Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles, Ct. No. NA069732, Joan Comparet-Cassani, Judge
Lawrence A. Young & Associates and Lawrence R. Young, for Defendant and Appellant Irving Gayton.
Patricia Ihara, under appointment of the Court of Appeal, for Defendant and Appellant Gasper Ontiveros.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Lauren E. Dana, Blythe Leskay Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Gasper Ontiveros and Irving Gayton appeal from the judgment after conviction by a jury. The jury found both Gayton and Ontiveros guilty of first degree murder of Salvador Rivera. (Pen. Code, §§ 187, subd. (a); 189.) The jury found true allegations that Ontiveros personally and intentionally discharged the firearm that killed Rivera (§ 12022.53, subd. (d)) and, with respect to Gayton, that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The jury acquitted both defendants of the charged attempted murder of Jose Ramos. (§§ 187, subd. (a); 664.)
All statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced Ontiveros to two consecutive terms of 25 years to life in state prison (§ 187, subd. (a); 12022.53, subd. (d)) and sentenced Gayton to 25 years to life in state prison (§ 187, subd. (a)), plus one year pursuant to section 12022, subdivision (a)(1). We affirm.
FACTS
On March 28, 2006, three young men encountered defendant Gayton in a parking lot liquor store. It was raining heavily. The young men, S. Rivera (the murder victim), J. Ramos and S. Lopez, knew each other. Rivera and Ramos were members or associates of the Tiny Gangsters criminal street gang. Lopez denied being a member or associate of Tiny Gangsters. He testified that he regularly 'hung out' with Tiny Gangster members. Defendant Gayton was a member of a group known as Uno Sin Verguenza (U.S.V.), which did not statutorily qualify as a criminal street gang.
Gayton introduced himself to Rivera and Ramos and said, "Where you from?" Rivera answered, "Tiny Gangsters." Gayton said to Rivera, "Let's take a walk." Rivera, Ramos and Lopez walked to the covered courtyard of Lopez' apartment complex and smoked marijuana. Gayton also arrived at the courtyard and brought with him defendant Ontiveros. According to Lopez, Gayton pulled Lopez aside to a part of the complex where they could not be seen by Rivera or Ramos. Gayton whispered to Lopez, "I'm going to smoke these guys," to which Lopez replied, "I don't want no part of it." Lopez stepped into his apartment briefly and called a friend to say he would be coming over soon. The group dispersed.
Rivera, Ramos and Lopez walked away from the complex along Jaymills Avenue. Lopez heard Gayton and Ontiveros walking up from behind. Lopez hung back, tying his shoe by an alley, so that Gayton and Ontiveros passed him. Gayton and Ontiveros were wearing black hooded sweatshirts with the hoods up. As Gayton and Ontiveros reached Rivera and Ramos, Lopez saw Gayton point at Rivera and signal to Ontiveros. Lopez saw Ontiveros pull out a black handgun and walk quickly toward Rivera. Rivera stumbled and fell to the ground. Ontiveros fired the gun three to four times at Rivera. Lopez ran down the alley after he heard the first or second shot.
Ramos, who was walking along side Rivera, did not see who shot Rivera and did not see the gun. Ramos heard Rivera say, "Don't shoot," and then Ramos heard a shot. Ramos saw Rivera on the ground and Ramos ran away. At trial, Ramos was unsure whether he heard more than one shot.
A woman inside her home on Jaymills Avenue heard popping sounds on the street. She looked out the window and saw a person in a black hooded sweatshirt running with an arm extended. The person's arm seemed to click back with each "bang" sound. She also saw a young man with blood on his arms get up from the ground and walk away. She called the police. It was still raining heavily.
When Ramos ran away, he was followed by someone on foot. According to Ramos' testimony at the preliminary hearing, Gayton and Ontiveros chased Ramos into a house, shooting at him, and Ramos heard a bullet pass close by him. However, according to Ramos' testimony at trial, he did not know who chased him and he did not hear any bullet pass close by.
Officers responding to the reported shooting found three .9-millimeter casings and one live round where Rivera had been shot, and another live round just north of that area. An officer testified that a live round comes out of a gun if the gun jams. Officers found Rivera on the ground some distance away, bleeding from the chest. He died later at the hospital. Rivera suffered five gunshot wounds. The bullets generally traveled from the right side of Rivera's body downward toward the left. Two bullets grazed his skin, two passed though his right arm but did not hit his torso, and one entered his right shoulder, passed through his lung and liver and lodged in his abdomen. A .9-millimeter bullet was recovered from his abdomen. There was no stippling or soot on the body, and the clothes were not examined. The coroner could not determine the range from which the gun was fired or whether the victim was sitting, standing or lying down when shot.
Lopez and Ramos both identified Gayton and Ontiveros in photo line-ups and at trial. Lopez testified that the day after the shooting Gayton called him and said, "Don't tell nothing. Don't tell what you saw."
About a week into the investigation, Detective Sergeant Bisedti watched outside the apartment that Gayton shared with his brother, waiting for other officers to arrive with a search warrant. As Bisedti waited, he saw Gayton's brother and another man arrive, enter the apartment and come out of the apartment five minutes later. Bisedti detained the men. Gayton's sister and a girl appeared at the doorway of the apartment. Gayton's brother and sister exchanged words in Spanish which Bisedti could not understand. Bisedti ordered the young women to stay where they were, but Gayton's sister went back into the apartment. Bisedti followed her in, but she was gone. He saw that the bedroom window was open and the curtain drawstring was moving. On the bed was a pillowcase in which Bisdeti found a black hooded sweatshirt and an empty .9-millimeter magazine. Inside a sock was a box containing .9-millimeter live bullets. "C.V.U.S.V." was written on the mattress and on a cabinet. Two belt buckles with "S.V." carved on them were also in the room.
Gayton's sister later told an officer that when she reentered the apartment, she retrieved a .9-millimeter handgun and took it to a friend's house where she hid it under the mattress. She led the officer to the friend's house and showed him where the gun was hidden.
A police department criminalist, Troy Ward, conducted forensic testing on the gun within two weeks of the shooting and concluded that it was the gun that fired the bullet found in Rivera's body. The cartridges and cartridge casings found at the scene, at Gayton's brother's apartment, in the gun, and in Rivera's body all matched. They were Winchester .9-millimeter luger 115 grain jacketed hollow point bullets.
Gayton and Ontiveros were both charged with the first degree murder of Rivera and the attempted murder of Ramos. The trial court struck gang enhancement allegations because there was insufficient proof of predicate acts for U.S.V. to qualify as a criminal street gang.
At trial, the judge allowed evidence that Rivera, Ramos and Lopez were affiliated with the Tiny Gangster gang, and that C.V.U.S.V. (Compton Varrio Uno Sin Verguenza) is a group with a rival claim to an area in north Long Beach and south Compton. Photos were admitted of graffiti in the neighborhood of the crime contained the words "C.V.U.S.V. 13," "Bago," "C.V.U.S.V. X-3," and "Jokes and Bago." The trial judge instructed the jury that gang evidence should not be considered against Ontiveros for any purpose, because no evidence had been presented that Ontiveros was affiliated with the U.S.V. group or any gang.
On April 18, 2007, the day before trial, the prosecution provided to defense counsel a transcript and compact disc of statements made by Gayton's brother, who was on the prosecution's witness list. Although the disclosure was late, defense counsel did not request a trial continuance or other sanctions. Ontiveros' counsel stated that the statement was "not long, it's not lengthy, it's no reason to ask for a continuance at this time." She asked that, if redacted or edited versions were used, that she be given sufficient time "to go through it and either raise objections or reedit or anything like that," and that "no more is going to trickle in in that regard." The trial court agreed to give counsel time to review any redactions, and ordered the prosecutor to "search the file, contact detectives, make absolutely sure there is no outstanding discovery because it may be if something comes in, you are going to be precluded from using it." Gayton's brother was granted use immunity, but refused to testify at trial and was jailed for contempt. The recorded statement was not used at trial.
Just before criminalist Ward testified (seven days after trial commenced), the defense received from Ward a 20-page document that included notes and photographs documenting tests and comparisons performed on the gun. The document was produced on April 26, 2007, the morning that the Ward was scheduled to testify. It was dated April 14, 2006. The document showed that the gun had a broken firing pin when it was recovered and would not discharge until the Ward repaired it. The defense was previously unaware of this information. The trial judge questioned the Ward outside the presence of the jury. Ward testified that he did not produce the document earlier because the prosecutor had not asked him for it and the defense had not subpoenaed it. Ward said it was standard policy in his office not to produce anything but the face page of the report unless it was subpoenaed. He admitted that he knew the document was discoverable. The prosecutor stated that she too had just received the document. The trial judge delayed the witness' testimony and invited the defense to make appropriate motions. No motions were made.
DISCUSSION
Gayton - Timeliness of Discovery
Gayton contends that failure to timely disclose the recorded statement of his brother and Ward's report prejudiced his defense. Although the disclosure was untimely, Gayton forfeited the issue by failing to request relief from the trial court and the defense was not prejudiced by the delay.
The prosecution must disclose to the defense, 30 days before trial (§ 1054.7), any exculpatory evidence (§ 1054.1, subd. (e)) and all statements and reports of witnesses whom the prosecutor intends to call at trial, "including any reports or statements of experts made in conjunction with the case, including the results of . . . scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial." (Id., at subd. (f).) Disclosure should include an expert's raw data, original documentation of tests and notes of factual determinations made. (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 183.) The purpose of the discovery statutes is to promote the ascertainment of truth in trials, to save court time in trial and to avoid the necessity for frequent interruptions and postponements. (In re Littlefield (1993) 5 Cal.4th 122, 130.) The duty to disclose extends to information that is reasonably accessible to the prosecutor. (Id. at p. 135.) The prosecutor is presumed to have access to all information gathered by the investigating agency (In re Brown (1998) 17 Cal.4th 873, 879) and has "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." (Kyles v. Whitley (1995) 514 U.S. 419, 437.) On appeal, "[i]t is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm." (People v. Pinholster (1992) 1 Cal.4th 865, 941.)
The recorded statement of Gayton's brother taken by police and the 20-page forensic report prepared by Ward were accessible to the prosecutor and were not disclosed 30 days before trial. However, Gayton has forfeited the issue because he did not request relief from the trial court. When the prosecution produced statements of Gayton's brother and other information on the day before trial, the trial court said to defense counsel, "I'll do whatever you would like because you are both in the right, and the people [in] this respect are woefully wrong." Defense counsel did not request relief. When the prosecution produced Ward's report on the seventh day of trial, the trial court delayed Ward's testimony so that counsel could review the report and said, "I'll entertain whatever motions you have after you finish. If you are disadvantaged, you must tell me." The defense made no motions and requested no further relief. Gayton argues that objection would have been futile, but the trial judge clearly indicated willingness to grant relief, stating "I'm totally sympathetic to your position," describing the delay as "shocking" stating, "I find it very disconcerting with these cases that I constantly have issues of discovery in the middle of trial.
Gayton has not, in any event, demonstrated that earlier disclosure of the report or his brother's statements would have brought about a different result or that a continuance would not have cured any harm caused by the late disclosures. The defense learned belatedly that the firing pin catch plunger and firing pin level block were defective, but Ward testified that this did not affect the firing pin markings that he looked for in comparing the cartridge casings. He testified that the defects would not cause the gun to misfire or fire accidentally. He eventually mounted the gun slides on a reference firearm, but he used the same firing pin and barrel for his comparison testing.
The statements of Gayton's brother were disclosed late, but they were never used at trial and Gayton's brother did not testify. Gayton argues that, had he earlier received the statement, he could have offered evidence that he and his brother had equal access to the gun, and that his brother probably owned the gun. The fact that Gayton's brother had access to the apartment was in evidence, and earlier disclosure of the brother's statement would not have made him available as a witness. Gayton points to nothing in the late-disclosed statements that supports the theory that his brother probably owned the gun. Gayton made a tactical decision not to present testimony of other household members concerning access to the gun or the bedroom. The record does not establish that delayed disclosure undermined the ascertainment of truth or materially affected the outcome of the proceedings.
Gayton – Jury Instruction on Reasonable Doubt
Gayton contends that the court erred because, in its instruction on reasonable doubt, it did not define "'abiding conviction'" to be "'near certainty of the truth of the charge.'" The contention is without merit.
The jury was instructed pursuant to CALJIC 2.90. No further definition of reasonable doubt was required. (Victor v. Nebraska (1994) 511 U.S. 1, 14-15; § 1096.) The constitutionality of the instruction is conclusively settled. (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286, and cases cited therein.) "The time has come for appellate attorneys to take this frivolous contention off their menus." (Id. at p. 1287.)
Gayton – Sufficiency of Evidence of Guilt
Gayton contends that Lopez was not believable and that there was therefore insufficient evidence of Gayton's guilt to sustain his conviction. We disagree.
We review the "record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the exclusive province of the jury to determine the credibility of a witness and we will not substitute our evaluation of the credibility of a witness for that of the jury. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is true that only Lopez testified that Gayton said, "Let's take a walk," and "I'm going to smoke those guys." Ramos was present at the time the statements were made but he did not recall them. Ramos testified that there was no aggression between Rivera and Gayton and they all smoked marijuana together. However, the jury was free to reject Ramos' testimony in favor of Lopez'. Ramos was an uncooperative witness who contradicted himself many times and was declared to be an adverse witness by the trial judge. Also, Lopez explained that Rivera and Ramos would not have heard the second statement because Gayton pulled Lopez away before whispering it. The fact that the circumstances may be reconciled with a contrary finding does not justify reversal. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Ontiveros
We appointed counsel to represent Ontiveros on appeal. After examining the record, counsel filed an opening brief in this court on behalf of Ontiveros raising no issues and requested that we independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On June 6, 2008, we advised Ontiveros that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. He raised several issues in a supplemental letter brief filed June 27, 2008.
Ontiveros challenges the credibility of Lopez, Ramos and Munoz based on contradictions in their testimony, he contends the jury was prejudiced against him by irrelevant photographs of gang graffiti, he points out inconsistencies between the physical evidence and the testimony, and he argues that the gun was inadmissible because it was obtained without warrant or the homeowner's consent to search. We reject each of these contentions.
The credibility of the witnesses was a matter exclusively for the juror's determination, as we have previously noted. The trial judge was within her discretion to determine that the probative value of the graffiti photographs outweighed the risk of prejudice, and she specifically instructed the jury not to consider the evidence against Ontiveros. The physical evidence did not contradict testimony that Ontiveros shot Rivera multiple times as he lay on the ground. The record does not reflect that Ontiveros had any standing to challenge the search of the Gayton residence or the residence of the friend in which the gun was found, or that either search was conducted without a warrant or valid consent to search.
We have reviewed the entire record and are satisfied that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.