Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF18906, Matias R. Contreras, Judge. .
McDONALD, J.
Jesus Ramon Gastelum appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (Pen. Code, § 182). On appeal, he contends the trial court erred by: (1) admitting certain oral hearsay statements made by his codefendant that did not qualify as declarations against interest; (2) admitting certain written hearsay statements made by his codefendant in violation of his right to confrontation under the Sixth Amendment to the United States Constitution that did not qualify as declarations against interest; (3) not instructing the jury that his unrecorded, out-of-court admissions should be viewed with caution; (4) not conducting a Marsden hearing on his request for substitute counsel to represent him in investigating the grounds, and filing a motion, for a new trial based on ineffective assistance of counsel; (5) not specifying in the abstract of judgment that his liability for victim restitution is joint and several with his codefendant; and (6) incorrectly stating in its minutes that the jury found true the gang special circumstance allegation.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
During the evening of September 15, 2001, Daniel Villa, a gang member and drug abuser, went to Richard Armenta's house in Brawley to buy drugs from Armenta. Armenta agreed to sell Villa drugs, but he asked Villa, and Villa agreed, to first accompany him to a store to buy beer. On the way to the store, Armenta drove by a house party on B Street in the Brole (i.e., Broleno) gang area. There were many gang members on the patio outside the house. They recognized Armenta's car and turned around. Armenta asked Villa whether he "would be willing to shoot" them if he gave Villa his gun. Villa did not answer Armenta's question.
On their return to Armenta's house, Gastelum (whose moniker is "Pookie") and some other men were there. Armenta asked the group if someone would volunteer to do a shooting of gang members at the house party. Gastelum answered that he would do the job for his gang, which was "Chicali Brasas 13." Armenta went to another room and brought back a big speaker from which he removed a black revolver. Armenta gave it to Gastelum, who then removed its bullets. Armenta and Gastelum cleaned the gun and bullets. After Armenta reloaded the gun, Gastelum put the gun in the waistband of his pants. Gastelum and Armenta left the house and drove away in Armenta's mother's Camry (a different car than that Armenta drove to the store earlier).
At about 9:30 p.m. or 10:00 p.m., Francisco Hernandez, then 16 years old, arrived at the house party. There were about 10 to 13 people there. Later, Hernandez was standing in the front yard inside the fence when he saw someone coming down the street who he initially believed was a friend. The person approached the gate and said: "Come here." When Hernandez was about five to six feet from the gate, the person (identified at trial as Gastelum) pulled out a gun and began firing it at him. As Hernandez turned and ran away, he was shot in the back. Once inside the house, he learned he was bleeding. Hernandez also saw that Jesse Garcia, his friend, had been shot and was lying on the floor with blood pouring out of his head. A few months later, Garcia, also 16 years old, died from his gunshot wounds.
Villa, who had remained at Armenta's house, heard on a police scanner that there had been a shooting on B Street. Within two to three minutes, Armenta and Gastelum arrived back at Armenta's house. Gastelum appeared happy and described how he got out of the car, knocked on the door of the house, and fired his gun at the head of the person who opened the door while stating the name of his (Gastelum's) gang, Chicali Brasas. Gastelum stated he also fired his gun at and thought he hit another person near the door. Armenta stated the people were gang members and were drinking and that what Gastelum had done "was all fine." Gastelum told everyone in the room they were the only ones who would know what had happened and, if someone said something, the "same thing would happen to them." Gastelum and Armenta removed the remaining bullets from the gun and then Armenta took the gun to another room.
At about 8:00 p.m. or 9:00 p.m. on September 15, 2001, Armenta went to the home of Israel Salazar, then an active Chicali Brasas gang member, and asked him whether he would be willing to go with him to "get" (i.e., "blast" or shoot) some Broleno gang members while they were "slipping" (i.e., unaware) at a party on B Street. Armenta stated he was going over to Pete Castellanos's house to have a "kickback." Salazar did not go with Armenta because he was arguing with his "old lady" at the time.
Castellanos was a Chicali Brasas gang member who had been shot and paralyzed by a Broleno gang member in November 1997. Since that incident, Armenta stated that somebody "had to pay back for it" (i.e., be shot) in retaliation for Castellanos's shooting.
A few hours later, Armenta returned to Salazar's home and asked him to hide a gun and not to tell anyone. When Salazar asked him what happened, Armenta stated: "Some shit went down on B Street." Armenta appeared scared. Salazar agreed to hold the gun for Armenta, but he did not actually see the gun that night. Salazar apparently told Armenta to hide the gun in a wood pile wherever he wanted to. When Salazar learned the following day what happened on B Street, he asked a friend to tell Armenta to pick up his gun. During telephone conversations, Armenta told Salazar that during the B Street incident someone got shot in the head. When Salazar asked Armenta if he was the shooter, Armenta replied: "No. It was Pookie [i.e., Gastelum]." Armenta stated that the reason for the shooting was "[s]omebody paid back for what happened to Peter Boy [i.e., Castellanos]." A few days after Salazar hid the gun, Armenta and two other gang members came to Salazar's home and retrieved the gun, which was wrapped in a bandana, and ammunition in a plastic bag. Salazar saw the gun was a faded black revolver with a six-inch barrel, and the bullets bore the markings ".38 S&W."
An information was filed alleging Gastelum committed first degree murder (Pen. Code, § 187, subd. (a)) and conspired with Armenta to commit murder (Pen. Code, § 182, subd. (a)(1)). At a joint trial on the charges against Gastelum and Armenta (who was charged with the same offenses as Gastelum), Villa, Hernandez and Salazar testified substantially as described above. Testimonies of two witnesses were also admitted showing that on conclusion of the first day of Villa's testimony, Gastelum threatened Villa, stating: "I'm going to kill you, puto." Salazar testified that while he was incarcerated with Gastelum, Gastelum asked him not to testify as a "favor" and to tell the judge he (Salazar) was "high" and talking "nonsense." The prosecution also presented the testimony of Luis Santoyo, a Chicali gang member, who stated he was at Armenta's house about two years earlier when Armenta mentioned a shooting in the presence of Gastelum and Armenta's brother. Armenta stated that a man named Santos took the gun to Mexico. Armenta spoke a lot about the shooting and was happy while doing so. Although Gastelum was present while Armenta spoke about the shooting, he remained silent except for telling Armenta to be quiet and not talk about it. Armenta stated the motive for the shooting was to get someone back for Pete [i.e., Castellanos], who got shot. When asked what Armenta told him about the shooting, Santoyo testified: "He just told me they were kicking it at my friend Pete Castellanos'[s] house. Right there it was him, Jesse [i.e., Gastelum], and some other guy, Happy. They left and they went around cruising somewhere, wherever it was at. And then he parked the car and Jesse [i.e., Gastelum] got off and he had did what he did and came back to the car. And they took off." Santoyo also testified that on another occasion he spoke with Gastelum "on the streets" about the shooting and Gastelum admitted shooting Garcia.
In his defense, Gastelum testified that he did not shoot Garcia because he was in Huntington Park the night of the shooting. He also testified he was a member of the Imperial gang and socialized with both Broleno and Chicali gang members. Gastelum's father, sister, and grandmother testified that he lived in Huntington Park during the time period of the shooting. Gastelum's sister also testified he stayed at home the weekend after the terrorist attacks of September 11, 2001. Erik Portugal testified he was a member of the Broleno gang and asked Hernandez if he knew who shot him. Hernandez told him he did not know, explaining it was too dark, he was not paying attention, and he was busy having a good time at the party. Hernandez stated he really did not see anything.
The jury found Gastelum guilty of the charged offenses and found not true the allegation that he committed those offenses to further the activities of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22)). The trial court sentenced Gastelum to a term of 25 years to life in prison without the possibility of parole on count 1 and, pursuant to Penal Code section 654, stayed execution of the same term it imposed for count 2.
Gastelum timely filed a notice of appeal.
DISCUSSION
I
Admission of Armenta's Oral Hearsay Statements
Gastelum contends the trial court erred by admitting certain oral hearsay statements made by his codefendant, Armenta, that did not qualify as declarations against interest pursuant to Evidence Code section 1230. Gastelum argues evidence of out-of-court statements Armenta made to Santoyo and Salazar were inadmissible hearsay for which the section 1230 exception for declarations against interest did not apply. Gastelum concedes those hearsay statements were nontestimonial and therefore their admission into evidence does not violate his Sixth Amendment right of confrontation.
All further statutory references are to the Evidence Code unless otherwise specified.
A
Hearsay evidence is "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." (§ 1200, subd. (a).) "Except as [otherwise] provided by law, hearsay evidence is inadmissible." (§ 1200, subd. (b).) Section 1230 provides an exception to the hearsay rule for declarations against interest:
"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant isunavailable as a witnessand the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Italics added.)
Pursuant to section 1230, an out-of-court declaration against penal interest is admissible if its proponent shows the declarant is unavailable, the declaration was against the declarant's penal interest when made, and the declaration is sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte); People v. Lucas (1995) 12 Cal.4th 415, 462.)
In determining whether a declaration is sufficiently trustworthy to be admissible, a trial court must consider the totality of the circumstances in which the declaration was made, including the words stated, whether the declarant spoke from personal knowledge, the declarant's possible motivation and relationship to the defendant, and other circumstances under which the words were stated. (People v. Geier (2007) 41 Cal.4th 555, 584; People v. Frierson (1991) 53 Cal.3d 730, 745; People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger).) "[T]he least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situation with the police by deflecting criminal responsibility onto others.... However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]" (Greenberger, at p. 335.) "[A] statement's content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility. Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another." (Ibid.) Accordingly, section 1230 allows admission only of declarations "specifically disserving" of the declarant's penal interest. (Greenberger, at p. 335; Duarte, supra, 24 Cal.4th at p. 612; People v. Leach (1975) 15 Cal.3d 419, 441 (Leach).) "[A] hearsay statement 'which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.' [Citations.]" (Duarte, at p. 612.) When a trial court admits part of a declarant's statement as specifically disserving of his or her penal interest, the court should excise or redact any statement, or portion of a statement, not specifically disserving of the declarant's penal interest when made. (Ibid.; Leach, at p. 441.) Nevertheless, if, on consideration of the totality of the circumstances, a trial court determines a particular statement is specifically disserving of the declarant's penal interest when made, that statement may be admitted even though it also inculpates another person. (Greenberger, at p. 335; People v. Wilson (1993) 17 Cal.App.4th 271, 276.)
In determining whether a trial court erred in admitting a particular hearsay statement as a declaration against penal interest under section 1230, we apply the abuse of discretion standard of review. (People v. Geier, supra, 41 Cal.4th at p. 586; Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Wilson, supra, 17 Cal.App.4th at p. 276.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that result in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In determining whether any error by the trial court in admitting hearsay evidence was prejudicial or caused a miscarriage of justice, we apply the standard of harmless error set forth in People v. Watson (1956) 46 Cal.2d 818, at page 836, and determine whether it is reasonably probable the defendant would have obtained a more favorable result had that error not occurred (i.e., had the hearsay evidence been excluded). (Duarte, supra, 24 Cal.4th at pp. 618-619; People v. Garcia (2008) 168 Cal.App.4th 261, 292 (Garcia).)
B
Santoyo
Before trial, Gastelum filed a motion for severance of his trial from Armenta's or for exclusion of certain hearsay statements made by Armenta, including out-of-court oral statements he made to Santoyo. The prosecution opposed the motion, arguing Armenta's hearsay statements to Santoyo were admissible as declarations against penal interest. After hearing arguments of counsel, the trial court denied Gastelum's severance motion and motion to exclude Armenta's hearsay statements to Santoyo, concluding those statements were admissible, without any redaction, as declarations against Armenta's penal interest. At trial, Santoyo testified regarding Armenta's statements to him, as described above, including his statements that the motive for the shooting was payback for the shooting of Castellanos and that he (Armenta) and Gastelum "went around cruising somewhere, wherever it was at. And then he parked the car and Jesse [i.e., Gastelum] got off and he had did what he did and came back to the car. And they took off."
Based on our consideration of the totality of the circumstances surrounding Armenta's out-of-court statements to Santoyo, we conclude the trial court did not abuse its discretion by admitting those hearsay statements as declarations against Armenta's penal interest under section 1230. Although Armenta's statements to Santoyo were hearsay, they expressly described his (Armenta's) involvement in the incident and had the effect of admitting his participation in the conspiracy to commit murder and aiding and abetting Gastelum's murder of Garcia. Armenta stated the motive for the murder was payback for the shooting of Castellanos. Also, he stated he and Gastelum "cruised," or drove to, the scene of the party and parked the car. Gastelum then got out, "did what he did" (i.e., went and shot a couple of persons at the party), got back in the car, and Armenta drove the car away. Considering the totality of the circumstances of Armenta's statements, we conclude a reasonable person would not have made those statements unless he or she believed them to be true. Armenta made the statements to Santoyo, a friend and fellow gang member, in a noncoercive setting. Armenta's statements had the effect of admitting he had a motive to aid and abet the shooting/murder, helped plan and carry out the shooting/murder, and drove the get-away car afterward. The trial court did not abuse its discretion by concluding Armenta's hearsay statements to Santoyo were specifically disserving of his (Armenta's) penal interest and therefore admissible under section 1230.
Gastelum does not dispute Armenta was unavailable as a witness for purposes of section 1230.
Armenta's references to his (Gastelum's) actions were not an attempt to minimize his (Armenta's) role in the shooting and place the majority of the blame on Gastelum. Rather, Armenta's statements merely set out the facts of how and why the shooting occurred. By including references to Gastelum, Armenta was not attempting to deflect blame onto Gastelum or minimize his (Armenta's) own role in the shooting. Armenta's references to Gastelum were instead intertwined with his admissions regarding his own direct participation and criminal involvement in the shooting. If, on consideration of the totality of the circumstances, a trial court determines a particular statement is specifically disserving of the declarant's penal interest when made, that statement may be admitted even though it also inculpates another person. (Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Wilson, supra, 17 Cal.App.4th at p. 276.) Accordingly, the trial court did not abuse its discretion by not redacting, or otherwise excluding, from Santoyo's testimony those portions of Armenta's hearsay statements that referred to Gastelum's actions. (Cf. Greenberger, at pp. 340-341 ["Mentzer's references to Marti were an integral part of the statement in which he implicated himself in planning and participating in the kidnapping and murder of Radin"; "There was ample evidence to support the trial court's rulings that the portion of Mentzer's statement which referred to Lowe was specifically disserving of Mentzer's penal interest and also that the totality of the circumstances guaranteed its trustworthiness."]; Wilson, at p. 276 ["The fact that the statement is also disserving to [nondeclarant] does not render the statement unreliable and inadmissible."].)
C
Salazar
Gastelum's pretrial motion also sought exclusion of certain out-of-court oral statements Armenta made to Salazar. The prosecution opposed the motion, arguing Armenta's hearsay statements to Salazar were admissible as declarations against penal interest. After hearing arguments of counsel, the trial court denied Gastelum's severance motion and motion to exclude Armenta's hearsay statements to Salazar, concluding those statements were admissible, without any redaction, as declarations against Armenta's penal interest. At trial, Salazar testified regarding Armenta's statements to him, as described above, including that before the shooting Armenta came to Salazar's house and asked him whether he would be willing to go with him to "get" (i.e., "blast" or shoot) some Broleno gang members while they were "slipping" (i.e., unaware) at a party on B Street. Salazar did not accompany Armenta. Salazar further testified that a few hours later Armenta returned to his house and asked him to hide a gun and not to tell anyone. When Salazar asked him what happened, Armenta stated: "Some shit went down on B Street." Salazar agreed to hold the gun and apparently told Armenta to hide the gun in a wood pile. Salazar learned the following day what happened on B Street. During subsequent telephone conversations, Armenta told Salazar that during the B Street incident someone was shot in the head. When Salazar asked Armenta if he was the shooter, Armenta replied: "No. It was Pookie [i.e., Gastelum]." Armenta stated the reason for the shooting was "[s]omebody paid back for what happened to Peter Boy [i.e., Castellanos]."
Gastelum asserts the trial court erred by admitting Salazar's testimony regarding Armenta's hearsay statements because certain of those statements were not specifically disserving of Armenta's penal interest and therefore were inadmissible under section 1230. Gastelum argues the trial court should have excluded Salazar's testimony that after the incident Armenta denied he was the actual shooter and instead named him (i.e., "Pookie"/Gastelum) as the shooter. Although after review of the totality of the circumstances we conclude the trial court properly admitted most of Salazar's testimony regarding Armenta's hearsay statements as declarations against penal interest under section 1230, we agree with Gastelum that, to the extent Armenta's hearsay statements identified Gastelum as the shooter and thereby tended to shift the blame for the shootings to Gastelum rather than Armenta, the court should have redacted or otherwise excluded Salazar's testimony regarding Armenta's identification of Gastelum as the shooter because it was not specifically disserving of Armenta's penal interest. Unlike Armenta's hearsay statements to Santoyo, Armenta's hearsay statement to Salazar identifying Gastelum as the shooter was not part of a declaration that specifically disserved Armenta's penal interest at the time it was made. (Cf. Garcia, supra, 168 Cal.App.4th at pp. 289-290; People v. Smith (2005) 135 Cal.App.4th 914, 922, overruled on another ground as noted in Garcia, at pp. 291-292; Duarte, supra, 24 Cal.4th at p. 612; Leach, supra, 15 Cal.3d at p. 441.) Accordingly, the trial court abused its discretion by admitting that portion of Salazar's testimony regarding Armenta's hearsay statements.
Nevertheless, although the trial court erred by admitting Armenta's hearsay statement to Salazar that Gastelum was the shooter, we conclude the error was harmless under the Watson standard of prejudice. (Duarte, supra, 24 Cal.4th at pp. 618-619; Garcia, supra, 168 Cal.App.4th at p. 292.) Absent evidence of Armenta's statement to Salazar that Gastelum was the shooter, there was other strong evidence showing Gastelum was the shooter and was involved in the conspiracy with Armenta to commit murder. Without restating the trial evidence described above, we note that Hernandez, one of the shooting victims, testified Gastelum was the shooter. Villa also testified in great detail regarding the circumstances leading up to and occurring after the shooting, including the statements and actions of both Armenta and Gastelum. Villa testified that when Armenta asked his fellow gang members to volunteer to do the shooting, Gastelum agreed to do so, stating "he was going to do the job for his gang," and then took the black revolver from Armenta. Villa further testified that shortly after the shooting, Gastelum returned with Armenta and proclaimed he had shot two people and one he shot "point-blank" in the head. Santoyo also testified that Gastelum admitted to him that he had shot Garcia. Had Armenta's statement to Salazar that Gastelum was the shooter been redacted or otherwise excluded, it is not reasonably probable Gastelum would have received a more favorable result. Therefore, the error was harmless. (Duarte, at pp. 618-619; Garcia, at p. 292.)
II
Armenta's Letter to Soto
Gastelum contends the trial court erred by admitting a letter Armenta wrote while in jail to California Department of Justice Special Agent Jose Soto. Gastelum argues admission of that letter violated his Sixth Amendment right to confrontation and also was inadmissible as hearsay that was not a declaration against Armenta's penal interest.
A
During trial, Armenta, Gastelum's codefendant, filed a motion to exclude under section 352 a letter dated August 26, 2006, that he (Armenta) wrote to Soto while in jail. During counsel's arguments on that motion, Gastelum's counsel apparently joined in the motion to exclude the letter, arguing its prejudicial effect on Gastelum's case outweighed its probative value (a § 352 objection). Concluding the letter's probative value outweighed its potential prejudicial effect, the trial court ruled that the letter was admissible.
In the presence of the jury, Soto testified that on August 30, 2006, he received a letter, dated August 26, from a person named Richard Armenta, which letter had a return address of the Imperial County Jail. When the prosecutor asked Soto to read the letter, Gastelum's counsel objected that it was hearsay. The trial court overruled the objection, stating "[w]e have taken care of the hearsay." Soto then read the contents of Armenta's letter:
" 'Mr. Soto'... 'I really need to talk to you soon. I have information regarding the case I'm going to court. I can let you know where is the weapon, who is involved in this crime. There is other people involved in this. I have been trying to speak with you. I can let you know exactly what happened beginning to end and other people's involvement.'... 'I wanted to speak with Karla Davis [i.e., the prosecutor at the time], but I didn't have a lawyer. My lawyer is Plourd, Breeze. Could you please contact him so I could speak with you or Karla Davis. Thank you. [¶]... I could really help you a lot in this case, the truth, what really happened.' "
B
Gastelum contends admission of Armenta's letter to Soto violated his Sixth Amendment right to confrontation. However, as the People assert, Gastelum did not object to admission of the letter on that ground and therefore has forfeited or waived that issue for purposes of this appeal. 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: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion...." People v. Holt (1997) 15 Cal.4th 619 stated: "The reason for the [section 353] rule is clear--failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect. [Citation.]" (Id. at p. 666.)
Based on the record in this case, Gastelum objected to admission of Armenta's letter to Soto on the grounds of only section 352 and inadmissible hearsay. He did not object, either expressly or implicitly, to its admission on Sixth Amendment grounds. Accordingly, Gastelum has forfeited or waived his contention on appeal that admission of Armenta's letter violated his Sixth Amendment right to confrontation. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Chaney (2007) 148 Cal.App.4th 772, 777-780; cf. People v. Partida (2005) 37 Cal.4th 428, 431 ["A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial."].) Although Gastelum cites People v. Samuels (2005) 36 Cal.4th 96 as an authority holding there was no forfeiture based on a failure to object on constitutional grounds, that case does not provide support for his position because Samuels merely assumed there had been no forfeiture before concluding the constitutional claim on appeal failed on its merits. (People v. Samuels, supra, 36 Cal.4th at pp. 121-122.)
In objecting to admission of Armenta's letter, Gastelum did not expressly cite his Sixth Amendment right to confrontation or Crawford v. Washington (2004) 541 U.S. 36, issued more than four years before Gastelum's trial.
Even were we to assume Gastelum did not forfeit or waive his Sixth Amendment claim, it is likely we would nevertheless conclude Armenta's letter was properly admitted because it is nontestimonial hearsay. (Crawford v. Washington, supra, 541 U.S. at pp. 53-54; Davis v. Washington (2006) 547 U.S. 813, 822; People v. Cage (2007) 40 Cal.4th 965, 984.) Based on the circumstances, it cannot be reasonably inferred that Armenta understood or intended that his unsolicited letter to Soto would or could be admitted at trial to prove the charges against him (or Gastelum).
C
Gastelum also contends the trial court erred by admitting Armenta's letter to Soto because it was inadmissible hearsay and was not a declaration against interest under section 1230. Although there are portions of Armenta's letter specifically disserving of his penal interest at the time they were made, we conclude there are other portions of his letter not specifically disserving of his penal interest and therefore they should have been redacted or otherwise excluded. As quoted above, Armenta's letter informed Soto that he (Armenta) could "let you [i.e., Soto] know where is the weapon, who is involved in this crime. There is other people involved in this. I have been trying to speak with you. I can let you know exactly what happened beginning to end and other people's involvement.... [¶]... I could really help you a lot in this case, the truth, what really happened." (Italics added.) To the extent Armenta's letter stated he could tell Soto exactly what happened from the beginning to the end of the incident and could tell him "the truth, what really happened," Armenta in effect admitted he personally participated in murder (e.g., by aiding and abetting it). Because those statements could subject him to criminal liability and a reasonable person would not have made those statements had he or she not believed them to be true, those statements were specifically disserving of Armenta's penal interest and were properly admitted under section 1230. (Duarte, supra, 24 Cal.4th at pp. 610-611; People v. Lucas, supra, 12 Cal.4th at p. 462; People v. Geier, supra, 41 Cal.4th at p. 584; People v. Frierson, supra, 53 Cal.3d at p. 745; Greenberger, supra, 58 Cal.App.4th at pp. 334-335.)
However, to the extent Armenta stated there were "other people involved" in the crime and he could tell Soto what the "other people's involvement" was, those statements tended to shift the blame for the shooting to other persons and were not specifically disserving of Armenta's penal interest. (Greenberger, supra, 58 Cal.App.4th at p. 335; Duarte, supra, 24 Cal.4th at p. 612; Leach, supra, 15 Cal.3d at p. 441.) The trial court abused its discretion by admitting those portions of Armenta's letter that referred to "other people" and their involvement in the crime.
Nevertheless, although the trial court erred by admitting those portions of Armenta's hearsay letter that referred to other people and their involvement in the crime, we conclude the error was harmless under the Watson standard of prejudice. (Duarte, supra, 24 Cal.4th at pp. 618-619; Garcia, supra, 168 Cal.App.4th at p. 292.) Absent evidence of Armenta's statement in his letter to Soto that other people were involved and he could tell Soto what their involvement was, there was other evidence showing other people were involved and how they were involved in the shooting. There was strong evidence Gastelum was the shooter and was involved in the conspiracy with Armenta to commit murder. Without restating the trial evidence described above, we note that Hernandez, one of the shooting victims, testified Gastelum was the shooter. Villa also testified in great detail regarding the circumstances leading up to and occurring after the shooting, including the statements and actions of both Armenta and Gastelum. Villa testified that when Armenta asked his fellow gang members to volunteer to do the shooting, Gastelum agreed to do so, stating "he was going to do the job for his gang," and then took the black revolver from Armenta. Villa further testified that shortly after the shooting, Gastelum returned with Armenta and proclaimed he had shot two people and one he shot "point-blank" in the head. Santoyo also testified Gastelum admitted to him that he had shot Garcia. Accordingly, had the portions of Armenta's letter to Soto that referred to Armenta's knowledge of other people's involvement in the crime been redacted or otherwise excluded, it is not reasonably probable Gastelum would have received a more favorable result. The error was not prejudicial. (Duarte, supra, at pp. 618-619; Garcia, supra, at p. 292.)
D
Gastelum asserts that if, as we concluded above, his counsel forfeited or waived his Sixth Amendment challenge to admission of Armenta's letter by failing to specifically object at trial on that ground, he was denied his constitutional right to effective assistance of counsel. However, assuming arguendo his counsel could have had no tactical reason not to so specifically object at trial, Gastelum does not carry his burden on appeal to show he received ineffective assistance of counsel.
Under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has the right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland); People v. Nation (1980) 26 Cal.3d 169, 170.) "[A] conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues).) An appellate court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice..., that course should be followed." (Strickland, at p. 697.) To show prejudice, a defendant must show there is a reasonable probability counsel's unprofessional conduct affected the result of the proceeding. (People v. Hines (1997) 15 Cal.4th 997, 1048 (Hines).) Alternatively stated, a reasonable probability is a probability sufficient to undermine confidence in the outcome. (Hines, supra, 15 Cal.4th at p. 1048; Strickland, supra, 466 U.S. at pp. 693-694.)
To the extent Gastelum argues reversal of his convictions is required without a showing he was prejudiced by his counsel's purported deficient performance or that another standard of prejudice applies, we disagree and are unpersuaded by his quotation of language in People v. Pope (1979) 23 Cal.3d 412, at pages 425-426, which was overruled in People v. Berryman (1993) 6 Cal.4th 1048, at page 1081, footnote 10.
Assuming arguendo Gastelum's trial counsel performed deficiently by not objecting to admission of Armenta's letter based on his Sixth Amendment right to confrontation, Gastelum nevertheless has not presented any substantive analysis on appeal showing he was prejudiced by that purported deficient performance. Accordingly, he has not carried his burden on appeal to show he was denied his right to effective assistance of counsel. (Rodrigues, supra, 8 Cal.4th at p. 1126.) In any event, incorporating our reasoning in part II.C. above, we conclude it is not reasonably probable Gastelum would have obtained a more favorable result had his counsel objected to admission of Armenta's letter on Sixth Amendment grounds and had that letter been excluded. Alternatively stated, the purported deficient performance of Gastelum's counsel does not undermine our confidence in the verdict. Gastelum has not carried his burden on appeal to show he was denied his constitutional right to effective assistance of counsel. (Strickland, supra, 466 U.S. at pp. 693-694; Rodrigues, supra, 8 Cal.4th at p. 1126; Hines, supra, 15 Cal.4th at p. 1048.)
E
Gastelum finally asserts the cumulative prejudice from the admission of Armenta's oral and written hearsay statements requires reversal of his convictions. In so asserting, he argues the Chapman v. California (1967) 386 U.S. 18 standard of prejudice for federal constitutional error should apply. However, Gastelum forfeited or waived any federal constitutional error when he did not object to admission of Armenta's letter on Sixth Amendment grounds. Furthermore, Gastelum concedes on appeal that any error in admitting Armenta's oral statements to Santoyo and Salazar do not involve federal constitutional error, but only violated state rules regarding admission of hearsay evidence. Accordingly, we apply the state Watson standard of prejudice in determining the cumulative prejudice of the evidentiary errors asserted by Gastelum. We concluded the trial court did not err in admitting Armenta's statements to Santoyo. Therefore, we review the entire record to determine the cumulative prejudicial effect of admission of those portions of Armenta's statements to Salazar and those portions of his letter to Soto we concluded above were erroneously admitted. Based on our review of the record, we conclude the cumulative effect of those errors was not prejudicial under the applicable Watson standard of prejudice. (Duarte, supra, 24 Cal.4th at pp. 618-619; Garcia, supra, 168 Cal.App.4th at p. 292.) Absent evidence of Armenta's oral statement to Salazar that Gastelum was the shooter and Armenta's written statement to Soto that there were other people involved and he knew the other people's involvement in the crime, there was other strong evidence showing Gastelum was the shooter and was involved in the conspiracy with Armenta to commit murder. Without restating the trial evidence described above, we note that Hernandez, one of the shooting victims, testified Gastelum was the shooter. Villa also testified in great detail regarding the circumstances leading up to and occurring after the shooting, including the statements and actions of both Armenta and Gastelum. Villa testified that when Armenta asked his fellow gang members to volunteer to do the shooting, Gastelum agreed to do so, stating "he was going to do the job for his gang," and then took the black revolver from Armenta. Villa further testified that shortly after the shooting, Gastelum returned with Armenta and proclaimed he had shot two people and one he shot "point-blank" in the head. Santoyo also testified that Gastelum admitted to him he had shot Garcia. Accordingly, had the trial court excluded those portions of Armenta's oral statement to Salazar and his written statement to Soto that it erroneously admitted, it is not reasonably probable Gastelum would have received a more favorable result. To the extent Gastelum cites certain evidence tending to support his innocence or attacking the credibility of Villa, Hernandez, Santoyo, or other prosecution witnesses, he does not persuade us to reach a contrary conclusion. We conclude the cumulative effect of those errors was not prejudicial and does not require reversal of Gastelum's convictions. (Duarte, at pp. 618-619; Garcia, at p. 292.)
III
CALCRIM No. 358
Gastelum contends, and the People concede, the trial court erred by omitting the second paragraph from its instruction with CALCRIM No. 358 that would have instructed the jury his unrecorded, out-of-court admissions should be viewed with caution.
A
At trial, Villa and Santoyo testified regarding unrecorded, out-of-court admissions by Gastelum that he was the shooter. The trial court instructed the jury with the first paragraph of CALCRIM No. 358:
"You have heard evidence that the defendant made oral or written statements before the trial and while the court was not in session. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements."
However, the court inexplicably omitted the second paragraph of CALCRIM No. 358, which states: "[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
B
Gastelum asserts, and the People concede, the trial court erred by not instructing sua sponte with the second paragraph of CALCRIM No. 358. "When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution. [Citation.]" (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) "The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.]" (People v. Beagle (1972) 6 Cal.3d 441, 456, superseded by constitutional amendment on another ground as noted in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209.) However, the failure to give the cautionary instruction "does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.]" (Beagle, at pp. 455-456.) The instructional omission may be harmless error in a case in which the defendant simply denies making the admissions and "there was no issue of conflicting evidence in [the] case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately. [Citation.]" (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.)
We conclude the trial court's error in not instructing sua sponte that Gastelum's unrecorded, out-of-court admissions should be viewed with caution was harmless. In closing argument, his counsel argued Gastelum did not make the admissions to Villa and Santoyo. He did not argue, or present evidence showing, there was a conflict in the evidence concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately. (People v. Bunyard, supra, 45 Cal.3d at p. 1224.) Furthermore, the trial court gave other instructions regarding evaluation of the credibility of witnesses and conflicts in testimony (i.e., CALCRIM Nos. 226, 302) that assisted the jury in determining whether Villa's and Santoyo's testimony regarding Gastelum's purported out-of-court admissions were credible, thereby minimizing the possibility that the jurors did not view Gastelum's admissions with caution. Finally, there was strong evidence showing Gastelum was guilty of the charged offenses. We conclude it is not reasonably probable Gastelum would have received a more favorable result had the trial court given the cautionary instruction. (People v. Beagle, supra, 6 Cal.3d at p. 456.) Also applying the Watson standard of prejudice, we further conclude the cumulative effect of that instructional error and the other trial court errors discussed above was not prejudicial. (Beagle, at p. 456; People v. Hill (1998) 17 Cal.4th 800, 844-845.)
IV
Marsden Hearing
Gastelum contends, and the People concede, the trial court erred by not conducting a Marsden hearing on his request for substitute counsel to represent him in investigating the grounds, and filing a motion, for a new trial based on ineffective assistance of counsel.
A
After the jury returned its verdict and before sentencing, Gastelum requested the trial court appoint substitute counsel to investigate the grounds, and file a motion, for new trial based on ineffective assistance of counsel. On October 15, 2008, the following discussion occurred between the trial court and Gastelum:
"THE COURT: Mr. Gastelum, what is it that you wish to address the Court about?
"[Gastelum]: Ineffective assistance of counsel. I would like a motion for new trial
"THE COURT: Very well.
"[Gastelum]: -- based on that.
"THE COURT: You know, Mr. Gastelum, ineffective assistance of counsel is one of the main issues raised on appeal. It's not uncommon. That's certainly one thing that is always looked at. At this particular point, I'm not going to find that is legal cause for not proceeding with sentence. That issue can be very well dealt with on appeal.
"And let me say this: If I had seen anything that I considered even came close to a failure of competent representation on [defense counsel's] part, I would certainly consider your request and appoint counsel to look into that and perhaps appoint counsel to represent you for, you know, an attempt to have a new trial.
"At this point, from what I have seen, and from what I know will happen, you will [be] able to, upon sentencing, if you wish to appeal the case, you will be given counsel that will look fully into your comments about ineffective assistance of counsel and they will be addressed by the appellate court.
"[Gastelum]: Your Honor, it's not what you [have] seen. It's what you didn't see that affected me that I want to file this motion on. And you can't even hear me out?
"THE COURT: No. You will get a full hearing, believe me.... [¶]... [¶]... Let me tell you, Mr. Gastelum,... [y]ou will get a full hearing, provided that you appeal, on that issue of ineffective assistance of counsel. If it is found to be ineffective, you will get your new trial.
"[Gastelum]: I would at least like it on the record.
"THE COURT: It is on the record right now that you are requesting it.
"[Gastelum]: But my issues
"THE COURT: Yeah. You will have those issues fully on the record, believe me, they will be, provided that you appeal.
"[Gastelum]: I would like me stating them on the record right here in court.
"THE COURT: Well, I don't think that is going to be necessary because, again, I just don't think that even in spite of your comments about what has happened outside the presence of the Court, what I have seen, you received effective assistance of counsel in court, which is what really, I think, matters. At this point, you'll probably have to save your comments.
"[Gastelum]: Can I say one more thing?
"THE COURT: One more thing.
"[Gastelum]: I was reading in the law library the other day, it says when I request this type of motion, that the judge has to provide me with another lawyer so that he can look at it and see what my motion is all about.
"THE COURT: Yeah. That's one way to proceed. We're not going to proceed in that fashion. Again, you made your request. [¶] I think [defense counsel] pointed that out, that there might be a Marsden issue. At this point I don't find that is legal cause and would proceed with sentencing."
The trial court did not conduct a Marsden hearing on Gastelum's request for substitute counsel, refused to allow Gastelum to state on the record the reasons for his request, and denied his request for substitute counsel to represent him in making a motion for new trial based on ineffective assistance of counsel.
B
"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "The decision whether to grant a requested substitution is within the discretion of the trial court...." (People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Marsden stated: "[T]he trial court cannot thoughtfully exercise its discretion... without listening to [the defendant's] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom." (Marsden, supra, 2 Cal.3d at p. 123.) "Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention 'is lacking in all the attributes of a judicial determination.' [Citation.]" (Id. at p. 124.)
"[T]he trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion...." (People v. Smith (1993) 6 Cal.4th 684, 695.) The California Supreme Court stated:
"When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a 'colorable claim' of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]" (People v. Diaz (1992) 3 Cal.4th 495, 573-574.)
When a defendant requests appointment of substitute counsel to represent him or her in the preparation and filing of a motion for new trial based on ineffective assistance of counsel, a trial court has a duty to conduct a proper Marsden hearing before exercising its discretion to grant or deny that request for substitute counsel. (People v. Diaz, supra, at pp. 573-574; People v. Mendez (2008) 161 Cal.App.4th 1362, 1365-1367; People v. Mejía (2008) 159 Cal.App.4th 1081, 1086.)
C
Based on the transcript of the October 15, 2008, hearing quoted above, Gastelum requested appointment of substitute counsel to investigate his claim of, and file a motion for new trial based on, ineffective assistance of counsel. He further expressly asked the trial court to allow him to state on the record matters that occurred outside the courtroom that would support his request for substitute counsel and claim that his counsel was ineffective. However, the trial court denied Gastelum's request for substitute counsel without conducting a Marsden hearing or allowing him to state on the record the reasons for that request, which he stated was based, at least in part, on matters outside the record that would show his counsel was ineffective. In denying Gastelum's Marsden motion without first conducting a proper Marsden hearing, the trial court erred.
Because the trial court erred in denying Gastelum's Marsden motion without conducting a Marsden hearing and allowing him to state the reasons for his motion on the record, we are unable, based on the record, to determine whether the court's error was harmless beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126; People v. Mendez, supra, 161 Cal.App.4th at p. 1368; People v. Mejía, supra, 159 Cal.App.4th at p. 1087; People v. Leonard (2000) 78 Cal.App.4th 776, 787.) Accordingly, we must reverse the judgment and remand with directions that the court conduct a proper hearing on Gastelum's Marsden motion, allowing him to fully state on the record his reasons for the motion and requesting a response from his counsel. After a proper Marsden hearing, the court shall then exercise its discretion whether to grant Gastelum's request for substitute counsel to represent him in investigating and filing a motion for new trial based on ineffective assistance of counsel. In the event the court thereafter denies his Marsden motion, it shall reinstate the judgment. In the event the court grants his Marsden motion, it may consider any motion for new trial Gastelum's substitute counsel may file based on ineffective assistance of counsel and/or otherwise proceed as authorized by law. (See, e.g., Mendez, at p. 1369; Mejía, at p. 1088.)
V
Victim Restitution
Gastelum contends, and the People agree, the trial court erred by not specifying in the abstract of judgment that his liability for direct victim restitution is joint and several with his codefendant, Armenta. At Gastelum's sentencing hearing, the court ordered Gastelum to pay victim restitution pursuant to Penal Code section 1202.4, subdivision (f), in an amount to be determined at a later hearing, which liability was to be joint and several (presumably with his codefendant Armenta). However, the abstract of judgment, dated October 16, 2008, signed by the deputy court clerk does not reflect the court's order that Gastelum's victim restitution liability be joint and several. In the event the trial court reinstates the judgment after further proceedings on remand as discussed above, it shall amend the abstract of judgment to specify Gastelum's liability for direct victim restitution shall be joint and several.
VI
Court's Minutes
Gastelum contends, and the People agree, the trial court erred by incorrectly stating in its minutes that the jury found true the gang special circumstance allegation. The jury returned a verdict finding not true the allegation Gastelum committed the murder to further the activities of a criminal street gang. However, the trial court's minutes, dated August 6, 2008, erroneously stated the jury returned a true finding on that allegation. Accordingly, in the event the trial court reinstates the judgment after further proceedings on remand as discussed above, it shall correct its clerical error by amending its August 6, 2008, minutes to state the jury found the gang special circumstance allegation was not true.
VII
Penal Code Section 2933.1 Credits
The People assert, and Gastelum agrees, the trial court erred by awarding him 134 days of conduct credit pursuant to Penal Code section 2933.1. The abstract of judgment reflects that award.
Penal Code section 2933.1, subdivision (a), provides:
"Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933."
Although murder is one of the felonies listed in Penal Code section 667.5, subdivision (c), Penal Code section 2933.2, subdivision (a), expressly precludes a defendant convicted of murder from accruing any Penal Code section 2933 credits, stating: "Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933." The trial court erred by awarding Gastelum 134 days of conduct credit pursuant to Penal Code section 2933.1. In the event the trial court reinstates the judgment after further proceedings on remand as discussed above, it shall correct its judgment and amend the abstract of judgment to omit any award of Penal Code section 2933.1 credits.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to the trial court that it conduct a postverdict Marsden hearing, allow Gastelum to state his reasons in support of his Marsden motion, request a response from his trial counsel, and then exercise its discretion whether to grant Gastelum's request for substitute counsel to represent him on a motion for new trial based on ineffective assistance of counsel and to otherwise proceed as authorized by law. In the event the trial court denies Gastelum's Marsden motion after conducting a Marsden hearing or grants that motion but then denies a motion for new trial filed by substitute counsel (or if substitute counsel after investigation decides there is no basis on which to file a motion for new trial), the trial court shall reinstate the judgment, amend the abstract of judgment to reflect Gastelum's direct victim restitution liability is joint and several and to omit any award of Penal Code section 2933.1 credits, and amend its August 6, 2008, minutes to state the jury found the gang special circumstance allegation was "not true."
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.