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People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 19, 2013
G046206 (Cal. Ct. App. Jun. 19, 2013)

Opinion

G046206

06-19-2013

THE PEOPLE, Plaintiff and Respondent, v. SHAWN MICHAEL ESPINOZA, Defendant and Appellant.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 10ZF0085)


OPINION

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed in part, reversed in part.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Shawn Michael Espinoza was convicted of attempted murder, attempted robbery, assault with a semiautomatic firearm and street terrorism after the shooting of Brian Roundy. Defendant argues a number of issues on appeal, including evidentiary error, a lack of substantial evidence, instructional error, and improper coercion of a jury verdict on the first three counts. We find none of these arguments persuasive. We agree with defendant, however, that his conviction for street terrorism was improper because there was no evidence he was acting with any other gang member. We therefore reverse the street terrorism count and affirm the rest of the judgment.

I


FACTS

A few years before the instant crime took place, Brian Roundy was involved in a business relationship with Edith Haskins, whom Roundy knew as Didi. The relationship involved Roundy moving appliances from a Long Beach apartment demolition to a building project in Utah. A year or so later, a dispute arose regarding money Roundy owed Haskins. Roundy thought he owed her somewhere from $600 to $800, but Haskins thought it was more like $1,000. Haskins had some of Roundy's equipment, and he thought the debt had been paid. Haskins disagreed, and according to Roundy, "continued to dwell on it." One of his friends, Steven McDaid, who also knew Haskins, reminded Roundy that he owed Haskins money.

On the evening of December 4, 2009, Roundy was leaving his Huntington Beach home when he was approached by a man and a woman he did not recognize. Roundy later identified the man who approached him as defendant.

Defendant was carrying a semiautomatic handgun and asked Roundy if he was "Brian." When Roundy said that he was, defendant said something to the effect that Roundy owed someone $1000, and defendant wanted the money that was owed. Roundy asked who he owed money to, as he did not recognize this encounter as being related to his dispute with Haskins. Defendant did not provide a name, but instead demanded Roundy's wallet. Roundy refused his repeated demands, and defendant shot him in the upper leg. The bullet smashed through his femur. Defendant had been brandishing the gun up in the air and pointed sideways with his left hand, and Roundy thought defendant had been aiming at his midsection. Defendant and the woman with him walked back towards their vehicle.

At trial, the prosecution and defense stipulated that defendant is right handed.

Roundy's roommate, Rod Stigar, was inside when he heard what sounded like an argument followed by a "pop." He heard Roundy yelling for help. He went to the door and saw a man standing next to a black truck, which was parked across the street. A few seconds later, a car drove up and stopped near the man, the car's occupants spoke to him, and then the car left. The man got into the truck and drove away.

Stiger saw Roundy on the ground and called 911. Stiger asked Roundy who shot him. Roundy appeared to be in a tremendous amount of pain, but he mentioned something about a girl who owed him some money. Police and paramedics arrived shortly thereafter. On the way to the hospital, while in considerable pain, Roundy described defendant as a "Caucasian, stocky male, between 30 and 40 years of age" with a mustache, between five foot seven and five foot nine, who weighed approximately 200 to 220 pounds.

Roundy was in the hospital for 17 days. He had a severe bruise on the side of his body. As a result of the bullet wound, he has a metal rod in his leg and a nine-inch scar between his hip and knee.

A few days after the shooting, an investigating officer showed Roundy a photographic lineup that included defendant's photo. Roundy told the officer that the person who shot him was either defendant or the person in one other photo, but defendant looked the most like the person who shot him. When shown a photographic lineup that included a year-old picture of defendant's wife, Jessica Espinoza, he was not able to identify the woman who had been at the scene. When shown a photo taken recently, however, he identified defendant's wife.

In March 2010, a detective took Roundy to a courtroom and asked him to look around and see if anyone resembled the gunman. A number of people were present. Roundy saw defendant and identified him as the gunman.

Police surveillance was conducted at defendant's home a few days after the shooting. The officers saw defendant, his wife, and Edith Haskins meet together for about 10 minutes in a nearby restaurant's parking lot. They were observed at the same location on a later date, and the officer also saw Haskins at defendant's home after a search warrant was served. At trial, McDaid testified he had seen defendant and Haskins together on two occasions several weeks before the shooting.

Among other things, the police had collected a right-hand black knit glove from the street across from Roundy's home and an expended .45-caliber shell casing near the location of the shooting. Defendant could not be excluded as a contributor of the DNA found on the glove. A search of defendant's home revealed ammunition of the same caliber and model as the shell casing.

In January 2010, an undercover law enforcement task force conducted a program to purchase weapons from Orange County gang members. One of the weapons purchased was a .45-caliber semiautomatic handgun from a member of the Public Enemy Number 1 (PEN1) street gang named Eric Derby. A ballistics test was conducted, revealing this gun had the same grooves and lands as the bullet taken from Roundy, and it also had the chamber marks of the spent round found at the scene.

In April 2010, the grand jury indicted defendant for attempted murder (Pen. Code, § 664, subd. (a), § 187, subd. (a), count one); attempted second degree robbery (§ 664, subd. (a), §§ 211/212.5, subd. (c), count two); assault with a semiautomatic firearm (§ 245, subd. (b), count three) and street terrorism (§ 186.22, subd. (a), count four). As to counts one and two, it was alleged that defendant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). Enhancements for inflicting great bodily injury (§ 12022.53, subd. (d)) and personal use of a firearm (§ 12022.7, subd. (a)) were alleged as to count three. Four prior convictions were alleged. (§ 667.5, subd. (b).)

Subsequent statutory references are to the Penal Code unless otherwise indicated.

At trial, a gang expert, Deputy Sheriff Ashraf Abdelmuti, testified that defendant was an active member in PEN1, a point defendant's counsel conceded during closing argument.

Michael Price, defendant's father-in-law, testified at trial. As of December 2009, Price lived with defendant and his daughter Jessica, along with Price's mother, Alma Vosyka, and Price's girlfriend, Maryann Palmer. Price testified that his deceased stepfather had been a gun collector, and that eight or nine of his guns and ammunition were still in the house. He said the ammunition the police had found was from Price's bedroom closet, along with other ammunition. On the night of the shooting, Price and Palmer had left home around 6:00 p.m., and at the time defendant was home, sick in bed, and Jessica was with him. Palmer testified similarly and said that when she and Price retired at around 1:00 a.m., defendant and Jessica were still there.

Roundy's attending physician, Mohamed El-Nachef, also testified. He reported that a hospital drug screen showed that Roundy had cocaine, amphetamines and opiates in his system, and while the opiates may have been introduced at the hospital, the cocaine and amphetamines would not have been. Roundy showed drug withdrawal symptoms after a few days at the hospital. Under cross-examination, the doctor agreed no quantitative analysis had been conducted, and he agreed that when Roundy was admitted, he was alert and oriented and had no sensory limitations.

Defense witness Max A. Schneider, a medical doctor who reviewed Roundy's chart, opined that Roundy was under the influence of methamphetamine and cocaine. He said that those who ingest those drugs have decreased short-term memory and that recollections after an event would be less accurate. During cross-examination, Schneider testified he did not talk to Roundy or any hospital staff before reaching his conclusions. He stated that to render an expert opinion regarding Roundy's state of intoxication or withdrawal, a blood analysis would be required. Roundy testified that sometime in December 2009, he used methamphetamine which may have had cocaine mixed into it.

In rebuttal, Patrick Ellis, the Huntington Beach police detective, testified that when he spoke to defendant about his activities on the date of the shooting, he did not mention being sick. He said he was at home and watched a movie. Price's trial testimony was the first time Ellis had heard defendant was home sick on the night of the shooting.

With respect to Roundy's condition, Ellis saw Roundy at the hospital on December 4th, 5th and 8th. Although he had training and experience regarding narcotic use, he did not see Roundy exhibit any narcotic withdrawal symptoms.

At the conclusion of trial, defendant was found guilty on all counts, and the jury returned true findings on all enhancements. Defendant waived jury trial on the prior convictions, and the prosecution dismissed two of the prior prison term allegations. The remainder were stricken for sentencing purposes. Defendant was sentenced on count one to the middle term of seven years, plus a consecutive term of 25 years to life on the firearm enhancement. Sentence on all other counts was either stayed or concurrent. Sentence on count two was a concurrent term of two years, plus 25 years to life on the firearm enhancement. On count three, sentence was stayed pursuant to section 654. On count four, defendant was sentenced to two years, concurrent to count one. Thus, defendant's total prison term was seven years, plus an indeterminate term of 25 years to life. Defendant now appeals.

II


DISCUSSION

A. Gang Expert's Comments

1. Background

Prior to trial, the court granted defendant's motion in limine bifurcating trial of his prior convictions. The prosecutor did not object. Nothing in the motion in limine mentioned witness testimony with respect to prior convictions. Later, during Abdelmuti's testimony, counsel and the court met outside the presence of the jury. Defense counsel said that "hopefully [Abdelmuti] is not going into [defendant's] felony convictions." The court noted the difference between mentioning law enforcement contacts and arrests or convictions, and directed the prosecutor to advise the witness of that. The court made this observation with respect to a defense objection about any connection between PEN1 and any prison gang. The court noted that although there was some potential for prejudice, it was also important for the jury to understand PEN1's history and background to determine if it was a gang.

Back in court, the prosecutor asked Abdelmuti about defendant's past acknowledgement to law enforcement about being a member of PEN1. Abdelmuti replied that defendant told a Huntington Beach police officer that he was a PEN1 member "while in prison," and he associated with older members of the gang.

Defense counsel objected outside the presence of the jury, asking the court to grant a mistrial on the basis that the witness mentioned defendant being in prison. The prosecutor did not think the witness's use of the word "prison" was intentional and the answer only repeated defendant's admission. After further argument, the court decided to strike the statement, but denied the motion for a mistrial on the grounds it did not prejudice defendant. Defense counsel did not wish any further admonition to be provided. Back in the jury's presence, the court struck the witness's answer that included the word "prison."

Examination of Abdelmuti continued. Defense counsel questioned the witness extensively as to why a Stanton traffic officer would prepare a field information card on defendant, who had been a passenger in a car stopped for a traffic offense. When asked if it was common practice for an officer conducting a traffic stop to take pictures of and otherwise document a car's passengers, Abdelmuti initially responded such actions would be "common with field interviews and STEP notices." Counsel asked if a field interview extended beyond writing a traffic citation, and Abdelmuti responded that "if there was any probation or parole associated it could." When asked if the patrol officer had any knowledge of probation or parole as to the particular stop, Abdelmuti said no. Defense counsel next asked: "And it doesn't appear on the [field interview] card either; right?" Abdelmuti responded, "On the F.I. card for [defendant], I believe it documents he was a former parolee but not current."

Again outside the presence of the jury, defense counsel asked the court to direct the witness not to answer questions not asked of him. The court stated: "Let me just say I was listening to the questioning here in absolute amazement because it seemed to me counsel was inviting responses about why these individuals were singled out for more than a simple traffic stop. Counsel asked over and over why this was treated differently than an ordinary traffic ticket. And the reason is that these are people who were formerly on probation or parole." While the court agreed to strike the comment and instructed the witness to refrain from any further mention of defendant's prior convictions or parole status or prison time, the motion for mistrial was denied. The court noted that counsel's line of questioning put the witness in a difficult position, and the court did not believe the prejudice to defendant justified a mistrial. Later, after reviewing the transcript, the court observed that the question immediately prior to Abdelmuti's answer was ambiguous. The court believed that counsel may have intended to ask whether defendant was currently on probation or parole, but that was not in fact what he asked, and the way in which he did pose the question opened the door to Abdelmuti's answer.

2. Mistrial Motions

"'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]' [Citation.]" (People v. Collins (2010) 49 Cal.4th 175, 198.) We review the trial court's denial of a motion for a mistrial under the deferential abuse of discretion standard. (People v. Williams (1997) 16 Cal.4th 153, 210.)

"'Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witness's volunteered statement can also provide the basis for a finding of incurable prejudice.' [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 211.) But "'[u]nder ordinary circumstances the trial court is permitted to correct an error in admitting improper evidence by ordering it stricken from the record and admonishing the jury to disregard it, and the jury is presumed to obey the instruction.' [Citations.]" (People v. Gurrola (1963) 218 Cal.App.2d 349, 357.) A motion for a mistrial should be granted only when "'a party's chances of receiving a fair trial have been irreparably damaged.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 749.)

In this case, the court could reasonably find that any prejudice was not incurable. The witness's first statement referred to defendant's associations "while in prison," and the second stated defendant had formerly been on parole. Both statements implied that defendant had previously been arrested, convicted, and incarcerated, and although not in explicit violation of the court's order, the statements arguably violated its spirit and intent. We do not find, however, that either statement was elicited in bad faith. The first statement was not responsive to the question the prosecutor had been asking, and the second was elicited by defense counsel after intense questioning on the issue of why a traffic stop had turned into a field interview.

The Attorney General argues, not without merit, that the second statement was invited error. Because no prejudice resulted, we need not analyze the invited error doctrine here.

Neither statement, however, which essentially adduced the same information, caused incurable prejudice. The jury did not learn the nature of any prior conviction, the proximity or remoteness in time of any prison term, or any other fact. Defendant's case citations and arguments address situations where the jury has learned immaterial details of a defendant's personal history and criminal record in some detail and/or uncharged offenses and arrests. (See People v. Cruz (1978) 83 Cal.App.3d 308, 326-329; People v. Richardson (1946) 74 Cal.App.2d 528, 537.) They are inapposite in this case. Here, the jury merely learned that defendant had been incarcerated at some point. That is insufficient to establish prejudice on its own.

Further, in both cases, the statements were stricken and the jury was instructed to disregard them. Defense counsel specifically did not want any further admonition on the first statement (and presumably felt the same about the second), which was a valid tactical decision. At the beginning of trial, the jury was instructed that if the court struck a witness's answer, the jury was to disregard it and not consider it for any reason or purpose. (CALCRIM No. 222). "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]"(People v. Sanchez (2001) 26 Cal.4th 834, 852.) There is no evidence here that the jury did not follow this instruction; any contention to the contrary is pure speculation. Defendant has not established even a strong possibility that "incurable prejudice" occurred (People v. Williams, supra, 16 Cal.4th at p. 211), and we therefore find the trial court did not abuse its discretion in denying defendant's motions for mistrial.

B. Sufficiency of the Evidence

Defendant next argues that his convictions on all counts should be reversed for lack of evidence. He contends Roundy's identification of defendant was unreliable because Roundy was under the influence of drugs, and his description of the shooter at the time varied significantly with his trial testimony. He further argues a lack of evidence of intent to kill.

1. Standard of Review

When a defendant calls into question the sufficiency of the evidence, our review is a very limited one. "'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We presume the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

Further, before we reverse a judgment for insufficiency of evidence, it must be clear there is no hypothesis under which we could find sufficient evidence. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) This standard applies even "when the conviction rests primarily on circumstantial evidence." (People v. Kraft, supra, 23 Cal.4th at p. 1053.)

2. Roundy's Identification

In his introduction to this argument, defendant argues that Roundy's identification was unreliable because Roundy was under the influence of cocaine and methamphetamine. Defendant does not go on to develop this argument further, or to offer any legal argument or authority in its support. We therefore need not consider it further. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)

That is probably just as well for defendant, however, because his next argument is somewhat contradictory. He argues that Roundy's description of the shooter immediately after the incident was sufficiently credible that the jury should have relied on that description, which was somewhat inconsistent with defendant's appearance, over Roundy's later identification. On the way to the hospital, Roundy described defendant as a "Caucasian, stocky male, between 30 and 40 years of age" with a mustache, between five foot seven and five foot nine, who weighed approximately 200 to 220 pounds. He also described the shooter as holding the gun in his left hand. Roundy said the shooter was wearing a T-shirt and a heavy flannel jacket.

At the time of the crime in December 2009, defendant was 39 years old. He was right handed. At the time the probation report was written, in December 2011, his reported weight was 170 pounds. Stigar, Roundy's roommate, also saw a short and stocky male across the street after the shooting. Defendant also claims he did not have a mustache, pointing to the photo used in the photographic lineup as evidence. While defendant does not have a clearly defined mustache in this photograph, he also does not appear to be clean shaven. Defendant also has extensive tattoos on his neck, arms and body, which Roundy did not mention. At trial, Roundy testified that the shooter was wearing a hooded sweatshirt rather than the T-shirt and flannel jacket he reported to police. Defendant argues the description of the shooter was more consistent with Derby, the individual in possession of the gun.

Defendant argues there was no evidence he had lost 30 pounds or more, but there was no evidence that he had not, either. This fact is simply inconclusive.

There are definitely inconsistencies between Roundy's initial description and defendant's appearance. There are also discrepancies between Roundy's initial statements and trial testimony. But there is also the fact that two days after the shooting, Roundy told the officer showing him a photographic lineup that defendant looked most like the person who shot him. He identified a recent photo of Jessica Espinoza in another photographic lineup. Roundy also identified defendant in a courtroom several months later and again at trial.

Unless it is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. (People v. Young, supra, 34 Cal.4th at p. 1181.) No inherent improbability is present here. The jury was aware of all of the facts. They heard testimony about Roundy's purported intoxication, his initial description of the shooter, and his subsequent identifications. Based on all of the testimony, a reasonable jury was free to conclude, for example, that questioning the victim of a shooting during a painful ambulance ride is perhaps not the most effective method of eliciting highly reliable information.

Roundy's first identification of defendant was only two days later, confirmed by his in-person identification several months later. This identification was sufficiently reliable and credible to constitute substantial evidence. Defendant essentially asks us to reweigh the evidence and judge Roundy's credibility, and that we cannot do. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Moreover, reversal is not warranted just because the evidence might also be reconciled with a different verdict. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)

Further, defendant focuses completely on the physical identification while ignoring other evidence before the jury, such as defendant's relationship with Haskins, Roundy's prior dispute with her, and the statements the shooter made at the scene regarding Roundy owing someone money. All of these facts are consistent with defendant's guilt, and support the conclusion that the verdict was based on substantial evidence. We find no error.

3. Intent to Kill

Alternatively, defendant argues that count one must be reversed because there was insufficient evidence of defendant's intent to kill. Defendant argues that a single gunshot at close range, which resulted in a wound to Roundy's leg, followed by his departure from the scene, does not support an intent to kill. The jury was instructed with CALCRIM No. 600, which states that to establish attempted murder, the prosecution was required to prove that "1) the defendant took at least one direct but ineffective step toward killing another person, and 2) the defendant intended to kill the person."

Viewing the evidence in the light most favorable to the judgment, as we must, the facts demonstrated that defendant confronted Roundy and brandished a weapon at him. When Roundy refused to give defendant his wallet, defendant held the gun over his head and pointed the gun at Roundy from about three to six feet away, and eventually fired. When asked where the gun appeared to be pointing, Roundy testified: "He seemed to be pointing [at] what I thought was around my midsection, or whatever, from where he was and the gun was and where I was. So I turned kind of to the side and hit the window, and it wound up hitting me in the leg instead of the stomach I think."

Defendant argues that shooting Roundy in the leg, then leaving while Roundy was on the ground, shouting, does not support an inference that defendant intended to kill him. Defendant contends he could see after the shooting that Roundy was not dead, and would have shot him again if he wanted to kill him. He claims the only reasonable inference is that he intended to scare or injure Roundy.

We disagree. Whether a defendant intended to kill is, of course, a question of fact. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) "The act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1218.) Further, "[t]hat defendant may have fired once and then abandoned his efforts does not compel the conclusion he lacked the intent to kill in the first instance. [Citation.]" (Ibid.)Here, the permissible inferences, along with Roundy's testimony regarding defendant's aim, were sufficient evidence for the jury to conclude that defendant harbored the requisite intent to kill.

C. Jury's Verdict

Defendant next argues the court "coerced the jury's verdict" on the attempted murder charge when it directed the jury to continue deliberating without asking if further deliberations would be helpful in arriving at a verdict.

1. Background

After deliberating for about four hours over two days, the jury sent the court a note: "We are not in agreement on Count 1, all other counts have been agreed upon. What do we do now?" The minutes reflect that "Counsel were notified" but the record does not reflect any discussion between counsel and the court, or any objections to a proposed course of action. The court sent the following note in reply: "Please continue deliberations on Count 1." Approximately an hour later, the jury informed the court it had reached a verdict.

2. "Coercion" of the verdict

Defendant asks us to infer from this record that the jury "deadlocked" on count one and any verdict was reached as a result of the court's "subtle insistence" that a verdict must be reached. First, we note that the Attorney General argues the lack of objection should result in this issue being waived, but we need not invoke the waiver doctrine here.

Because we address this argument on its merits, defendant's claim of ineffective assistance of counsel on this point is moot.

Nor do we need to consider this issue at great length. Section 1140 states: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." The court, without coercing the jury, must exercise its discretion to determine whether there is a reasonable probability of agreement. (People v. Neufer (1994) 30 Cal.App.4th 244, 254.) The trial court has broad discretion in making this determination. (§ 1140.)

Defendant's arguments assumes facts not present in the record, starting with the notion that the jury was, indeed, deadlocked. Neither this word nor any synonymous word is included in the jury's note, which simply said "We are not in agreement on Count 1." A reasonable judge could decide that disagreement did not necessarily mean deadlock or impasse, and the proper course was to direct that deliberations continue, particularly given the short duration of deliberations thus far. The court could reasonably conclude that in light of the lack of agreement, further deliberations could help. There is nothing from the circumstances that creates an inference that a juror would feel coerced to change his or her mind. Further, there is nothing magical about questioning the jury about whether further deliberations could help. In light of the short duration of the deliberations and the language of the jury's note, the court could reasonably conclude that further deliberations would indeed help. We find no error.

D. Hearsay Evidence and Jury Instruction

Defendant next argues the court erred by admitting a recorded telephone conversation between defendant and his wife, Jessica, and by instructing the jury regarding consciousness of guilt.

1. Background

Defendant was arrested several days after the shooting. After his arrest, one of the detectives told him his wife, Jessica, had been interviewed by the police. Defendant then spoke to his wife on the phone, in a call that was recorded. Among other things, the conversation included defendant's statements that Jessica needed to "clean up" her statements to the police, and to say she might have made prior statements because she was coerced.

Prior to trial, defense counsel moved to exclude the recording because it was irrelevant and inadmissible hearsay. Counsel argued the recorded conversation took place after the police told defendant what Jessica allegedly said to them about the assault on Roundy. Essentially, counsel argued, without knowing what Jessica said to the police, the jury would not have any context to understand the conversation, and therefore it was irrelevant.

The court denied defendant's motion. The court stated this was exactly the kind of evidence that CALCRIM No. 371 (consciousness of guilt) was directed toward. From reading the transcript, the court believed the prosecution could reasonably argue that there was an attempt to hide evidence or discourage someone from testifying or create false evidence. The court therefore felt the evidence was extremely relevant, even without the context of what Jessica told the police. Thus, the motion was denied.

During the testimony of one of the detectives involved in the case, the prosecutor asked if the detective had informed defendant that he had interviewed defendant's wife. The detective said yes, after which he was asked about the conversation between Jessica and defendant, and the tape was played for the jury.

The court instructed the jury on consciousness of guilt as follows: "If the defendant made a false or misleading statement before this trial relating to the charged crime knowing the statement was false or intending to mislead, that conduct may show you that he is aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However the evidence that the defendant made such a statement cannot prove guilt by itself."

2. Admissibility

The standard of review for evidentiary issues is well-settled. "Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 201.) Even where evidence has been erroneously excluded or admitted, the judgment or decision shall not be reversed unless the reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354.)

Defendant claims the court erred in two ways by admitting the phone call. First, that the statements to "clean up" Jessica's testimony were ambiguous and insufficient to create a reasonable inference that defendant tried to create false evidence or obtain false testimony. Second, he argues that the admission of the phone call invited the jury to speculate about the statements Jessica made. Neither of these arguments falls into a particular category of evidence law. In his reply brief, defendant argues that it was not reasonable to infer that any statements Jessica made to the police were true. The reply brief then notes the motion in limine was based on hearsay and relevance.

We are unsure what analysis defendant wishes us to undertake. To the extent the argument is relevance, we agree that only relevant evidence is admissible. (Evid. Code, § 350.) "'The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts . . . .'" (People v. Harris (2005) 37 Cal.4th 310, 337.) Here, the material fact to be established is that defendant wanted Jessica to "clean up" her statements, which creates an inference, whether Jessica's statements were true or false, that they were harmful to defendant. Thus, the evidence was relevant.

With respect to hearsay, Evidence Code section 1200, subdivision (b) states: "hearsay evidence is inadmissible." Hearsay evidence is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) But the evidence here was not offered for its truth, but as evidence that defendant intended to manipulate the evidence. The hearsay objection was properly overruled.

We interpret all of defendant's other arguments as falling under Evidence Code section 352. That section gives the trial court discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We will only disturb an exercise of the court's discretion under Evidence Code section 352 "'on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.)

To the extent defendant intended to offer any other argument, it is waived.(People v. Dougherty, supra, 138 Cal.App.3d at pp. 282-283.)

The court here did not abuse its discretion. The evidence was highly probative of defendant's intent to manipulate Jessica's statements to the police. We do not find that any prejudice to defendant outweighs the probative value of this evidence. Therefore, the trial court did not abuse its discretion under Evidence Code section 352.

3. Instruction

We review jury instructions de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn.1.) If the record contains "some evidence" that, if credited by the jury, would support an inference of consciousness of guilt, an instruction is appropriate. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) Here, the statements during defendant's phone call with Jessica could be interpreted by a reasonable jury as an attempt to persuade her to change her statement to the police. Thus, an instruction on this point was appropriate.

E. Street Terrorism

Defendant argues that his conviction on count four, street terrorism (§ 186.22, subd. (a)) must be reversed because there was no evidence that the assault on Roundy was committed with PEN1 gang members or that there was any connection between the assault and the gang.

Section 186.22, subdivision (a) states: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."

"The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.]" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)

Rodriguez, which was decided after briefing in this case was complete, held that a gang member does not violate section 186.22, subdivision (a) if he or she "commits a felony, but acts alone[.]" (Rodriguez, supra, 55 Cal.4th at p. 1128.) In order to violate section 186.22, subdivision (a), the requisite "felonious criminal conduct" (§ 186.22, subd. (a)) must "be committed by at least two gang members." (Rodriguez, supra, 55 Cal.4th at p. 1132.)

We requested supplemental briefing on Rodriguez. Defendant argues, and respondent concedes, that Rodriguez compels reversal on this count. We agree. The defendant in Rodriguez was a gang member who committed an attempted robbery. "There was no evidence that [the] defendant acted with anyone else." (Rodriguez , supra, 55 Cal.4th at p. 1129.) He contended that he could not be convicted of violating section 186.22, subdivision (a) because he did not "promote[], further[], or assist[]" any felonious criminal conduct by members of the gang. (§ 186.22, subd. (a).) The California Supreme Court agreed, holding that the plain meaning of the word "members" mandates that "felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he [or she] is a gang member. [Citation.]" (Rodriguez , supra, 55 Cal.4th at p. 1132.)

The evidence does not show that defendant acted alone here. But if we presume (for the sake of argument only) that Jessica was the woman with defendant at the scene of the assault, there was no evidence of her affiliation with or membership in PEN1, or any other gang, for that matter. Indeed, the gang expert testified that PEN1 does not typically have female members. Without proof that the assault on Roundy was "committed by at least two gang members" (Rodriguez, supra, 55 Cal.4th at p. 1132) there is insufficient evidence to support defendant's conviction on count four. Because we are reversing defendant's conviction on that count, we need not consider his claim that the trial court should have stayed sentence on count four.

Cumulative Error

Finally, defendant argues that the "sequence of errors" in the instant case require reversal under the cumulative error doctrine. We do not find the three errors he points to (denying the motions for mistrial, ordering the jury to continue deliberating on the attempted murder charge, and admitting evidence of the phone call) were errors at all. The only "error," which was the result of a change in the law, was defendant's conviction on street terrorism. In defendant's supplemental brief on Rodriguez, he argues that the admission of the "highly inflammatory gang evidence" rendered his trial unfair. At the time of trial, however, the gang evidence was primarily admitted because of the street terrorism count, which was properly presented to the jury based on the law at the time. Defendant offers no authority for the proposition that evidence properly admitted at the time of trial becomes a due process violation, if, after the trial is concluded, the count that made such evidence relevant becomes legally untenable. We find no cumulative error.

Defendant's supplemental brief asserts he argued in his opening brief that the gang expert's testimony was unduly prejudicial. Defendant did not, however, set forth the admissibility of the gang evidence as a separate ground for reversal. He argued this issue only as part of his contention that the court's decision to deny his mistrial motions was prejudicial.
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III


DISPOSITION

Defendant's conviction on count four is reversed. Because sentence on count four was imposed concurrently, defendant's total prison sentence has not changed and resentencing on the other counts is unnecessary. Accordingly, the clerk of the superior court is directed to issue a new abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

MOORE, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.


Summaries of

People v. Espinoza

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 19, 2013
G046206 (Cal. Ct. App. Jun. 19, 2013)
Case details for

People v. Espinoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHAWN MICHAEL ESPINOZA, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jun 19, 2013

Citations

G046206 (Cal. Ct. App. Jun. 19, 2013)