Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge., Super. Ct. No. 28053.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Salvador Mendoza.
Janet Gray, under appointment by the Court of Appeal, for Defendant and Appellant Henry Rodriguez Santana.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Francisco Garcia.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stan Cross and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendants Salvador Mendoza, Henry Rodriguez Santana, and Francisco Garcia were convicted of the first degree murder of Roberto Ramirez with the additional special circumstance findings that the murder was committed while in the commission of a kidnapping and torture. The defendants were also convicted of kidnapping, torture, and conspiracy to murder. Defendant Mendoza was convicted of the unlawful possession of a firearm. They appeal, raising numerous issues.
FACTS
At approximately 6:30 p.m. on October 1, 2002, Isabel Valdes, a farm laborer living at a labor camp with about a dozen other people, observed a group of five men enter the camp carrying a total of two handguns and a rifle. Those present in the camp were moved outside and ordered face down on the ground. They were told they would be killed if they did not get down on the ground. The group asked for Roberto and Julian. Roberto Ramirez (the victim herein) said “here I am.” Two men took the victim away. During the encounter two other people were hit across the head with a handgun. The entire incident took about 10 minutes. Valdes could not describe the men. Valdes testified that the men left in a four-door green vehicle. Valdes recognized exhibit 103 (a rifle seized from Eulalio Mendoza, a.k.a. Pelon) as looking like one of the weapons he saw that evening. The people at the camp did not call the police because they were afraid.
Scott Rufer, an abuser of drugs, rented a house in Merced. His home was a place where various people would come to use drugs. David Medina (David) slept on the couch in the house and his brother, Ramon Medina (Ramon), was an occasional overnight guest.
On October 1, 2002, at 8 or 9 p.m., David and Rufer were watching television in Rufer’s house when a car pulled up in the driveway. David walked to the front door when the car arrived. Rufer testified that five people got out of the car and one of them had a pillowcase over his head. The other four men escorted the victim to one of the back bedrooms.
Rufer testified that, when the group entered his home, David spoke to them in Spanish and then told Rufer to sit on the couch, not to move, not to look, and not to breathe. David was armed and unplugged all of the telephones. Ramon arrived after the group of men arrived. Ramon was armed with a shotgun or rifle.
The group stayed in the back room approximately 20 to 25 minutes. The men came out of the back room occasionally during this time. David told Rufer that the victim was a snitch.
An old gray four-door car pulled up and the men left with the victim. Rufer and David remained at the house.
Rufer had no idea until months later of what happened to the victim. Rufer identified Eulalio Mendoza (a.k.a. Pelon) as one of the four men who arrived with the victim. Pelon was a friend of the Medina brothers (David and Ramon). Rufer identified Garcia from a photo lineup on February 2003 as one of the men who was in the group that arrived with the victim. Rufer picked out Santana on the day he testified as one of the people in the group of men who accompanied the victim into Rufer’s house. On cross-examination, Rufer said he saw Santana that evening but he was not positive if Santana was with the group. Rufer recognized Mendoza but was not sure if he was at his house with the group of men.
We will refer to Eulalio Mendoza as Pelon in order to distinguish him from defendant Mendoza.
David was originally charged with murder. He entered a plea to false imprisonment and served six months in jail. He testified for the prosecution. David was living with Rufer in October of 2002. On October 1, 2002, he saw car lights. Three men walked into the house. One of the men had his head covered with a shirt or some other material. The other two men were armed. David did not know what was happening. David was told to stand by the door and not let anyone in the house. He did as he was told. The men went into the bedroom and remained there for 20 to 30 minutes. David’s brother Ramon was there. The men came out of the room, a car pulled up, and the group got in the car and left. David did not know if Ramon ever went into the room where the men were with the victim. David recognized Garcia as one of the men who was with the victim. In addition, he testified that Pelon was the other man who accompanied the victim into the house.
Ramon was also charged with murder but pleaded guilty to false imprisonment and kidnapping. He received a jail term for his convictions. Ramon testified that he was staying at Rufer’s house in October of 2002. Pelon was at the house earlier in the day on October 1, 2002, acting weird and nervous. Later in the day Pelon, Garcia, Mendoza, and Santana arrived at the house in a gray car (pictured in People’s exhibit 15). They arrived with the victim. The victim was bleeding.
Ramon testified that the four men escorted the victim to the back room. They all had weapons, including a rifle and handguns. Santana and Mendoza left. Pelon came out and demanded that Ramon go in the back room. He complied. Ramon saw Pelon kicking the victim in the stomach, ribs, and back. Garcia pistol-whipped the victim on the forehead. Garcia asked the victim questions, including questions about “Queenie” and asked him where certain people were. Pelon and Garcia yelled at the victim. The victim was crying and hurting. He had tears and blood coming down his face. The victim asked them to quit.
Pelon went to the kitchen while Ramon and Garcia remained in the room with the victim. Ramon was sitting in a chair holding the rifle that Pelon handed to him. Ramon held the gun because Pelon demanded that he hold it. Pelon had a handgun in his other hand. Pelon, Garcia, and the victim were in the back room between 45 minutes to an hour. Ramon testified that he was only in the room for 25 minutes. The victim was curled up on the bed.
Ramon was shown a weapon at trial and asked if it was the weapon he was holding. He said yes. The record does not reflect the exhibit number of the weapon or the type of weapon that was shown to Ramon.
The same car that was used to bring the victim to the house was used to take the victim away. The victim was led out of the house with his face covered with a shirt. Ramon testified that the car belonged to Mendoza. Pelon told those remaining in the house to clean up. They did.
On cross-examination by Santana’s attorney, Ramon was asked if he knew Sylvia Brown. He said he had “smoked dope” with her. He was asked if he had told Sylvia Brown that he had set up Santana. Ramon denied saying that to Sylvia Brown.
Maria Bustos (a.k.a. Lupe) lived in a room with her boyfriend at Rufer’s home. On October 1, 2002, Rufer, Ramon, David, Pelon, and Bustos were present at the home. According to Bustos, Pelon seemed desperate, as if he was waiting for something. Four men arrived in a four-door car. The men pulled a person out of the car with his eyes covered by clothing. Pelon and Garcia took the victim into the house. The other two men remained outside and left. Garcia had a gun and was holding on to the victim. Ramon had a gun.
Bustos was told to go outside. She did. The men remained in the house for 30 to 60 minutes. The victim was then led outside by Garcia, David and Ramon. Pelon remained inside and called Bustos inside. Once inside Pelon told Bustos to clean up the blood. When the victim was brought inside he was wearing sandals and socks. When he left he was only wearing socks. Ramon kept the victim’s sandals.
Merced Irrigation District employees were spraying the canal banks on October 4, 2002, when they saw something floating in the water. They determined that the object was a human body and called law enforcement.
Deputy Sheriff Gerald Dover arrived at the scene. The body was removed from the water. The arms of a shirt had been wrapped around the victim’s neck and tied. Five expended shell casings were found on the canal bank. There were shoe impressions in the dirt.
Dr. James Wilkerson conducted an autopsy on the victim, Roberto Ramirez. A black shirt was tied around the victim’s neck. It appeared that the shirt had been worn as a hood. The victim had suffered six gunshot wounds. One wound began at the upper chest, another one to the chest, another to the lower chest, one through the arm, one to the left buttocks, and the final gunshot wound was to the upper left thigh. The wounds were excessive for the purpose of killing someone. The cause of death was multiple gunshot wounds.
In addition to the gunshot wounds, the victim had blunt force injuries to his face and groin. The victim had a laceration to the bridge of his nose and a cut above his left eye. He had bilateral injuries to his groin with the bruise on one side of the groin larger and more purple than the other side. These wounds were inflicted before the victim was shot. The bruises were large and characterized as severe. The doctor testified that it would take significant force to cause the bruising. It appeared from the size of the bruises that the victim was unaware that he was going to receive the blows to his groin. A groin injury is probably the most painful injury a man can receive. The victim suffered at least two blows to his groin.
The victim had alcohol and methamphetamine in his system when he died. Four expended bullets were removed from the victim during the autopsy.
On October 11, 2002 Oakland police officer Allen Miller found a car in an apartment building parking lot in a high crime area. The car was dusty and had been sitting there awhile. The car was returned to Merced County.
Mario Naranjo said he sold the car on May 9, 2002 to two people, Mendoza and his brother Fortino Mendoza. The payments were brought in each month. Sometimes the payments were made by defendant Mendoza, sometimes by Fortino.
The car was searched and checked for fingerprints. Blood was found in the car. Latent print analyst Richard Kinney processed the vehicle. He lifted 22 print cards. Mendoza’s fingerprints were on a can of Red Bull found in the car and a container of Prestone interior cleaner. Garcia’s prints were found on the inside passenger rear window as well as on a cognac bottle. The fingerprint analyst was only asked to compare the prints of four people (Garcia, Mendoza, Santana, and Pelon) to the prints taken from the car and its contents.
Eight stains inside the car were tested for blood and were positive. Two of the stains were then tested for a DNA profile. The profile of the blood stains matched the victim’s and would occur in one in 630 billion Hispanics. DNA on cigarette butts taken from the car matched Mendoza.
Isais Fierros knows the three defendants. Mendoza is Fierros’s cousin, he is related to Santana, and he knows Garcia. On October 5, 2002 Fierros went to the Atwater Police Department to report a matter he had telephoned about on October 3 and 4. He told the police that Garcia had tried to take his child and that Mendoza had called him and demanded that he provide him with $50,000. Fierros told the police that Mendoza said he had killed someone in Merced and needed the money to get out of town. Fierros laughed when Mendoza said he was going to kill him. Fierros said that when Mendoza called him the next day and repeated the demand, he took him more seriously. Fierros did not go to the police until “they” attempted to take his child.
Fierros left the police department after making his report. Later that day, Fierros called 911 because Mendoza was following him and he was afraid. Mendoza was taken into custody. Officers found a loaded firearm under the passenger seat of the car he had been driving.
Fierros talked to Mendoza at the direction of the police department. When Fierros asked Mendoza what he had done in Merced, Mendoza replied, “That’s nothing.” Fierros told Detective Dover that Garcia mentioned that “they” had killed someone. Fierros agreed to wear a wire for the police and talk to Garcia. Fierros asked Garcia if the guns had been disposed of. Garcia said “they had thrown them away.”
On cross-examination, Fierros began to change his story. He said that Mendoza wanted the money for Pelon’s bail. He testified that he made up stories for the police because he was concerned about his child and he wanted to get Garcia and Mendoza off the street. When he first called the police to tell them that someone had tried to take his child, the officer told him he was not a babysitter and he should make his report in person. Fierros was angry enough with Garcia to tell lies about him and to kill him. Fierros wanted Garcia arrested and off the streets. Fierros told police that Mendoza’s car might be found in Oakland, but Fierros did not drive the car there. Fierros testified that Garcia did not confess a murder to him, but perhaps he (Fierros) gave that impression to the police because he needed the police to get Garcia locked up. Fierros testified that Mendoza never asked him for money because of a murder. Fierros was angry with Mendoza and wanted him off the streets. Fierros said he was telling the truth now in court.
On redirect examination, Fierros starting repeating the version of events he told on cross-examination. He testified that Mendoza did call him and ask him for money but Mendoza did not say he was going to kill Fierros nor did Mendoza tell Fierros he had killed a man in Merced. Fierros made up a lot of things he told police with the purpose of getting Mendoza and Garcia off the streets.
At this point in the proceeding, and in front of the jury, the prosecutor asked for permission to question Fierros with leading questions because he was now a hostile witness. Counsel for Garcia stated that perhaps counsel should be appointed for Fierros. The prosecutor responded that he thought counsel should be appointed, “because this is getting into perjury territory.” He repeated his concern about perjury. A discussion was held in chambers. Fierros said he did not wish to answer any more questions on Fifth Amendment grounds, “otherwise I could get in trouble.” The court told the jury that Fierros had exercised his Fifth Amendment right and was not going to testify anymore. The discontinuation of Fierros’s testimony and the issues surrounding it will be discussed under part V.
Atwater police officer Aaron McKnight testified that he met Fierros in the lobby of the police station at 9:35 a.m. on October 5, 2002. Fierros had called the police department on October 3d, and October 4th. Fierros told Officer McKnight that Mendoza had called him and wanted $50,000 because he had killed a guy and he needed to flee. Fierros told McKnight that Mendoza said he would kill him if he did not come up with the money. Fierros was afraid of Mendoza and also afraid of Garcia because Garcia associated with Mendoza and Fierros thought Garcia was looking for him to do him harm.
Sergio Torres lived in Merced in October of 2002. He knew Garcia and Mendoza from Mexico and met Santana in the United States. Garcia called Torres before October 11, 2002, and asked him to come to his hotel and to bring beer and food. Torres went to the hotel room. Torres was accompanied by his girlfriend, and Garcia’s girlfriend was also present. Torres and Garcia drank beer and consumed methamphetamine. When the women went to the store, Garcia told Torres that he, Mendoza, Santana, and Pelon had kidnapped a man, took the man to a house in Merced, and then took the man outside Merced to a canal bank. Mendoza made the victim sit on the canal bank. Garcia told Torres that Mendoza shot the man first and Garcia shot him after Mendoza shot him. Garcia was not sure if he hit the man with his shot. After the victim was shot he fell into the water. Garcia told Torres that they used Mendoza’s car.
Garcia told Torres that when they were driving back from the canal they let Santana out of the car because he was scared and did not want to be with them anymore.
Torres testified that he has a methamphetamine problem and has been in trouble with the law. At the time he testified he had three cases pending. Torres’s attorney went to law enforcement and said Torres had information he would provide in exchange for a better disposition. Torres talked to law enforcement about what Garcia told him with the hope that he would get help with his own legal problems. He reached an agreement with the prosecution. Charges pending against him were reduced and he was also given help to move away.
On cross-examination Torres disclosed more details about his deals with the prosecution. He was arrested on May 25, 2001 with a pound of methamphetamine. He reached a plea agreement in April of 2002. He pled guilty to possession of methamphetamine with the agreement that he would receive no more than 16 months in prison. Between the time of his plea and before sentencing Torres was cooperating with law enforcement to bring them information in the hopes that his sentence would be less than 16 months. His case was continued in July and August. Torres kept asking for more time to gather information. He had not found any information to pass on to law enforcement in October of 2002.
On February 5, 2003, Torres finally came forward with the information he had received from Garcia in October of 2002. In May of 2003 Torres agreed to testify in Garcia’s case. In the interim, Torres was arrested in March of 2003 for possession of a handgun. He testified at Garcia’s preliminary hearing and was released from jail that day. His new felony charges were reduced to misdemeanors and he received a promise of financial assistance to relocate. He was arrested again in June and August of 2003 and during the current trial in June and July of 2004. He had five cases pending. His cases had been continued with the hope that he would get favorable treatment from the district attorney’s office. Torres testified that he came forth with his story regarding Garcia in February of 2003 because Garcia and the other defendants were in jail and he felt safe.
On February 26, 2003 all three defendants were in custody and scheduled for a court appearance. They were transported in a van that had been outfitted with several recording devices. Garcia and Mendoza were placed in the van first. Santana joined them several minutes later.
A tape of the recording was played to the jurors. In the tape Mendoza asked Garcia what he knew and who was talking. Garcia said they are taking fingerprints of everyone who was in the car. Garcia told Mendoza that he told police that they are cousins and sometimes Mendoza would give him a ride to the store. Garcia also said that the police were asking if he knew Pelon and Santana. Mendoza suggested that they say that they do not know anything. Garcia said that is what he has already told them. Mendoza said they should get a lawyer for whomever they find the most fingerprints for. Garcia reported to Mendoza that Rudy and “Queen” (Fierros) were talking and that Santana “is doing well with him [Fierros].” Garcia and Mendoza discussed guns. Garcia said the police got a gun from him and had the gun found in Mendoza’s possession. Garcia told Mendoza the police said they had proof who did it and Garcia asked to see the proof.
Garcia continued the conversation and asked why they should pay when they had not done anything. He accompanied this comment with laughter. Santana entered the van. Santana reported to the other two that the “old man” and Ms. Lupe are the ones who were saying everything. Garcia said it’s not the old man, it is Ms. Lupe, Santana’s pal Rudy and “Tupu” (Torres).
Santana asked where Pelon was. Garcia and Mendoza responded they did not know. Santana suggested they call his “lady” to find him. Garcia said he already knew. Santana suggested that Pelon “could tie those dummies.” Garcia said they could not do anything now or they would dig their hole deeper.
The three discussed how cases would go if there was not any evidence. Mendoza asked what was up with “Quini” [Fierros’ nickname was Queenie]. Garcia said he did not know where he was. Santana said that “Quini” said he was not going to say anything. Santana said “they” saw Juan, “you guys” [Mendoza and Garcia], and Pelon. Garcia said he told them he would go there for crack. Occasionally throughout the conversations they indicated that they had not done anything.
The three then discovered the listening devices. Garcia said they did not do anything. Mendoza said they should look for the person who did “that.” Garcia said they have us here and the person who did it is out. Santana said they don’t have any evidence but they are putting it in the paper so they can come and see who did it. Garcia said they aren’t going to find evidence because they weren’t the ones who did it.
When Ramon Medina testified, he was asked on cross-examination if he had told Sylvia Brown (Sylvia) that he had set up Santana. Ramon replied that he had not. Based on this cross-examination, the district attorney’s office investigated calls made by Sylvia’s husband, John Brown (John). John was a cellmate of Santana’s in jail. This investigation resulted in Sylvia’s testifying at trial.
John and Santana were housed in the same cell in the jail. John was allowed to leave jail for one week on a pass. He returned to jail on May 23, 2004 and continued to share a cell with Santana until his removal on June 22, 2004. John’s removal from Santana’s cell occurred during the trial in this case.
Sylvia testified that when John was out of jail on a one week pass he told her that Santana wanted her to keep Ramon from testifying. Before the plan was put into action, Ramon had already testified. Santana changed his plan and wanted Sylvia to lie and say that Ramon had set Santana up. John and Sylvia were under the belief that they would be paid for doing this.
Sylvia told Santana’s investigator that she saw Ramon, and Ramon told her that he had set up the three defendants. When Santana’s defense counsel disclosed this information to the district attorney, the district attorney began an investigation.
Sylvia was interviewed by Detective Dover. In her first interview she lied and stuck to her original story that she had seen Ramon. In her second interview with Dover, he confronted her with the tapes of the conversations among Sylvia, John, and Santana in jail. Sylvia then said the story about Ramon was a lie. Sylvia agreed to testify for the prosecution in exchange for a two-year suspended sentence for conspiracy to commit perjury. Santana and John were the alleged coconspirators.
The tape of the telephone conversation among Sylvia, John, and Santana was played for the jury. The telephone call began between Sylvia and John. John told Sylvia that Ramon had already testified, so if Sylvia wanted to come forward and say that Ramon was lying that would be good. Sylvia asked questions of John, and John asked Sylvia if she wanted to talk to Santana. She said yes, and John summoned Santana to the telephone. Sylvia and Santana spoke in Spanish. Sylvia explained to Santana that she knew him from before and that she is John’s wife. Sylvia told Santana that if he needed her to go to court she would go. He said yes. Santana said he was there because of Ramon and La Bomba (Torres). Santana said, “That their [sic] telling lies.” Sylvia said whatever you need me to do, I’ll do. Santana said that if Sylvia did “us” that favor, he would greatly appreciate it. Santana said he already told “him” of the appreciation that he was going to give her. Santana wanted Sylvia’s name and address so he could give it to his attorney. Sylvia told Santana that John could provide him all of her details. Santana told Sylvia that when his attorney talks to her she should tell him that the guy told pure lies and that is why he was hiding. Santana also asked Sylvia to look for other girls who know that “they” are liars to come and testify. Santana said he would get in agreement with Sylvia’s husband and he appreciated what Sylvia was doing.
Sylvia then spoke to John and told him to give Santana her name and address so he could send his lawyer over. She also said she would get other people to back him up.
The parties stipulated that the bullets recovered from the victim were fired from the same weapon. It was also stipulated that the weapon used to kill the victim was not the gun seized from Garcia when he was arrested, it was not the gun seized from Mendoza when he was arrested, nor was the murder weapon Pelon’s rifle. In addition, the ammunition seized from Santana’s home on February 14, 2003, pursuant to a search of his house, was not associated with the death of the victim.
Garcia was arrested at a restaurant. Garcia struggled when he was arrested and had a gun in his waistband of his pants. Garcia got his hand on one of the officer’s service weapons during the struggle. The struggle was described as a life or death struggle, lasting three to four minutes and requiring five people to take Garcia into custody.
DISCUSSION
I. Admission of Garcia’s statement to Torres as a Declaration Against Interest
As previously set forth, Torres testified that Garcia summoned him to a hotel room. They had a conversation, and in that conversation Garcia told Torres about the murder. Garcia also directly implicated Mendoza and Santana.
Prior to trial, numerous hearings were held regarding the admissibility of Torres’s testimony in the joint trial of Garcia, Santana and Mendoza. The trial court read the May 20, 2003 preliminary hearing transcript of Torres’s testimony regarding the information he obtained from Garcia and also read the transcript of the taped interview between Torres and the district attorney that occurred on May 21, 2004.
At the preliminary hearing Torres testified that he had known Garcia for approximately 10 years, going back to when they both were residing in Mexico. In October, Garcia called him and asked him to bring him food. Torres brought Garcia food and had a conversation with him at a hotel in Atwater. Torres said that Garcia was drunk and very nervous. In addition, Torres and Garcia consumed drugs at the hotel. During the conversation, Garcia told him that he and three others had taken a man to a house on Merced Avenue, where a beating took place. Garcia stated that they left the house on Merced Avenue and took the victim outside of Merced. Garcia told Torres that he had shot the victim while the victim was in the water. Although Torres brought his girlfriend along to the hotel, she was not there when Garcia and Torres had their conversation about the murder.
The prosecutor made a taped statement of an interview of Torres on May 21, 2004. Torres stated that he had a conversation with Garcia at a motel in Atwater, two or three days after the murder. Torres went to the motel because Garcia called him and asked him to come over there. Garcia also asked him to bring something to eat. Garcia said he, Mendoza, Santana and Pelon had kidnapped the victim in Winton and took him over to a house in Merced. Garcia said they drove the victim to the house in Merced in Mendoza’s car. When they went in the house they all had weapons. They kept the victim in a room in the house. Garcia said he pointed his gun at the victim. Garcia said they took the victim to a canal. He saw Mendoza shoot the victim and he (Garcia) also fired his weapon. Garcia said that Santana was scared. When asked why Garcia gave him this information, Torres stated that he and Garcia talked a lot and Garcia was very worried and had to tell somebody.
In addition to the above facts elicited from Torres during the interview, Torres also said that Mendoza was the one with the problem with the victim and that Mendoza would tell Garcia what to do. From the questions and answers it is not clear if this evidence was obtained by Torres from Garcia, or if Torres learned of this information from other sources.
The trial court found the statement of Garcia was admissible as a declaration against interest, having met the requirements of trustworthiness and being particularly disserving to Garcia’s interest. Pursuant to the rationale of People v. Greenberger (1997) 58 Cal.App.4th 298, 340, the court found that the statement was admissible against all three defendants, even those portions of Garcia’s statement that implicated Mendoza and Santana.
Torres testified at trial that he lived in Merced in October of 2002. He knew Garcia and Mendoza from Mexico and met Santana in the United States. Garcia called Torres before October 11, 2002 and asked him to come to his hotel and to bring beer and food. Torres went to the hotel room. Torres was accompanied by his girlfriend, and Garcia’s girlfriend was also present. Torres and Garcia drank beer and consumed methamphetamine. When the women went to the store, Garcia told Torres that he, Mendoza, Santana, and Pelon had kidnapped a man, took the man to a house in Merced, and then took the man outside Merced to a canal bank. Mendoza made the victim sit on the canal bank. Garcia told Torres that Mendoza shot the man first and Garcia shot him after Mendoza shot him. Garcia was not sure if he hit the man with his shot. After the victim was shot he fell into the water. Garcia told Torres that they used Mendoza’s car.
On cross-examination, Torres testified that Garcia told him that when they were driving back from the canal they let Santana out of the car because he was scared and did not want to be with them anymore.
Mendoza argues that Garcia’s statement implicating him in the crimes was erroneously admitted. First, he argues the court should have redacted those portions of the statement that spread or shifted blame to Mendoza. He contends that almost all of Garcia’s statement consisted of an attempt to spread blame to others and mitigate his own culpability. Next, Mendoza asserts the court erred in finding the statement trustworthy. In particular he contends that Garcia was not bragging about his exploits but was laying the groundwork for his defense. He characterizes Garcia’s portrayal of his role as a bit player and argues that Garcia was merely preparing the groundwork to use Torres as a witness to corroborate that his role was a minor one. Finally, Mendoza contends the statement was unreliable for state law purposes.
Santana also challenges the admission of this evidence. He argues that the most glaring problem with the introduction of Garcia’s statement was that it included statements implicating Santana and Mendoza. Santana contends that these collateral assertions were not disserving against Garcia’s own interest and thus were not properly admitted as declarations against interest. Santana argues that the fact that Torres was an informant creates an inherent risk of untrustworthiness to his testimony. In addition, Santana argues the statements violated well-established Aranda-Bruton principles. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.)
It is not disputed by the parties that Garcia’s statement to Torres was admissible against Garcia. The question is whether it was admissible against Mendoza and Santana because it meets the requirements of the declaration against interest exception to the hearsay rule.
In People v. Greenberger, supra, 58 Cal.App.4th 298 defendants Greenberger, Mentzer, Marti, and Lowe were tried jointly for the murder of Radin. William Rider was an acquaintance of Mentzer, Marti and Lowe. Rider obtained statements separately from Lowe and Mentzer. “Some of Lowe’s statements implicated Mentzer, and some of Mentzer’s statements implicated Marti and Lowe.” (Id. at p. 325.) The trial court admitted the statements against all of the defendants, finding that they were admissible pursuant to Evidence Code section 1230 as declarations against interest. (Greenberger, supra, at p. 325.)
On appeal Mentzer, Marti and Lowe argued that the trial court erred in admitting these statements because it denied the nondeclarant the right of confrontation and also was contrary to the rules of Aranda-Bruton. The Greenberger court first held that the admission of a declaration against interest does not deny a nondeclarant defendant the right of confrontation guaranteed by the Constitution because the statements possessed sufficient indicia of reliability to make them trustworthy and to justify dispensing with confrontation at trial. (People v. Greenberger, supra, 58 Cal.App.4th at pp. 326-331.)
The Greenberger court went on to find that the admission of a declaration against interest against a nondeclarant defendant does not deny the nondeclarant defendant the right of confrontation even when the declarant is a codefendant in a joint trial. The Greenberger court found that “Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission.” (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)
“Since declarations against interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible. This is not to say that all statements which incriminate the declarant and implicate the codefendant are admissible. Any such statement must satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness. This necessarily requires a ‘fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved; ...’ [Citation.] There is nothing in Bruton which prohibits introduction of such evidence.” (People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)
In People v. Fuentes (1998) 61 Cal.App.4th 956, we agreed with Greenberger and held that admission of extrajudicial statements of coparticipants pursuant to Evidence Code section 1230 does not deny a defendant his confrontation clause rights under the Sixth Amendment to the United States Constitution. This court distinguished the holding in Bruton because “the statements here were properly admitted under state rules of evidence, a situation not present in Bruton.” (Fuentes, supra, at p. 963.) In Bruton, the statement inculpating the defendant was clearly inadmissible against him under traditional rules of evidence. (Ibid.) Fuentes did not involve statements of defendants jointly tried; it involved extrajudicial statements of coparticipants.
In the interim period between Greenberger and the present case, there have been several new cases changing the rules regarding the admissibility of out-of-court statements, including statements of accomplices. In Lilly v. Virginia (1999) 527 U.S. 116 the court held that, “accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” (Id. at p. 134.) Thus, such statements were not per se admissible as firmly rooted exceptions to the hearsay rule, but were admissible only if they met the second prong of the Ohio v. Roberts (1980) 448 U.S. 56 test; that the statements contained “particularized guarantees of trustworthiness.” (Lilly v. Virginia, supra. at pp. 134-135, fn. 5.)
We disagree with Mendoza’s characterization of Lilly as forbidding the admission of any statement of a codefendant when that statement implicates both the declarant defendant and his codefendant.
“Thus … the admissibility of an out of court statement by an unavailable witness as substantive evidence against a criminal defendant turned on whether the statement contained ‘particularized guarantees of trustworthiness’ such that adversarial testing would add little to its reliability.” (People v. Cervantes (2004) 118 Cal.App.4th 162, 172.)
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court reshaped confrontation clause analysis, and the new focus after Crawford when admitting an out-of-court statement by an unavailable witness is whether the statement is testimonial or nontestimonial. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 68-69.) “Thus, out-of-court testimonial statements are admissible only when the witness is unavailable and there has been a prior opportunity for cross-examination of that witness.” (People v. Cervantes, supra, 118 Cal.App.4th at p. 172.)
“Crawford recognized that if the statement in issue is nontestimonial, the rules of evidence, including hearsay rules, apply. Crawford stated: ‘Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law….’ [Citation.] Thus, state courts may consider ‘reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. [Citation.]’ [Citation.]” (People v. Cervantes, supra, 118 Cal.App.4th at p. 173.)
As will be discussed in part II, the statement of Garcia to Torres was not a testimonial statement and thus the proscriptions of Crawford do not apply. Although the statements admitted in Greenberger and Fuentes appear to fall within the Crawford definition of testimonial statements and would not have been admitted post-Crawford, we see no reason to depart from the Greenberger and Fuentes holdings as they would apply to nontestimonial statements of a coparticipant admitted against a nondeclarant defendant at trial.
The appellate court in People v. Cervantes, supra, 118 Cal.App.4th 162 applied Greenberger in a post-Crawford case. Cervantes, Martinez and Morales were tried together and were convicted of first degree murder. The day of the murder Morales made a statement to his neighbor, Ojeda. He told her that he, Martinez and Cervantes questioned two males who they thought had made advances toward Morales’s girlfriend. The males were held at gunpoint on their knees. “Morales struck one of the males with his handgun and told Martinez to search the males for weapons. Martinez did not find a weapon but Morales said one of the males had a weapon. Morales shot one male because his ‘friend was lying.’ When the second male ran, Morales and Cervantes shot him. Morales, Cervantes and Martinez returned to the Honda and told [the driver] nothing had happened…. Morales also told Ojeda he thought the two males were the ‘wrong guys.’” (People v. Cervantes, supra, 118 Cal.App.4th at p. 167.) The statement was admitted at trial under the declaration-against-interest hearsay exception. The trial court found that the statement had sufficient indicia of trustworthiness and reliability based on the totality of the circumstances. (Id. at p. 170.)
On appeal, Martinez and Cervantes argued that Morales’s statement to Ojeda should not have been admitted at trial. They argued that the statements were not trustworthy because Morales tried to shift blame and attempted to place himself in a more sympathetic light. In addition, they argued that Ojeda’s testimony should have been limited to statements specifically disserving only to Morales, and the statement should have been redacted pursuant to Aranda/Bruton.
First, the appellate court found that the statement of Morales to Ojeda was not a testimonial statement and thus did not violate the rules established in Crawford. Next, the court applied Greenberger and found that the statement of Morales was admissible against Cervantes and Martinez. The court found Morales’s statement to be trustworthy based on the following:
“The evidence here showed Morales made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. Further, it is likely Morales wanted to have his wounds treated without going to the hospital. Regarding the content of the statement, Morales did attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez. Thus, Morales's statement specifically was disserving of his penal interest because it subjected him to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true.
“We also disagree with appellants' assertion the statement attempts to place Morales in a sympathetic light by suggesting the shooting was a mistake or justified because the victims had weapons. The fact appellants shot innocent victims, rather than the gang members they sought, does not render them more sympathetic. In either case, appellants were lying in wait for the victims to arrive, ambushed them, ordered them to their knees, searched and pistol-whipped them, then shot them. Nothing about the shooting as recounted by Morales suggested he should be considered a sympathetic figure or that he acted in self-defense.” (People v. Cervantes, supra, 118 Cal.App.4th at p. 175.) Even though Morales said that Cervantes shot the first male it was incriminating to Morales because Morales was acting in concert with Cervantes. (Id. at p. 176.)
The appellate court in Cervantes agreed with Greenberger that Bruton did not require Morales’s statement to be redacted to exclude all reference to the nondeclarants as long as the statement was disserving to the interests of the declarant (Morales). (People v. Cervantes, supra, 118 Cal.App.4th at pp. 176-177.) In continuing its agreement with Greenberger, the appellate court found that the declaration against interest may be admitted in a joint trial. (Id. at p. 177.)
We agree with the Greenberger/Fuentes/Cervantes line of cases. We must now determine if Garcia’s statement to Torres was properly admitted as a declaration against interest. There is some disagreement as to whether the appropriate standard of review for this question is abuse of discretion or de novo review. (People v. Cervantes, supra, 118 Cal.App.4th at pp. 174-175.) Because the result would be the same utilizing either standard, we need not resolve this question at this time.
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 the declarant is unavailable as a witness and 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.”
Although Santana attacks the credibility of Torres in his discussion of this issue, the credibility of the in-court witness is not a proper ground for refusing to admit evidence offered under the hearsay exception for declarations against interest. (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) “A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.] To determine whether the declaration passes the required threshold of trustworthiness, a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.]” (Id. at p. 607.) The reason behind the creation of the declaration against penal interest exception is that “a person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against interest.” (People v. Spriggs (1964) 60 Cal.2d 868, 874.)
Here Garcia was clearly unavailable as a witness because he chose not to testify at his own trial. Mendoza does not dispute that Garcia’s statement was in general against his interest; he argues that certain portions of it were not specifically disserving to his (Garcia’s) penal interests and/or placed Garcia in a more sympathetic light and should have been excluded. In particular, Mendoza points to Garcia’s statements that Mendoza thought up the plan and recruited others, Mendoza was in charge and told Garcia what to do, Mendoza was the one with the problem with the victim, and Mendoza fired first as portions that should not have been admitted. Mendoza argues that Greenberger is no longer good law to the extent it found admissible those portions of a declaration against interest that tended to shift blame to others or put the declarant in a more sympathetic light.
While we have found that Greenberger is still valid law, we do agree with Mendoza to the limited extent any of Garcia’s statements were not particularly disserving to Garcia; that portion would not be properly admitted as a declaration against interest. In Williamson v. United States (1994) 512 U.S. 594, the court considered the federal equivalent of the hearsay exception for declarations against penal interest. The Williamson court acknowledged that the rule “does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.” (Id. at pp. 600-601.) But a statement containing activities of other identified perpetrators may be found to be inculpatory to the declarant. “Even statements that are on their face neutral may actually be against the declarant’s interest. ‘I hid the gun in Joe’s apartment’ may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. ‘Sam and I went to Joe’s house’ might be against the declarant’s interest if a reasonable person in the declarant’s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam’s conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant’s interest.” (Id. at p. 603.)
With the exception of Garcia’s statement to Torres that Santana was afraid and the other perpetrators let Santana out of the car after the killing, we find that Garcia’s entire statement to Torres was particularly disserving to Garcia’s penal interest, including those portions that implicated Mendoza and Santana.
Garcia admitted to Torres that he participated with others in the initial kidnapping of the victim, the captivity and beating of the victim at Rufer’s home, and the killing of the victim. Garcia admitted that he shot at the victim and was armed throughout the encounter. Garcia set forth the locations of the activities. Garcia told Torres that they used Mendoza’s car and that the series of criminal activities were carried out by him in the company of Mendoza, Santana, and Pelon. Although Garcia portrayed Mendoza as the person somewhat in charge of the initiation of the incidents, Garcia placed himself in the thick of all crimes as an active participant and did not minimize his role in the activities such that his statements were not particularly disserving to him. Nothing about these incidents as recounted by Garcia suggested that he should be considered a sympathetic figure. Furthermore, by naming his associates, Garcia implicated himself even further. Because the activities were witnessed by many others (at the original kidnapping sight and at Rufer’s home), by naming his coparticipants who might be identified by witnesses, Garcia was linking himself directly to the others. In addition, by specifying that they rode in Mendoza’s car, Garcia tied himself to the vehicle that transported the bloodied victim and was seen by others. Again, this was clearly disserving to Garcia’s penal interest.
We find that Garcia’s declaration, including those portions implicating Mendoza and Santana, was against Garcia’s penal interest. When the trial court ruled on the admissibility of Torres’s testimony, it had before it a transcript of Torres’s interview with the prosecutor and also reviewed Torres’s preliminary hearing testimony. We do not find anything in the record demonstrating that these transcripts were admitted into evidence. Furthermore, several of the particular statements of Garcia now complained of (Garcia said that Mendoza thought up the plan and recruited others, Mendoza was in charge and told Garcia what to do, Mendoza was the one who had a problem with the victim) were not testified to at trial by Torres and were not before the jury. Thus, even if the trial court may have erred in not redacting portions of the statements implicating Mendoza, those portions of the statements were never in evidence before the jury and could not have harmed Mendoza or Santana.
The testimony that Santana was afraid and got out of the vehicle was elicited from Torres by Santana’s attorney on cross-examination. He cannot complain of it now. In any event, other evidence had already implicated Santana as present at the three separate crime scenes; evidence that he got out of the vehicle and was afraid could only inure to his benefit.
As the final test to admissibility we must consider whether Garcia’s statement to Torres was “sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603, 611.) As previously set forth, in making this determination we must consider the words uttered, the circumstances under which the declaration was made, the declarant’s possible motivation, and the declarant’s relationship to the defendant.
Garcia’s statement was made to Torres, a friend he had known for over 10 years and someone he frequently talked to, in a noncoercive atmosphere. Garcia summoned Torres to his room and wanted to talk. His statement to Torres was spontaneous. Contrary to Mendoza’s assertion, we see nothing in the statement of Garcia that attempts to shift blame or curry favor. His statement implicated himself as a major participant in a series of very serious crimes. The statement was made shortly after the crimes occurred and before anyone had been arrested or suspected. We believe that there were sufficient indicia of reliability such that the statement was sufficiently reliable to warrant its admission.
II. Testimonial Character of Garcia’s Statement
On cross-examination, Torres disclosed more details about his deals with the prosecution. He was arrested on May 25, 2001, with a pound of methamphetamine. He reached a plea agreement in April of 2002. He pled guilty to possession of methamphetamine with the agreement that he would receive no more than 16 months in prison. Between the time of his plea and before sentencing, Torres was cooperating with law enforcement to bring them information in the hopes that his sentence would be less than 16 months. His sentencing hearing was continued on a monthly basis. Torres kept asking for more time to gather information. He had not found any information to pass on to law enforcement by October of 2002.
The People had not previously disclosed that Torres was cooperating with law enforcement to collect criminal information in the hope that he would receive a reduced sentence. The court granted the request by defendants to instruct the jury about the People’s failure to disclose this information.
Mendoza and Santana filed motions for new trial, claiming that Garcia’s statement to Torres was a testimonial statement because Torres was working for law enforcement at the time the statement was gathered and thus the evidence was inadmissible under the recent United States Supreme Court case of Crawford v. Washington, supra, 541 U.S. 36. The trial court agreed that there was not complete disclosure as to what the role of Torres was during the time he made contact with Garcia, but the court did not see a connection so close between Torres and law enforcement as to suggest that Torres went at the direction or guidance of law enforcement to speak to Garcia. The court found that the new disclosures regarding the relationship between Torres and law enforcement did not change the court’s view with regard to the applicability of Crawford. The court denied the motion for new trial.
Prior to Crawford, out-of- court statements of an unavailable witness could be admitted at trial if they bore adequate indicia of reliability. “Crawford abandoned this approach to such statements, however, and held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59.)
“Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial. ‘[T]he court reasoned [that] the clause's express reference to “witnesses” reflects its focus on those who “‘bear testimony,’” which is “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”’ (Crawford, supra, 541 U.S. 36, 51, quoting Webster, An American Dict. of the English Language (1828).) “An accuser who makes a formal statement to government officers,” said the court, “bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (541 U.S. at p. 51.) Thus, the court explained, the constitutional text reflects an “especially acute concern with a specific type of out-of-court statement.” (Ibid.)’ (People v. Cage (2007) 40 Cal.4th 965, 977-978.)” (People v. Geier (2007) 41 Cal.4th 555, 597.)
Santana claims that Garcia’s statement to Torres was testimonial and it should not have been admitted pursuant to Crawford. Thus, the trial court erred in admitting the statement and in denying the motion for new trial. In particular Santana argues that the statement of Garcia was clearly testimonial because it would certainly be anticipated that his statement would be available for use in a prosecution.
Santana goes to great length in outlining the prosecutor’s failure to disclose the facts behind Torres’s relationship with law enforcement and argues that this was egregious conduct. The background of how this evidence came to light in the trial court has no bearing on the question of whether the statement was properly admitted and whether the statement is or is not testimonial.
Mendoza argues that the evidence established that Torres was acting as an agent of the police at the time Garcia confessed to him; thus the trial court erred under Crawford when it admitted this testimony. Mendoza contends Torres, acting as a government agent, elicited the statement for the purpose of prosecution. Relying on this court’s opinion in People v. Sisavath (2004) 118 Cal.App.4th 1396, Mendoza asserts that it is not necessary that the interrogator be a law enforcement officer so long as the police have some involvement for the purpose of prosecution and the government may not insulate itself from the restrictions imposed by the Constitution by using the stratagem of directing a civilian to engage in the prohibited conduct.
Mendoza cites to People v. Wahlert previously published at (2005) 130 Cal.App.4th 709 to support his position. Wahlert is no longer published and cannot be utilized as citable authority.
In People v. Sisavath, supra, 118 Cal.App.4th 1396, Victim 2 told her mother that defendant had touched her private parts. The mother questioned Victim 1 and she made similar statements. The mother called police and defendant was arrested. Defendant was charged with numerous sex crimes against Victim 1 and Victim 2. At trial it was determined that Victim 2 was not competent to testify. The People sought to admit two of Victim 2’s out-of-court statements. The first was a statement by Victim 2 to the officer who responded to the mother’s call to the police. The second was a videotaped interview with a trained interviewer at a Multidisciplinary Interview Center (MDIC). The court admitted this evidence. (Id. at pp. 1398-1400.)
Defendant Sisavath argued on appeal that these statements were erroneously admitted. During the pendency of his appeal, the Crawford decision was announced. In Sisavath, we determined that both statements of Victim 2 violated the confrontation clause because they were testimonial. In determining that the MDIC interview was testimonial we looked to the facts that the interview took place after the complaint and information had been filed and the preliminary hearing had been held. “The deputy district attorney who prosecuted the case was present at the interview, along with an investigator from the district attorney’s office. The interview was conducted by a ‘forensic interview specialist.’” (People v. Sisavath, supra, 118 Cal.App.4th at p. 1402.)
We found that the pertinent question was “whether an objective observer would reasonably expect the statement to be available for use in a prosecution.” (People v. Sisavath, supra, 118 Cal.App.4th at pp. 1402-1403.) Under the circumstances we found that “it does not matter what the government’s actual intent was in setting up the interview, where the interview took place, or who employed the interviewer. It was eminently reasonable to expect that the interview would be available for use at trial.” (Id. at p. 1403.)
We find the circumstances of the conversation between Torres and Garcia to be very different from the circumstances in Sisavath. Garcia summoned his long-time acquaintance, Torres, to his hotel room. While they consumed methamphetamine and beer, Garcia told Torres about the murder. Although Torres had a case pending sentencing for several months and was looking for any information about any criminal activity to report to law enforcement in the hope that he would receive a lighter sentence, it would be erroneous to characterize every conversation that Torres had with anyone involving any criminal activity after his plea and before his sentencing as testimonial. This is precisely what Mendoza and Santana ask us to do. The question is not as simple as whether an out-of-court statement will be available for trial but whether it is reasonable to expect that it would be available for trial. An objective observer would not reasonably expect the informal, unplanned, casual, voluntary conversation between long-time friends consuming alcohol and methamphetamine in a hotel room to be available for use in a prosecution.
Since Sisavath was decided, the California and United States Supreme Courts have issued opinions further refining the definition of what is and what is not testimonial post-Crawford. In Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266] the United States Supreme Court discussed the admissibility of 911 calls. The court enunciated the following general principle: “Statements are nontestimonial when made in the course of police interrogation objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p.___[126 S.Ct. at pp. 2273-2274], fn. omitted.)
Thus Davis confirmed that in determining if a statement is testimonial one must look at the circumstances objectively. In People v. Cage, supra, 40 Cal.4th 965 the 15-year-old victim did not testify. The prosecution relied on a statement the victim made to a sheriff’s deputy and a statement the victim made to a treating physician. The California Supreme Court determined that the statements to the deputy were testimonial because the “statements [to the deputy at the hospital and later at the station] were given as an analog of testimony by a witness--they were made in response to focused police questioning whose primary purpose, objectively considered, was not to deal with an ongoing emergency, but to investigate the circumstance of a crime, i.e., ‘to “establish[h] or prov[e]” some past fact.’ [Citation.].” (Id. at p. 970.)
The California Supreme Court in Cage derived the following basic principles from Davis: “First, … the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
The Supreme Court found that the victim’s statement to the physician was not testimonial because “the physician’s general question [‘what happened’?], objectively considered, was not to obtain proof of a past criminal act or the identity of the perpetrator, for possible use in court, but to deal with a contemporaneous medical situation that required immediate information about what had caused the victim’s wound.” (People v. Cage, supra, 40 Cal.4th at p. 970.) “The question and answer occurred in a private conversation between a patient and his doctor, by which both presumably sought only to ensure John’s proper treatment.” (Id. at p. 987.) “The focus of both Crawford and Davis is on formal and solemn accusatory statements made to law enforcement agents in the context of criminal investigations or inquiries.” (Ibid.)
The court in Cage commented on the Sisavath decision post-Davis. “[I]n Davis the United States Supreme Court has since refined the definition of testimonial statements. But the statement at issue in Sisavath might well be considered testimonial even under the more recent formulation. It was made in a formal setting, after criminal proceedings had commenced. It was elicited by a trained interviewer, in the presence of law enforcement personnel, with the manifest object of obtaining criminal evidence. The MDIC agent was simply acting as a law enforcement interrogator in the circumstances.” (People v. Cage, supra, 40 Cal.4th at p. 899.)
Most recently in People v. Geier, supra, 41 Cal.4th 555, Dr. Cotton testified about a DNA analysis. Dr. Cotton did not run the DNA tests himself. The defendant argued at trial that the test results were inadmissible unless the person who performed the test testified. The trial court found that the results were a business record and admitted Dr. Cotton’s testimony. On appeal, the defendant relied on Crawford and argued that Dr. Cotton’s testimony violated his right to confrontation. In particular, he argued “that the DNA report that was the basis of Dr. Cotton’s testimony was a testimonial statement because it was a statement ‘made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ [Citation.]” (Id. at p. 598.)
The California Supreme Court rejected the defendant’s argument. For purposes of deciding whether the DNA report was testimonial, the court formulated a three-part test. “[A] statement is testimonial if (1) it is made to a law enforcement officer of by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial.” (People v. Geier, supra, 41 Cal.4th at p. 605.)
Under the first criterion the court stated that the use of the term “agent” designated law enforcement officers and those in an agency relationship with law enforcement. For the third criterion the court elaborated that the “‘proper focus [about whether an out-of-court statement is testimonial] is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial.’ [Citations.]” (People v. Geier, supra, 41 Cal.4th at p. 605.) The court confirmed that a statement is not testimonial in every case where a declarant reasonably expects that it might be used prosecutorially. (Id. at p. 607.)
The court found that the DNA report was not testimonial primarily because it constituted “a contemporaneous recordation of observable events rather than the documentation of past events.” The court rejected prior cases that held under Davis that “laboratory reports were testimonial because their primary purpose was to establish a fact at trial regarding the defendant’s guilt of the charged crime. [Citations.] This reading of Davis equates a testimonial statement with any statement that it might reasonably be anticipated will be used at trial, an approach that … Davis rejects. [Citation.] In our view, under Davis, determining whether a statement is testimonial requires us to consider the circumstances under which the statement was made.” (People v. Geier, supra, 41 Cal.4th at p. 606-607.)
The more recent tests, as outlined above, do not aid defendants’ positions, and in fact are further support for our earlier finding that Garcia’s statement to Torres was not testimonial. The statement of Garcia to Torres did not occur under circumstances that had earmarks of solemnity and purpose characteristic of testimony. Defendants’ argument shows only a mere chance that the statement might be used at trial. Such a chance is not enough to transform the statement into a testimonial statement. Furthermore, while Torres was acting under the hope that he might gather some information about a case to aid him in receiving a reduced sentence, his activities did not rise to the level of an agent of law enforcement. In fact, it was Garcia who summoned Torres to his room, and Garcia then started talking spontaneously. Torres was not given any concrete promises for any evidence he might produce, he was not authorized to act on the part of law enforcement, he was not given power to act on the part of law enforcement, he was not representing law enforcement, and his actions were not governed by any type of particulars set forth by law enforcement. Such a loose “relationship” clearly does not rise to the level of an agency.
The statement of Garcia to Torres was not testimonial and was properly admitted (with the one exception previously discussed) against all the defendants as a declaration against interest.
III. Denial of Severance for Mendoza and Santana Based on Garcia’s Statements
Santana contends the trial court abused its discretion when it denied his motion to sever his trial from that of Garcia and Mendoza. He argues Garcia’s statement to Torres was inadmissible against Santana and, even if the statement was otherwise admissible against him, Garcia’s confession was unduly prejudicial against Santana. In addition, he claims the evidence against him was weak as compared to his codefendants. In particular, he argues there was no physical evidence connecting him to the crime as there was with the other two defendants and he did not make any statements in which he acknowledged participation in the crimes.
Mendoza also claims the trial court abused its discretion when it denied his motion to sever his trial from Santana and Garcia. Mendoza argues the trial court erred in denying severance based on the statement of Garcia as testified to by Torres. In addition, Mendoza argues he was prejudiced by the association with Garcia because of Garcia’s confession.
Mendoza argues the trial court erred in denying his motion to sever based on the testimony of Sylvia Brown offered against Santana during trial. We will discuss this severance issue separately.
Each of the defendants made multiple severance motions before and throughout trial. The trial court denied all of their motions.
“[Penal Code] section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ [Citations.] Joint trials are favored because they ‘promote economy and efficiency’ and ‘“serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.”’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims,’ as here, the court is presented with a ‘classic case’ for a joint trial. [Citation.]
“The court’s discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in People v. Massie (1967) 66 Cal.2d 899, 917, such that severance may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ … Another helpful mode of analysis of severance claims appears in Zafiro v. United States [(1993)] 506 U.S. 534. There, the high court, ruling on a claim of improper denial of severance under rule 14 of the Federal Rules of Criminal Procedure, observed that severance may be called for when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ [Citations.] The high court noted that less drastic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice. (Zafiro, supra, at p. 539.)” (People v. Coffman (2004) 34 Cal.4th 1, 40.)
“A trial court’s denial of a motion for severance ‘may be reversed only if the court has abused its discretion. [Citations.] An abuse of discretion may be found when the trial court’s ruling “‘falls outside the bounds of reason.’” [Citation.]’ [Citation.]” (People v. Ramirez (2006) 39 Cal.4th 398, 439.)
We have already explained why the statement of Garcia to Torres was properly admitted against all defendants (with the exception of the one portion as previously discussed). Thus the primary basis for the severance argument fails. In addition, we do not find any undue prejudicial association with Garcia. Garcia’s properly admitted confession directly implicated Santana and Mendoza. Additionally, Santana and Mendoza were each identified by more than one eyewitness as participants in the criminal activities. Neither Mendoza nor Santana was marginally involved as compared with Garcia. Although Garcia and Mendoza appeared to have had a more active role than Santana, Santana was still a major participant.
The defendants were charged with committing common crimes involving common events. Each defendant was a major participant. The trial court did not abuse its discretion when it denied the severance motions of Mendoza and Santana based on their association with Garcia.
IV. Error in Admitting Testimony of Fierros in Joint Trial
Prior to trial, the People sought a preliminary ruling that would allow admission of evidence from Fierros regarding his interactions with Garcia and Mendoza. The court discussed the issue several times. Originally, the issue was more complex because Fierros had not been located and the concern was whether his prior statements to police could be admitted in his absence. Once Fierros was located to testify, the issue was again discussed. Santana objected to the testimony on confrontation and other grounds because he was not a part of any of the conversations Fierros had with Garcia and Mendoza and Garcia and Mendoza were not available as witnesses against him, thus their statements would be hearsay.
Santana objected to the introduction of the statement Garcia made to Fierros asking Fierros if he found out about the murder from Santana. This statement was made while Fierros was wearing a wire at the request of the police department. After a lengthy discussion, the People agreed to not ask Fierros any questions about what Garcia said about Santana or Mendoza. Regarding the statement Garcia made about getting rid of the guns, Santana suggested that the court instruct Fierros to testify that Garcia said he, rather than “they,” got rid of the guns. The court thought an instruction limiting the admissibility of this evidence to Garcia would cure any harm from the gun disposal statement. The parties continued to discuss the matter. Fierros was brought into court and, outside the jury’s presence, the court instructed him to not testify to anything that Garcia told him about Mendoza or Santana.
Fierros testified Mendoza is his cousin, he is related to Santana, and he knows and thinks he is related to Garcia. On October 5, 2002, Fierros went to the Atwater Police Department to make a report in person, having called earlier on October 3 and 4 to make a report. He told the police that Garcia had tried to take his child and that Mendoza had called him and demanded that he provide him with $50,000. Fierros told the police that Mendoza said he had killed someone in Merced and needed the money to get out of town. Fierros laughed when Mendoza said he was going to kill him. Fierros said that when Mendoza called him the next day and repeated his demand he took him more seriously. Fierros did not go to the police until “they” attempted to take his child.
Fierros left the police department after making his report. Later that day, Fierros called 911 because Mendoza was following him and he was afraid. Mendoza was taken into custody. Officers found a loaded firearm under the passenger seat of the car he had been driving.
Fierros talked to Mendoza at the direction of the police department. When Fierros asked Mendoza what he had done in Merced, Mendoza replied, “That’s nothing.” Fierros told Detective Dover that Garcia mentioned that “they” had killed someone. Fierros agreed to wear a wire for the police and talk to Garcia. Fierros asked Garcia if the guns had been disposed of. Garcia said “they” had thrown them away.
When Fierros was questioned at trial about conversations he had with Garcia, Santana objected and the court said, “if there is evidence, this evidence would appear to be admissible against Mr. Garcia.” Later during Fierros’s testimony, Santana made a continuing objection to this testimony being introduced against him because it had nothing to do with him. The court responded, “[u]nderstood.” When questions were being asked of Fierros about his conversations with Mendoza, Santana objected and the court said, “This is evidence that is admissible against Mr. Mendoza.”
Santana contends that it was Aranda/Bruton error to admit statements made by Mendoza and Garcia to Fierros against him (Santana). He asserts that although he was not implicated by name, the inference was strong that he was included by implication in the statements made by Garcia and Mendoza when they talked about “they” did something. In particular Santana argues he was directly implicated when Garcia said “they” had killed someone and “they” had gotten rid of the gun. He complains he was also implicated by Fierros’s testimony that he went to the police when “they” threatened to kidnap his child. He claims that his codefendant’s statements as testified to by Fierros incriminated him and his confrontation rights were denied by the admission of this testimony.
We need not determine if Fierros’s testimony was improperly admitted against Santana because error, if any, was harmless. We will assume the purported error is a constitutional error and apply the Chapman test (Chapman v. California (1967) 386 U.S. 18).
We find, beyond a reasonable doubt, no reasonable probability of a different outcome absent the admission of this evidence. The entire focus of Fierros’s testimony was what Garcia and Mendoza told him and their particular actions. Santana was never mentioned except that Fierros said he was related to him. The brief references to “they” were not particularly incriminating to Santana because the jury was well aware that more than two people and at least four people were involved in the kidnap, torture, and murder of the victim. In addition, during the testimony the court on more than one occasion told the jury (after objections by Santana) that the testimony had nothing to do with Santana. There was nothing in the “they” testimony that had any linkage to Santana. Santana’s linkage to Garcia and Mendoza was provided by the testimony of eyewitnesses stating that Santana was part of the group, not to mention Garcia’s properly admitted statement to Torres.
V. Ramifications from Fierros’s Refusal to Complete his Testimony
On cross-examination, Fierros began to change his story. He said that Mendoza wanted the money for Pelon’s bail. He testified that he made up stories for the police because he was concerned about his child and he wanted to get Garcia and Mendoza off the street. When he first called the police to tell them that someone had tried to take his child, the officer told him he was not a babysitter and he should make his report in person. Fierros was angry enough with Garcia to tell lies about him and to kill him. Fierros wanted Garcia arrested and off the streets. Fierros told police that Mendoza’s car might be found in Oakland, but Fierros did not drive the car there. Fierros testified that Garcia did not confess a murder to him, but perhaps he gave that impression to the police because he needed the police to get Garcia locked up. Fierros testified that Mendoza never asked him for money because of a murder. Fierros was mad at Mendoza and wanted him off the streets. Fierros said he was telling the truth now in court.
On redirect examination, Fierros starting repeating the version of events he told on cross-examination. He testified that Mendoza did call him and ask him for money but Mendoza did not say he was going to kill Fierros nor did Mendoza tell Fierros he killed a man in Merced. Fierros made up a lot of things he told police with the purpose of getting Mendoza and Garcia off the streets.
At this point in the proceeding, and in front of the jury, the prosecutor asked to question Fierros with leading questions because he was now a hostile witness. Counsel for Garcia stated that perhaps counsel should be appointed for Fierros. The prosecutor responded that he thought counsel should be appointed, “because this is getting into perjury territory.” The district attorney mentioned perjury again.
A recess was taken until the next morning. The court memorialized that a discussion had occurred in chambers and at this point in time it was the court’s understanding that Fierros did not wish to answer any more questions on Fifth Amendment grounds. The court questioned Fierros and he said he did not wish to answer any more questions on Fifth Amendment grounds, “otherwise I would get in trouble.” The court told the jury that Fierros has exercised his Fifth Amendment right and was not going to testify anymore.
Shortly thereafter the following occurred:
“MR. PRO: [Counsel for Garcia] While we’re on the record also, we had talked in chambers a little bit, but I would like to put on the record my objection to the request to have the entire testimony stricken because he is refusing to testify further.
“THE COURT: I could take that under advisement, Mr. Pro. I’m looking for some authority there.
“MR. PRO: I understand that.
“THE COURT: I assume that at the time you’re able to research that you’ll present that to me and the court can make a ruling.
“MR. PRO: I just wanted to make sure that I got that on the record.”
Officer McKnight was called to testify regarding Fierros’s report to him at the police station. His testimony was for impeachment to show inconsistent statements of Fierros at trial and in the report.
Garcia argues it was error to not strike Fierros’s testimony after he refused to answer any further questions. He claims he was not provided a reasonable and full measure of cross-examination but acknowledges that some “meager” cross-examination occurred. He contends that the error in refusing to strike the testimony was compounded when Officer McKnight was permitted to testify to Fierros’s state of mind and prior inconsistent and consistent statements.
“Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witness’s testimony on direct. As stated in Witkin: ‘In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.]’ [Citation.] This rule applies even ‘where the refusal to answer is based on a valid claim of privilege.’ (Ibid.) Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf. Striking a witness’s entire testimony is, of course, a ‘drastic solution,’ only to be employed ‘after less severe means are considered.’ [Citations.]” (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735-736, fn. omitted.)
On appeal, Garcia characterizes the above quoted exchange between the court and his counsel as a request that Fierros’s entire testimony be stricken. We read the statement by Garcia’s counsel quite differently. Our interpretation of the record is that Garcia’s counsel objected to a request to have the entire testimony stricken. Thus it seems that at trial Garcia’s counsel wanted Fierros’s testimony to remain, yet Garcia argues the opposite on appeal. This misinterpretation of the record is fatal to Garcia’s argument. He did not seek to have Fierros’s testimony stricken; he sought to have it remain as part of the record.
Even if we were to conclude that Garcia’s interpretation of the objection was the correct one, his argument would still fail. At the time the “objection” was lodged, the trial court explained that it was looking for authority on point. The court stated that when Garcia’s counsel produced authority, then the court would make a ruling. Clearly, any ruling by the trial court was deferred. Garcia’s failure to renew his objection and obtain a ruling is also fatal to his claim on appeal.
“‘[A] specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’” (People v. Partida (2005) 37 Cal.4th 428, 434.) The court did not rule on the objection and left the issue open. Because there was no further discussion and no ruling on the matter, it was not properly preserved.
We additionally note that all three defendants were given the full opportunity to cross-examine Fierros. The redirect examination was extremely short before Fierros refused to answer more questions. What occurred here is similar to cases where the trial court restricts cross-examination in some way. In those cases it is held that the defendant must show that “the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation].” (People v. Frye (1998) 18 Cal.4th 894, 946.) This is not a case where a witness refused to answer any questions on cross-examination or where cross-examination was prejudicially limited.
The trial court was not properly requested to strike Fierros’s testimony in its entirety. Garcia’s argument fails. Mendoza joins in this argument. His assertion fails for the same reason that it fails for Garcia.
VI. Admission of Garcia and Mendoza’s Van Conversation
The trial court admitted the tape of the conversations that occurred in the van when the three defendants were being transported. The initial portion of the conversation was between Mendoza and Garcia and occurred before Santana entered the van. Santana objected to the admission of this portion on the conversation. He claimed that the admission of the conversation between Mendoza and Garcia would violate Crawford (Crawford v. Washington, supra, 541 U.S. 36) and the confrontation clause; in addition he argued that a limiting instruction would not solve the prejudice to him. The trial court agreed to redact certain portions of the transcription but admitted portions of the conversation between Garcia and Mendoza, as well as the conversation that occurred when all three defendants were in the van. The court agreed that the initial portion of the conversation in the van was not admissible against Santana and instructed the jury accordingly.
Santana contends that the admission of this evidence violated his right to confrontation and the trial court’s limiting instruction to the jury was insufficient to remedy the problem. He argues that the conversation between Garcia and Mendoza contained incriminating references to him and such incriminating references violated the principles of Aranda/Bruton. Santana points to those portions of the conversation that specifically mentioned him by name and adds that having been specifically mentioned by name he was linked to all of the “us” and “we” portions of the conversation.
Respondent argues that the van conversations were not testimonial and thus Crawford does not apply. In addition, respondent contends the statements made by Garcia and Mendoza in the van were declarations against interest and thus satisfied the trustworthiness standard and were admissible.
Respondent does not discuss how the statements in the van implicating Santana were also against the interests of Garcia and Mendoza such that they should be properly admitted as declarations against interest. In his reply brief Santana argues that the fact that Garcia and Mendoza implicated themselves does not act as a declaration against Santana’s interest.
Although the issue was not addressed in the trial court in this particular manner, we believe that our lengthy discussion and analyses set forth in parts I and II above provide the framework for our discussion of this piece of evidence.
To start, we find that the statements were not testimonial. Although law enforcement placed the listening devices in the van, law enforcement had no involvement in initiating the conversation and had no participation in the van conversation other than providing the opportunity and taping it. The statement was not made to a law enforcement officer or agent; it was a conversation among the defendants that they initially believed was private. Such a statement is not testimonial.
The Aranda/Bruton rule applies here only if the statements of Garcia and Mendoza were inadmissible against Santana. “The Aranda/Bruton rule bars admission in a joint trial of one defendant’s out-of-court confession that powerfully and facially incriminates a codefendant, even if the court instructs the jury to consider the confession only against the declarant. [Citations.] The rule recognizes the jury may struggle to obey such a limiting instruction when both defendants are in the courtroom, tried for the same crime, and an unfair danger exists the jury will improperly consider the hearsay confession against the non-declarant codefendant. [Citation.] To avoid this danger, the court must either sever the trials or redact the statement to avoid references to the codefendant. [Citation.] The rule thus presumes the statement is an admissible admission by the declarant and inadmissible hearsay against the codefendant. [Citation.] On the other hand, if the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction. [Citation.]” (People v. Smith (2005) 135 Cal.App.4th 914, 921-922.)
Santana does not contend that the statements of Garcia and Mendoza in the van were not declarations against interest; he argues they were not declarations against Santana’s interest and were thus not admissible. As discussed in part I, the test is not whether the statements are against Santana’s interest, but whether they are against Garcia’s and Mendoza’s interests. If the van conversations were declarations against Garcia’s and Mendoza’s interests, then they could properly be admitted against Santana. We must determine if those portions of the statements now complained of were particularly disserving to the interests of the declarants, Garcia and Mendoza. If those portions of the conversation regarding Santana were not particularly disserving to Garcia or Mendoza, then those portions were not declarations against their interests and could not be properly admitted against Santana. (People v. Cervantes, supra, 118 Cal.App.4th at pp. 176-177.)
Because Santana does not claim that the statements in general are not declarations against interest as to Garcia and Mendoza, we need not engage in the analysis necessary to determine if the statements are trustworthy, etc.
In the van, Garcia told Mendoza that officers asked him if he knew “Reynoso” (Santana) and “Eulalio” (Pelon). Later in the conversation Mendoza said, “Well, [let’s] say this, that we don’t know anything and…” Garcia said that is what he had told them. Mendoza replied they would get a lawyer for “who ever they find the most fingerprints.” Garcia then said, “[w]ell it’s needed.”
The conversation continued as follows:
“[Garcia] Well, it’s needed. And um … is that … Another one that’s talking is ‘Tu.’ It’s ‘Tu.’ ‘Queen,’ Well like two day here … and, and Rudy too. The one who was with Agustin, and I think that Agustin is (Unintelligible) is doing well with him.
“[Mendoza] And where’s he right now?
“[Garcia] Well, then why don’t they send him with us?
“[Mendoza] Eh, the same as … They think it’s us that shit.
[Laughs]
“[Garcia] They’re saying that it was me because they saw me with the ha, ha, ha, with the gun, and that they got it from you, that they got it from you in the car. I said, well my gun …)
“[Mendoza] They got my fourty [sic] five.
“[Garcia] Eh, I told them well …
“[Mendoza] Mine.
“[Garcia] They got the gun from me when I was going, when they got me. Well, they’re saying that they also got that coman gun from you when they got you as well. I told them, ‘There’s lots of guns.’
“[Mendoza] Ha, ha, ha. Um …
“[Garcia] Well, they told me that they know who did it, but I told them … they told me that they have proof that I know who’s involved.
“[Mendoza] Who saw us?
“[Garcia] I told them, well if you have proof, well show me.
“[Mendoza] Who saw?
“[Garcia] Nobody. Well we haven’t done anything, ha, ha, ha.
“[Mendoza] Um.
“[Garcia] Why should one pay for crimes that are not.
“[Mendoza] I don’t know what’s up.
“[Garcia] Yea.
“[Mendoza] Yea … you’re gaining weight.
“[Garcia] No green. We’re [going] on our fourth or sixth month, right?
“[Laughing]
“[Mendoza] No … Um … who in the hell drove that car? (Unintelligible.)
“[Garcia] No, Lupe didn’t have it. They all send me to hell. I don’t know where my brother went to go live maybe he went to the end of the world.
“[Laughs]
“[Mendoza] Well let’s get it. (unintelligible)
“[Garcia] It’s necessary because … because even though there … you see Reynoso said that he was going to wash his hands.
“[Van door opens and Henry Santana enters van.]”
We find nothing incriminatory against Santana in the “we” and “us” statements. The conversation was between Garcia and Mendoza and the “we” and “us” were related to the two of them. Even if the “we” and “us” portions might suggest the involvement of others than Garcia and Mendoza, the jury was aware that at least four people were involved in the crime. Thus the “we” and “us” did not contain any particularized references to Santana.
There was nothing particularly prejudicial to Santana about Garcia’s statement that police asked him if he knew Santana or Pelon. Clearly, the police were interested in Santana, and clearly Santana knew Garcia, as evidenced by their exchanges after Santana entered the van. The fact that Garcia stated to Mendoza that the police asked him if he knew Santana and Pelon was cumulative to properly admitted evidence about their relationship.
Garcia’s statement to Mendoza regarding who was talking was followed by his comment that, “[t]he one who was with Agustin [Santana], and I think Agustin is (Unintelligible) is doing well with him.” While this statement implicated Santana to a certain extent, it also was particularly disserving to Garcia because it tied him into knowing who was talking and knowing that Santana was “doing well with him.” This knowledge and association was particularly disserving to Garcia and thus was properly admitted as a declaration against interest.
The last mention of Santana was when Garcia said “Reynoso [Santana] said that he was going to wash his hands.” This statement does not appear to be particularly disserving to Garcia and should not have been included as a declaration against interest. While the reference to Santana inferentially tied him into a relationship with Garcia, this relationship was established by other evidence. Furthermore, the statement he was going to wash his hands is so ambiguous that its admission could not have prejudiced Santana.
Finally, even though some of the van conversation between Garcia and Mendoza was admissible against Santana as declarations against Garcia and Mendoza’s interest, the jury was instructed not to consider these statements against Santana and those statements that were made inferentially implicating Santana were not powerfully and facially incriminating to Santana. Error, if any, in admitting the van conversation was harmless.
VII. Admission of Evidence that Santana Attempted to Bribe Sylvia Brown
When Ramon Medina testified, he was asked on cross-examination if he had told Sylvia Brown that he had set up Santana. Ramon replied that he had not. Based on this cross-examination, the district attorney’s office investigated calls made by Sylvia’s husband, John Brown. John was a cellmate of Santana’s in jail. As a result of this investigation, Sylvia testified at trial that she had agreed to Santana’s request to testify that Ramon had told her that he lied and set up Santana.
Mendoza and Garcia objected to the admission of this evidence and also requested severance. After numerous discussions on the record, the trial court admitted the evidence, denied the severance motion, and agreed to give an instruction to the jury limiting the consideration of this testimony to Santana only. Mendoza argued that a limiting instruction was not sufficient to limit the prejudice to him.
Mendoza argues the trial court erred in receiving this evidence at trial or, in the alternative, erred in denying his motion for severance. He agrees that the standard of review for both of his claims is whether the trial court abused its discretion. He argues that although the evidence was admitted only against Santana and the jury was instructed to consider it only against Santana, he was tainted by the prejudicial effect of this evidence. In particular he points out that the evidence against Santana was weaker; thus if jurors sensed that Santana was driven to this desperate ploy then there could not have been any serious question about Mendoza’s guilt. He further argues that Santana’s consciousness of guilt from this evidence tended to enhance the credibility of Torres and Ramon, the two main witnesses who incriminated Mendoza.
Garcia also argues that it was fundamentally unfair to deny his severance motion. He points to Sylvia’s testimony that she told Santana’s investigator that Ramon set up the “three” men in arguing that Santana’s extrajudicial statements and conduct unfairly implicated and prejudicially associated him.
Both Garcia and Mendoza argue that the prosecutor’s argument to the jury enhanced the prejudice. In particular they focus on the prosecutor’s statements that Santana’s bribery is “big ticket stuff,” “strikes at the heart of our criminal justice system,” “speaks volumes,” and that Santana sought to “pervert the legal process.”
“[D]enial of a severance motion is generally reviewed for an abuse of discretion. [Citation.] The reviewing court assesses the ruling based on the record before the trial court at the time. [Citation.]” (People v. Lewis (2006) 39 Cal.4th 970, 998.) “An abuse of discretion may be found when the trial court’s ruling “‘falls outside the bounds of reason.’” [Citation.]’ [Citation.]” (People v. Ramirez, supra, 39 Cal.4th at p. 439.) “[R]eversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]” (People v. Coffman, supra, 34 Cal.4th at p. 41.)
The California Supreme Court has questioned whether jointly tried defendants can mandate severance through their own misconduct during trial, without deciding one way or the other. (People v. Lewis, supra, 39 Cal.4th at p. 998.)
The defendants here were charged with identical crimes involving the same events and thus presented the classic situation in favor of a joint trial. Because there is a legislative preference for joinder, separate trials are usually only ordered “‘“in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.”’” (People v. Box (2000) 23 Cal.4th 1153, 1195.) The only factor relevant here is prejudicial association with codefendants.
The trial court was in a better position to rule on this severance motion than in the typical situation of the motion being made pretrial. The trial court ruled on this motion near the end of the prosecution’s case and thus had more knowledge and a better understanding of the evidence to gauge prejudicial association in light of all of the evidence already presented to the jury. At the time the motion was made, the evidence already presented in the trial against Mendoza and Garcia was very strong. This evidence included Garcia’s statement to Torres directly implicating all three defendants; Mendoza’s car, which contained blood of the victim as well as fingerprints of Garcia and Mendoza; eyewitness identification of Garcia by witnesses other than Ramon; Mendoza and Garcia’s incriminating conversation in the van, as well as the incriminating statements made when Santana entered the van; Mendoza’s and Garcia’s separate statements to Fierros that they had killed someone; and Mendoza’s and Garcia’s other activities with Fierros. At the time the severance motion was made, the prosecution had presented abundant independent evidence establishing the guilt of Mendoza and Garcia. Thus, any prejudicial association with Santana based on his effort to obtain a witness to commit perjury would have a minimal effect on Garcia’s and Mendoza’s cases in light of the already-presented strong evidence establishing their guilt. In addition, the court clearly instructed the jury that it could not use the evidence against Mendoza or Garcia. The evidence was not so prejudicial that jurors would not have been able to follow this instruction. The trial court did not abuse its discretion when it admitted the evidence and denied the motions for severance.
Although the prosecution used very strong language to describe Santana’s activities, the prosecutor limited his argument on this point to Santana. We find no additional prejudice from the prosecutor’s argument.
Finally, even if we were to conclude the trial court abused its discretion in denying severance, the independent evidence against Mendoza and Garcia, which we have just summarized, leads to the conclusion that the defendants have not demonstrated a reasonable probability of a more favorable outcome as to guilt had severance been granted. Reversal is therefore not required.
VIII. Conflict of Interest
After the incident involving the Browns and Santana came to light, counsel for Garcia disclosed that he (not personally but as a member of the public defender’s office) also represented John Brown, who was now a potential witness against Santana. Counsel for Santana disclosed that he represented Felipe Ruiz, who was a cellmate of Santana and Brown when the pertinent events took place.
The People sought to call John and Sylvia Brown as witnesses. The district attorney had reached an agreement with Sylvia regarding her proposed testimony. It was agreed that she would plead guilty to conspiracy to commit perjury in exchange for a low term sentence that would be suspended. She would receive jail time. The proposed sentence was in exchange for her truthful testimony at this trial.
Recognizing the dilemma, the court asked counsel for Santana and Garcia to consult the State Bar ethics hotline for guidance on the question of the potential conflicts. Santana’s counsel stated that he had not gone to talk to Ruiz because of the issue now before the court. The court ordered that no one was allowed to talk to Ruiz at this point in time: this ruling applied to defense counsel, the prosecution, and law enforcement. The People indicated that they had no intention of calling Ruiz as a witness. The district attorney said he would not bring up Ruiz. To this, Santana’s counsel stated he could not properly represent Santana without questioning Ruiz, but he could not question Ruiz because he represents him and Santana. Santana repeated this argument throughout the numerous discussions of this issue.
It was argued by the prosecution that if no information had been transmitted to Garcia’s attorney from John Brown that would impinge on the attorney’s representation of Garcia, then there should not be a problem. The court stated that it did not have a sufficiently convincing offer of proof that John was a necessary witness and was prepared to admit the testimony of Sylvia. Counsel for Garcia argued that if Sylvia were allowed to testify, then Garcia’s counsel would want to subpoena John and at that point he (Garcia’s counsel) would have to withdraw from representing Garcia in this case.
The court ruled that Sylvia’s testimony was admissible with an instruction limiting its use as against Santana only. Counsel for Santana and Garcia said they were going to have to subpoena John as a defense witness. The court responded that it would appoint counsel to represent John and would also appoint independent counsel for Ruiz.
Sylvia was called to testify outside the jury’s presence. After she testified, the court said it was going to admit Sylvia’s testimony and portions of the tape-recorded jailhouse telephone conversation. Sylvia testified in front of the jury.
John testified outside the presence of the jury and stated that he was going to exercise his right to remain silent. He was called in front of the jury and exercised his right to remain silent. The trial court then denied the motion of Garcia’s counsel to be relieved, finding that there was no conflict that necessitated relief.
Santana’s counsel continued his protestations and said he has not been able to talk to Ruiz or any other possible witnesses. The court stated that counsel had been appointed for Ruiz. The court gave Santana’s counsel permission to conduct a full investigation with the exception that he could not interview Ruiz.
Ruiz’s newly appointed counsel said that he had talked to Ruiz. Ruiz told him that he never heard any conversations between John Brown and Santana that involved the perjury scheme. Ruiz also told his newly appointed counsel that he would exercise his right to remain silent if he were called to testify. The court told counsel for Santana that if he wanted Ruiz to appear personally and exercise his right to remain silent in front of the jury, the court would allow that to occur. Counsel for Santana declined the court’s invitation to do so. The trial court denied Santana’s counsel’s motion to withdraw.
“‘The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.’ [Citation.] ‘“Conflicts of interest may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.’”’ [Citation.]
“Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] This presumption arises, however, ‘only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer's performance.”’ [Citations.] An actual conflict of interest means ‘a conflict that affected counsel’s performance--as opposed to a mere theoretical division of loyalties.’ [Citation.] ‘Under the Sixth Amendment of the federal Constitution, reversal is required if a defendant, over a timely objection, is forced to continue with conflicted counsel.’ [Citations.] To obtain a reversal for this type of error, ‘the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel's performance.’ [Citations.]
“‘“To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an ‘informed speculation’ that the asserted conflict adversely affected counsel's performance. [Citations.]” [Citation.] “But ‘[p]ermissible speculation giving rise to a conflict of interest may be deemed an informed speculation ... only when such is grounded on a factual basis that can be found in the record.’” [Citations.].” (People v. Roldan (2005) 35 Cal.4th 646, 673-674.)
Garcia contends that it was error to allow his attorney to continue to represent him because his attorney had a conflict of interest. Garcia argues that automatic reversal is required because the conflict violated per se his right to counsel and had an adverse affect on his representation. In addition, he asserts reversal is required under California’s more rigorous standard of review. In particular, he claims his trial counsel did not object to John Brown’s in-court (in front of the jury) exercise of his Fifth Amendment right not to testify because “John had an interest in presenting himself as a respectful participant in the criminal proceedings while center stage in the high courtroom drama by taking the Fifth.” In his reply brief, Garcia contends his attorney had an actual conflict of interest because it was against Garcia’s interest to have a Sylvia-John-Santana conspiracy proven, and even though this evidence was admitted against Santana only, a limiting instruction would not minimize the prejudice to him. In addition, he claims he was precluded from attacking the credibility of John because of this conflict of interest. He asserts John’s credibility was open to attack, even though he did not testify personally, because he was a hearsay declarant.
In his reply brief, Garcia has not answered respondent’s assertion that Garcia’s counsel’s performance could not have been adversely affected because the testimony was not admitted against Garcia; it was admitted against Santana only. Since the evidence was admitted against Santana only, neither Garcia nor Mendoza has a grievance concerning this testimony, other than to ask that it be excluded in a joint trial or to ask for severance. We have already explained our reasoning in rejecting the exclusion and severance arguments.
In any event, we find that Garcia has not shown that the asserted conflict actually adversely affected his counsel’s performance (federal standard) nor has he shown that the record supports an informed speculation that the asserted conflict adversely affected counsel’s performance.
“‘To determine whether counsel’s performance was “adversely affected,” we have suggested that [Cuyler v. Sullivan (1980) 466 U.S. 335] requires an inquiry into whether counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are … bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 674.)
Although Garcia’s counsel repeatedly stated that severance was required because he also represented John and this caused a conflict of interest, at no time did Garcia’s counsel ever suggest that he was in possession of any information from John that would be relevant to Garcia’s defense that he could not disclose because of his representation of John. That Garcia’s counsel did not possess such information is supported by the record. There is nothing in the record showing that Garcia’s counsel was aware that Santana’s cellmate, John, was involved in a scheme with Santana to present untruthful testimony via Sylvia. There is nothing in the record to even suggest that Garcia’s counsel was aware that a cellmate of Santana was represented by him or his office. Thus, the chance that Garcia’s counsel would have information about the scheme from John was not shown or even inferable from the record.
In Leversen v. Superior Court (1983) 34 Cal.3d 530, Gibbs and Hogan were jointly charged and tried in connection with a jewelry store robbery. Gibbs’s defense was one of alibi. Hogan claimed that she participated but she was forced to do so by Gibbs and two others. Hogan called Richard Crisan as a rebuttal witness. Before Crisan testified, Gibbs’s counsel informed the court that his office represented Crisan in other matters and if he were called as a witness counsel would have to declare a conflict of interest. (Id. at pp. 533-534.)
Crisan took the stand in front of the jury and refused to testify. Hogan then testified that Crisan was one of the people who forced her to participate in the crimes. When counsel for Gibbs was given the opportunity to cross-examine Hogan on this point, he said he could not cross-examine her and he reasserted a conflict of interest. “Counsel said that the conflict was based on privileged information of which counsel could not reveal the nature or source ‘other than to tell the court it is privileged and that we feel, in accordance with our oath, that it is germane and that it creates a conflict.’” (Leversen v. Superior Court, supra, 34 Cal.3d at p. 536.) The trial court denied the motion to be relieved based on a conflict and “told counsel that ‘there has to be some clue to the court’ and that here there was no basis for even a ‘reasonable, informed speculation’ that a disqualifying conflict existed.” (Ibid.)
Gibbs’s counsel, Leversen, filed a petition in the California Supreme Court seeking a writ of mandate directing the trial court to allow him to withdraw as counsel because of a conflict of interest. The Supreme Court granted the writ. “[P]etitioner’s good faith representations to the court, coupled with the evidence in the record and the posture of the trial, established as a matter of law that to deny petitioner’s motion to be relieved would deprive Gibbs of his constitutional right to assistance of counsel free from any conflict of interest adversely affecting counsel’s performance.” (Leversen v. Superior Court, supra, 34 Cal.3d at p. 540.)
Unlike counsel in Leversen, counsel here made no good faith showing whatsoever that he was in possession of confidential information from John that created a conflict. Furthermore, we do not find anything in the record to support a finding that counsel for Garcia “pulled his punches” and failed to represent Garcia as vigorously as he might have in the absence of the asserted conflict. We do not see how Garcia’s counsel’s failure to object to John’s exercising his right to refuse to testify in front of the jury demonstrated a conflict or adversely affected counsel’s performance in representing Garcia. If Garcia’s counsel thought the decision to call John before the jury to invoke his right to remain silent was so critical to John personally, counsel could have informed the court of the dilemma he now raises for the first time on appeal without divulging any confidences and without harming either Garcia or John.
We need not address Garcia’s argument that he was precluded from attacking John’s credibility based on the conflict because this argument was raised for the first time in his reply brief. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it…. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for the failure to present it before. [Citations.] No good cause is shown here.” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
Santana joins in Garcia’s argument regarding a conflict of interest. He claims that he was not able to seek out information from Ruiz about anything he heard between John and Santana without violating his role as an advocate for Ruiz. In addition, he was unable to interview Ruiz aggressively.
Santana’s argument suffers from the same defect as Garcia’s argument. Santana’s counsel did not make a good faith showing that he was in possession of any information from Ruiz regarding the Brown-Santana incident. Because it appears that the entire scenario and the connections involved were a surprise to everyone, it would be pure speculation, as compared to “informed speculation,” to think otherwise. Ruiz was appointed independent counsel who said that Ruiz knew nothing and refused to testify. At this point there was nothing to investigate.
IX. Garcia as an Accomplice as a Matter of Law
Garcia confessed his participation in the crimes to Torres. In his confession he also implicated Santana and Mendoza. During the jury instruction conference, counsel for Santana requested the judge give accomplice instructions relating to Garcia’s confession to Torres implicating Santana and Mendoza.
The court gave a series of instructions regarding accomplice testimony. First, the court defined an accomplice as “a person who was subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting or being a member of a criminal conspiracy.” The court gave the standard instructions setting forth the requirement that “a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (Pen. Code, § 1111.) The court gave several instructions elaborating on the corroboration requirement. The court then instructed the jury, “[i]f the crimes alleged herein were committed by anyone, Francisco Garcia was an accomplice as a merit [sic] matter of law and his statement is subject to the rule requiring corroboration.” The jury was then told that “[t]o the extent that an accomplice gives testimony that tends to incriminate a defendant, it should be viewed with caution.”
Garcia contends the instruction was erroneous for two reasons. First, he argues the instruction was erroneous because an extrajudicial statement by a nonwitness is not testimony within the meaning of accomplice testimony. We need not determine if the extrajudicial statement is testimony within the meaning of accomplice instructions because Garcia has not argued how error in giving this instruction on this basis may have prejudiced him.
See People v. Andrews (1989) 49 Cal.3d 200, 212-215 and People v. Sully (1991) 53 Cal.3d 1195, 1230, for somewhat conflicting holdings on whether an extrajudicial statement is testimony within the meaning of Penal Code section 1111.
Next, Garcia contends the instruction that Garcia was an accomplice as a matter of law directed a verdict of guilty and denied him his right to a jury verdict of guilty beyond a reasonable doubt. He argues that the error is a structural error requiring reversal per se.
As previously set forth, an accomplice was defined as “a person who was subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting or being a member of a criminal conspiracy.” That Garcia was a person who was subject to prosecution for the identical offenses charged against Santana and Mendoza was self-evident from the fact that he was on trial for the identical offenses charged against Mendoza and Santana. He therefore met the definition of an accomplice as a matter of law. The instruction did not tell the jury that Garcia was a principal as a matter of law. In light of the instruction defining an accomplice, there is no reasonable likelihood that jurors might have interpreted the instruction in question as directing a verdict against Garcia in whole or in part.
Neither Mendoza nor Santana claim that they were unfairly prejudiced by the giving of this instruction. (See People v. Hill (1967) 66 Cal.2d 536, 555.)
X. Accomplice Instructions Regarding Ramon Medina
Ramon was charged with murder in this case but pleaded guilty to false imprisonment and kidnapping. Ramon testified that he was a part of the criminal activities that occurred at Rufer’s house. In particular, he testified he was at Rufer’s house when the group arrived. Pelon ordered Ramon into the back room and when Pelon left the room Ramon held Pelon’s rifle.
The court gave the standard accomplice instructions. As to Ramon the court instructed the jury that “[y]ou must determine whether the witness Ramon Medina was an accomplice as I have defined that term. The defense has the burden of proving by a preponderance of the evidence that Ramon Medina was an accomplice in the crimes charged against the defendants.”
Santana contends the trial court erred in failing to instruct the jury that Ramon was an accomplice as a matter of law. Santana argues that the failure to so instruct reduced the prosecution’s burden of proof and requires reversal under the Chapman (Chapman v. California, supra, 386 U.S. 18) standard.
“Whether a person is an accomplice within the meaning of [Penal Code] section 1111 presents a factual question for the jury ‘unless the evidence permits only a single inference.’ [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness’s criminal culpability are ‘clear and undisputed.’” (People v. Williams (1997) 16 Cal.4th 635, 679.)
While Ramon’s criminal culpability was clear and undisputed as far as his activities at Rufer’s house, it was not a clear and undisputed inference that Ramon was an accomplice as a matter of law to the murder. Ramon denied any knowledge of the murder and claimed that his participation at Rufer’s house was forced by Pelon. While the defendants might have been correct in requesting a pinpoint instruction designating that Ramon was an accomplice as a matter of law to the kidnapping, but not as to the murder, they did not do so. The trial court is not obligated to give pinpoint instructions sua sponte. (People v. Hughes (2002) 27 Cal.4th 287, 361.) Accordingly, we find the trial court did not err in refusing to instruct the jury that Ramon was an accomplice as a matter of law.
Even if it were error for the trial court to not instruct the jury that Ramon was an accomplice as a matter of law, we would find no prejudice. First, Ramon only testified to activities that occurred at the house and the jury was clearly aware that Ramon met the definition of an accomplice as to the activities that occurred at the house because he pleaded guilty to charges arising from his activities at the house. Furthermore, the evidence presented at trial provided sufficient corroborative evidence to render any instructional error harmless. “[F]ailure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there was adequate corroboration of the witness.” (People v. Brown (2003) 31 Cal.4th 518, 557.)
XI. Pinpoint Instruction on Witness Immunity
Citing People v. Harvey (1984) 163 Cal.App.3d 90, Santana requested the jury be instructed that “[t]he testimony of a witness who provides evidence against a defendant for immunity from punishment should be viewed with distrust.” The trial court rejected this instruction based on the authority of People v. Hampton (1999) 73 Cal.App.4th 710 and instead modified the general instruction on factors to consider in determining the believability of a witness by adding as a factor “whether the witness is testifying under a grant of immunity.”
Relying again on the Harvey case, Santana asserts the trial court erred in refusing to give his pinpoint instruction on witnesses who were given immunity.
As pointed out in Hampton, we are bound to follow the California Supreme Court’s viewpoint on this issue as stated in People v. Hunter (1989) 49 Cal.3d 957. (People v. Hampton, supra, 73 Cal.App.4th at pp. 723-724.) The court in Hunter said, “The general instruction on witness credibility, coupled with the modified instruction specifically directing the jury to determine whether the immunized witness’s credibility had been affected by the grant of immunity, adequately informed the jury of the necessity to weigh the motives of the immunized witnesses.” (People v. Hunter, supra, at p. 978.)
The court did not err in refusing Santana’s instruction on witnesses testifying under a grant of immunity.
XII. CALJIC No. 2.11.5
The jury was instructed pursuant to CALJIC No. 2.11.5 that, “There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which the defendants are on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do no speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of each defendant on trial.”
Garcia contends the trial court erred in giving CALJIC No. 2.11.5 because the instruction should not be used if the other person referred to in the instruction is a witness for either the prosecution or the defense. He claims that Ramon and David Medina and Fierros were witnesses for the prosecution and were involved in the crimes for which the defendants were on trial. Garcia acknowledges this court’s decision in People v. Fonseca (2003) 105 Cal.App.4th 543 finding it was not error to give the 1996 amended version of CALJIC No. 2.11.5 when an unjoined perpetrator testifies at trial, but argues that his contention is fundamentally different from Fonseca’s and the situation here is distinguishable. Santana joins in this argument.
In People v. Fonseca, supra, 105 Cal.App.4th 543 this court reviewed the 1996 version of CALJIC No. 2.11.5 and found that, unlike the previous version of the instruction, it was not error to give the 1996 version of the instruction when an unjoined coperpetrator testified at trial. We rejected the defendant’s argument that the instruction might mislead the jury “into disregarding relevant and admissible evidence of the moral turpitude of coperpetrators and ignoring the biasing effects of agreements they may have made with prosecutors.” (Fonseca, supra, at pp. 548-549.) “The 1996 instruction informs the jury that they are not to speculate as to the fate of the party not being prosecuted because any number of explanations not pertinent to the case at hand is possible. We conclude that the 1996 version of CALJIC No. 2.11.5 has removed any lingering possibility that a reasonable juror would misunderstand his or her duty to consider all relevant factors bearing on witness credibility.” (Id. at p. 550.)
We suggested that the italicized portion of the 1996 version that read “‘do not discuss or give any consideration as to why the other person is not being prosecuted in this trial…’” be changed to “speculate upon” or “guess at.” (People v. Fonseca, supra, 105 Cal.App.4th at p. 550.) This suggestion was incorporated in the instruction given here.
Garcia contends that his argument is fundamentally different from Fonseca’s argument. Garcia’s argument is stated as follows: “Appellant’s contention instead goes fundamentally to the charge itself. The instruction not to guess or speculate why other persons who were or may have been involved in the charged crimes are not on trial when those persons testify for the prosecution erroneously undercuts the defense unfairly that they are the responsible parties.”
We have some difficulty understanding what Garcia is arguing here, deciphering two likely possibilities. One interpretation of Garcia’s argument is that he is claiming the instruction undercuts arguments by the defense that the unjoined perpetrators are actually the responsible parties, and the defendant is not the responsible party. We do not interpret the instruction as undercutting this type of defense. The jury is told not to speculate or guess why the other person is not being prosecuted in this trial; it does not foreclose the possibility that the unjoined perpetrator is the actual guilty party.
Another interpretation of Garcia’s argument is that the instruction unfairly suggests that the defendants are the responsible parties. If this is Garcia’s argument, it is foreclosed by the portion of the instruction that says the People must prove and the jury must decide the guilt of each defendant on trial.
The court did not err in giving CALJIC No. 2.11.5. We note further that this instruction was pertinent to the many references to Pelon, a person who appeared to be equally involved with these defendants but who was not on trial with these defendants.
XIII. Torture Murder Special Circumstance Instruction
The jury was instructed: “To find that the special circumstance referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: Number one, the murder was intentional; and number two, a defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose; and number three, the defendant did in fact inflict extreme cruel physical pain and suffering upon a living human being, no matter how long its duration.” (Emphasis added.)
Mendoza contends and respondent agrees that this instruction is erroneous because it requires only that “a” defendant, rather than “the” defendant, possess the required specific intent. (People v. Petznick (2003) 114 Cal.App.4th 663, 685-687.)
We agree that the instruction was erroneous as to all three defendants but find that any error was harmless. In addition to the torture murder special circumstance, each defendant was also convicted separately of the substantive crime of torture. The instructions for torture stated that “[e]very person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury upon the person of another, is guilty of the crime of torture..” The intent required for the torture murder special circumstance is the same intent required for the crime of torture. (People v. Elliot (2005) 37 Cal.4th 453, 479.) Thus, the jury necessarily found the defendants possessed the requisite intent through other properly given instructions. (People v. Adams (2004) 124 Cal.App.4th 1486, 1495.)
Mendoza argues that these instructions did not cure the error because the intent for the special circumstance of torture requires the intent to inflict extreme physical pain, etc., while the intent for the crime of torture can be satisfied with the intent to inflict mental pain, etc. Whether true or not, the instructions as given to the jury did not make a distinction between mental and physical pain and thus when they found the intent for the torture, they necessarily found the intent for the special circumstance.
XIV. Admission of Ammunition Found in Santana’s Home
On February 14, 2003 a search was conducted at Santana’s home. In the master bedroom the officer found items of identification for Santana. In the “child’s bedroom” the officer found some ammunition in an ammunition box. The ammunition consisted of .22 caliber long rifle ammunition and 9 millimeter luger cartridges. The items were found in a chest of drawers in the child’s bedroom that contained both children’s and adult clothing. The officer did not find any ammunition related to the murder weapon. It was stipulated that the ammunition associated with Santana “was not associated with the death of Roberto Ramirez.”
Santana objected to the admission of ammunition found during a search of his house. Santana argued that evidence of the ammunition was inadmissible as propensity evidence. The People argued that the evidence was relevant and admissible because there was evidence that Santana was armed and the ammunition found in Santana’s home would support this testimony. The court found that the evidence was relevant to the inference that Santana was armed during the commission of the offenses. In following the standard set forth in Evidence Code section 352, the court also found that the prejudicial effect of admitting such evidence did not greatly outweigh its probative value.
Santana now claims the trial court erred when it allowed introduction of evidence of unrelated ammunition found in Santana’s residence four months after the murder. He argues that the evidence was relevant only to show propensity, and propensity evidence is not admissible under these circumstances. Santana asserts that the fact that he had access to ammunition at the time of the crime has no bearing on any issue in the case because the ammunition was not related to the ammunition used to kill the victim or related to the crime scene. He contends the error is prejudicial.
“When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant’s possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]” (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.)
Although the ammunition found in Santana’s home was not related to the murder weapon, the murder weapon was not the only weapon used in this crime. There was testimony that numerous individuals were armed during the commission of the crimes here from the initial abduction and throughout the ordeal until the victim was murdered. Because Santana had ammunition in his home, it was a reasonable inference that he had access to weapons and was armed the night the victim was kidnapped and murdered. The evidence thus had probative value.
“Rulings under Evidence Code section 352 are reviewed under an abuse of discretion standard, and a trial court’s determination ‘will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court’s decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice.’” (People v. Lamb (2006) 136 Cal.App.4th 575, 582.)
The evidence was relevant for a legitimate purpose other than propensity. It had probative value and the court did not abuse its discretion when it admitted the evidence, after finding that the probative value was not substantially outweighed by its prejudicial effect.
XV. Absence of Mendoza’s Counsel During Jury Instruction Conference
At the close of testimony on July 1, 2004, the court stated that it would meet with the parties’ counsel in chambers the following day to discuss jury instructions. The following day, this chambers conference took place with all parties represented. The conference was not transcribed, but the clerk’s transcript states this was the only business carried on by the court on this day.
On Tuesday, July 6, court was convened outside the presence of the jury. The court stated, “We were going to take up some requests for special injury [sic] instructions.” The court discussed special instructions proposed by Santana. After some discussion, the court noted on the record that counsel for Mendoza was not present and he had given authority to the two other defense attorneys to appear for the purpose of arguing these special instructions. The court then discussed Mendoza’s objections to transcripts of tapes and said Mendoza’s counsel had said he would research the issue and present something to the court if he came up with anything. The court rejected an instruction proposed by the People that would have been detrimental to the defendants.
The following morning the court ruled with regard to one of the proposed special instructions offered by Santana. The court also gave Mendoza’s counsel an opportunity to place anything on the record regarding the transcript issue. Mendoza’s counsel had nothing further to add. The court also remarked it had deleted something from one of the instructions and that the People had withdrawn an instruction.
Mendoza claims he was denied the effective assistance of counsel at a critical stage of the proceedings when his counsel was not present for the jury instruction conference. He claims the error is structural and requires reversal.
“The Sixth Amendment secures to a defendant who faces incarceration the right to counsel at all ‘critical stages’ of the criminal process. [Citations.]” (Iowa v. Tovar (2004) 541 U.S. 77, 87.) We need not determine if the jury instruction conference is a critical stage of the proceeding to determine if Mendoza was deprived of counsel at a critical stage of the proceedings here. Mendoza’s counsel was present during the jury instruction conference. He was not present during the jury instruction conference affecting the “special” instructions raised by Santana. Because this was a conference relating particularly to Santana, it was not a critical stage for Mendoza. The record does not establish that this was a critical stage of the proceedings from Mendoza’s standpoint because it was not a time where crucial decisions affecting his case were to be made and there is nothing in the record to show that counsel’s presence at this “special” conference would have protected and furthered Mendoza’s substantial rights.
Furthermore, counsel for Mendoza was present during the normal jury instruction conference, and he was brought up to speed the following day by the court and allowed to make any comments he found necessary. (See People v. Morris (1991) 53 Cal.3d 152, 210.)
Mendoza argues that his counsel could have argued that the court should instruct that Ramon Medina was an accomplice as a matter of law, but his absence precluded him from doing so. As previously discussed, the court did not err in not instructing that Ramon was an accomplice as a matter of law.
XVI. Prosecutorial Misconduct
While discussing the Santana-Brown evidence in his closing argument to the jury, the prosecutor made the following remarks:
“[Deputy District Attorney] Well, you know, again, this is what happens when you’ve been in a trial too long: You begin to lose your perspective. Because you want something to be so, you start thinking that it is so.
“We never had any problem with our case, ladies and gentlemen. Every case has a point of attack. You don’t think that the three attorneys with months of preparation were going to just sit here like bumps on a log while we convicted their three murdering defendants? Of course they were going to have a defense. Of course they were going to come up with a strategy. Their strategy, as always happens in defense cases, is attack, attack, attack, attack. Attack Detective Dover. Attack Mr. Bacciarini [cocounsel prosecutor]. Attack myself. Attack our witnesses. Attack the work that was done. That’s what they do, because they have got to sow some seed of doubt in your mind.
“Let me give you another example of how defense attorneys lose themselves as they get into a trial. It’s an occupational hazard, they can’t help it is [sic]. We’re weeks into this trial, right? We’re presenting our case, we’ve got Ramon Medina on the stand, right? They have apparently interviewed Sylvia Brown. Mr. Falasco is cross-examining Sylvia Brown. Now we have to provide discovery, right? We in advance, we have to give the defense information. We can’t drop it on them while there are witnesses on the stand. The defense gets [to] do that, right? So Mr. Falasco goes (indicating), drops a document right in Mr. Bacciarini and my lap as he then asks Ramon Medina, ‘Do you know a woman by the name of Sylvia Brown and did you tell Sylvia Brown you were setting up the defendants?’
“Well, Mr. Bacciarini [deputy district attorney] and I (indicating) are just hitting the table. What in the world is this? What is this? We don’t know anything about it. We’re reading this document. We’re going ‘whoa, whoa, whoa.’ You heard me object. That’s the document, that’s what he put on us, right. On 6/7 I contacted Brown -- his investigator -- on June 7th he talked to the investigator. Well, it was substantially after June 7th when Mr. Bacciarini and I
“MR. FALASCO: [counsel for Santana]: I will object. The timing of the disclosure was perfectly legal, it is permissible. You don’t have to give impeachment evidence until you know that you’re going to call the witness.
“MR. MORSE: [Deputy District Attorney]: I’m not saying it’s improper, I’m explaining how it went down.
“THE COURT: I’ll sustain the objection.
“MR. MORSE: Apparently, that is fine, you can do that. But here’s the problem: Mr. Falasco so desperately wanted to believe what was in here. He so desperately wanted to believe that Sylvia Brown heard Ramon Medina saying ‘I’m setting them up. I’m setting these guys up.’ He so wanted to believe that, that the normal brain waives [sic] that fluctuate in Mr. Falasco’s head ceased to move, all right? Because Mr. Bacciarini, Detective Dover and myself walked out and went (indicating).
“You think this is going to pass the smell test with Detective Dover, Mr. Bacciarini or myself? Not in a million years. Complete and utter BS. We knew it is. He knew it is. Somewhere deep in his soul, he knew it is.
“Now, I’m
“MR. FELASCO: Objection, judge.
“MR. MORSE: I’m not accusing him of doing anything unethical.
“THE COURT: Sustained.
“MR. MORSE: I don’t believe Mr. Falasco is unethical on any level, but I do know that Mr. Falasco did not subject this woman to the rigorous examination that would have uncovered what Detective Dover uncovered like that (snap fingers). Why? He wanted to believe it, it was so good. ‘God, I got this guy. We just destroyed their guy.’ He’s saying he set up the defendant.’ Instead, ladies and gentlemen, all that happens is the exact opposite: All it is does is it is [sic] reinforced Ramon Medina’s testimony. It reinforced what Ramon Medina was saying.”
Santana filed a motion for new trial. Included in that motion was an argument that the prosecutor committed misconduct when he denigrated defense counsel by impugning his integrity during closing argument to the jury.
At the hearing on the motion for new trial, counsel for Santana stated that he did not request an admonition after the prosecutor made the above comments, particularly the “deep in his soul” comment because he was so shocked that the only words he could get out of his mouth were “‘objection.’” Santana claimed that the argument was clearly improper and was prejudicial.
The prosecutor responded that nothing he said was meant to suggest that counsel had done anything unethical or improper, “was merely getting sucked -- getting swept, swept under in the competition---in the hurly-burly of the trial sometimes affect objectivity of all party [sic].”
The court denied the motion and stated:
“As far as the improper argument, I appreciate that as Counsel recalls the trial, this is an understandably contentious trial, and I, too, want to applaud the efforts of all the attorneys involved in here.
“It was a difficult matter with significant and difficult evidentiary and other procedural issues involved. I think that it was well presented by all the attorneys involved.
“I also appreciate having been involved in trials of this nature as an attorney before that sometimes that the arguments become a bit heated, and sometimes some offense -- some offense is taken, whether appropriate or not, again, I think that the limiting instructions that the Court gave plus the fact that the Court did entertain and sustain several of the objections as to the improper argument and that the argument continued on other grounds would sufficiently or did sufficiently protect the jury from making any inappropriate inferences based upon those arguments.
“So, for those reasons, I don’t believe the alleged prosecutorial misconduct in this case, if any, arises to a level of -- to form a basis for a granting a motion for new trial.”
Santana now claims his convictions should be reversed because of the prejudicial effect of the misconduct of the prosecutor during closing argument. He contends the argument made the obvious suggestion that defense counsel unfairly withheld information so that the obvious falsity of the testimony of Sylvia Brown could not be ascertained by the prosecution because defense counsel was desperate to come to court with some type of defense. He asserts that the argument “was designed to tap the jury into a common myth about defense attorneys that suggest they are willing to do anything, including lying and/or producing false evidence to obtain their client’s absolution.”
Prosecutorial argument that denigrates defense counsel is improper because it directs the jury’s attention away from the evidence. (People v. Frye (1998) 18 Cal.4th 894, 978) A defendant’s conviction should not be based on purported improprieties of his counsel, but should be based on the evidence adduced at trial. (People v. Sandoval (1992) 4 Cal.4th 155, 183.)
As to the first portion of the above quoted argument (before counsel objected), we find the district attorney was recounting how the Sylvia Brown evidence came into being. To the extent the district attorney overstepped the boundaries, his misstep was corrected by the speaking objection of Santana’s counsel and the sustaining of the objection.
As to the second portion of the argument, we find that the prosecutor went beyond the boundaries of proper argument, particularly when he stated that counsel’s brain waves ceased to move and that counsel knew deep in his soul that Sylvia was not telling the truth when she came to him initially. However, the Sylvia saga unfolded before the jury’s eyes and they were well aware of how it ended up. This was a lengthy trial with many disputes among the parties. We are confident that these remarks, while improper, were recognized by the jury as an advocate’s hyperbole. (People v. Poggi (1988) 45 Cal.3d 306, 340.) We thus conclude there is no reasonable probability that the jury would have reached a more favorable result absent the objectionable comments. (People v. Green (1980) 27 Cal.3d 1, 36.)
XVII. Sentencing Issues
Garcia, Mendoza, and Santana were each convicted of first degree murder with kidnapping and torture special circumstances found to be true. Also, each defendant was found to have used a firearm in the commission of the kidnapping. In addition, each defendant was convicted of kidnapping, torture and conspiracy to murder. Mendoza was convicted of the unlawful possession of a firearm.
Regarding the common counts, the trial court imposed the same sentence for Garcia, Santana, and Mendoza as follows: life without the possibility of parole for the murder conviction; a concurrent term of life with the possibility of parole for the torture; a consecutive term of 25 to life for the conspiracy to commit murder; and a concurrent midterm sentence for the kidnapping conviction, enhanced 10 years for the use of a firearm. All three defendants were ordered to pay a parole revocation fine under Penal Code section 1202.45. In addition, Mendoza was sentenced to a consecutive sentence of one-third the middle term for the illegal possession of a firearm.
a. Parole Revocation Fine
Defendants contend, and respondent concedes, that a Penal Code section 1202.45 fine does not apply to a defendant who receives a sentence of life in prison without the possibility of parole, even if in the same case he also receives a sentence where there is parole eligibility. (People v. Oganesyan (1999) 70 Cal.App.4th 1178.)
b. Improper Sentence on Conspiracy to Murder
Defendants contend, and respondent concedes, that under Penal Code section 654 a defendant may not be punished for both a murder and the conspiracy to murder the same victim and the sentence for each defendant for the conspiracy to commit murder charge must be stayed. (People v. Hernandez (2003) 30 Cal.4th 835, 866.)
c. Applicability of Penal Code Section 654 to Terms for Kidnapping and Torture
Penal Code section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Penal Code section 654 applies to special circumstances. (People v. Harris (1984) 36 Cal.3d 36, 65.)
Mendoza, Santana, and Garcia claim the trial court erred in failing to stay the punishment for kidnapping and torture in light of the special circumstances of kidnapping and torture. Because the substantive crimes were duplicated by the special circumstances, the court should have stayed the substantive crimes pursuant to Penal Code section 654.
Respondent makes the following argument: “In this matter, the kidnapping and torture counts required that appellants simultaneously or independently harbored an intent separate and apart from the intent to kill required for murder. Specifically, in order to convict appellants of kidnapping, the jury necessarily found that appellants harbored the intent to move Ramirez by the use of physical force or other means of instilling fear without his consent. (Pen. Code § 207.) Regarding the torture convictions, the jury necessarily found that appellants harbored the intent to inflict cruel or extreme pain and suffering upon Ramirez for the purpose of revenge, extortion, persuasion, or any sadistic purpose. (Pen. Code § 206.)
“Furthermore, the actual acts that constituted the kidnapping and torture of Ramirez were divisible from the act of shooting him, which was the act that caused his death. The kidnapping was accomplished by, at least initially, the taking of Ramirez from the labor camp by force, and the torture was accomplished by the hitting, kicking, and pistol whipping of Ramirez. Thus, the acts of kidnapping and torturing Ramirez were divisible from the act of murdering him, thereby allowing the imposition of separate punishments.”
The question is not whether the act of shooting the victim (the murder) is divisible from the acts and intents for kidnapping and torturing the victim; the question is whether the kidnapping and torture are divisible from the special circumstances of murder in the commission of a kidnapping and an intentional murder involving the infliction of torture. The substantive crimes are not divisible from the special circumstances. The substantive offenses are the essential components underlying the special circumstances and the trial court should have stayed those sentences as well as the arming enhancement attached to the kidnapping sentence. (See People v. Harris (1989) 47 Cal.3d 1047, 1102-1103.)
d. Application of Penal Code Section 654 to Mendoza’s Possession of a Firearm Conviction
Mendoza was convicted of being a qualifying misdemeanant in possession of a firearm (count 5). The court instructed the jury that “Count 5 refers to the alleged possession of a weapon by Mr. Mendoza during the events that are charged in Counts 1, 2, 3, and 4 involving the victim, Roberto Ramirez.”
Mendoza contends the court should have stayed his punishment on count 5 because the evidence does not show that during the events charged in the other counts his possession was for any other purpose than for committing those crimes.
Respondent counters that separate punishment is proper when the defendant arrived at the scene of the primary crime already in possession of the firearm and here it was shown that the men who came to the labor camp and took Ramirez away were armed with guns.
We need not determine if the evidence would support a finding that Mendoza arrived at the labor camp armed with a gun because the jury was explicitly told by the trial court that the weapon possession referred to Mendoza’s possession “during” the events. The jury was thus not asked to determine if he had possession before the events. We further note that with so many individuals involved in this crime and the lack of identification of particular individuals who were armed at the labor camp, the inference that Mendoza was armed at the time he arrived at the scene is questionable.
The sentence in count 5 relating to Mendoza’s possession of a firearm must be stayed.
XVIII. Cumulative Error
Santana contends that reversal is required based on the cumulative effect of the prejudice from above claimed errors. We have either found that error did not occur or when it did occur it was harmless. We conclude that the cumulative effect does not warrant reversal of the judgment. (People v. Geier, supra, 41 Cal.4th at p. 620.)
DISPOSITION
The trial court is ordered to strike the Penal Code section 1202.45 parole revocation fine for each defendant. In addition, we direct the trial court to amend the abstract of judgment for each defendant to reflect that the conspiracy to commit murder, torture, and kidnapping sentences are stayed, including the arming enhancement for the kidnapping conviction. Additionally, as to Mendoza, the court must stay his sentence for possession of a firearm in count 5. After making the ordered changes, the court shall forward the corrected abstracts of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, J., GOMES, J.