Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF2123, William R. Froeberg, Judge.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Christopher Beesley and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Porfirio Garcia of all three counts with which he was charged: murder (Pen. Code, § 187, subd. (a)); attempted murder (§§ 187, subd. (a), 664, subd. (a)); and street terrorism (§ 187.22, subd. (a).) As to the murder conviction (count 1), the jury found true the street gang special circumstance (§ 190.2, subd. (a)(22)). The jury also found several charged enhancements to be true. The court sentenced defendant to state prison for life without the possibility of parole for murder (count 1) and additional consecutive life terms for count 2 and various enhancements.
Unless otherwise stated, all statutory references are to the Penal Code.
Defendant raises three arguments on appeal: (1) the court should have excluded the allegedly coerced testimony of a witness, Claudia Ruelas, who was granted immunity in exchange for her testimony; (2) the court erred by admitting Ruelas’s prior consistent statements under Evidence Code section 791; and (3) there was insufficient evidence corroborating charged accomplice Ruelas’s testimony to support defendant’s convictions. We affirm.
FACTS
Defendant, Moises Cabrera, and Ismael Nunez were charged with the murder of victim Jose Guzman and the attempted murder of victim Paulino Nava. Guzman died from a gunshot wound to the head. Defendant and Nunez were tried together in the instant case. In a prior opinion, this court affirmed the conviction of Moises Cabrera, who was tried separately. (See People v. Cabrera (Aug. 15, 2011, G043768) [nonpub. opn.].)
Testimony of Claudia Ruelas
Claudia Ruelas was in custody facing murder charges in the instant case. She testified pursuant to a grant of immunity, which guaranteed dismissal of the charges against her in exchange for her truthful testimony. Ruelas recognized defendant and Ismael Nunez, whom she had met through her ex-boyfriend Moises Cabrera. Cabrera and the “guys I knew that would hang out with” him claimed to be members of the gang known as “Delhi.”
On March 3, 2006, Ruelas and Cabrera spent the day together. Just before midnight, they went out to get something to eat. Ruelas drove her blue Acura Legend automobile. After leaving the restaurant, the couple drove to Nunez’s house. Nunez, defendant, and Juan Avelar were at Nunez’s house. While Ruelas sat in the car, the four males stood outside talking to one another. Soon thereafter, all five individuals departed. Nunez, Avelar, and defendant drove in Nunez’s car; Ruelas and Cabrera drove in Ruelas’s car. Ruelas followed Nunez’s car.
After driving past “some guys outside” a house on Broadway, the two vehicles circled around and stopped at the intersection of Broadway and Saint Andrew in Santa Ana, California. Defendant, Avelar, and Cabrera got out of the cars. Cabrera, addressing another group of males gathered nearby, asked “the guys where they’re from. They hit ‘em up.” The other group responded they were from West Myrtle (another Santa Ana gang), and defendant’s group replied “Delhi.” Cabrera began firing a gun. One of the individuals being shot at successfully ran away. Cabrera shot at a car in which one of the other individuals was sitting. The shots “didn’t stop. It just kept going.” Cabrera, Avelar, and defendant got back in their cars and the two cars drove away.
Testimony of Israel Beltran
Israel Beltran and his brother Aurelio used to live at 1918 South Broadway in Santa Ana, the scene of the crime. On the evening of March 3, 2006, Israel, Aurelio, Paulino Nava, and Jose Guzman were hanging out near the Beltran residence. Israel saw two automobiles stop; “when they got out of the cars, they started... hitting up my brother, his friend [Guzman], and my cousin [Paulino].” One of the cars was a “bluish Acura.” “For sure, I saw like four people get out of the cars.” The four individuals had “mostly shaved” heads. Within five seconds, the individuals from the cars pulled out two guns and began firing. Israel heard at least 10 shots. Aurelio was running northbound on the east side of Broadway. Neither Nava nor Guzman ran. Israel saw Nava get shot in his arm and torso; he saw Guzman get shot in the head. Guzman was in his car trying to leave when he was shot. The attackers “hopped in their cars and they took off.”
When asked whether he recognized defendant, Israel provided an ambiguous response. Later, he testified he was “chuckling” while looking at defendant “[b]ecause he looks exactly like the dude I saw who did it.” Israel later said with regard to defendant, “He looks like the person who was shooting, yeah.”
Testimony of Aurelio Beltran
Aurelio “saw both cars open their doors, and I heard them... call out ‘Delhi.’ And I’m not stupid. I know what was coming. So that’s when I turned around and... started running.” The day after the shooting, Aurelio identified a photograph of defendant as someone who looked familiar from the shooting.
Testimony of Detective Matthew McLeod
Called as an expert witness on Santa Ana street gangs (in particular, Delhi), Matthew McLeod opined: (1) the Delhi street gang currently (at the time of trial) had approximately 200-250 members; (2) the Delhi street gang’s primary activities are assaults, murders, and weapons possession; (3) West Myrtle is a rival gang of Delhi; (4) defendant, Nunez, Avelar, and Cabrera were active members of Delhi; (5) Guzman had a link to West Myrtle; and (6) a hypothetical murder similar to that committed in this case would be committed for the benefit of Delhi.
DISCUSSION
Voluntariness of Ruelas’s Testimony
Defendant first claims the court should have excluded Ruelas’s testimony because it was coerced by the prosecution. Ruelas testified after signing an immunity agreement, pursuant to which the charges against her in this case would be dropped in exchange for her truthful testimony. The agreement also stated: “‘If there is a dispute as to whether or not you testified truthfully and completely... a judge of the... Orange County Superior Court shall determine whether you testified truthfully and completely and whether this agreement shall stand.’” Before trial, the court denied a defense motion to exclude Ruelas’s testimony: “I don’t perceive the coercive nature that has been represented. It did not appear to the Court that there was any requirement that she testify consistently with anything that she has already stated other than she is agreeing to tell the truth.... [¶] I don’t see it as any different than any other immunity agreement.”
Defendant maintains that, regardless of the language of the immunity agreement itself, the circumstances attendant to the grant of immunity were coercive. Defendant points to Ruelas’s testimony during her cross-examination, which indicates she agreed with the following leading question: “So if you say anything different than what you said in that earlier statement, you are afraid that you could lose this deal and be facing the rest of your life in prison, right?” Ruelas also admitted she had reviewed the transcript of her prior statements before testifying at trial. She then agreed with the following leading question: “So you... think that if you say something different in this trial than what you said to the police... even if it’s true... that you could lose the deal?” Ruelas’s testimony also indicated some potential confusion on her part with regard to whether the prosecutor had the unilateral right to deem her testimony untrue. But, as Ruelas acknowledged in her redirect testimony, the actual agreement provided for a trial court judge (not the judge hearing the instant case) to decide whether her testimony was truthful in case of a dispute.
“An immunity agreement that requires the witness to testify consistent with a previous statement to the police is deemed coercive, and testimony produced by such an agreement is subject to exclusion from evidence.” (People v. Badgett (1995) 10 Cal.4th 330, 358 (Badgett).) But “a condition that the accomplice testify truthfully is not coercive.” (People v. Pinholster (1992) 1 Cal.4th 865, 939, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 459.) We independently review “whether the agreement was coercive and whether defendant was deprived of a fair trial....” (Badgett, at p. 350.)
Ruelas’s testimony on cross-examination is in harmony with the actual immunity agreement and does not suggest her testimony was unduly coerced. As our Supreme Court observed in a similar case, “if the last statement she gave the police was the truth, then by agreeing to testify truthfully she has in fact agreed to testify in accord with that statement.... [¶] We recognize that a witness in [this] position is under some compulsion to testify in accord with statements given to the police or the prosecution. The district attorney in the present case obviously believed that [the witness’s] last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold [citations] that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain. We believe the requirements of due process... are met if the agreement... permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.” (People v. Fields (1983) 35 Cal.3d 329, 360-361; see also People v. Garrison (1989) 47 Cal.3d 746, 770-771.) The court did not err by denying defendant’s motion to exclude the testimony of Ruelas.
Use of Prior Consistent Statements by Ruelas
Defendant also posits the court erred when, pursuant to Evidence Code section 791, it admitted into evidence much of the videotape and transcribed record of Ruelas’s initial jail interview by police as a prior consistent statement. We review claims of evidentiary error for an abuse of discretion. (People v. Cooper (2007) 148 Cal.App.4th 731, 740.)
Evidence Code section 791 provides in relevant part: “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶]... [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
In People v. Jones (2003) 30 Cal.4th 1084 (Jones), “[a]fter the defense presented evidence of [a witness’s] favorable plea bargain, the prosecution sought to rehabilitate him by presenting evidence of a prior consistent statement that he gave to police officers... before he had been charged with a crime.” (Id. at p. 1106.) Our Supreme Court rejected the argument that a prior consistent statement must occur before any motive to lie is present — even before being charged with a crime and offered a plea bargain, the witness had a motive to deflect blame for the crime at issue. It is sufficient that the prior consistent statement “was made before the plea bargain was struck and thus before the existence of one of the grounds alleged in defendant’s charge that [the witness’s] trial testimony was biased.” (Id. at p. 1107; see also People v. Noguera (1992) 4 Cal.4th 599, 629-630.)
Defendant attempts to distinguish Jones by claiming he did not attempt to impeach Ruelas based on the immunity agreement but instead focused his impeachment on Ruelas’s preexisting motives to lie to protect herself and to get revenge against her ex-boyfriend Cabrera. Although the immunity agreement was preemptively discussed in the prosecution’s case-in-chief, defense counsel did attempt to impeach Ruelas during cross-examination by referencing the plea agreement. For instance, defense counsel asked: “But you made a deal with the prosecutor here so that, in exchange for your testimony, you’re going to walk free, right?” It is simply inaccurate to claim defendant did not attempt to impeach Ruelas by reference to the immunity agreement. Thus, the trial court was within its discretion in applying Jones, supra, 30 Cal.4th 1084.
Sufficiency of Evidence Corroborating Ruelas’s Testimony
Finally, defendant asserts the court erred by denying his section 1118.1 motion to dismiss the case for lack of sufficient corroborating evidence to support a conviction. Because Ruelas was an accomplice, her testimony alone was insufficient to convict defendant. (§ 1111 [“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof”].) “Corroborative evidence sufficient to satisfy section 1111 need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy a fact finder the accomplice is telling the truth. [Citation.] ‘Corroborative evidence may be slight and entitled to little consideration when standing alone.’” (People v. Williams (1997) 16 Cal.4th 153, 246.)
Our review is for substantial evidence. “On a motion for judgment of acquittal under section 1118.1, the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. [Citation.] We independently review the trial court’s ruling.” (People v. Harris (2008) 43 Cal.4th 1269, 1286.)
There is sufficient corroborating evidence of Ruelas’s compelling testimony. Obviously, the bullet-ridden bodies of the victims confirm that an unlawful shooting occurred. And there is corroborating evidence from the Beltran brothers that the crimes occurred much as Ruelas described (i.e., some cars stopped, either 3 or 4 individuals piled out of the car, someone “hit up” the victims, and either one or two individuals began shooting). Moreover, expert testimony confirmed defendant (like Cabrera, Avelar, and Nunez) was a member of Delhi. And the Beltran brothers linked defendant in particular to the crime. The day after the shooting, Aurelio recognized a photograph of defendant as someone who looked familiar from the shooting. And in court, Israel recognized defendant as a participant in the crime.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.