Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA268247 Ann I. Jones, Judge.
Lawrence R. Young & Associates, Lawrence R. Young, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Joseph P. Lee, Shawn McGahey Webb and Richard Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Jesus Garcia was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A) and that a principal personally used and discharged a firearm proximately causing the victim's death within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). The court sentenced appellant to 25 years to life in state prison for the murder conviction plus 25 years to life for the firearm allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in finding that the prosecution exercised due diligence in attempting to locate a key witness, allowing the jury to hear his confession, admitting the handgun seized from underneath his bed and permitting an expert witness to testify about predicate gang crimes. He further contends that there is insufficient evidence to support his conviction. We affirm the judgment of conviction.
Facts
About 8:00 p.m. on June 17, 2004, Miguel Morales was shot and killed while getting out of his car in Carr Lane. Morales was a member of the Krazy Ass Mexican street gang. The shooting occurred in territory claimed by the Clover gang.
Immediately after the shooting, Flor Rodriguez saw two Clover gang members and a girl standing in Carr Lane and looking down it. Rodriguez went down to the alley and saw a body. The gang members and the girl did nothing to help the person. Rodriguez returned to her apartment and called 911. She then returned to the alley and realized that the body was that of Morales, her former boyfriend.
Several weeks after the shooting, Milton Perez was arrested on an outstanding warrant. Perez was an inactive member of the Clover gang. He decided to give police information about the Morales killing. He asked to be placed in the witness protection program. The county relocated Perez and his family to another state and paid for their housing for about six months.
Perez had previously given police information about a case involving Max Berrendo, a Clover gang member. Perez was not in custody at that time.
Perez told police that appellant had come to his house several weeks earlier and said: "I'm putting in work. Somebody, you know, we caught slipping, Chees[er] up by Griffin." Cheeser was a derogatory name used by Clover gang members to refer to members of the rival Eastlake gang. Perez understood this to mean that appellant and another Clover gang member had killed an Eastlake gang member off Griffin Street.
Perez also told police that another Clover gang member, Cipriano Ayala ("Creeper") had come to his house and told him that a Clover gang member named David had been shot by someone from Eastlake. Creeper said: "Oh, we caught some fool slippin' off of Griffin" specifically "out by where Rene used to live at" and "we took care of that shit." Rene lived in an apartment building near Carr Lane between Griffin and Manitou Streets. Creeper said that they had been looking for someone and thought that the guy they "caught slipping" was from Eastlake.
Los Angeles Police Detective Juan Gutierrez used the information provided by Perez to obtain a search warrant for appellant's home and an arrest warrant for appellant. The search uncovered a rusty .38 caliber Smith and Wesson snub-nosed revolver from underneath appellant's bed. Appellant was arrested.
Detective Gutierrez and Detective Augustine Caballero questioned appellant about the Morales murder. The interrogation was videotaped. Initially, appellant denied any knowledge of the killing or of the area where it occurred. He then admitted that he was familiar with the area. He then stated that he was in the building next to the alley when the shooting occurred. He had given a young Clover gang member named Bugsy or Drowsy his gun and told him to stand watch while he visited a woman in the building. While inside, he heard shots and assumed that Bugsy/Drowsy had done a shooting to retaliate for the shooting of Clover gang member David Veragon.
Appellant next told the detectives that he was in the building next to the alley and gave his gun to Bugsy or Drowsy and told him to watch the two men sitting in a car parked in the alley. At about the same time, the men in the car threw a gang sign and said: "What's up, motherfuckers?" Bugsy/Drowsy replied: "Clover." Appellant said: "What's up fool? Are you going to blast him or what?" Bugsy/Drowsy replied that he did not know. Appellant said: "What are you going to do, dog? Are you going to blast him or what?" Then appellant said: "Blast him, dick. Blast him." Bugsy/Drowsy started firing and appellant left. Appellant later met up with Bugsy/Drowsy, got the gun back and hid it in a vacant house. Someone named Jose later returned the gun to appellant.
Forensic tests determined that the five-shot .38 caliber revolver found underneath appellant's bed did not fire the three bullets recovered from Morales's body or a bullet recovered from Morales's clothing. Two unjacketed bullet cores recovered from the scene were too damaged to make a comparison, but could have been fired from any medium caliber weapon, including appellant's revolver. Based on the fact that six bullets were fired, Detective Gutierrez opined that there were two shooters (and thus two weapons) involved.
Detective Gutierrez testified that there were no young Clover gang members named Bugsy or Drowsy. The detective believed that Creeper was the second shooter and that appellant was afraid to name him. Creeper was arrested at the same time as was appellant.
Detective Supervisor William Eagleson testified as a gang expert. He had extensive experience with the Clover gang, having grown up in the gang's territory and worked on various gang assignments for 25 years. He had investigated many different crimes committed by Clover gang members, including 12 to 15 homicides in which a Clover gang member was the suspected killer. Specifically, Detective Eagleson had participated in the investigation and trial that led to Clover gang member Maximo Berrendo's first degree murder conviction for a retaliatory killing of a rival gang member. Detective Eagleson was also familiar with Clover gang member Jose Corrball's conviction for assaulting peace officers with a rifle while trying to elude capture.
Gang culture prohibits members from cooperating with the police. The gang will kill or very seriously injure a known informer.
A gang member is expected to commit crimes ("put in work") for the gang. Doing so enhances his reputation with the gang and the gang's reputation with rival gangs. Appellant was a member of the Clover gang.
Detective Eagleson stated that the area of the Morales murder was in Clover gang territory and was near gang hang-outs. One of Clover's rivals was the Eastlake gang. Clover gang members called Eastlake "Cheeselake" and its members "Cheesers." The relationship between the two gangs was like a "war" in 2004.
In June 2004, Clover gang member David Veragon was shot by someone thought to belong to Eastlake. Gang culture required Clover to retaliate for Veragon's murder.
In response to a hypothetical based on the facts of this case, Detective Eagleson opined that appellant mistook Morales for an Eastlake gang member encroaching on Clover territory and killed him as payback for Veragon's murder. The shooting served its purpose even though Morales was not in fact an Eastlake member. The phrase "slipping" used by appellant denotes someone who is not watchful and aware.
Discussion
1. Due diligence
The prosecution could not locate Perez for this, appellant's fourth trial. Appellant contends that the trial court erred in finding that the prosecution had exercised due diligence in attempting to locate Perez and in allowing his prior trial testimony to be used in this trial.
"Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and . . . [¶] . . . [¶] [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2); see also § 686, subd. (3)(a).)
A declarant is an "unavailable witness" if he is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(5).) Whether the prosecution has exercised reasonable diligence in attempting to secure a witness's presence is a question dependent upon the totality of the facts of the individual case. (People v. Sanders (1995) 11 Cal.4th 475, 523.) The court's determination of the prosecution's diligence is reviewed de novo. (People v. Cromer (2001) 24 Cal.4th 889, 892-893.)
A mistrial was declared in the preceding trial, due to a hung jury, on April 2, 2006. At some point prior to Tuesday, May 30, 2006, the prosecutor asked the investigating officers to subpoena Perez for trial which was scheduled to begin on Wednesday, June 7th. The officers could not locate Perez.
On May 31st, the investigating officers contacted people in Perez's neighborhood. They checked his last known residence to determine whether he had returned to pick up his mail and left contact information with the manager. They checked a second address that Perez had identified as his residence on a recent citation, but he was not there and the manager did not have any information about him. Finally, they left word with Perez's family that he was needed in court on June 7th.
On June 1st, a man identifying himself as Milton Perez telephoned the prosecutor and stated that he would no longer cooperate. The prosecutor did not obtain verifiable identifying information from the caller, such as a driver's license number or date of birth, but recognized Perez's voice from her numerous contacts with him throughout the prior two years. Perez told the prosecutor that he had already testified against appellant, and put his own life in danger two times and would not do it again. He did not care if he was arrested for failing to appear. He refused to give her a phone number or address. He said he was living on the street, away from his family, because he believed he would be killed. Perez asked to be relocated with his family again, but the prosecutor responded that he could only be housed temporarily during the pendency of the trial. She ordered Perez to court on June 7th.
As the prosecutor explained at the due diligence hearing, Perez had "come to court on every prior appearance. He's never missed court. He's been here no less than ten times, if not more. And I had no reason to believe that he would not come, other than what he said to me on [June 1st]." She further explained that, "dating back to the filing of this case, we have been in contact with Mr. Perez. He's been cooperative. I can indicate that the first time Mr. Perez was in court and ordered on call was back on August 17th, 2005. Since that time he has testified in two separate trials, just come back as required on each and every occasion. Every time he's been ordered back, he has come back. When he's come, it's either been through a direct services subpoena or indirect services subpoena, which would include the manner in which we tried to reach him on the 1st. [¶] The history of this [witness] is we've had to relocate him out of state. He's always kept in contact with us up until a week ago. We had no reason to think that he would flee until my conversation with him on the 1st."
The investigating officers continued to look for Perez after June 1st. They ran custody checks every day to determine whether he had been arrested. They searched the apartment where he sometimes stayed and also spoke to the apartment manager. The apartment manager said Perez was expected to appear at his child's birthday party on Saturday, June 10th. The investigating officers determined the make and model of a car Perez had retrieved from impound and searched the area for it.
On June 7th, an investigating officer checked computer databases to determine whether Perez was in custody or had a warrant or any recent contact with law enforcement that would lead to a new address. The search did not produce any new information.
On Thursday, June 8th, the new date set for jury selection in appellant's fourth trial, the court stated on the record that the prosecution was having a problem locating Perez and that it would have to determine whether he was unavailable as a witness. Also on June 8th, investigating officers left subpoenas for Perez at two addresses where it was "highly probable" he would appear or have contact. Due to clerical error, the subpoenas ordered Perez to appear on February 12th rather than June 12th as intended.
On Friday, June 9th, the prosecutor directed a District Attorney's investigator to attend Perez's child's birthday party the next day. The DA investigator and gang officers spoke to Perez's brother, who stonewalled them and refused to cooperate. And they again searched the apartment where Perez sometimes stayed. Perez was not in the apartment, and his car was not parked in the area.
On the morning of June 12th, an investigating officer returned to the apartment where Perez was known to stay. There was no answer. He also asked the apartment manager whether Perez had attended his child's birthday party and she confirmed that he had not. Later that day, the investigating officer checked the apartment again and a man who would not identify himself answered the door. The man refused to reveal Perez's whereabouts.
The court found that the prosecutor had exercised reasonable diligence. The court found that the reasonableness of the prosecution's efforts should be evaluated beginning June 1, because up until then Perez had been a cooperative witness even without compulsion. The court found the efforts made beginning on June 1 to be reasonable.
We have reviewed the prosecution's efforts de novo and find reasonable diligence. The prosecution began efforts to contact Perez about nine days before jury selection was scheduled to begin and about two weeks before testimony could be expected to, and did, begin. We find this a reasonable amount of time given Perez's past cooperation, including the fact that his last testimony had been given only two months earlier. (People v. Sanders, supra, 11 Cal.4th at p. 523 [court may consider, inter alia, whether prosecutor reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena the witness when he was available]; see People v. Smith (1971) 22 Cal.App.3d 25, 31-32 [attempt to subpoena witness one week before trial was reasonable in part because witness had been cooperative in past and had promised to appear at trial].)
Further, although the prosecution was not aware of this until June 1, Perez had decided to avoid service and refuse to testify at trial even if ordered to do so. Thus, even if June 1 was late to begin searching for Perez, that fact did not demonstrate a lack of diligence. (See People v. Smith, supra, 22 Cal.App.3d at pp. 31-32 [attempt to subpoena witness one week before trial was reasonable in part because an earlier attempt to serve the witness in another trial had been unsuccessful and so an earlier attempt in this trial would have been to no avail]; People v. Rodriguez (1971) 18 Cal.App.3d 793, 796-797 [unsuccessful attempt to subpoena witness one week before trial was adequate where earlier attempts to serve him had failed and would have failed because he was actively avoiding service].)
We find the prosecutor's efforts to locate and subpoena Perez, once she learned that investigating officers were having difficulty locating Perez, to be reasonable.
We recognize that a number of good faith errors were made by the People. The prosecutor did not obtain a driver's license or any other of the appropriate identifying information from Perez when she spoke with him. Through clerical error an incorrect date was typed on the subpoenas which were left with others for Perez. Officers may not have gone to Perez's child's birthday party as they were instructed to do. These errors did not contribute to Perez's absence from trial, however. The driver's license information would have effectuated service of the subpoenas, but Perez made it clear that he had no intention of obeying a subpoena. Similarly, a different date on the subpoena would have made no difference to Perez. As for the birthday party, the investigator learned after the party that Perez did not in fact attend it. Thus, these errors do not show a lack of reasonable diligence.
Appellant also contends that Perez's prior testimony did not meet the requirements of Evidence Code section 1350 which concerns the death or kidnapping of a witness by party to prevent the witness's testimony. However, compliance with Evidence Code section 1350 was not required. Appellant's testimony was properly admitted pursuant to Evidence Code section 1291.
Section 1350, subdivision (a) provides: "In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true: [¶] (1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant."
2. Confession
Appellant points out that there is no reporter's transcript for this trial of any hearings which considered whether his confession was voluntary. He contends that his confession was not to the crime charged in this case and so should not have been admitted. Appellant further contends although his trial counsel failed to object to the admission of his confession, that the trial court had a sua sponte duty to declare a mistrial on the grounds of ineffective assistance of counsel once the contents of the confession were known. Finally, appellant contends that if the court did not have such a duty, his counsel was ineffective in failing to object to the admission of the confession.
Appellant has not made any logical or legal showing on appeal that his confession was involuntary. Accordingly, we reject this claim. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [if issues are not supported by argument or citation to authority, we consider the issue waived]; People v. Morse (1993) 21 Cal.App.4th 259, 275 [a point made without argument or authority is deemed to lack foundation and requires no discussion by the reviewing court].)
a. Mistrial
We also reject appellant's claim that the trial court had a sua sponte duty to declare a mistrial based on ineffective assistance of counsel. As appellant acknowledges, there are only three published cases that have held that ineffective assistance of counsel may, in extreme circumstances, constitute legal necessity for a mistrial. (People v. Manson (1976) 61 Cal.App.3d 102; People v. McNally (1980) 107 Cal.App.3d 387; People v. Coleman (1992) 9 Cal.App.4th 493.) None of those cases involved a sua sponte declaration of a mistrial by the trial court.
In Manson, the defendant's attorney disappeared midtrial and substituted counsel, claiming he could not effectively represent his client, requested a mistrial. In McNally, defense counsel requested a mistrial after concluding he was ethically barred from representing his client because of a conflict of interest. In Coleman, the defendant requested a mistrial based on substitute counsel's claim that he could not effectively represent his client because of his predecessor's negligence. None of these factors were present here.
Appellant relies on the logic of a case which he cites as, "People v. Carrillo (2d Dist., Div 2, 2006) 52 Cal.Rptr.3d 614" to support his claim that the trial court had a sua sponte duty to declare a mistrial based on his counsel's failure to object to the confession. The case reported at 52 Cal.Rptr.3d 614 is Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511. Appellant is correct that the trial court in Carrillo declared a mistrial, sua sponte, after hearing part of the defendant's confession during trial, because the court believed that the defendant's confession had been coerced and that defense counsel was ineffective for failing to object before trial to the admission of that confession. The Court of Appeal found that the mistrial was without legal necessity and that double jeopardy barred a retrial. (Carrillo v. Superior Court, supra, 145 Cal.App.4th at pp. 1514, 1531.) The Court of Appeal explained: "Where, as here, a trial court becomes convinced that defense tactics are denying a defendant a fair trial, the proper course of action, in the absence of the type of extreme circumstances described in Manson, McNally and Coleman, is to allow the case to proceed to judgment and then consider whether the defendant is entitled to a new trial." (Id. at p. 1529.) Thus, we see nothing in Carrillo to assist appellant.
b. Ineffective assistance of counsel
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, he must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Appellant has failed to show that his counsel's performance was deficient. We are not able to determine from the record before us whether appellant's trial counsel moved to exclude the admission of his confession. This was appellant's fourth trial. The record on appeal includes minute orders for all prior proceedings, but the reporter's transcripts for this trial only. As we advised appellate counsel when the record on appeal was filed: "Counsel are expected to review this record for completeness. Requests for inadvertently omitted material should be filed within 30 days of this notice."
On May 24, 2005, before the first trial of this matter, the minute order shows that "402 E.C. motions come on for hearing. The court rules as best restated in the notes of the court reporter." A few days later, a minute order reflects that "[d]efense motion to exclude VHS tape heard and denied." Thus, appellant's trial counsel appears to have made at least one effort to exclude appellant's confession.
On March 14, 2006, before the third trial of this matter, the minute order shows "Oral motions pursuant to 402 of the Evidence Code are heard, argued and ruled upon as fully reflected in the official notes of the court reporter." The minute orders for March 20 and 21 contain the same notation.
Before the trial of this matter, the court noted that it had made a number of rulings on in limine motions and 402 motions before the last trial. The parties agreed that it was not necessary to revisit those rulings. Appellant did not request that the record be augmented with the reporter's transcripts for the March 2006 hearings, and so we have no way of knowing what motions were heard on those dates.
Further, even if we found that appellant's trial counsel had never sought the exclusion of his confession at any point, appellant's claim would still fail. Appellant has not shown that but for counsel's error, a different result would have been reasonably probable. If the confession were involuntary, a different result would be reasonably probable if appellant had objected. However, appellant has not made any logical or legal showing that his confession was involuntary. Accordingly, we reject this claim. (Jones v. Superior Court, supra, 26 Cal.App.4th at p. 92; People v. Morse, supra, 21 Cal.App.4th at p. 275.)
We note that appellant also argued that the confession should be excluded because it is a confession to the murder of someone other than Morales, and there is no proof of the corpus delicti of that crime. As discussed in more detail in section 4, below, we find that appellant did confess to Morales's murder. Thus, we see no reasonable probability that an objection on this relevancy ground would have succeeded at trial.
3. Admission of the firearm
Appellant contends that the trial court should not have admitted the firearm found under his bed into evidence because it was not used to kill Morales. He contends in the alternative that his trial counsel was ineffective in failing to object to the introduction of the firearm.
Appellant did not object during trial to the admission of the firearm. Appellant has not cited any cases imposing upon the trial court a duty to sua sponte duty to evaluate every piece of evidence offered in a trial and determine its admissibility. The law is to the contrary. Evidence Code section 353 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence" unless there was "an objection to or a motion to exclude or to strike the evidence that was timely made."
Appellant has the burden of proving ineffective assistance of counsel. He has not met that burden. It is clear that appellant's counsel did not object to the firearm at trial. Appellant has not shown that his counsel failed to move to exclude the firearm before trial, however. As we discuss in section 2, above, there were evidentiary rulings in March 2006, before the third trial, which continued in effect in the fourth trial, but appellant did not request that the record be augmented with the transcripts from those March 2006 rulings.
Further, even if we found that appellant's trial counsel had never sought the exclusion of the firearm at any point, appellant's claim would still fail. Appellant has not shown that but for counsel's error, a different result would have been reasonably probable. Appellant's argument for exclusion is that the firearm is not relevant because it was not used in Morales's murder and was very prejudicial. We see evidence that the firearm was connected to the murder, however. Appellant testified that the gun was brought to the murder scene and fired. Two of the bullets recovered at the scene were not excluded from appellant's revolver. They could have been fired from it. Detective Gutierrez opined that two weapons were used in the crime. Thus, we see no probability that the court would have excluded the revolver if appellant had objected. Further, we would find no error in such a ruling.
4. Sufficiency of the evidence
Appellant contends that there is insufficient evidence to support his conviction. He further contends that such a conviction violates his state and federal rights to due process of law. We do not agree.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks, italics and citations omitted.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)
The standard of review is the same when the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
Appellant admitted to Perez that he was involved in killing someone near Griffin Street. He told police that he gave his loaded gun to another Clover gang member and told him to fire it at two men in a car parked in Carr Lane. He also told police that the gun found under his bed was the one used in the killing.
Five bullets were recovered from Morales's body. The forensic evidence showed that two of the bullets that entered the left side of his chest and back, were "rapidly fatal."
This is ample evidence to show that appellant was liable for killing Morales. Appellant's own statements show that he instructed a fellow gang member to "blast" two men in a car, and that the gang member complied. The number and placement of bullets show an intent to kill.
Appellant contends that there was no gun from the crime scene, no physical evidence of his presence at the crime scene, and no witness who saw him at the crime scene. There is no requirement for such evidence. The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)
To the extent that appellant contends that his confession is physically impossible (or inherently improbable) because there is no evidence that there were two men in the car, there was no one named Bugsy or Drowsy in the Clover gang, and his gun was excluded as the murder weapon, we do not agree. Appellant's eyes may have deceived him about the number of men in the car, or there may have been a second man who succeeded in escaping. Police believed that appellant made up the names Bugsy and Drowsy in order to avoid incriminating Creeper. Appellant's gun did not fire the bullets that killed Morales, but it might still have been fired at the scene.
There is also ample evidence that the killing was premeditated and deliberate murder. "Premeditated" means "considered beforehand" and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." (CALJIC No. 8.20 - Deliberate and Premeditated Murder). The law does not attempt to measure the length of time that a thought must be pondered before it ripens into a deliberate and premeditated intent to kill inasmuch as a cold, calculated judgment may be arrived at in a short period of time. Instead, the true test is the extent of the killer's reflection. A killing is deliberate and premeditated if the killer weighs and considers the question of killing and the reasons, for and against such a choice and, having in mind the consequences, decides to and does kill. (Id.; see also People v. Mayfield (1997) 14 Cal.4th 668, 767.)
The Supreme Court has suggested guidelines to aid reviewing courts in assessing whether evidence supports a finding that a murder was committed with premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 26; see also People v. Hawkins (1995) 10 Cal.4th 920, 957; People v. Perez (1992) 2 Cal.4th 1117, 1125.) These guidelines encourage courts called upon to analyze such claims to consider evidence of: (1) the defendant's activity prior to the murder; (2) the defendant's reason or motive for killing the victim; and (3) the manner in which the defendant killed the victim. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27; see also People v. Hawkins, supra, 10 Cal.4th at pp. 956-957; People v. Perez, supra, 2 Cal.4th at p. 1125; People v. Bloyd (1987) 43 Cal.3d 333, 347.)
The Anderson guidelines are descriptive, not exhaustive, and simply reflect a compilation of factors that the Supreme Court culled from its prior cases. (People v. Mayfield, supra, 14 Cal.4th at p. 768; People v. Hawkins, supra, 10 Cal.4th at p. 957; People v. Perez, supra, 2 Cal.4th at p. 1125.) Reviewing courts may consider other types and combinations of evidence that could support a finding of premeditation and deliberation in addition to evidence that falls into Anderson categories. (See People v. Perez, supra, 2 Cal.4th at p. 1125.) Thus, evidence of any single category or combination of categories may be sufficient to sustain a finding of premeditation and deliberation. (See, e.g., People v. Memro (1995) 11 Cal.4th 786, 863; People v. Hovey (1988) 44 Cal.3d 543, 556.) Further, evidence of the manner of killing, alone, may be sufficiently strong to support a finding of premeditation and deliberation. (People v. Memro, supra, 11 Cal.4th at pp. 863-864; People v. Hawkins, supra, 10 Cal.4th at p. 957.)
Evidence showing that a defendant gang member shot and killed someone who was, or was perceived to be, a member of a rival gang is normally sufficient to sustain a first degree murder conviction. (See, e.g., People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1029; People v. Martinez (2003) 113 Cal.App.4th 400, 412-413; People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002; People v. Francisco (1994) 22 Cal.App.4th 1180, 1191-1192.) That was the case here.
There was also separate evidence of each of the Anderson factors. There was evidence that appellant had two motives to kill Morales: because he was, or appeared to be, a rival gang member in Clover territory and to retaliate for the killing of a Clover gang member. There was also evidence of planning. Appellant was carrying a loaded firearm. He gave this firearm to another gang member with instructions to watch Morales. Thus, appellant was clearly contemplating using deadly force. Finally, the manner of killing showed premeditation and deliberation. Morales was sitting in a car, in a poor position to defend himself. Appellant described Morales as "slipping" which in gang parlance means unsuspecting or unaware. Appellant instructed Bugsy/Drowsy to "blast him" and Bugsy complied and shot Morales multiple times.
Given the above evidence, we find that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Thus, appellant's due process claim fails. (People v. Osband, supra, 13 Cal.4th at p. 690.)
5. Gang evidence
Appellant contends that the trial court erred by allowing Detective Eagleson to give hearsay testimony regarding facts underlying predicate Clover gang crimes. He claims that the detective's opinion was based on hearsay, the admission of which violated Crawford v. Washington (2004) 541 U.S. 36.
Appellant did not object that the admission of Detective Eagleson's expert testimony violated his federal constitutional rights. Thus, this claim has been forfeited. (People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19; Evid. Code, § 353.) Even if this claim were not waived, we would see no violation of the Confrontation Clause.
It is well-established in California law that an expert witness may base his opinion "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible" so long as the material is of a type that may reasonably be relied on by an expert in forming an opinion on the subject at hand. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) Gang experts may reasonably rely on conversations with gang members, personal investigations of crimes committed by gang members and information from colleagues and various law enforcement agencies. (People v. Gardeley, supra, 14 Cal.4th at pp. 619-620.)
"[B]ecause Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at p. 618.) "[A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Id. at p. 619.)
As appellant acknowledges, the Fourth District Court of Appeal has considered a claim that Crawford barred an expert witness from testifying that the defendant belonged to a gang and committed the charged offense for the benefit of the gang. (People v. Thomas (2005) 130 Cal.App.4th 1202.) The Court held that, "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the Confrontation Clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' (Crawford, supra, 541 U.S. at p. 59, fn. 9, 124 S.Ct. at p. 1369, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425.)" (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)
Our colleagues in Division Two of this District Court of Appeal have reached the same conclusion regarding testimony by a medical expert whose opinion was based in part on interviews with the victim conducted in anticipation of the trial. (People v. Cooper (2007) 148 Cal.App.4th 731.) We agree with the reasoning and holding of both Thomas and Cooper.
Appellant attempts to distinguish Thomas by contending that unlike the gang expert in that case, Detective Eagleson's testimony was offered for the truth that the predicate crimes were committed for the benefit of the Clover gang. The facts of the prior crimes were proved by abstracts of judgments from those crimes. It was the detective's opinion that the crimes were committed to benefit the Clover gang and this opinion was based on information which he learned during his investigation of the Berrendo crime and from various sources about the Corrball crime. This is no different than the testimony in Thomas.
Disposition
The judgment is affirmed.
I concur: KRIEGLER, J.
MOSK, J., Concurring
I concur.
I believe the record may have been inadequate to consider issues that were decided on earlier appeals. As to the issue of ineffective counsel, I would follow the Supreme Court’s admonition: “We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.” (People v. Michaels (2002) 28 Cal.4th 486, 526.)