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People v. Fuentes

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 20, 2012
B220827 (Cal. Ct. App. Jan. 20, 2012)

Opinion

B220827

01-20-2012

THE PEOPLE, Plaintiff and Respondent, v. JAVIER FUENTES et al., Defendants and Appellants.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Javier Fuentes. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Maria Alaniz. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Blythe J. Leszkay and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. LA053831)

APPEAL from judgments of the Superior Court of Los Angeles County, Susan M. Speer and Richard Kirschner, Judges. Affirmed.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Javier Fuentes.

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Maria Alaniz.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Blythe J. Leszkay and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Javier Fuentes and Maria Alaniz appeal from the judgments entered following their convictions by jury on count 1 - murder (Pen. Code, § 187) with, as to Fuentes, a finding the murder was of the first degree, and on two counts of attempted murder (Pen. Code, §§ 664, 187; counts 2 & 3) with, as to Fuentes as to each of counts 2 and 3, a finding the attempted murder was willful, deliberate, and premeditated. There were also findings as to each of the above offenses that Fuentes personally used a firearm (former Pen. Code, § 12022.53, subd. (b)), personally and intentionally discharged a firearm (former Pen. Code, § 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury or death (former Pen. Code, § 12022.53, subd. (d)). There were further findings as to each of the above offenses that a principal personally used a firearm (former Pen. Code, § 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (former Pen. Code, § 12022.53, subds. (c) & (e)(1)), and a principal personally and intentionally discharged a firearm causing great bodily injury or death (former Pen. Code, § 12022.53, subds. (d) & (e)(1)).

Appellants also appeal from the judgments entered following their convictions by jury on two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 6 & 7) with, as to Fuentes as to count 6, a finding that he personally inflicted great bodily injury (former Pen. Code, § 12022.7, subd. (a)). Fuentes also appeals from the judgment entered following his convictions by said jury on count 4 - possession of a firearm by a felon (former Pen. Code, § 12022, subd. (a)(1)) and on two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 10 & 11).

The jury found each of the above offenses was committed for the benefit of a criminal street gang (former Pen. Code, § 186.22, subd. (b)(1)), and Fuentes admitted he had suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). The court sentenced Fuentes to prison for 75 years to life (with a minimum parole eligibility term (MPET) of 15 years), a consecutive term of life plus 25 years to life (with an MPET of 15 years), plus a determinate term of 27 years 8 months. The court sentenced Alaniz to prison for 15 years to life (with an MPET of 15 years), plus a determinate term of 9 years. We affirm the judgments.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that in June or July 2006, Fuentes committed assault with a deadly weapon upon Osman Cifuentes and Miguel Quiroz (counts 10 & 11, respectively).

On August 9, 2006, appellants committed assault with a deadly weapon upon Cesar Mondragon and Antonio DeJesus Rincon (counts 6 & 7, respectively), and Fuentes personally inflicted great bodily injury on Mondragon. Alaniz drove the getaway car containing Fuentes.

On the evening of October 18, 2006, Walter Lopez (the decedent), Gillian Saladino, and Arturo Pinuelas were outside the residence of Billy Lazaro. Alaniz drove a truck containing Fuentes and a second man to the location, and appellant (a felon) and the second man exited the truck. One had a handgun and the other had a firearm with a long barrel. (Count 4.) The two gunmen began shooting at Lopez, Saladino (count 2), and Pinuelas (count 3). Lopez was killed by a shotgun wound in his back (count 1). The above offenses were committed for the benefit of a criminal street gang.

Fuentes presented no defense evidence. Alaniz presented evidence as to the events of August 9, 2006, that she was present at the scene but not criminally involved. Alaniz presented an alibi defense as to the events of October 18, 2006.

ISSUES

Appellants claim (1) the trial court erroneously denied their mistrial and new trial motions based on jury misconduct and (2) the trial court erroneously refused to give proposed instructions on third party culpability and on gang membership. Alaniz claims the trial court erroneously admitted into evidence extrajudicial statements of Fuentes.

DISCUSSION

1. The Trial Court Properly Denied Appellants' Mistrial and New Trial Motions.

a. Pertinent Facts.

Fuentes and Saladino were in custody during trial. On April 2, 2009, Saladino testified that, the day before, Saladino was by himself in a jail cell "downstairs" when Fuentes called Saladino a snitch. Fuentes also put his finger to his lips, gesturing he did not want Saladino to say anything. Later that day, a jailer took Saladino from his jail cell, put his hands behind his back, handcuffed him, and escorted him to the courtroom. The jailer removed Saladino's handcuffs and brought him into the courtroom.

During its final charge to the jury, the court gave an instruction which indicated, inter alia, that if Fuentes had tried to discourage someone from testifying, Fuentes's conduct could show his consciousness of guilt. Later during opening argument the prosecutor relied on the instruction to argue Fuentes's calling Saladino a snitch and making the previously mentioned gesture evidenced Fuentes's consciousness of guilt. Fuentes argued he could not have made the gesture because he had been handcuffed behind his back before he entered the courtroom.

On April 13, 2009, the jury commenced deliberations. On April 15, 2009, the court stated the following: "At 1:30 right after lunch yesterday [April 14, 2009], one of the jurors asked one of our bailiffs, quote, 'Can I ask you a question?' [¶] The bailiff replied, 'It depends[.]' [¶] The juror stated, 'Are the inmates or prisoners restrained downstairs?' [¶] The bailiff innocently replied, 'No[.]' [¶] And then the bailiff thinking twice about it says, 'Does this relate to the case?' [¶] I guess he didn't realize there was a potential issue. [¶] And the juror said, 'No[.]' [¶] And then the bailiff advised the juror that any questions you have should be done in writing." (We will refer to this as the April 14, 2009, incident.) The court indicated the bailiff believed the juror was Juror No. 11, the foreperson.

On April 15, 2009, the court (Judge Susan M. Speer, presiding) indicated that at 3:16 p.m. on April 14, 2009, the jury submitted a note to the court. The note stated, "We would like to know if the inmates are in handcuffs while they are in the cells downstairs at this courthouse." The note was signed by Juror No. 11, the foreperson. On April 15, 2009, the court proposed to admonish the jury that they would have to rely only on the evidence presented in the courtroom and if they had received extraneous information on any issue, they were to disregard it and not share it with jurors. Fuentes asked the court to add that it would be improper to share it and the court agreed to do so. The court observed, "at least [the jury] asked the question [to the court]" and "didn't take what the bailiff said as gospel." Fuentes agreed.

On April 15, 2009, Fuentes's counsel was standing in for Alaniz's counsel. The court indicated no juror misconduct had occurred if, when the juror spoke with the bailiff, the juror was not referring to the present case but was motivated by general curiosity. However, the court indicated the circumstances were highly suspicious. Fuentes suggested the court inquire of Juror No. 11 if the information he received from the bailiff tainted the jury's discussions. The court initially suggested it might conduct such an inquiry but later agreed with the prosecutor that such an inquiry was unnecessary because the outcome would be the same, i.e., the court would admonish the jury. Fuentes moved for a mistrial on the ground of jury misconduct.

The court stated, "If it's error, to me it's harmless error . . . which relates only to [Fuentes, not Alaniz]." The court later admonished the jury concerning the April 14, 2009, incident and the written note, then ordered the jury to resume deliberations. The court denied Fuentes's motion for a mistrial.

The court admonished the jury as follows: "The Court: . . . You asked a question about you would like to know if the inmates are in handcuffs while they are in the cells downstairs at this courthouse and it's signed by Juror No. 11 the foreperson, correct? [¶] The Foreperson: Yes. [¶] The Court: . . . In answering this question, I need to advise you that you can only consider evidence that was received in this trial by way of witness testimony and/or exhibits or stipulations. [¶] You may not rely on any evidence that was received from any other source outside of this trial, as I admonished you when I read you the instructions, and that includes the internet, the news, a dictionary, other persons, any other written sources. . . . [¶] So unless this evidence was presented at the trial, then I cannot give you any additional evidence. You'll have to rely only on the evidence that you already received and we can't open up and answer any new questions for you or present new evidence, unfortunately." The court then stated, "Also, it came to this court's attention that one of you had a conversation with our bailiff about this same subject matter. I don't know if that was shared with the rest of the jurors or not, but I need to admonish that juror and all of you [that] it's totally, absolutely improper to seek information from any other source including the bailiff, any staff member, or any external source whatsoever including the resources I already mentioned. So please do not do it. [¶] If any of you received any outside information from any other source, do not share it with the other jurors and do not let it enter your deliberations in any way. It is not evidence. It may not be considered for any purpose whatsoever. [¶] Are we all clear on that?" The jury collectively answered in the affirmative.

On April 17, 2009, Alaniz joined in Fuentes's mistrial motion. Alaniz then raised an issue of additional alleged jury misconduct which had occurred that morning. The court (Judge Richard Kirschner, presiding) conducted a hearing on the issue. Robert Royce (whom Alaniz represented was a defense investigator) indicated as follows. Royce overheard a discussion between a couple of jurors and a bailiff. Royce was sitting in the hallway and heard two very loud females. The courtroom door opened, Daniel Hidalgo, the bailiff, exited, and Hidalgo said, " 'You're not supposed to talk about that yet.' " Seconds later, Royce heard an unknown male say, " 'Alternate juror.' " About 20 minutes later, Royce heard a male talking to one of the women who had short, blonde hair. Another woman was present and Royce indicated the two women were very loud. The woman with the short, blonde hair said, " 'I can't talk about that. I got in trouble earlier.' " Royce heard nothing else. Royce did not know whether the woman with short, blonde hair was a juror, but he assumed she was.

In response to court questioning, Hidalgo indicated as follows. About 8:45 a.m., Hidalgo went outside to open the doors. An alternate juror approached, the jurors greeted the alternate juror, and Hidalgo then explained they should not be talking to each other about anything. The group asked if that meant they could not even talk about something unrelated to the trial, and Hidalgo indicated they were not to talk about anything.

The parties indicated they did not want to inquire about the matter. The court ruled no jury misconduct had occurred in connection with the April 17, 2009, morning incident. The court indicated it was clear Hidalgo "simply told the . . . jurors appropriately not to have conversations with the alternate [juror]."

Alaniz asked if he could examine Hidalgo concerning the April 14, 2009, incident. Fuentes indicated Alaniz's counsel had not been present when Fuentes had made his mistrial motion, and appellants wanted to augment the record as to that motion. The court granted the request.

Alaniz asked, inter alia, if a juror had posed a general question as to whether people were transported through the building in handcuffs. Hidalgo replied yes but indicated the juror had not phrased the question that way. Hildalgo said the juror had asked him "if [defendants] were restrained down there" and Hidalgo had replied they were not. The juror was Juror No. 11.

The following later occurred: "The Court: It was a general question? [¶] [Hidalgo]: Yes. [¶] The Court: It was not related to this case? [¶] [Hidalgo]: Right. [¶] The Court: You basically told him that people were not under restraint? [¶] [Hidalgo]: Yes. [¶] The Court: That's the record so far. [¶] You can inquire further." After questioning of Hidalgo by Fuentes, the parties indicated they had no further questions.

Later, the following occurred: "Q. By [Alaniz's counsel]: You did not tell the juror, I can't answer that. Put your question in writing and deliver it to the court so the court can address it? [¶] A. [Hidalgo:] No."

As to both appellants, the court denied the mistrial motion as augmented by Hidalgo's additional testimony. The court denied the motion without prejudice to appellants renewing it before Judge Speer. On June 22, 2009, appellants made a motion for a new trial based on alleged jury misconduct arising from the April 14, 2009, incident. On November 19, 2009, the court (Judge Speer, presiding) denied the motion.

b. Analysis.

Fuentes claims the trial court erred by denying his mistrial and new trial motions. He argues Juror No. 11's communication with the bailiff was juror misconduct and the trial court erred by failing to conduct an inquiry or evidentiary hearing concerning the matter. Alaniz joins in the claim.

A motion for a mistrial should be granted only when a defendant's chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) An appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 210.) We assume we review de novo the trial court's order denying a motion for a new trial. (Cf. People v. Ault (2004) 33 Cal.4th 1250, 1262, fn. 7.)

Fuentes's claim raises an issue of juror misconduct. When a trial court is aware of possible juror misconduct, the court must make whatever inquiry is reasonably necessary to resolve the matter. Although courts should promptly investigate allegations of juror misconduct, they have considerable discretion in determining how to conduct the investigation. The court's discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ, including whether to conduct a hearing or detailed inquiry. (People v. Prieto (2003) 30 Cal.4th 226, 274.)

Not every allegation of jury misconduct justifies an evidentiary hearing. (People v. Yeoman (2003) 31 Cal.4th 93, 163.) Instead, such hearings should be conducted only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. Even when the defense has made such a showing, an evidentiary hearing will generally be unnecessary unless the evidence presents a material conflict that can be resolved only at such a hearing. (Ibid.) Finally, when " 'true jury misconduct' " (People v. Chavez (1991) 231 Cal.App.3d 1471, 1484) exists, a presumption of prejudice arises. (Ibid.) We review de novo the issue of whether prejudice arises from jury misconduct. (People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)

As to the April 17, 2009, morning incident, the burden is on appellants to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Appellants have failed to demonstrate jury misconduct occurred in connection with that incident.

Even if a presumption of prejudice arose concerning the April 14, 2009, incident, it does not follow we must reverse the judgment. The thrust of Fuentes's position was he could not have gestured to Saladino because Fuentes was in handcuffs. However, appellants have not directed our attention to any direct evidence that Fuentes had been in handcuffs when he allegedly called Saladino a snitch. Moreover, the fact, if true, that Fuentes had been in handcuffs at that time would not have prevented him from calling Saladino a snitch. Even if we assume Juror No. 11 conveyed the bailiff's response to other jurors, the jury, as Fuentes conceded below, apparently did not view the bailiff's response as controlling because the jury later submitted a written question to the court. In addition, even if we assume Juror No. 11's question to the bailiff was related to the issue of whether Fuentes could have gestured to Saladino, any such gesture was evidence of consciousness of guilt of Fuentes, not Alaniz.

Fuentes argues an inquiry by the trial court would have assisted a determination of (1) whether the entire jury was "interested" in Juror No. 11's communication with the bailiff and (2) "the impact on the juror and whether or not any other jurors were infected by the misconduct." Fuentes thus suggests an inquiry would have assisted the determination of, inter alia, (1) what if anything Juror No. 11 conveyed to the other jurors concerning Hidalgo's statement to Juror No. 11, and (2) the reaction of the other jurors to Hidalgo's statement.

However, there was no material conflict as to the content of Hidalgo's statement to Juror No. 11. Although the record does not demonstrate whether Juror No. 11 conveyed to other jurors that statement, the court simply assumed Juror No. 11 may have conveyed to other jurors Hidalgo's statement and the court gave a corrective instruction accordingly. Although, upon an inquiry as to the validity of a verdict, otherwise admissible evidence may be received as to a statement of such character as is likely to have influenced the verdict, "[n]o evidence is admissible to show the effect of such statement, . . . upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Evid. Code, § 1150, subd. (a).) The court in fact conducted an inquiry and evidentiary hearing to the extent the court permitted appellants to augment the record of their mistrial motions with the testimony of Hidalgo concerning the April 14, 2009, incident.

The court gave the jury a corrective instruction to the effect it was improper for them to seek information from any source other than the evidence presented at trial and, if they received outside information, they were not to share it with other jurors or consider it for any purpose. Fuentes essentially agreed with the giving of those instructions. The jury collectively indicated they clearly understood the instructions, and the jury is presumed to have followed them. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The timely giving of a corrective instruction can rebut a presumption of prejudice. (Cf. People v. Harper (1986) 186 Cal.App.3d 1420, 1429-1430; People v. Craig (1978) 86 Cal.App.3d 905, 919.) Any misconduct by Juror No. 11 during the April 14, 2009, incident was not prejudicial. The court did not err or violate appellants' constitutional right to a fair and impartial jury or right to due process by denying appellants' mistrial and new trial motions.

2. No Instructional Error Occurred.

In its final charge to the jury, the court gave CALCRIM No. 373, entitled "Other Perpetrator." Appellants requested that the court give two proposed instructions drafted by Fuentes concerning third party culpability, a short version and a long version.Fuentes asserted as to the October 18, 2006, incident that there were two shooters, it was unknown which one did what, and it was unknown which one fired the shotgun and which one fired the smaller firearm. Alaniz asserted she intended to argue to the jury that a person named Emily Fuentes (Emily) may have been the driver. The court refused appellants' requests, concluding the instructions were misleading, argumentative, and redundant. The court, using CALCRIM No. 401, instructed on aiding and abetting regarding intended crimes.

CALCRIM No. 373, stated, "The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged."

The short version stated, in pertinent part, "The defendant has introduced evidence to show that another person committed the offense charged in this case. [¶] The prosecution has the burden of establishing beyond a reasonable doubt that it was the defendant who committed the charged offense. [¶] If after a consideration of all the evidence, you have a reasonable doubt that the defendant was the person who committed the charged offense, you must find the defendant not guilty." The long version stated, in pertinent part, "You have heard evidence that a person other than the defendant Javier Fuentes committed the offense which is charged in Count ____. [¶] The defendant is not required to prove that other person's guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. [¶] Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant's guilt. [¶] Evidence that another person, committed the charged offense may by itself leave you with a reasonable doubt. [¶] If after considering all of the evidence, including any evidence that another person committed the offense you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty."

Appellants also requested that the court give a proposed instruction on gang membership. The instruction stated, in pertinent part, "Membership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding or abetting." The court refused appellants' requests, concluding the instruction was misleading, unnecessary, and argumentative.

Appellants claim the trial court's refusal to give Fuentes's two proposed instructions on third party culpability was error. Appellants' claim relates to the events of October 18, 2006 (counts 1 through 3 as to appellants, and count 4 as to Fuentes). Fuentes argues the trial court should have given the instructions because his theory at trial was that an uncharged codefendant was the actual shooter. Alaniz argues the court should have given them because there was evidence Emily, not Alaniz, was involved in the shootings.

A detective testified he had entertained the "possible theory" that the October 18, 2006, shooting was done in retaliation for the shooting of Christopher Lutz. Lutz and Fuentes were members of the same gang. Emily was Fuentes's sister and Lutz's girlfriend. Various persons thought Alaniz and Emily were twins or related. Alaniz thus argues Emily had a motive to participate in the October 18, 2006, shooting and that Emily, not Alaniz, was involved in that shooting.

As Fuentes suggests, People v. Hall (1986) 41 Cal.3d 826 observed that previous authority from our Supreme Court had "noted that it is always proper to defend against criminal charges by showing that a third person, and not the defendant, committed the crime charged." (Id. at p. 832, italics added.) Although third party culpability evidence need only be capable of raising a reasonable doubt of a defendant's guilt, there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Id. at p. 833.)

The People's evidence established Fuentes was one of two gunmen who committed the October 18, 2006, shootings which served as the basis for Counts 1 through 4. This is true whether the person who fired the firearm which killed Lopez was Fuentes or the other gunman. In sum, although the People presented evidence that a person in addition to Fuentes was criminally responsible for the shootings, the People presented no evidence that Fuentes did not commit the crimes. Fuentes, as was his right, presented no defense evidence, a fortiori, none pointing to a culpable third party. Nor did Alaniz present evidence that someone else, and not Fuentes, committed the crimes.

A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944; People v. Flannel (1979) 25 Cal.3d 668, 684.) As to Fuentes's claim, he has failed to demonstrate there was substantial evidence that a third person, and not Fuentes, committed the offenses of which he was convicted as to counts 1 through 4. The trial court did not err by refusing to give the proposed instructions on third party culpability as to Fuentes.

Moreover, even if the trial court erred as to appellants by failing to give the proposed third party culpability instructions, the trial court, using CALCRIM No. 220, instructed the jury on the burden of proof beyond a reasonable doubt. Proof beyond a reasonable doubt that appellants committed offenses was inconsistent with a reasonable doubt that a third person, and not appellants, committed those offenses. The jury heard Alaniz's closing argument that Emily looked like Alaniz and that Emily, and not Alaniz, was involved in the shootings. That argument was inconsistent with the People's argument that there was proof beyond a reasonable doubt as to counts 1 through 4. The jury not only convicted appellants but found they committed their crimes for the benefit of a criminal street gang. Any trial court error in refusing to instruct on third party culpability as to the events of October 18, 2006, was not prejudicial or a violation of appellants' rights to due process and a jury trial. (Cf. People v. Abilez (2007) 41 Cal.4th 472, 517-518; People v. Earp (1999) 20 Cal.4th 826, 888.)

Fuentes, relying on Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337, also claims the trial court erred by refusing to give his proposed gang instruction which "pinpointed aiding and abetting." We disagree. Unlike the present case, Mitchell was a case in which the only evidence of aiding and abetting was little more than the defendant's gang affiliation. (Id. at pp. 1342-1343.) Language extracted from an appellate court opinion does not always constitute an appropriate jury instruction in the context of another case. (People v. Adams (1987) 196 Cal.App.3d 201, 204-205.)

To the extent the gang instruction suggested gang membership was irrelevant to the issue of intent, California law is to the contrary (cf. People v. McKinnon (2011) 52 Cal.4th 610, 655; People v. Funes (1994) 23 Cal.App.4th 1506, 1518), and the court was under no duty to give an erroneous and/or confusing instruction (cf. People v. Cook (2007) 40 Cal.4th 1334, 1362-1363 (Cook); People v. Hendricks (1988) 44 Cal.3d 635, 643).

To the extent the gang instruction suggested (1) gang membership was irrelevant to the issues of the facilitation, advice, aid, promotion, encouragement or instigation (hereafter, facilitation) needed to establish aiding or abetting, or (2) gang membership alone was not proof beyond a reasonable doubt of intent, or of said facilitation, there was no need to give the proposed gang instruction for the reasons discussed below.

The court instructed on the general principles of aiding and abetting (CALCRIM No. 400), aiding and abetting intended crimes (CALCRIM No. 401), and the burden of proof beyond a reasonable doubt. The court also, using CALCRIM No. 1403, instructed that the jury could consider gang activity evidence only for expressly limited purposes,and none of those purposes expressly included said facilitation. There was no need to give the proposed gang instruction since the issues it addressed were adequately covered by other properly given instructions. (Cf. Cook, supra, 40 Cal.4th at pp. 1362-1363.) 3. The Trial Court Did Not Err by Admitting Into Evidence Fuentes's Statements.

CALCRIM No. 1403, stated, "You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and allegations charged; [¶] OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he/she has a disposition to commit crime."

Alaniz maintains Lazaro testified: (1) Fuentes said to Lopez, " 'we're gonna get you' " (AOB/22) and " '187 on your ass,' " (2) Fuentes, on another occasion, told Lazaro, " 'tell your homeboy [Lopez] I said 187 on his ass,' " and (3) Alaniz was present on one occasion when Fuentes referred to 187. Alaniz claims these statements were inadmissible under the Bruton/Aranda rule. Fuentes joins in the claim. We reject it.

People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).

The Bruton/Aranda rule is that the admission into evidence, against a nontestifying codefendant, of said codefendant's confession which also facially incriminates and is inadmissible hearsay as to a defendant violates the latter's right to confrontation when the confession is admitted into evidence at their joint jury trial. (People v. Fletcher (1996) 13 Cal.4th 451, 455-456; Aranda, supra, 63 Cal.2d at pp. 528531; Bruton, supra, 391 U.S. at pp. 124-128, fn. 3, 129-136.)

Although each challenged statement may have incriminated Fuentes, Alaniz has failed to demonstrate that any such statement facially incriminated Alaniz. The Bruton/Aranda rule was therefore inapplicable. Moreover, Alaniz has failed to demonstrate that any challenged statement was made to a law enforcement officer. It appears the first two statements were made to acquaintances of Fuentes and none were made in circumstances that caused the statements to be testimonial. Since it does not appear the challenged statements were testimonial (cf. People v. Cage (2007) 40 Cal.4th 965, 984; People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19; People v. Garcia (2008) 168 Cal.App.4th 261, 291), their admission into evidence did not violate the Bruton/Aranda rule or Alaniz's constitutional rights to confrontation and due process (People v. Arceo (2011) 195 Cal.App.4th 556, 571-575 (Arceo)).

Of course, the Bruton/Aranda rule was inapplicable to Fuentes because the challenged statements were his; therefore, they were admissible, as against a confrontation objection, as his admissions. To the extent Alaniz (who does not in her reply brief explicitly discuss respondent's citation to Arceo) argues in her reply brief that Fuentes's statements were inadmissible hearsay under state law, she waived the issue by raising it for the first time in her reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.)
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DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J. We concur:

KLEIN, P. J.

CROSKEY, J.


Summaries of

People v. Fuentes

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 20, 2012
B220827 (Cal. Ct. App. Jan. 20, 2012)
Case details for

People v. Fuentes

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVIER FUENTES et al., Defendants…

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

Date published: Jan 20, 2012

Citations

B220827 (Cal. Ct. App. Jan. 20, 2012)

Citing Cases

People v. Alaniz

This court affirmed the judgment in 2012. (People v. Fuentes et al. (Jan. 20, 2012, B220827) [nonpub. opn.].)…