Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Bernardino County Super. Ct. No. FSB036673, Brian D. Saunders, Judge. Affirmed as modified.
McCONNELL, P. J.
A jury convicted Luis Daniel Monterroso and Mariano Orosco of attempted murder (Pen. Code, §§ 187, subd. (a), 664) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury found Monterroso was a principal in the offense. (§ 12022.53 (e)(1).) The jury also found Orosco had personally used a firearm (§ 12022.53, subd. (c)), and personally discharged a firearm (§ 12022.53, subd. (b)). In a bifurcated proceeding, the court found Monterroso had a prior strike conviction (§ 667, subds. (a)-(i)) and a prior serious felony conviction (§§ 667, subd. (a)(1), 1170.12, subds. (a),(d)).
All statutory references are to the Penal Code unless otherwise specified.
Monterroso was sentenced to a total term of 35 years. The sentence was composed of 10 years for the attempted murder (§§ 187, subd. (a), 664, double the lower term of five years due to Monterroso's prior strike conviction), a consecutive term of 20 years (§ 12022.53, subdivision (c) enhancement, see fn.12, post), and a consecutive term of 5 years for a prior serious felony enhancement. The court stayed the section 186.22, subdivision (b)(1) enhancement.
Orosco was sentenced to a total term of 37 years. The sentence was composed of a middle term of seven years for attempted murder (§§ 187, subd. (a), 664), a consecutive term of 20 years for personal firearm use (§ 12022.53, subd. (c)), and a consecutive term of 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)). The court stayed the term for the section 12022.53, subdivision (b) enhancement.
Defendants contend the evidence was insufficient to support attempted murder convictions or the criminal street gang enhancements; the court erred in admitting an undated photograph; defense questioning about Monterroso's statements to witnesses was improperly restricted; the instructions on aiding and abetting were incomplete; the instructions on efforts to fabricate evidence and consciousness of guilt were improperly given; there was insufficient evidence to support a finding Monterroso had suffered a prior strike or serious felony conviction; defendants' new trial motions should have been granted; and Monterroso's abstract of judgment needs correction. We agree Monterroso's abstract of judgment should be corrected but otherwise affirm the judgment.
FACTS
Monterroso and Orosco were active members of the Colonia Trece criminal street gang. Among Colonia Trece gang's rivals were the King's Boulevard Stoners. Maira Duran was formerly a member of Colonia Trece. Duran and Monterroso had known each other since Duran was 12 years old. They had lived in the same neighborhood, belonged to the same gang, and Duran considered Monterroso a close family friend. Duran left Colonia Trece when she started dating a member of the King's Boulevard Stoners, Jetzael Blas, whom she later married. Colonia Trece gang members were angry with her for leaving the gang.
About two or three years before the shooting in this case, while Blas was a member of King's Boulevard Stoners, he was in a "showdown" with Monterroso and another Colonia Trece gang member, "Listo," and then a few days later with Orosco and "Alex." Blas left the King's Boulevard Stoners when he was about 15½ years old. He was 18 years old when he testified at trial in March 2003.
In February or March 2002, Colonia Trece gang members, including Monterroso's brother, approached Blas at his home and put a gun to Blas's head. They told him they were not going to shoot him because he was at his home but if they saw Blas in the street, they would shoot him. Blas said, "Do what you got to do." Blas did not report the incident to the police because there had been no shooting. At trial, Blas testified he did not believe this incident had anything to do with the charged shooting.
On the evening of April 7, 2002, Blas was in the front yard of his home on Newbury Avenue in San Bernardino with Duran and two friends, who were members of the King's Boulevard Stoners gang. Three vehicles drove by the house. One belonged to Colonia Trece gang member Bruno Perez who went by the street name of "Payaso" or "Brune Dog." Another vehicle belonged to Monterroso.
Blas, Duran, and their child were living in the home of Duran's mother.
Duran testified the two friends were members of Mt. Vernon gang, a gang that did not "get along" with the King's Boulevard Stoners, but that "[b]lood is thicker than water."
The vehicles stopped at the end of the street. Orosco and another Colonia Trece gang member named "Drowsy" walked from the vehicles toward Blas's house. They stopped in front of the house and asked Blas, "Where are you from," a question that is a challenge to fight. Blas said, "You know where I am from" and "You know I'm not banging, so why are you tripping?" Orosco pulled out a gun, said "Fuck King's Boulevard Stoners" or "Fuck that. Colonia Trece," and fired at Orosco, narrowly missing him. Duran recognized the gun; it was one owned by Colonia Trece and used by its gang members for retaliation. She had seen the gun used "a lot of times."
Orosco and Drowsy ran back to the cars. At one point, Orosco dropped the gun but then picked it up. Blas chased after them briefly with a pipe.
Duran called the police. A short time after the shooting, a deputy sheriff found a car matching the description of one of the vehicles used in the shooting not far from Blas's house. The car was registered to Monterroso and he was sitting in the car. The car was not moving. Blas and Duran were taken to the car and both identified Monterroso and the car as being involved in the shooting. The police recovered a cell phone from the car. Both Monterroso and Orosco denied owning a cell phone. After the cell phone was recovered, several calls were received on the phone and a sheriff's deputy answered the calls as if he were Monterroso. A representative from Cingular Wireless testified Luis Monterroso was the name on the account for the cell phone.
After he was arrested, Monterroso told a sheriff's deputy he was associated with Colonia Trece and had a brother who was a member. He denied knowing either Duran or Blas. When the sheriff's deputy was booking Monterroso, Monterroso asked the officer to let him go, saying "this is for La Raza." The deputy believed Monterroso made the statement because they were both Hispanic. The deputy sheriff asked Monterroso if he was admitting guilt. After that, Monterroso was quiet.
The sheriff's deputy searched the scene of the shooting but did not find any bullets or bullet casings. About an hour later, Blas found a bullet by the front door step and called the sheriff's department. It was a 9-millimeter hollow point bullet. Three to four inches from the bullet's location was a mark on the walkway that could have been created by the bullet. The next day, Blas found a gun clip containing 9-millimeter hollow point bullets about 30 to 50 feet from his house. Duran buried the gun clip in the backyard. Later, after her younger brother had found the gun clip, her mother threw it away.
Duran testified that beginning about two weeks after the shooting, she started receiving threatening phone calls. The callers told her not to come to court or she should testify that she had been mistaken. The callers did not generally identify themselves and she did not recognize all the callers' voices, but she knew the calls were from Colonia Trece members.
A couple months after the shooting, Perez and "Little Chito" of the Colonia Trece gang contacted Blas at work and told Blas not to press charges against Orosco or Monterroso. Blas told them to wait at his workplace while he took his child home. When Blas returned shortly thereafter, they were gone. During the same period, Monterroso went to Duran's workplace with Perez and "Fernando." Perez and Fernando contacted her first. Perez made threats towards her. Perez "got very mad." They asked if it was okay if Monterroso talked with her. She said it was okay. Monterroso and Duran talked about what had happened during the shooting. He told her he was at the wrong place at the wrong time. He told her "he didn't mean for what had happened" and he was "sorry for everything, and none of that was meant to have happened." Monterroso apologized for what Orosco had done. He also told her "to forget the fucking phone calls, and do whatever [she] had to do."
The defense attacked the credibility of Blas and Duran by focusing on inconsistencies in their out-of-court statements, preliminary hearing testimony and trial testimony.
Monterroso presented the testimony of Monica Perez who stated Monterroso called her on April 7, 2002, after 7:00 p.m. asking for a ride. A witness from Cingular Wireless testified the calls made on Monterroso's cell phone included an outgoing call that was made at 7:09 p.m. to Monica Perez's phone number. On cross-examination, Monica Perez testified she was married to Bruno Perez and he also used that phone number.
A witness testified she saw a car parked in her neighborhood for about 45 minutes to an hour before the police arrived. The woman's house was about 70 feet from where the police stopped Monterroso in his vehicle. Monterroso also presented an expert who opined that Monterroso was not an active gang member.
Orosco presented an alibi defense, calling several witnesses who testified he was attending a birthday party for his stepson at the time of the shooting.
DISCUSSION
I
Sufficiency of the Evidence
Defendants contend the evidence is insufficient to support their attempted murder convictions.
(A) Standard of Review
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237; People v. Mays (2007) 148 Cal.App.4th 13, 33.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) A single witness's uncorroborated testimony is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296; see also People v. Gammage (1992) 2 Cal.4th 693, 700.) "Credibility, or lack thereof, is for the factfinder, not the reviewing court, to determine. The trier of fact's determination will be interfered with on appeal only when it appears that the witness' testimony is inherently so improbable as to be unworthy of belief. [Citation.] 'On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted but on a face to face evaluation, so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability.' " (Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877-878.)
(B) Orosco
Orosco contends the statements and testimony given by Blas and Duran had such an "incredible lack of consistency, coupled with admitted lying" that there was "a lack of substantial credible evidence to support [his] conviction." This conclusion, he asserts, is reinforced by the lack of physical evidence linking him to the shooting, the improbability the police overlooked both the bullet and gun clip, and by evidence indicating the bullet found by the front step could not have been fired by a person shooting from the street.
(1) Inconsistency of Statements by Blas and Duran
It is true both Blas and Duran made inconsistent statements. Some of the inconsistencies involved small variations in their statements such as exactly where they were located before the shooting. Other inconsistencies involved more substantial matters. For example, Blas testified at the preliminary hearing that it was too dark to identify the shooter but at trial identified the shooter as Orosco.
As to the minute details of an event, it is extremely rare that a witness's description will remain absolutely consistent over a period of many months particularly when the witness has been questioned by a number of people asking similar but slightly different questions. Small inconsistencies do not necessarily render a witness's testimony incredible; it is a commonplace occurrence. Here, Blas and Duran were questioned about the shooting on several different occasions and their trial testimony occurred nearly a year after the incident.
As to inconsistencies in more significant details, both the prosecution and defense gang experts testified that it is common for witnesses in gang-related crimes to change their stories while residing in a gang area and fearing retaliation. In some cases, witnesses may change their testimony numerous times. Thus, such changes in testimony can be attributed to the underlying gang circumstances of the case rather than an inherent incredibility of the witnesses.
Both Duran and Blas had received threats about testifying against Orosco and Monterroso. Further, at trial, Blas specifically stated he did not want to testify against them; he was testifying at trial only because he had been subpoenaed and would be arrested if he did not testify. He believed the matter should not have been prosecuted because no one was injured and he did not want anyone to go to jail. Duran also expressed mixed feelings about testifying against Monterroso to whom she felt a certain loyalty because she had known him for a long time and he had been like a brother to her.
In other words, the inconsistencies in Blas's and Duran's testimony can be explained by the lapse of time, variations in the questions asked of them, mixed feelings about testifying, and fear of retaliation. The inconsistencies do not necessarily reflect that their version of what occurred was inherently incredible or improbable. Moreover, Blas and Duran were consistent in stating that three vehicles drove by the house before the shooting, the vehicles stopped a short distance from the house, two men walked from the vehicles to Blas, and the shooter asked Blas, "Where are you from?" One shot was fired toward Blas and the two men fled to the waiting vehicles.
The inconsistencies in Duran's and Blas's statements did not render their testimony wholly incredible or improbable. Therefore, their testimony could provide substantial credible evidence to support the judgment.
(2) Physical Evidence
There was some physical evidence presented that showed a shooting had occurred, that is, there was a bullet found by the front step. It was not necessary for the prosecutor to produce additional physical evidence — such as fingerprints or the gun used in the shooting — as a prerequisite to obtaining a conviction. The jury was entitled to convict based on the statements of the witnesses.
(3) Discovery of Bullet
Orosco claims it was improbable that the police missed finding the bullet.
Blas testified the police asked them to continue searching for the bullet. Blas and Duran found the bullet by the front step a short time after the sheriff's deputies left and called the sheriff's department. As we explained above, the jury was entitled to find their testimony credible. Moreover, testimony by the deputies conducting the search also helped to explain why they did not find the bullet. One of the deputies testified they looked for the bullet for only 10 to 12 minutes, including in an area that included a lot of construction equipment and that he looked for a bullet hole by the front door but did not look down at the ground by the front door. Another deputy testified he looked on the ground for a bullet but not by the front door step.
(4) Trajectory of Bullet
Orosco contends Blas's and Duran's testimony about how the bullet was shot from the street, went by Blas's ear and hit on a step below the front door "defied the laws of physics."
To support his argument, he relies on the testimony of a defense expert. Based on the measurements he was provided, the expert testified that for the bullet to pass close by Blas's ear and land by the front step, the gun would have had to have been fired from a height of over 10 feet. However, on cross-examination, the expert admitted that had Blas been ducking at the time the bullet was fired, the gun would have been only four feet above the ground. The defense expert also admitted the trajectory of the bullet could have been affected by hitting some other surface before hitting the ground near the front door step.
The prosecution presented evidence that a microscopic examination of the bullet revealed the bullet had hit a glancing blow to some object, that is, it had hit something at an angle before landing.
(5) Discovery of Gun Clip
Orosco contends the gun clip did not provide substantial evidence to support the shooting because it was inherently improbable that it was overlooked by the police, found the next day, and not immediately turned over to the police.
Blas testified he found the gun clip the next day. He did not mention finding the gun clip when interviewed by a sheriff's deputy a few days after the shooting or at the preliminary hearing. The district attorney's investigator talked to Duran on January 21, 2003, about finding the gun clip. Duran stated she or Blas had retrieved the clip and that she later buried it in the backyard. When her little brother found the clip, her mother threw it away.
As with finding the bullet, the jury was entitled to find Blas's and Duran's testimony about the gun clip was credible. Moreover, the failure to promptly mention discovery of the clip to the police can be explained by their fears of retaliation and Duran's mixed feelings due to her friendship with Monterroso.
(C) Monterroso
Like Orosco, Monterroso argues the evidence was insufficient to support his conviction on the basis Blas's and Duran's testimony was not credible and there was a lack of physical evidence corroborating their testimony that a shooting had occurred. We have rejected these arguments. Monterroso also contends his conviction, which was based on an aiding and abetting theory, was unsupported by evidence showing he did anything to aid and abet Orosco in the shooting. He contends his conviction is based only on speculation.
" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' (Pen. Code, § 31 . . . .) Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) "To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Prettyman (1996) 14 Cal.4th 248, 259, italics omitted.)
"A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) "Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility. [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime." (Id. at pp. 529-530.)
Here, there was evidence that Monterroso drove one of the three vehicles that passed by Blas's residence before the shooting, stopped a short distance away, and waited while Orosco and Drowsy confronted and shot at Blas. There was also substantial evidence, as we explain more fully in part II, establishing Monterroso was an active member of the Colonia Trece criminal street gang and that this shooting was gang-related and intended to benefit Colonia Trece. From this evidence, a reasonable jury could infer that Monterroso, as a Colonia Trece gang member, intended to participate in and facilitate the shooting by driving one of the vehicles that accompanied Orosco to and from the scene of the shooting. The conclusion Monterroso participated in the shooting was strengthened by consciousness of guilt evidence, for example, his denial on the night of the shooting that he knew Duran or Blas.
II
Sufficiency of the Evidence - Criminal Street Gang Enhancement
Defendants contend the prosecution expert's opinion that this was a crime committed for the benefit of a criminal street gang should be disregarded because: (1) it was based on police reports containing Blas's and Duran's inherently unreliable accounts of the incident, (2) it was improperly based on a theory the crime was committed to retaliate for Duran's dating of a rival gang member because gang retaliation occurs swiftly rather than years later, and (3) it ignored Duran's testimony that the primary activity of Colonia Trece was partying, not committing crimes.
Orosco also contends there was no evidence Colonia Trece was an ongoing gang, relying on Duran's testimony that she had heard the gang had disbanded although she had seen continuing "tagging." To support his argument, he cites to her preliminary hearing testimony. On this appeal, however, we are reviewing the sufficiency of the evidence presented at the trial, not the preliminary hearing. Orosco does not indicate this testimony was presented to the jury. There is evidence in the record indicating Duran had recently seen Colonia Trece gang graffiti.
A prosecution expert testified Colonia Trece was a criminal street gang. He testified that while Colonia Trece gang members socialized and engaged in partying, they also committed violent crimes. Gang members commit crimes to gain status. He testified the phrase "Where are you from?" is a gang member's way of asking a person what gang he or she is affiliated with. When the question is asked, the gang member already has an opinion about the other person and will consider a response denying gang affiliation, such as "I'm from nowhere," to be disrespectful.
The prosecution expert concluded this shooting was committed for the benefit of the Colonia Trece gang. He relied on the police reports describing the incident. He noted that a rogue gang member might commit a crime only to benefit himself. However, this crime involved cars driving by the victim's house, conduct usually intended to intimidate a victim. Further, individuals were dropped off by the vehicles to approach the victim. They used the phrase "Where are you from," and called out a gang name. This conduct was consistent with committing a crime for the benefit of the gang. The prosecution expert noted that female gang members are treated as property, "[m]eaning that they should only associate with that gang as far as their dating choices." Duran testified Colonia Trece gang members were mad at her when she left the gang and started dating Blas. Usually, gangs retaliate swiftly.
Both Monterroso and Orosco had admitted to being Colonia Trece gang members in the past. The prosecution gang expert opined that both Orosco and Monterroso were active gang members. Persons are either active members or they are not; "[t]here's no in between." Gangs do not use former gang members to commit crimes for the benefit of the gang.
The expert for the defense also testified Colonia Trece was a criminal street gang. He testified the criteria for determining whether a person has left a gang included moving away from the community and having a job. He concluded Monterroso no longer fit the criteria for an active gang member after talking to Monterroso's employer and making two unannounced visits to Monterroso's home that was located outside Colonia Trece's area. He had never seen a person rejoin a gang after leaving; gang members did not trust individuals who had left the gang. He had not seen gangs use former gang members to confront rivals, to participate in a drive-by shooting or to drop off other gang members to commit a shooting.
Although Duran at one point in her testimony suggested that the primary activity of Colonia Trece was to party, upon further examination, she testified the gang engaged in other activities. She testified that she accompanied Colonia Trece gang members on occasions when they engaged in retaliation, that she had seen the gang members use a gun "a lot of times," male gang members would commit violent acts against other gang members, and sometimes if the male gang members "didn't have anything to do, they would just go look for trouble."
The parties stipulated that certain crimes qualified as constituting a pattern of criminal gang activities under section 186.22, subdivision (e). The court stressed the evidence was admitted only for the purpose of the criminal street gang enhancement. These crimes involved assault with a firearm, attempted murder involving a firearm and the infliction of great bodily injury, and shooting at an occupied vehicle. The crimes had been committed by Monterroso, George Pelayo, Humberto Leal and Efrain Gutierrez Ochoa. There was evidence that these individuals were all members of Colonia Trece.
Essentially, defendants are asking us to reweigh the evidence, something we may not do on appeal. The jury was entitled to rely on the opinions of both the prosecution and defense expert that Colonia Trece was a criminal street gang and that criminal street gangs do not use former gang members to commit crimes. The jury was entitled to draw the inference that if Monterroso and Orosco were involved in the crime, then they were active members of Colonia Trece and that the crime was committed to benefit Colonia Trece. The fact that the motive for the shooting may have been unclear — that is, whether it was in retaliation for Duran's marriage to a rival gang member or for some other reason — was not determinative nor did it require the jury to reject the testimony indicating the crime was committed to benefit a criminal street gang. It was merely a factor for the jury to consider.
III
Admission of Gang Photograph
Defendants contend their convictions must be reversed due to the erroneous admission of an undated photograph showing Colonia Trece gang members, including Monterroso and Orosco, displaying gang signs and weapons and containing their gang monikers written across the top of the photograph.
The photograph was recovered in 2000 from a residence of a person other than Monterroso or Orosco. The photograph was first presented to the prosecutor and defense counsel during the trial. Over objection, the court admitted the photograph. The court determined it was relevant because Orosco was holding a black semi-automatic weapon that was consistent with a 9-millimeter gun and it showed Orosco was wearing a beanie similar to that worn by the shooter. Additionally, the court found the photograph was relevant because it showed Orosco's and Monterroso's membership in Colonia Trece and tended to rebut Duran's assertion that Colonia Trece's function was merely to party. The court found "the specific date of the photograph [was] somewhat immaterial" and went "more to the weight issue than the admissibility issue."
" 'The rules pertaining to the admissibility of photographic evidence are well-settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends " 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive. [Citations.]" [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.' " (People v. Heard (2003) 31 Cal.4th 946, 972-973.)
The trial court has discretion to exclude relevant evidence under Evidence Code section 352 if the probative value of the evidence is outweighed by a danger of undue prejudice, is merely cumulative to other evidence or will consume an undue amount of time. " 'The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations]. 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" . . . In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286; People v. Carter (2005) 36 Cal.4th 1114, 1168.)
Here, the photograph was relevant to prove both Orosco's and Monterroso's membership in Colonia Trece, which was relevant both to proving the criminal street gang enhancement, and the aiding and abetting liability of Monterroso. The photograph was also relevant to show Orosco had access to guns and, in particular, to a 9-millimeter gun similar to the one used in the shooting, a factor indicating the photograph was not cumulative to other evidence.
Monterroso asserts the photograph was irrelevant as to him because "only the identity of his car was at issue, and the gang photograph had no probative value with respect to his car." He further asserts there were no issues as to his clothing or access to weapons. This argument, however, ignores that a key issue in the case was whether this was a gang-related crime.
The defendants make much of the fact the photograph was undated. Indeed, Monterroso asserts that proof of the date of a photograph, the circumstances under which the photograph was taken, the identity of the photographer, and the identity of the persons writing any names on the photograph must be established prior to its admission. To support this contention, he cites People v. Lucas (1995) 12 Cal.4th 415, 466-468 (Lucas). This case, however, does not relate to the admission of photographs nor make any of these facts a prerequisite to the admissibility of a photograph. Moreover, the date of the photograph was not entirely unknown. The photograph was recovered in 2000. Monterroso and Orosco were both present in the courtroom, and therefore a comparison could be made between their present appearance and the photograph to determine the approximate age of the photograph. Since both were young men and neither were mere children in the photograph, the outside parameters of when the photograph was taken was relatively restricted. The court noted it appeared to be a "fairly current photograph." The trial court could reasonably conclude the photograph was not irrelevant on the basis of its age.
At issue in People v. Lucas, supra, 12 Cal.4th at pages 466-468, was the condition of the defendant's car before and after his arrest. The court generally discussed the rules relating to the relevancy of evidence and did not address the admissibility of photographic evidence.
Nor do we find the probative value of the photograph was outweighed by a danger of undue prejudice. The photograph was not unduly inflammatory or likely to engender an emotional response in the jury. This is not a case where the gang membership of the defendants was not already at issue; it was a key issue in the case. In contrast, to other evidence indicating Colonia Trece gang members engaged in violent crimes, the photograph merely showed members of Colonia Trece posing with weapons and displaying gang signs. Further, the court specifically instructed the jury not to be swayed by the fact the photograph showed the defendants associated with Colonia Trece gang members, that the association did not lower the standard of proof, and not to be influenced by the association alone.
Finally, we note that even if the court erred in concluding the probative value of the photograph outweighed its prejudicial effect, we would not reverse. The primary points of contention in this case were whether any shooting occurred and, if a shooting occurred, the identity of the individuals involved. Resolution of these issues turned on whether the jury believed Duran's and Blas's testimony a shooting occurred and their identifications relating to Orosco and Monterroso. The photograph was not critical evidence. There is no reasonable likelihood the jury would have acquitted either Orosco or Monterroso had the photograph not been admitted.
IV
Exclusion of Exculpatory Evidence
Defendants contend the court erred in limiting defense counsel's questions about exculpatory portions of Monterroso's statements to Duran and to a deputy sheriff. They contend Evidence Code section 356 required admission of the remainder of Monterroso's statements.
Evidence Code section 356 provides in pertinent part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . ." Section 356 permits the introduction of hearsay statements "on the same subject" as statements already introduced or which are necessary for an understanding of those statements. (See People v. Breaux (1991) 1 Cal.4th 281, 302.) "Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' " (People v. Arias (1996) 13 Cal.4th 92, 156.) "The purpose of Evidence Code section 356 is to avoid creating a misleading impression. [Citation.] It applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced." (People v. Samuels (2005) 36 Cal.4th 96, 130; People v. Harris (2005) 37 Cal.4th 310, 335 [The statements are "admissible for the nonhearsay purpose of placing [an individual's] statements into context."].) "Section 356 permits admission of the remainder of an otherwise inadmissible conversation where a part of the conversation has already been admitted. However, the hearsay objection will be overruled only if the remainder of the conversation is relevant to the portion already admitted, i.e., if it has " 'some bearing upon, or connection with, the admission or declaration in evidence . . . .' " (Carson v. Facilities Dev. Co. (1984) 36 Cal.3d 830, 850.)
(A) Monterroso's Statements to Deputy Perea
On direct examination, Deputy Joseph Perea testified Monterroso denied knowing Duran or Blas, stated Duran was crazy when told she had said he was an ex-boyfriend, admitted "associating with" Colonia Trece, having a brother in Colonia Trece, asked Deputy Perea to "let him go" for La Raza, and then "kept quiet" when Deputy Perea asked if Monterroso were admitting guilt. On cross-examination, the defense asked Deputy Perea what Monterroso had related about being in the area of the shooting and the prosecutor objected based on hearsay. The trial court sustained the objection. Later, the defense called Deputy Perea and sought to elicit Monterroso's additional statements made during the interview. The record contains the court's characterization of these additional statements as Monterroso saying "that he was scheduled to meet some people later on about the breakdown . . . ." The court found Evidence Code section 356 was controlling. The court concluded the statements admitted during Deputy Perea's direct examination did not need any further clarification and therefore the defense was not entitled to elicit Monterroso's unrelated hearsay statements.
Duran initially told the police Monterosso was an ex-boyfriend. She later stated she had not dated Monterosso, but one of his cousins.
We find no error. The defendants argue that Monterroso's additional statements were admissible over a hearsay objection because they were admissible under Evidence Code section 356 for the nonhearsay purpose of putting Monterroso's previously admitted statements in context. We disagree. Nothing in Monterroso's statements to Deputy Perea touched on the shooting or his alibi claim and, thus, they would not have clarified or put in context the statements that were introduced on direct examination. The defense failed to establish the statements were admissible over a hearsay objection pursuant to Evidence Code section 356.
(B) Monterroso's Statements to Duran
The prosecutor elicited from Duran that she talked with Monterroso and two Colonia Trece gang members at her workplace a couple of months after the shooting. She testified, "we were talking about what happened [at] the shooting, and he was mistaken for being there or something because I hadn't seen him during the shooting until when the cops pulled him over nearby there, and he was apologizing for Creeper [Orosco], for what he had done." On cross-examination, she testified that during the conversation Monterroso was "telling me that he was sorry for what had happened, and he didn't mean for all of this to have happened, and he was telling that he was in the wrong place at the wrong time." She testified Monterroso apologized "for him because he didn't do anything" and "apologized for his friends," meaning he apologized for Orosco. After confirming that Monterroso had stated he was in the wrong place at the wrong time, Monterroso's defense counsel asked Duran, "He had told you that he was in the area down the street, and his car had broken down. Isn't that what he had told you?" The prosecutor objected that it misstated the evidence. When defense counsel responded he was asking Duran "if that's what he told her," the prosecutor raised a hearsay objection, which the court sustained.
Initially, we note the defense did not raise Evidence Code section 356 as a basis for overcoming the prosecutor's hearsay objection. By not arguing Evidence Code section 356, the defense essentially conceded that Monterroso's additional statements were inadmissible hearsay. Thus, the issue may be deemed waived. (See Evid. Code, § 353, subd. (a); People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.)
Second, the defendants have not established that defense counsel was ineffective for failing to raise this issue. Reversal based on ineffective assistance of counsel is not merited if the record is silent as to why counsel acted or failed to act and counsel's conduct may be explained as a reasonable tactical choice. (People v. Carter, supra, 36 Cal.4th 1114, 1189.) Defense counsel in this case was silent and may have had a tactical basis for not pursuing this line of questioning.
We note that Orosco in his last argument of his opening brief makes a general contention of ineffective assistance of counsel as to all the evidentiary and instructional claims of error. We need not discuss this contention further since we have found none of the challenged evidence or instructions resulted in prejudicial error.
V
Aiding and Abetting Instructions
Monterroso contends the court erred in failing to sua sponte instruct the jury that an aider and abettor may be convicted of a lesser offense than the direct perpetrator.
The trial court must instruct the jury on general principles of law that are required by the evidence and necessary for the jury's understanding. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) A trial court must instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Birks (1998) 19 Cal.4th 108, 118.) Regardless of a request for specific instructions, the trial court must act as a neutral arbiter between the contesting parties to guide the jury on the law. (People v. Daya (1994) 29 Cal.App.4th 697, 712.) To preserve a claim that instructions that are otherwise correct in law were too general or incomplete and thus needed clarification, the defendant must request clarifying instructions in the trial court. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Reversal is not required for instructional error when it is clear the factual issue was resolved against the defendant under other proper instructions. (See People v. Elliot (2005) 37 Cal.4th 453, 475.)
The court instructed the jury on attempted murder as well as on the lesser included offenses of assault with a firearm and attempted voluntary manslaughter.
The court gave the standard instructions on aiding and abetting liability. The court instructed the jury with CALJIC No. 3.00:
"Persons who are involved in committing or attempting to commit a crime are referred to as principals of that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include those who directly and actively commit or attempt to commit the act constituting the crime or those who aid and abet the commission or attempted commission of the crime." (Italics added.)
The court also instructed the jury with CALJIC No. 3.01 as follows:
"A person aids [and abets] the commission or attempted commission of a crime when he or she with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime[,] and by act or advi[c]e aids, promotes, encourages, or instigates the commission of the crime."
The court did not instruct the jury on the natural and probable consequences doctrine. Under this doctrine, an aider and abettor may be found guilty of a crime greater than he intended to aid and abet if the direct perpetrator commits a crime that was a natural and probable consequence of the crime the aider and abettor intended to and did facilitate. (People v. McCoy, supra, 25 Cal.4th 1111, 1117.)
Notably, in arguing the jury should have been instructed that he could be found guilty of some lesser offense than Orosco and that the failure to so instruct the jury was prejudicial, Monterroso never explains what lesser offense the jury might have found he committed. Instead, Monterroso merely argues that had the court instructed the jurors that they could find him guilty of a lesser offense than Orosco, there was a reasonable probability the jury would have acquitted him not only of the attempted murder but also of all the lesser included offenses. He bases this argument on a claim the evidence showed, at best, that if a shooting occurred, only that he was in his car at the time of the shooting and failed to take steps to stop it. In other words, Monterroso argues he had no aiding and abetting liability. (See People v. Nguyen, supra, 21 Cal.App.4th 518, 529-530 [mere presence at scene or failure to prevent crime do not constitute aiding and abetting].) As we have explained in part I, ante, there was substantial evidence to support Monterroso's conviction.
We also note that Monterroso does not argue the instructions as given were improper, but argues that there should have been additional instructions, clarifying that an aider and abettor can be convicted of a lesser offense. If Monterroso had desired additional clarifying instructions, he should have requested them. By failing to make a request, he waived the issue.
Finally, we note that because the jury was not instructed on the natural and probable consequences doctrine, the jury in this case was not allowed to return a guilty verdict for attempted murder unless it found that Monterroso knew Orosco had an intent to commit murder, he intended to facilitate Orosco in committing murder and he did an act to facilitate the commission of a murder. Had the jury found Monterroso intended only to facilitate a lesser offense, such as assault with a firearm, the jury, as instructed, would have convicted Monterroso of the lesser offense even if it concluded Orosco had committed a different offense. In other words, any error in not instructing the jury that it convict Monterroso of a lesser offense than Orosco was harmless beyond any doubt.
VI
Consciousness of Guilt Instruction
Monterroso contends the court erred in giving CALJIC No. 2.03, which instructs the jury about consciousness of guilt evidence. He contends there was no evidentiary support for the instruction and that it acted as an improper pinpoint instruction.
The court instructed the jury with CALJIC No. 2.03:
"If you find that before this trial, a defendant made a willfully false or deliberately misleading statement concerning the crime for which he[ i]s being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
The Supreme Court has "consistently upheld the giving of this instruction [CALJIC No. 2.03] where it is supported by evidence." (People v. Arias, supra, 13 Cal.4th 92, 141.) The Supreme Court has also specifically rejected the argument that CALJIC No. 2.03 is an improper pinpoint instruction in favor of the prosecution. (People v. Kelly (1992) 1 Cal.4th 495, 531-532.) We are bound by the decisions of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
There was evidence in the record to support the instruction. Monterroso made statements that he did not know either Duran or Blas and he denied owning a cell phone. There was evidence that both these statements were false. Duran stated she was in the Colonia Trece gang with Monterroso and had known him since she was 12 years old. Monterroso had a cell phone with him when he was stopped, and made and received calls on that cell phone. Since both these facts involve matters clearly within Monterroso's knowledge, a jury could infer that he was willfully false and deliberately misleading when he made the statements. They could further infer that since knowing Duran or owning a cell phone did not themselves involve any criminal behavior, his lying was motivated by consciousness of guilt: (1) that he had just been involved in a shooting where Duran was present and had identified him; and (2) his cell phone contained records of calls involving a fellow gang member who was also involved in the shooting.
Monterroso also contends the court should have instructed the jury with CALJIC No. 2.03 "only if it also provided a cautionary instruction that the jury could only consider the statements as consciousness of [defendant]'s guilt if the prosecution established two preliminary facts, namely: (1) that [defendant] made the false statements; and (2) that [defendant] made these statements deliberately or willfully so as to hide his complicity in the crime." No such cautionary instruction was required. CALJIC No. 2.03 required the jury to find Monterroso made "a willfully false or deliberately misleading statement." (Italics added.) Further, it did not mandate the jury find such statements showed a consciousness of guilt, but only that the jury "may consider" the statements "as a circumstance tending to prove consciousness of guilt." (Ibid., italics added.) Finally, the instruction warned the jury that such statements are not alone sufficient to prove guilt.
The consciousness of guilt instruction was proper.
VII
Fabrication of Evidence Instruction
Defendants contend the court improperly instructed the jury with CALJIC No. 2.05, which states:
"If you find that an effort to procure false or fabricated evidence was made by another person for the defendant's benefit, you may not consider that effort as tending to show the defendant's consciousness of guilt unless you also find that the defendant authorized the effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
Defense counsel objected to the instruction. The court ruled the instruction was proper, explaining, "I think there was testimony some phone calls were received by Ms. Duran that indicated she shouldn't testify or she should in [a] way that would allow Mr. Orosco to be released. And there was indeed a false . . . report made after that." The court also stated it believed the instruction was to "the defendant's benefit to give . . . because it is an instruction that says unless it's specifically authorized and it can be shown it was authorized [by] the defendant [the effort to procure false or fabricated evidence] should not be considered in any way."
Duran testified she received a telephone call about two weeks after the shooting from a woman who identified herself as "Donna" and said she "better get [Orosco] out." The caller threatened Duran and her family A week later, a man called Duran and told her to "lay off," said they had nothing to do with the shooting, and stated Duran was mistaken and jumping to conclusions. Duran received five or six more calls from males, which were threatening and stating it would be best if she did not go to court. She did not recognize the voices but she knew the calls were from Colonia Trece members. On June 9 or 10, 2002, Duran left a message on the prosecutor's answering machine that she had been shot at two weeks earlier. Within days of this report, Duran admitted to an investigator that the second shooting had not occurred. She said that she had made up the second shooting so it would appear there had been a misidentification in the April shooting, allowing Orosco and Monterroso to be released from custody and ending the threats to herself and Blas.
Duran also testified that a few months after the shooting Monterroso contacted her at her workplace. He was with Bruno Perez and "Fernando," both of whom were Colonia Trece gang members. Perez and Fernando entered first. Perez started making threats to her. She thought Perez might have been in one of the cars involved in the shooting. Perez and Fernando asked Duran "if it was okay" for Monterroso to talk with her. They called him; he was apparently in the parking lot of Duran's workplace. Monterroso said "he did not mean for what had happened," claimed he was at the wrong place at the wrong time, he was sorry, and apologized for Orosco.
Finally, Duran testified that in January 2003, she was at a swap meet with her son, she lost track of her son and when she found him he was with Orosco's brother. Orosco's brother was holding her son's hand and said, "How does it feel?" and "thought it was funny." When Orosco's brother asked, "How does it feel?" Duran believed he was referring to the fact Orosco had children whom he was not able to see because he was incarcerated. The swap meet incident scared her more than the phone calls.
Evidence of threats to a witness "may be admissible as tending to show a defendant's consciousness of guilt if the threats are linked sufficiently to the defendant." (People v. Lybrand (1981) 115 Cal.App.3d 1, 11.) "Evidence of a defendant's connection to threats may be shown by circumstantial evidence." (Id. at p. 12.) "California law prohibits proving consciousness of guilt by establishing attempts to suppress evidence unless those attempts can be connected to a defendant." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368; People v. Brooks (1979) 88 Cal.App.3d 180, 187, fn. 5.)
Here, there was evidence that when Monterroso talked in person with Duran after the shooting, he first sent in Perez and another Colonia Trece gang member to talk to her. Perez made threatening comments to her. Although Duran testified that when Perez "got very mad" at her, Monterroso "defended" her, and she also testified that Monterroso never told her not to be truthful but "to do whatever I have to do," she also indicated that Monterroso was aware of the threatening phone calls. When he spoke to Duran in person, he told her "to forget the fucking phone calls." Although one inference from Duran's testimony is that Monterroso did not condone the threats by Perez or in the phone calls, another inference can be drawn that Monterroso, aware of the phone calls, had condoned the phone calls but later decided to try to persuade her from testifying against him based on her prior friendship with him. Additionally, although Monterroso chastised Perez for making threatening comments, an inference can be drawn that Monterroso chose Perez and another gang member to precede his talk with Duran for the very purpose of intimidating Duran. Thus, there was sufficient evidence to justify the instruction.
As to Orosco, he contends there was no evidence connecting him to any of the threats. Initially, we note nothing in the instruction directed the jury's attention to him. Second, even if we were to concede Orosco is correct, we would not reverse since the instruction was justified by evidence relating to Monterroso. Assuming arguendo there was no evidence connecting Orosco to the threats, the jury, as instructed, would not have used the threats to show consciousness of guilt by Orosco since the instruction required the jury to find the defendant authorized the threats. (See People v. Crew (2003) 31 Cal.4th 822, 849; People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.) Finally, we note the key evidence against Orosco was the identifications of Blas and Duran that he was the shooter rather any subsequent threats. In other words, there is no reasonable probability the jury would have returned a different verdict against him had the instruction been omitted.
VIII
Sufficiency of Evidence - Monterroso's Prior Serious Felony Conviction
Monterroso contends there was insufficient evidence to establish his prior felony conviction for discharge of a firearm with gross negligence (§ 246.3) qualified as a serious conviction or strike conviction because there was insufficient proof that he had personally discharged the firearm.
"Section 1192.7, subdivision (c) enumerates those felony violations that constitute serious felonies under California law. Where a defendant has been convicted of a serious felony, reoffending may result in severe consequences: certain prior serious felony convictions are strikes under the Three Strikes law (§§ 667, subds. (d)(1), (h), 667.1, 1170.12, subd. (b)(1), 1170.125; Prop. 184, § 2), and all prior serious felony convictions subject a defendant to an additional five-year sentence enhancement if the current offense is a serious felony. (§ 667, subd. (a)(1) & (4).)" (People v. Briceno (2004) 34 Cal.4th 451, 458.)
The section 246.3 offense of discharging a firearm qualifies as a prior serious felony and a strike conviction if the record of conviction establishes the defendant personally discharged a firearm. (§ 1192.7, subd. (c)(8); People v. Leslie (1996) 47 Cal.App.4th 198, 201.)
Here, the trial court found Monterroso personally discharged the firearm based on his admission in the probation report to the probation officer that he had personally discharged the firearm. This was error. The probation report is not part of "the record of conviction" that may be used to determine if a prior offense qualifies it as a serious felony or strike conviction. (People v. Trujillo (2006) 40 Cal.4th 165, 179.)
The Attorney General argues the finding that Monterroso's serious felony conviction and a strike conviction can be upheld on appeal because his prior conviction included a true finding on a section 186.22 criminal street gang enhancement.
A felony offense may also qualify as a prior serious felony conviction and a strike conviction if it "would also constitute a felony violation of Section 186.22." (§ 1192.7, subd. (c)(28).) The Supreme Court has concluded the phrase " 'which would also constitute a felony violation of Section 186.22' " includes "within its ambit any felony offense committed for the benefit of a criminal street gang under the section 186.22(b)(1) gang sentence enhancement." (People v. Briceno (2004) 34 Cal.4th 451, 459.)
The allegations of the second amended information for the prior serious felony conviction and the strike conviction stated that in April 1998 Monterroso had been convicted of "PC246.3/186.22" in San Bernardino County Superior Court case No. FRE02931. Thus, Monterroso was given notice that the alleged prior serious felony conviction and the strike conviction involved the section 186.22 enhancement.
In his reply brief, Monterroso acknowledges the Attorney General's argument that the section 186.22 enhancement justified the prior serious felony conviction and a strike conviction finding and his only response is to assert all of the Attorney General's "contentions lack merit." Otherwise, he reiterates his argument that the prosecutor failed to present competent evidence to prove he personally discharged the firearm.
We do not believe reversal is necessary in this case. The determination that a prior conviction qualifies as a strike as a matter of statutory interpretation is a legal determination to be made by the court. (See People v. McGee (2006) 38 Cal.4th 682, 686-687.) As a matter of law, Monterroso's conviction with its criminal street gang enhancement was a prior serious felony and qualified as a strike conviction. There are no unresolved factual issues relating to the prior conviction since the court made the determination Monterroso was the individual who suffered the conviction in San Bernardino County Superior Court case No. FRE02931. " 'A decision right in result will not be reversed even though the reason stated is wrong.' " (People v. Evans (1967) 249 Cal.App.2d 254, 257; People v. Singh (1995) 37 Cal.App.4th 1343, 1381.) The result in this case was correct, albeit that the stated reason was wrong. Reversal is not merited on this ground.
IX
Motions for New Trial
Defendants contend the court erred in failing to grant Monterroso's two motions for a new trial.
" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citations.] ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (Ibid.) "In addition, 'the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.' " (Id. at p. 329.)
(A) First New Trial Motion
Monterroso first filed a motion for a new trial in October 2003. Orosco joined in the motion. Among other things, a new trial was sought based on newly discovered evidence. The purportedly new evidence consisted of declarations by Magdaleno Gomez and Perez. In these declarations, Gomez and Perez stated they knew Duran, she had a reputation as a liar, and they had heard from Fabiola Garcia that Duran had admitted to Garcia that she lied at trial. Perez's declaration indicated he had talked with Fabiola in June 2003 and that Fabiola had told him Duran made the admission about lying at trial several months earlier. Gomez's declaration stated he had "heard from several other people" that Duran had admitted lying at trial, he had been told by other people that Duran lied to get revenge against Orosco who had beaten up her "boyfriend Chico," and he had been told by other people that "Chico 'had it out for [Monterroso]."
Monterroso also sought a new trial based on the insufficiency of the evidence as well as instructional and evidentiary errors. We have addressed these issues elsewhere in the opinion, concluding the evidence was sufficient and the evidentiary rulings and instructions were proper. It is not necessary to repeat those discussions in the context of the new trial motions.
The trial court denied the motion. The court found the evidence was inadmissible hearsay and noted it did not appear likely that Fabiola Garcia would testify. The court also found the evidence was cumulative to other evidence establishing inconsistencies in Duran's statements and, given the other evidence and the fact both Gomez and Perez were members of Colonia Trece, it was not likely the evidence "would have any significant impact on the outcome of the trial."
In arguing the trial court erroneously denied the new trial motion based on newly discovered evidence, defendants only argue that the court should have held an evidentiary hearing to assess the credibility of Gomez and Perez before denying the motion. Notably, defendants do not dispute that the primary "new evidence" — that Duran had admitted lying at trial — was inadmissible hearsay. When the hearsay is eliminated from the declarations, Gomez's and Perez's declarations consist of little more than their statements they were familiar with Duran and that she had a reputation as a liar and a vengeful person. Not only was there no evidence indicating that this was new evidence — that is, that the defense was unaware of this evidence prior to trial — but it also was merely cumulative to other evidence showing Duran had lied at times and felt a certain animosity toward Orosco. For example, she lied to the police about a second shooting occurring. Under these circumstances, and given the Colonia Trece gang membership of Gomez and Perez, an evidentiary hearing was not necessary.
Duran at one point stated that she made up the second shooting, in part, because she "felt bad" because Orosco had a new baby. Duran also testified that when Monterroso's defense investigator came to her house, she told him she had "nothing against" Monterroso, but to not talk to her about Orosco "because [she couldn't] stand him."
(B) Second New Trial Motion
Monterroso made a second motion for a new trial in February 2005 based on newly discovered evidence and Orosco joined in the motion. The motion was based on a January 2005 declaration by Blas stating he had lied at trial about seeing Monterroso or his vehicle near his home on April 7, 2002, and he was certain Monterroso was innocent. Blas stated he lied at trial "because Mr. Monterroso's attorney was making [him] mad and made [him] look bad" and he did not "like to look bad." Blas stated that he "lied so many times [during the trial] that [he] cannot recall what specific lies [he] told." Monterroso also submitted an audiotape and videotape of a defense investigator's interview with Blas.
The new trial motion was also sought on the basis that Blas, under another name (Jetzael Blas Gutierrez), had been charged in 2002 with two misdemeanors, one involving the unlawful drawing or displaying of a weapon (§ 417), the other the unlawful carrying of a concealed weapon (§ 12025, subd. (a)). These cases were pending at the time of trial, and the district attorney had not disclosed this information to the defense. Monterroso contended information about the charges would have been useful to the defense because Blas "denied a weapon's history and claimed to have found a bullet after police had thoroughly searched the area and his residence and found none. . . . Had the defense been able to show that [Blas] has access to weapons, namely firearms, his possession of a bullet to give to police would have been seen in a different light by the jury."
The court denied the motion as to both defendants because it was not likely to render a different result on retrial. The court noted Blas was self-contradictory during the trial, his attitude indicated he did not want the defendants to go to jail even if they were guilty, and there was other evidence establishing the defendants' guilt. The court stated that the impact of the two misdemeanor arrests on the jury's evaluation of Blas's credibility would be minimal and not likely to alter the jury's verdict. The court also stated that the motion was "untimely and improper."
On appeal, the Attorney General argues the trial court lacked authority to entertain a second motion for new trial. While second or renewed motions for new trial are generally discouraged, this is not a jurisdictional rule, that is, not a rule depriving the court of any jurisdiction to consider a second or renewed motion for a new trial prior to the pronouncement of the judgment. (See People v. Stewart (1988) 202 Cal.App.3d 759, 763.) Judgment in this case had not yet been pronounced. Therefore, the court had jurisdiction to consider the motion.
The judgment is pronounced when the defendant is sentenced. (People v. Gonzales (1963) 214 Cal.App.2d 168, 173; People v. Lopez (1941) 43 Cal.App.2d Supp. 854, 865-866; § 1191.) The defendants had not yet been sentenced when the second motion for a new trial was filed.
Reversal is not warranted because we find no abuse of discretion in the court's alternate ground for denying the motion, that is, its determination the Blas declaration was cumulative to other evidence showing that Blas had changed his story about what occurred. The trial court saw Blas testify and witnessed Blas's impatience with the proceedings. Indeed, the trial court described Blas as "one of the worst witnesses [the court had] ever seen" and described his testimony as "a complex layering of argument, denial, confusion, and admitted lies."
In considering the motion, the court was entitled to consider whether Blas's recantation was likely to cause a different result upon a retrial. Given the number of times Blas had changed his story, the gang context of the case, the threats made against Blas and Duran prior to trial, the existence of other evidence supporting the shooting and identification of Orosco and Monterroso, Blas's equivocal attitudes about the prosecution, and the fact the recantation was made nearly two years after the trial, the trial court was entitled to conclude that neither Blas's recantation nor the two misdemeanor cases were likely to sway the jury to believe Blas's posttrial version.
X
Correction of Abstract of Judgment - Monterroso
Monterroso contends there are errors in his abstract of judgment. The Attorney General agrees, as do we.
We note the second amended information alleged an enhancement under section 12022.53, subdivision (e)(1) as to Monterosso, but not subdivision (c). However, we find this variance is insignificant. Under section 12022.53, subdivision (e)(1), an individual is liable for a subdivision (b) or (c) enhancement if he or she was a principal in a crime committed to benefit a criminal street gang. Orosco was charged with and a true finding was made under section 12022.53, subdivision (c) that he personally and intentionally discharged a firearm. Thus, Monterosso was also liable for this section 12022.53, subdivision (c) enhancement. Further, we can infer amendment according to proof based on what appears to be the judge's handwritten notes on the probation report, the lack of objection to the imposition of the section 12022.53, subdivision (c) enhancement at the sentencing hearing and the fact both parties on appeal seek correction of the abstract of judgment to reflect a subdivision (c) enhancement.
The appellate court has inherent power to correct errors and omissions in an abstract of judgment to reflect a defendant's true sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Williams (1995) 40 Cal.App.4th 446, 458.)
The court sentenced Monterroso to 35 years in prison: 10 years for the attempted murder (double the low term of five years due to Monterroso's prior strike conviction), a consecutive term of 20 years for a section 12022.53, subdivision (c) enhancement and a consecutive term of 5 years for a prior serious felony enhancement. The court stayed the section 186.22, subdivision (b)(1) enhancement.
The abstract of judgment, however, improperly shows an enhancement for section 12022.53, subdivision (b), instead of 12022.53, subdivision (c). Additionally, we note that while there is a minute order in the record stating that Monterroso's credits were determined on August 5, 2005, to consist of 878 actual days and 131 days of conduct credit and ordering the clerk's office to certify a copy of that minute order to the Department of Corrections and Rehabilitation, the abstract of judgment in the record does not contain a calculation of the sentencing credits, but only the statement: "Hrg on credit for time served set 8/5/05."
We order the abstract of judgment amended to reflect an enhancement for section 12022.53, subdivisions (c) and (e)(1), and the sentencing credits.
DISPOSITION
The trial court is instructed to amend the abstract of judgment to reflect an enhancement under section 12022.53 subdivisions (c) and (e)(1) for defendant Monterroso, and to include his total credits of 1,009 days, composed of 878 actual days and 131 days of conduct credits, and to forward a copy of the abstract of judgment to the Department of Corrections and Rehabilitation. With these modifications, the judgment is affirmed.
WE CONCUR: HUFFMAN, J. NARES, J.