above his eye. Adan believed he had broken Espinoza's nose because he was bleeding profusely. Barajas told all of them to leave. Espinoza went out a back door of the hall while the Rivera brothers and others went out the front entrance.
Soon thereafter, Espinoza approached the Rivera brothers with a semi-automatic gun in his hand. Adan ran back toward the hall. Espinoza fired into the air. There was evidence Espinoza pointed the gun at Rivera, fired at Rivera's feet or lower body, fired at the ground, fired toward the crowd of people outside the hall and fired toward Rivera as he fled. Some people struggled with Espinoza for the gun. A woman who lived near the hall heard a man yell, "I'm going to kill you, motherfucker." She saw the man chasing Rivera and shooting at him, while Rivera crouched behind a truck.
Rivera was shot in his right eye and lost his eye as a result. There was no stippling or burning around the entrance wound, indicating the bullet was fired from a distance of more than three or four feet.
The police recovered eight cartridge casings and a bullet fragment, all of which had been fired from the same gun. Based on the distribution of the cartridge casings, the shooter had been moving while the gun was fired.
A number of people from the party went to the police station to be interviewed. Espinoza's wife told the group, "nobody rats, nothing will happen." The interviews were taped.
Espinoza fled into Mexico. In 2005, however, while the police were conducting a surveillance of a house in San Diego, they saw Espinoza driving a car with expired registration tags and stopped him. Espinoza was very nervous, and he provided the officers with a driver's license in the name of Victor Gallego and said the car belonged to a female friend. The police suspected the identification was false and conducted a records check. As soon as Espinoza heard he was going to be arrested, he knocked one of the officers to the ground and fled across a busy street. He was arrested nearby in a culvert.
Defense
Espinoza testified Barajas invited him to the party because his wife was going to be the child's godmother. He arrived early at the party because his wife said they needed help, but before contacting his wife, he had something to eat at the hall. About 20 to 40 minutes later, he started looking for his wife. He did not find her inside the hall, and he was about to look outside when the Rivera brothers and others arrived. Espinoza indicated to Adan that he wanted to go outside. Adan, without warning, punched Espinoza. Espinoza defended himself.
After the fight ended, Espinoza went out the back door of the hall. He had been badly beaten and was afraid and confused. His uncle told him the Rivera brothers wanted to kill him, handed him a gun and showed him how to use it. As Espinoza walked toward his car, the Rivera brothers and other people confronted him. He fired the gun into the ground and into the air to keep them away. He was surrounded by people who were trying to get the gun from him, and he believed they would harm him if they got the gun. During the struggle, the group moved him into the street; he stumbled but did not fall as they went over the curb. He fired the gun until it would fire no more. He also testified the gun fired because people were "yanking" at his hand. Someone yelled "Policia" and everybody dispersed. Espinoza ran to his car and drove home. He did not turn himself in because he was afraid he would be imprisoned even though he was innocent.
DISCUSSION
I
Admission of Excerpts from Taped Interviews
Espinoza contends his convictions must be reversed because the court used an improper procedure to determine the admissibility of the redacted tapes of the police interviews and erred in finding the redacted tapes were admissible.
The trial occurred about five years after the shooting, and by that time many of the witnesses could not remember all the details of the events or testified to versions that differed from their taped interviews with the police. At trial, the prosecutor examined the witnesses on the statements they made to the police and then sought admission of excerpts from the taped interviews of Rivera's sister Norma Soltero, his cousin Evaelena Soltero, his aunt Joaquina Soltero, Adan, and Barajas on the basis the excerpts were admissible as prior inconsistent statements under Evidence Code section 1235, as past recollection recorded under Evidence Code section 1237, or as nonhearsay statements. Although the defense had copies of the entire interviews for a significant period, it received copies of the final redacted interviews shortly before the hearing.
The defense filed written objections to the use of the tapes. At the hearing, defense counsel initially objected to playing the tapes rather than reading the interview questions and answers. Defense counsel generally conceded that the taped interviews included statements admissible under Evidence Code sections 1235 and 1237, except for Barajas's taped statements, which defense counsel argued were not inconsistent with her trial testimony. Defense counsel, however, requested the court determine admissibility on a line-by-line basis. The court agreed, but stated it would be more efficient if defense counsel raised specific objections rather than going through line-by-line of each redacted tape on the record. Defense counsel told the court he needed an additional 20 minutes to examine the excerpts and the court granted his request.
Defense counsel also made an Evidence Code section 352 objection, contending the probative value of the tapes was outweighed by the undue consumption of time necessitated by a line-by-line analysis of the statements in the tapes.
Following a recess, defense counsel objected to some of the statements in the taped excerpts. The court ruled on the individual statements, finding most of the statements were prior inconsistent statements, past recollection recorded or were not hearsay because they were not being admitted for the truth of the matter asserted.
(A) Procedure Used
Espinoza complains the court engaged in a wholesale admission of the entire interviews without any individualized consideration of whether all the statements qualified under the Evidence Code provisions. He also complains the court improperly placed the burden of making objections on the defense.
The record, however, does not support Espinoza's claim the court admitted the tapes "wholesale." The proffered tapes did not contain all the police interviews but were limited to selected statements. The court considered and ruled individually on each specific objection to statements in the excerpts.
Espinoza's briefing suggests the court provided defense counsel with an inadequate time to review the interview excerpts, but the record reflects that the court gave defense counsel all the time that was requested, that is, 20 minutes. Nothing in the record suggests the court would not have provided additional time had it been requested.
Nor did the court err in requiring the defense to delineate its specific objections. At the outset of the hearing, defense counsel conceded some statements in the interviews met the foundational requirements of Evidence Code sections 1235 and 1237, but argued the interview excerpts were overbroad and contained non-admissible statements. Since the defense did not object to all the statements contained in the interviews, it was proper for the defense to specify exactly which statements were objectionable. This was not an improper burden and reflects the general requirement that a party opposing the admission of evidence must raise an objection to it. (People v. Dennis (1998) 17 Cal.4th 468, 530.)
(B) Admissibility of the Specific Statements
In considering whether the trial court erred in admitting the taped excerpts, we limit our review to the objections Espinoza raised below since a failure to object to the admission of evidence below on the specific ground raised on appeal, waives appellate review. (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 890, fn. 3.)
The statements at issue on appeal involve either prior inconsistent statements admitted under Evidence Code section 1235 or statements that were not hearsay because they were not being offered for the truth of the matter contained in the statement.
The trial court ruled some statements were admissible under the hearsay exception for past recollection recorded. (Evid. Code, § 1237.) This ruling applied to only one of the statements at issue on appeal, but since the court also found the statement was admissible as a prior inconsistent statement, we need not address the alternate ground. As to the remaining statements, since Espinoza failed to raise a specific objection on that ground below, he waived the issue.
Under Evidence Code section 1235, a statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement if the witness was given an opportunity to explain or deny the statement and has not been excused from giving further testimony in the action. (People v. Sapp (2003) 31 Cal.4th 240, 296.) Inconsistency will be implied when a witness's trial testimony that he or she does not remember an event is deliberate evasion and untruthful. (Ibid.) We review a trial court's decision to admit evidence under an exception to the hearsay rule for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Statements by Adan
Defense counsel objected to admission of Adan's statements that Espinoza appeared to be waiting for him, Espinoza "sucker punched" him, Espinoza knocked him to the ground, he attempted to kick Espinoza in the face but missed, he believed he had broken Espinoza's nose during the fight in the hall, he left the hall with his cousin and girlfriend, and Espinoza was behind them "real quick" once they left the hall.
At trial, Adan testified Espinoza merely approached him after he and the others entered the hall. He did not recall using the term "sucker punch" to the police to describe Espinoza's initial blow, stating he would have used some other term such as "cheap shot." He testified he was so dazed and confused after the fight that he did not remember hitting Espinoza. When initially testifying about the fight, he omitted stating he had hit Espinoza in the face, Espinoza had knocked him to the ground, and he had kicked at Espinoza's head. Adan also testified he left the hall without waiting for his girlfriend. Finally, Adan testified that when he came outside, he heard gunshots, he saw the gun but not who was holding it, and he took off running. He denied seeing Espinoza run up from behind with a gun in his hand.
The court properly ruled the statements were inconsistent with Adan's trial testimony.
Statements by Norma and Evaelena
Espinoza objected to statements in the taped interviews of Norma and Evaelena that the Rivera brothers would not have attended the party if they had known Espinoza was going to be present. Espinoza objected that the statements were hearsay because they were based on what other people told the witnesses. The trial court ruled the statements were not being offered for the truth of the matter asserted but to show the witnesses' states of mind.
The statements were not admitted to prove the truth of the statements, that is, that the witnesses and the Rivera brothers had been told Espinoza would not be attending the party. Rather, they were admitted to show the witnesses believed Espinoza would not be attending the party. Evaelena's statements were also admissible as prior inconsistent statements. At trial, Evaelena testified Barajas specifically invited the Rivera brothers to the party and the prior incident between Adan and Rivera was merely an argument, not a big fight and it "was no big deal," so she had no concerns about Espinoza being at the party. Evaelena could not "recall" telling the detective that Adan decided to attend the party only after learning Espinoza would not be there. Her testimony read as a whole supports an inference that she was deliberately evasive and untruthful.
Statements by Barajas
Espinoza objected to admission of Barajas's statements that she knew "bad blood" existed between Adan and Espinoza, Espinoza had been invited to the party but he was supposed to have other plans that day and her sister (Espinoza's wife) was trying to intimidate her.
We find no error in the court's admission of these statements because they were inconsistent with Barajas's trial testimony. At trial, Barajas testified Espinoza was invited and expected to attend because his wife was the child's godmother. Barajas claimed she never told anyone Espinoza would not be present. She testified she was aware there had been trouble in the past between Adan and Espinoza but it was not a "big deal" and she was not concerned there would be violence at the party if they both attended. Barajas also testified Espinoza's sister did not tell her not to "snitch or rat," but said only, "You don't have to talk to no one if you don't want to."
II
Instructions
Espinoza contends the court misinstructed the jury on the use of the statements made in the excerpts from the taped interviews.
At trial, when Joaquin testified she was concerned about the Rivera brothers attending the party because she had heard of a prior fight between Adan and Espinoza, the court instructed the jury:
"Ladies and gentlemen, the objection is hearsay.
"Hearsay is defined as an out-of-court statement that is offered in court to prove the truth of the matter that was stated out of court.
"I'm going to overrule the objection; permit the witness to answer for the purposes of understanding what this witness understood. Not that it was true, just what her understanding was . . . . So it's admitted for that limited purpose."
Prior to deliberations, the trial court instructed the jury:
"During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." (CALCRIM No. 303.)
"You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways:
"1. To evaluate whether the witness's testimony in court is believable;
"AND
"2. As evidence that the information in those earlier statements is true." (CALCRIM No. 3.18.)
Espinoza argues it was improper to tell the jury that the statements could be used for the truth of the matter contained in the statements. To the extent the statements were admitted as prior inconsistent statements, this was proper. Prior inconsistent statements may be considered for both assessing witness credibility and the truth of the statements; a jury can choose to believe a witness is lying at trial but told the truth in an earlier statement. (See People v. Sapp, supra, 31 Cal.4th 240, 295.)
As to the witnesses' statements about being told Espinoza was not expected to attend the party, the trial court told the jury after the first witness testified about such statements that the evidence was being admitted for a limited purpose and could not be used for the truth of the matter, but only for what the witness understood. During its final instructions, the court again told the jury that evidence admitted for a limited purpose could only be used for that purpose. Even if further instructions should have been given, this was harmless error. Whether the witnesses had been told or merely believed Espinoza would not be attending the party was a minor issue. That evidence pales in comparison to the evidence against Espinoza, which overwhelmingly supports his convictions of mayhem and assault with a semi-automatic firearm. There is no reasonable probability the jury would have acquitted him had it been specifically instructed that it could not use the statements as proof Espinoza was expected not to attend the party.
III
Playing of the Tapes to the Jury During Deliberations
Tapes of the redacted interviews were played for the jury but the court reporter did not report them. During deliberations, the jury requested transcripts of the taped interviews. The court noted the interview transcriptions had not been admitted into evidence and suggested the court reporter read the transcripts to the jury. Defense counsel objected to playing the tapes for the jury or reading the transcripts because neither had been admitted into evidence. The court responded that the contents of the interviews were evidence, which could have been recorded by the court reporter, but it had been agreed it was not necessary for the reporter to transcribe the tapes since the prosecutor had prepared transcripts. Ultimately, when it became clear that the court would allow the reporter to read the transcripts to the jury, defense counsel requested that the tapes be played instead because the "tape is the best evidence" and the court agreed to this request. Defense counsel did not specifically object to the tapes being sent to the jury room with a recorder rather than having the court reporter play the tapes for the jury. During a subsequent motion for a new trial, defense counsel indicated he had strategic reasons for requesting that the jury hear the tapes during deliberations.
We note that any error by defense counsel in allowing the jury to have the tapes during deliberations did not constitute ineffective assistance of counsel. To establish ineffective assistance of counsel, there must be a showing that counsel's act resulted in prejudice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) As we explain above, Espinoza was not prejudiced. Additionally, defense counsel indicated he made a tactical decision, and appellate courts are deferential to tactical decisions and will not find ineffective assistance for a tactical decision only if it would not have been made by any diligent, ordinarily prudent criminal trial attorney. (In re Alcox (2006) 137 Cal.App.4th 657, 665.) We cannot say that defense counsel's tactical decision in this case would not have been made by a diligent, ordinarily prudent criminal attorney.
Espinoza contends the court erred by permitting the playing of the redacted tapes during deliberations when they were not formally offered and admitted into evidence. Since the tapes were played during trial, however, during deliberations the jury was entitled to rehear the tapes or have the transcripts of the tapes read back, even though the tapes and transcripts were not admitted as exhibits. (See People v. Dennis, supra, 17 Cal.4th 468, 531.) It appears the court did err by sending the tapes into the jury room with a recorder, because it presented a danger the jury would give undue emphasis to the tapes. Espinoza waived appellate review of the issue, however, by requesting that the jury hear the tapes and not objecting to the court sending the tapes to the jury room with a tape recorder.
Further, even without waiver Espinoza's contention lacks merit because he suffered no prejudice and thus any error was harmless. The jury was not provided inadmissible or extraneous evidence during deliberations, since, as discussed in part I, the redacted tapes contained admissible evidence. In analyzing potential prejudice, we are mindful that the court declared a mistrial on the charge of attempted murder, and we are reviewing his convictions of mayhem and assault with a firearm. Many of the statements in the tapes, such as whether Espinoza was expected to attend the party or that he instigated the fight in the hall, were primarily relevant to the attempted murder charge and whether he had the specific mental state or malice or intent to kill.
Mayhem and assault with a firearm, however, are both general intent offenses, which required proof only that Espinoza willfully committed an act, rather than that he had specific intent to achieve a particular result. (People v. Park (2003) 112 Cal.App.4th 61, 64; People v. Alvarado (2005) 125 Cal.App.4th 1179, 1191.) Assault with a semi-automatic firearm requires proof of a wilful act with a semi-automatic firearm that a reasonable person would realize by its nature would directly and probably result in the application of force to someone. (CALCRIM No. 8.75.) Mayhem requires proof that the defendant intentionally did a wrongful act and caused the loss of a body part or disfigurement. (CALCRIM No. 801; People v. Hayes (2004) 120 Cal.App.4th 796, 805.) The essential difference between these two crimes is not the actor's mental state but the result achieved; mayhem requires disfigurement or loss of a member or eye. (People v. Hayes, at p. 805.) Basically, to prove these crimes, the People were only required to establish that Espinoza willfully fired the gun toward Rivera, and that act led to the loss of his eye. Espinoza admitted firing the gun. He testified he fired the gun into the air and fired the gun at "the floor [ground] to scare them." His testimony also indicated he continued firing the gun as he stumbled into the street and until the gun was emptied. Numerous witnesses saw Espinoza pointing the gun and/or firing at Rivera, including a neighbor who had no connection to either family. It was undisputed the firing of the gun injured and caused the loss of Rivera's eye.
Espinoza's testimony was ambiguous as to whether he was pulling the trigger or whether the gun was discharging as the result of people "yanking" at his hand.
Under these circumstances where there was overwhelming evidence supporting the aggravated assault and mayhem convictions, there is no reasonable probability Espinoza would have received a more favorable result had the jury not been provided with the tapes during deliberations.
IV
Motion For Mistrial
Espinoza contends his convictions must be reversed because the court improperly denied his motion for a mistrial based on the admission of the redacted tapes and playing them during deliberations. Since we have rejected his underlying claims, we conclude the court properly denied the new trial motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., IRION, J.