Opinion
H022934.
7-18-2003
THE PEOPLE, Plaintiff and Respondent, v. PEDRO JESUS GOMEZ, Defendant and Appellant.
After a jury trial, Pedro Jesus Gomez was convicted of attempted murder (Pen. Code, §§ 664, 187) and assault with a firearm. (Pen. Code, § 245, subd. (b).) It was found that Gomez personally used a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and committed the crime for the benefit of a criminal street gang. (Pen. Code, § 186.22, subd. (b).) He was sentenced to a total of 50 years in state prison. We will affirm.
All further unspecified statutory references are to the Penal Code.
FACTS AND PROCEDURAL BACKGROUND
On September 10, 2000, there was a shooting outside Applebees restaurant in Salinas. The evidence revealed that a group of customers had left the restaurant without paying their bill. Defendant and defendants two cousins, Carmen and Carlos, were among the group. Defendant and his cousin Carlos were both affiliated with the Norteno gang.
Mr. Zarante, who was a regular Applebees patron, said he knew the individuals who had failed to pay. Mr. Zarante agreed to go outside with the Applebees manager in an effort to obtain payment.
Once outside, Mr. Zarante called to defendant and defendants cousin, Carlos. Words were exchanged and defendant hit Mr. Zarante. Mr. Zarante hit defendant back, knocking him to the ground. Defendant then pulled a gun and shot Mr. Zarante in the chest.
Two off-duty deputy sheriffs happened to be in a nearby Suburban. One of the officers exited the Suburban, pulled out his gun, and told defendant to drop the gun. Meanwhile, Carmen drove by in her red truck, and stopped by defendant. Defendant got in, and the truck drove off. The two deputy sheriffs pursued, but defendant exited the truck, and fled toward a Community Bank building. The deputies ultimately stopped the red truck, and detained Carmen, the driver.
The main issue at trial was whether the shooter was defendant or defendants cousin, Carlos Gomez. Witnesses identified defendant in court as being the shooter. Numerous witnesses identified the shooter as being a person wearing a red shirt, and numerous witnesses testified that defendant was wearing a red shirt on the night of the shooting. Several witnesses were shown Carloss picture but did not identify him as the shooter. Mr. Zarante identified defendant as the shooter but recanted at trial and denied that defendant was the shooter. Defendant testified, denied being the shooter, and indicated that it was Carlos who had fired the gun.
GANG EVIDENCE
After defendant was arrested, his bedroom was searched and various items were found. These included a black RAZA eagle sticker that Officer Gerry Davis said represented the Norteno gang. Also found was a photo album with photographs of defendant flashing gang signs. Two letters were found that Officer Davis said had gang connotations. Several red jerseys or sweatshirts were found among the clothing in the closet.
Gang Expert Brian Link testified as a criminal street gang expert. He said the Norteno criminal street gang has thousands of members in Monterey County. The Norteno gang uses the letter "N," the number "14," and red or burgundy clothing as symbols. According to Link, the gangs primary activities include homicides, driveby shootings, arsons, firebombings, burglaries and robberies. Link said that the tattoo of an eagle on defendants leg, the presence of certain photos, letters, and a RAZA eagle in defendants bedroom, and the fact that defendant was wearing red clothing, all showed a connection to the Norteno gang.
Under Links view, a gang member who commits violent acts has a better reputation within the gang than a person who does not commit such acts. Link testified that gang members believe the reputation of the gang will be furthered if a gang member commits crimes of violence while wearing gang colors. Link said he believed the shooting in this case was gang related, and opined that once a gang member is punched, he or she has to strike back or else he or she will lose face within the group.
Link testified that on August 15, 2000, defendant was with Ramon Perguero, a Norteno gang member. On May 16, 2000, defendant was with two gang associates. In May, defendants residence was repeatedly firebombed or shot up by rival gang members. On May 6, 2000, while defendant was stopped for a traffic stop, he was wearing a red shirt. Link stated that Carlos was a gang member.
After a jury trial, defendant was convicted of attempted murder and assault with a semiautomatic firearm. All the enhancements were found to be true. Defendant was sentenced to 25 years to life for attempted murder, sentenced to an additional 15-year term for the personal firearm use/great bodily injury enhancement, and sentenced to a term of 10 years for the gang enhancement. Defendants total term was 50 years on count one. The court also imposed and stayed a term of 29 years on count 2 and the associated enhancements.
DISCUSSION
I. Testimony of Ruben Gomez
Defendant contends the trial court should have admitted testimony by Ruben Gomez, who was defendant and Carloss uncle, and Carmens father, about Rubens post— shooting conversations with Carmen and Carlos. Defendant says the conversations implicated Carlos, rather than defendant, as the shooter. In defendants opinion, the evidence was admissible under Evidence Code section 1230 as a declaration against penal interest. Defendant believes the exclusion of the evidence violated his due process rights.
Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants 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."
Background
At the Evidence Code section 402 hearing, Ruben testified that he spoke with Carlos after Carmens arrest when Carlos was running from the police. Carlos said he was sorry Carmen was involved. When Ruben asked why he had shot the person, Carlos responded, "`well, Peter was getting beat up so I had to — `so I just brought out the gun and shot him. I had to do it. " Ruben said that was not the smart thing to do and asked when Carlos was going to turn himself in. Carlos replied, " Im not, not until they catch me, because Im a gangster. " Ruben also testified that Rubens daughter Lily said that Carmen said, "That when [Carmen] was at Applebees or something like that, that something had happened there. Oh, no. They were at Applebees and then [defendant] and Carlos were at Applebees and [Carmen] said that [defendant] asked her for a ride to go home because he was intoxicated. So Carmen goes okay. So she went outside and got his keys and was getting ready to give him a ride home. And so she said he went in there and got Carlos and I dont know exactly what happened but they went back outside and all of a sudden she goes, `I heard shooting. I didnt know what was going on, and all of a sudden Carlos jumped into the truck and told me to "go, go, go," and waving the gun. And so she said `I was scared. I just took off. " On another occasion, Ruben said Carmen told him she drove away from the parking lot with Carlos because he had the gun, he was intoxicated and she was afraid he might shoot her. Carmen said she drove away with the police after her, and when she stopped at a stop sign, Carlos jumped out. Carmen did not tell Ruben if defendant was already in the truck. Carmen told Ruben that her first statement to the police was that a stranger had pulled a gun and had forced her to drive away at gunpoint.
The trial court found that Rubens statements regarding Carlos were inadmissible. It decided that the defense had not shown due diligence in attempting to subpoena Carlos, and decided that Carloss statement was not trustworthy. As to Carmen, the trial court found that her identification of the person who got in the truck was not against her penal interest, and also found the statements were not reliable.
Analysis
We conclude that the trial court erred in excluding Rubens testimony about Carloss statements but find that the error was harmless.
For a declaration against penal interest to be admissible, the proponent of the evidence "must show that the declarant is unavailable, that the declaration was against the declarants penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610-611; see also People v. Lawley (2002) 27 Cal.4th 102, 153.)
A witness is deemed unavailable when he or she is "absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process." (Evid. Code, § 240, subd. (a)(5).) A trial courts diligence determination is subject to independent review. (People v. Cromer (2001) 24 Cal.4th 889, 901.)
In this case, we disagree with the trial courts decision that the defense did not exercise due diligence is trying to secure Carloss availability. (See People v. Linder (1971) 5 Cal.3d 342, 347, 96 Cal. Rptr. 26, 486 P.2d 1226; People v. Randle (1982) 130 Cal. App. 3d 286, 296, 181 Cal. Rptr. 745; see also 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 30, p. 713.) The defenses investigator tried nine times to contact Carlos, at the address of both Carloss parents and his sister, and attempted to make contact at various times during the day. Further, the testimony established that Carloss public defender would not have accepted service for Carlos. The fact that the defense did not try to serve Carlos while he was in county jail is not determinative. Before the granting of Carloss section 995 motion on January 17, 2001, it was reasonable for the defense to expect that Carlos would remain in custody to face trial along with defendant, and could be served at any time.
We also believe Rubens testimony about Carloss statements was sufficiently reliable to be admissible. To decide if a declaration against penal interest satisfies section 1230s threshold of trustworthiness, a trial court may consider the words, circumstances under which they were made, the declarants possible motivation, and the declarants relationship to the defendant. (People v. Cudjo (1993) 6 Cal.4th 585, 607, 863 P.2d 635; People v. Duarte, supra, 24 Cal.4th at p. 614.)
Applying those factors here shows that Carloss declaration was sufficiently reliable to justify its admission under Evidence Code section 1230. First, the words establish reliability since they were clearly against Carloss penal interest in that Carlos admitted that he "just brought the gun out and shot him." Carloss statement that defendant was "getting beat up" does not significantly diminish the reliability of Carloss admission that he shot the victim. Carloss admission that he was a "gangster" also shows reliability since that admission was against his penal interest. The circumstances also show reliability since Carloss statement was made to Carloss uncle, Ruben, in a non— coercive setting. It has been stated that "the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.) As defendant was his relative, Carlos may have felt compelled in the presence of another relative, Ruben, to disclose his true involvement, and exonerate defendant.
Finally, the trial court was incorrect in suggesting that the statement should be excluded because Ruben was not credible. This is because "except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jurys resolution; such doubts do not afford a ground for refusing to admit evidence under the hearsay exception for statements against penal interest. [Citations.]" (People v. Cudjo, supra, 6 Cal.4th at p. 609.)
Although we conclude that the trial court erred in excluding Rubens statements relating to Carlos, the error was harmless. It is not reasonably probable that a different result would have occurred had the evidence about what Carlos said been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243; see also People v. Duarte, supra, 24 Cal.4th at pp. 618-619 [Watson standard applies].) Carloss statement was not supported by other evidence in the case. None of the witnesses identified Carlos as the shooter. At trial, Mr. Zarate changed his story and testified that defendant was not the shooter. Yet even this testimony did not support Carloss version of the facts since Mr. Zarate testified that the shooter was the same man who had been struck. Carlos said that he fired the gun while defendant was being beat up. No witness testified that the companion of the man who was struck was the shooter. The evidence against defendant, on the other hand, was strong. Defendant was identified in court by several witnesses as being the shooter. Defendant was repeatedly identified as the man wearing the red shirt, and the man wearing the red shirt was repeatedly identified as the shooter. It is not reasonably probable that the jury would have concluded that defendant was not the shooter even if they had heard Carloss statement.
Similarly, with respect to Carmens statement, even if the statement was against her penal interest because it implicated her as an accessory, any error in excluding the evidence was harmless. Carmens statements were less exculpatory than Carloss statements. Although Carmen said Carlos had a gun, she never directly said that he fired the shots. As discussed above, the evidence of defendants guilt was strong. It is not reasonably probable that admission of the evidence would have turned the jury around, and resulted in a different verdict.
Citing Chambers v. Mississippi (1973) 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, defendant argues that excluding the evidence violated his due process rights and right to a fair trial. People v. Lawley, supra, 27 Cal.4th at pages 154-155, rejected a similar claim in the context of Evidence Code section 1230. We shall do the same.
II. Gang Evidence
In defendants view, the gang evidence should have been excluded under Evidence Code section 352. We disagree.
"The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) The trial court did not abuse its discretion here. The fact that defendant and his cousin were gang members, that defendant was wearing red, and his companion wearing a hat with an "N" on it, and that the shooting occurred at a place where Nortenos were known to meet, justified the trial courts decision to admit the evidence.
We also reject defendants argument that the gang expert, Brian Link, should not have been allowed to testify that the shooter acted for the benefit of the gang. People v. Torres (1995) 33 Cal.App.4th 37, 45, cited by defendant, is distinguishable because the Torres courts finding of impropriety stemmed from its deciding that the witnesss testimony was in substance an opinion about the definition of a statutory offense. That situation is not present here. We are more persuaded by People v. Valdez (1997) 58 Cal.App.4th 494, 507, People v. Gardeley (1996) 14 Cal.4th 605, 927 P.2d 713, and People v. Zepeda (2001) 87 Cal.App.4th 1183. As in those cases, the trial court here did not err in permitting Links testimony on this issue.
Finally, we reject defendants argument that there was insufficient evidence to sustain a finding that the crime was committed for the benefit of a street gang. (§ 186.22, subd. (b)(1).) We believe there was sufficient evidence that the shooting at Applebees was committed for the benefit of, at the direction of, or in association with the Norteno criminal street gang. Reduced to its essence, the evidence that the shooting was for the gangs benefit was that defendant and Carlos were both gang members, defendant wore a red shirt, his companion had a baseball cap with an "N," on it, and Applebys was a place frequented by Nortenos. It is true that the evidence indicated that the altercation was initiated as a result of a dispute over the restaurant bar tab. But that does not mean that the shooting cannot be considered to have been for the benefit of the gang. The gang expert, Brian Link, testified that by committing a violent act against a non-gang member, the reputation of the gang is enhanced. Link testified that if a gang member does not strike back after being hit, then the gang member will lose face. When we view these facts in conjunction with our standard of review, we believe there was sufficient evidence to support the enhancement. In sum, "the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318, 61 L. Ed. 2d 560, 99 S. Ct. 2781, fn. omitted; see also People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
III. Instruction on Primary Activities of Gang
Defendant argues that the trial court failed to instruct the jury on the "primary activities" requirement of section 186.22, and also failed to instruct the jury that the enhancement must be proved beyond a reasonable doubt.
As a result of People v. Sengpadychith (2001) 26 Cal.4th 316, CALJIC No. 17.24.2 (2002 rev.) (6th ed. 1996) now defines the elements of the gang enhancement allegation under section 186.22, subdivision (b). As pertinent here, the instruction provides "The phrase `primary activities, as used in this allegation, means the commission of one or more crimes identified in the allegation, be one of the groups `chief or `principal occupations. This would of necessity exclude the occasional commission of identified crimes by the groups members. In determining this issue, you should consider any expert opinion evidence offered, as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crimes charged in this proceeding." (CALJIC No. 17.24.2 (2002 rev.) (6th ed. 1996).)
Because the instruction given in this case did not track the language in the current version of CALJIC No. 17.24.2, defendant argues that his conviction must be reversed. We disagree.
The standard described in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 applies when a trial court fails to correctly instruct on a gang enhancement in an indeterminate sentence case. (People v. Sengpadychith, supra, 26 Cal.4th at p. 327.) Applying that standard here, it is clear that there is no reasonable probability that the jury would have found differently on the gang enhancement had the 2002 version of CALJIC No. 17.24.2 been given. Link testified that the primary activities of the Norteno gang included homicides, attempted homicides, drive by shootings, arsons, fire bombings, burglaries, and robberies. He testified that Neustra Raza would commit crimes in furtherance of the Nuestra Familia, and stated that gangs and gang members perceive themselves as powerful by committing violent crimes in the community. Defendant did not submit any contrary evidence or argue that the primary activities were other than those described by Link.
Defendant appears to concede that the People v. Watson, supra, 46 Cal.2d at page 836 standard applies here but suggests that this court should adopt the concurring opinion in People v. Sengpadychith, supra, 26 Cal.4th at pages 330-333. Being bound by stare decisis, we shall decline to do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
With respect to the trial courts failure to instruct the jury that the gang enhancement must be proved beyond a reasonable doubt, we conclude that reversal is not required. There is no reasonable likelihood that the jury misunderstood the standard of proof that it was required to apply when determining the truth of the gang enhancement allegation. Neither party argued that a different standard applied to the gang enhancement. The jury was instructed with the standard instruction on reasonable doubt. The jury was also instructed that the firearm enhancement must be proved beyond a reasonable doubt. Taken together, these instructions indicated to the jury that the prosecutors burden during the entire trial was proof beyond a reasonable doubt. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 964-965, 959 P.2d 183 [failing to instruct that People had burden of proving arming enhancement beyond a reasonable doubt was harmless in light of other instructions given]; see also People v. Scott (2001) 91 Cal.App.4th 1197, 1211— 1212; [absence of instruction that reasonable doubt applied to enhancement allegation not prejudicial since jury otherwise instructed on reasonable doubt]; People v. Louis (1977) 75 Cal. App. 3d 620, 625, 142 Cal. Rptr. 182 [where trial court gave other reasonable doubt instructions, failure to instruct that firearm enhancement must be proved beyond a reasonable doubt not prejudicial].)
IV. CALJIC No. 17.41.1
Defendant argues that the trial court erred in instructing the jury under CALJIC No. 17.41.1. In People v. Engelman (2002) 28 Cal.4th 436, the California Supreme Court disapproved the use of CALJIC No. 17.41.1 but found that, under the facts of that case, the giving of this instruction "did not constitute constitutional error." (People v. Engelman, supra, 28 Cal.4th at p. 444.) We reach the same result here. Nothing in the record supports an allegation of jury misconduct or other problem with the jury deliberations relating to the giving of CALJIC No. 17.41.1.
V. Courts Instruction To Deadlocked Jury
Defendant says the trial court made improper comments and coerced a verdict by instructing the jury to go home and think about a new approach to the case without first inquiring into the jurys note that it was deadlocked. This argument is without merit.
The jury started deliberating on February 13, 2001, in the afternoon. At 4:30 p.m., on February 14, 2001, the jury sent the court a note. The note stated, "Judge — We are deadlocked at 10 G 2 NG Help."
The trial court told the jury: "Ms. ———-, I got your note saying that you believe the jury may be deadlocked. What I think Im going to do is this: Since its now 4:30 is let you go home for the evening and have you come back in the morning and give it one more try. [P] Its been my experience in the past that sometimes a good nights sleep helps to clarify some issues for some people. Sometimes a light goes on or sometimes somebody thinks of a new approach that makes a difference. It may or may not in this case but everybody has vested a lot of time in this case, including you folks, so I think its worth giving it one last try. So I would suggest you meet in the lobby and the bailiff will bring you through the back into the jury room because we will be in session in the morning."
After the jury left the courtroom, defense counsel objected to the courts admonition and moved for a mistrial. The motion was denied.
Analysis
In People v. Gainer (1977) 19 Cal.3d 835, 139 Cal. Rptr. 861, 566 P.2d 997, the California Supreme Court established a judicially declared rule of criminal procedure proscribing trial courts from giving juries an "Allen-type" charge. (Allen v. United States (1896) 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154.) According to the court, this type of charge has two impermissible features. First, the instruction improperly tells the minority jurors to rethink their views in light of the majoritys position, thereby suggesting that the views of the majority, rather than the evidence, should be the basis of the jurys verdict. (People v. Gainer, supra, 19 Cal.3d at pp. 845, 848.) Second, the instruction improperly tells the jury that it " `should consider that the case at some time must be decided " even though such a statement is inaccurate since the possibility exists that the case will not be retried. (Id. at pp. 851-852.)
The trial courts instructions in this case were not improper, did not violate Gainer, and did not coerce the jurys verdict. Unlike Gainer, the trial court here did not tell the jury that the case "must at some time be decided" but instead expressly stated that the court was only asking that the jury "give it one last try." The trial court here never told the minority jurors to rethink their position in light of the views of the majority, and in fact the trial court made no mention whatsoever of the position of the minority jurors. (See, e.g., People v. Moore (2002) 96 Cal.App.4th 1105, 1120-1122.)
Although the trial court did tell the jurors that a good nights sleep might clarify some issues for people, the court did not identify what people he was referring to, or in any way expressly indicate that he was singling out the minority jurors. Further, the trial courts comment that a good nights sleep might clarify issues was tempered by the courts subsequent comment that that approach "may or may not in this case [work]" and that recognition lessened any possible pressure that the jurors may have felt by the courts remarks. Given our presumption in the regularity of the proceedings, and the fact that there is nothing to indicate that the trial courts comments were delivered in an intemperate or reprobative manner, we reject defendants argument that the courts comments were improper or amounted to coercion of the verdict, in violation of Gainer.
VI. Motion For Continuance/DNA Testing
Defendant argues that the trial court abused its discretion in denying his motion for post-trial discovery, and in denying his motion for a continuance made prior to sentencing. We disagree.
Background
Across the street from the bank and Applebees, police found a baseball cap with three "Ns" on it, lying on top of a burgundy sweatshirt. These items were found in the opposite direction from the direction that defendant ran when exiting the truck. Analysis of the hat by a DNA expert disclosed that defendant could be excluded as the person who left DNA material on the hat. Defendant sought to compel Carlos to submit a sample for DNA analysis so that the defense could determine if Carlos could be connected to a burgundy shirt. Five hairs were found on the shirt, and three of those hairs were cat hairs. Defense counsel told the court that the expert thought that one hair on the shirt, although not suitable for nuclear DNA analysis, was suitable for mitochondrial DNA analysis.
After considering counsels arguments, the trial court refused to order Carlos to give a sample for DNA testing and refused to grant a continuance of the new trial motion so that defendant could obtain additional testing.
Analysis
The trial court has broad discretion to grant or deny a motion for continuance. (People v. Frye (1998) 18 Cal.4th 894, 1013, 959 P.2d 183.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]" (Ibid.)
There was no abuse of discretion here. First, no witness made a positive identification of the shirt and hat found. Second, defendant does not explain why he could not have had the hair on the shirt compared with defendants own DNA. If the test ruled him out, there would be no need for testing by Carlos. This was not a case where the prosecutor claimed that the shirt was defendants, or presented any evidence suggesting that defendants DNA had been found on the shirt. Third, the fact that counsel sought only mitchondrial DNA testing is significant because mitchondrial testing "is not a unique identifier because it is shared by individuals with a given maternal line." (State v. Pappas (2001) 256 Conn. 854, 882, 776 A.2d 1091, 1109.) Finally, even if Carlos were tested, and the expert were to testify, for example, that Carlos could not be excluded as the source of the DNA on the shirt, and that a certain percentage of the population could, within a given confidence level, be excluded as the source, it would still have to be shown that defendant was excluded as the source of the DNA. For these reasons, the trial court did not abuse its discretion in denying defendants motions for testing and for a continuance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., and WUNDERLICH, J.