Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA 086169, Dewey Falcone, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Carlos Nava was charged with and convicted of the attempted first degree murder of Luis Zamora (count 1), shooting at Zamora’s occupied motor vehicle (count 2), and the first degree murder of Marlon Miller (count 3), plus criminal street gang and firearms discharge allegations. He was sentenced to a total of 90 years to life in prison.
Appellant was 16 years old at the time of the crimes. He had been a member of the Florencia 13 street gang for about a year. He fired at the victims at the urging of Raymond Perez, a more experienced, 18-year-old member of his gang. The crimes were committed to test appellant’s loyalty to the gang, to establish his reputation within the gang, and to intimidate the surrounding community.
Neither Zamora nor Miller were gang members. Zamora was shot as he drove home from work, around 3:30 p.m. on November 3, 2004. Miller was shot around 8:45 p.m. on November 21, 2004, as he walked to his car after purchasing cigarettes from a gas station cashier. Both men were shot in the head. Miller died, leaving behind a pregnant wife and young son. Zamora lived, but suffered severe and permanent injuries.
Appellant made incriminatory statements during (1) a recorded telephone conversation with Perez after Perez was arrested on November 22, 2004; (2) a recorded interview at Camp Holden with Sheriff’s Detectives Frank Bravo and Martin Rojas on February 9, 2005 (the Bravo interview); and (3) a recorded interview at Camp Holden with Sheriff’s Detectives Patrick Tapia and Toni Martinez on February 10, 2005 (the Tapia interview). He confessed to both of the shootings during the Bravo interview, and added more details about the Miller shooting during the Tapia interview.
Appellant’s sole issue on appeal concerns evidence of uncharged crimes. Such evidence was introduced in two ways: (1) At the end of the Tapia interview, appellant said he committed only the Zamora and Miller shootings, and not other gang shootings that Tapia mentioned. (2) The gang expert’s testimony included the fact that two members of appellant’s gang had recently been convicted of assault with a deadly weapon, possession of a controlled substance with a firearm, and “possession for sale.” Based on that evidence of uncharged crimes, appellant contends: “The trial court committed reversible federal constitutional error by erroneously admitting other crimes evidence that was inadmissible under Evidence Code sections 352 and 1101; and trial counsel was ineffective in failing to object to the inadmissible other crimes evidence, and in failing to request a limiting instruction on the other crimes evidence and other gang evidence.” (Capitalization omitted.)
We find no possible prejudice from the references to uncharged crimes, in view of appellant’s confessions to the charged crimes. We therefore affirm.
DISCUSSION
We begin with the details of appellant’s three incriminatory statements.
1. The Telephone Conversation with Perez
On November 22, 2004, the day after the Miller shooting, Detective Bravo arrested Perez for the Zamora shooting because an eyewitness had picked out Perez’s picture from a photographic lineup. Perez telephoned appellant from the police station. He told appellant that the police thought he (Perez) committed the Zamora shooting, and did not know of appellant’s involvement. He said to appellant, “Do what you think is right.” They discussed their respective roles in the incident. Perez remembered that he was in the middle of the street. Appellant recalled that he had stopped traffic, and a woman saw him “doing that shit.” He became evasive when Perez asked him how many times he fired the gun. He admitted getting rid of the gun afterwards. He promised to “do what’s right,” regarding talking to the police.
2. The Bravo Interview
Detective Bravo and his partner interviewed appellant on February 9, 2005. Appellant waived his Miranda rights. He said his gang moniker was “Youngster,” and both he and Perez belonged to the Florencia 13 gang. Bravo told appellant that he had listened to a recording of Perez’s telephone call with appellant. Appellant then confessed to shooting Zamora. He said that Perez had previously given him a handgun. He and Perez rode bicycles away from a house where other members of the gang had congregated. Perez jumped off his bicycle, threw gang signs, and told appellant that he had to shoot at a man in a car. Perez repeated that order several times. Appellant “did what [he] had to do,” and fired several shots at the man. He then rode off on his bicycle. Later, he gave the gun to Perez’s brother. He agreed with Bravo’s suggestion that committing a shooting was a way to “[p]ut in work” or make a name for himself in the gang.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Bravo then turned to the Miller shooting. He falsely told appellant that the crime had been recorded on the gas station’s video camera. Appellant then described what he did. He said he had been at his girlfriend’s house when Perez picked him up in a car. He used drugs while cruising around with Perez. Perez wanted to have “some fun.” Appellant wanted to “call it quits” on that type of behavior (apparently, shooting at people). At Perez’s order, appellant stopped near a gas station. They both jumped out of the car. Perez handed appellant a gun. He told appellant to shoot at a Black man they saw, who he said belonged to a rival gang, East Coast Crips. Appellant did not want to shoot. Perez pressured appellant, saying that if he did not shoot, he would be “a bitch” (apparently meaning, a coward). Appellant shot once at the man and ran back to the car. He drove off with Perez, who retrieved the gun from him.
3. The Tapia Interview
Detective Tapia and his partner interviewed appellant on February 10, 2005. Appellant again waived his Miranda rights. The detectives told him they knew he had discussed Bravo’s case (evidently the Zamora shooting) when Bravo interviewed him the previous day. They also knew he had discussed another shooting (the Miller shooting). They asked him to describe the latter incident. He then confessed again to the Miller shooting, providing even more details. He said he was at his girlfriend’s house when Perez picked him up in a car. Perez said that he “wanted to have some fun.” Appellant did not know that Perez planned for him “to do some shooting.” However, appellant saw a sawed-off rifle when he got into the car. They drove around, drinking alcohol and listening to music. Appellant also used cocaine and methamphetamine. At first Perez drove, and then he let appellant drive. When they were in an alley, Perez told appellant to stop the car. They both got out of it. Perez pulled the rifle out and pointed to a Black male at the gas station. He told appellant to shoot the man, who, according to him, was a member of the East Coast Crips gang. Appellant declined. They argued about it for “about three minutes.” Perez insisted. He taunted appellant about being “a bitch.” Appellant fired one shot at the man. He and Perez then ran back to the car and drove away.
Toward the end of the interview, Tapia asked appellant for more details about ongoing warfare between the Florencia 13 and East Coast Crips gangs. Appellant said that members of the East Coast Crips gang would shoot a person who looked like a Florencia 13 gang member. Tapia recalled that a young Hispanic male had been shot by members of the East Coast Crips gang in the alley near Compton and 90th. Appellant remembered that a Black youth was shot 17 times near Fremont High School, but he said that crime was committed by another gang, and not Florencia 13. Appellant was not familiar with an incident about five months earlier, in which “two Mexican kids in a car, they [got] blasted by some black dudes.” He himself had been shot when he was 14 years old, and the younger brother of one of his fellow gang members had been shot. Tapia then asked appellant about a girl that Perez and some of appellant’s gang members had killed, a “couple years back.” Appellant said he had been in the Florencia gang for about eight months, and did not know anything about that crime. Tapia said he had information that appellant, Perez and other members of their gang “shot at the black guys on 90th or 91st in Compton . . . you got in a fight with them, and you guys lit them up with three different guns and shot . . . .” Appellant denied any involvement in that incident. He insisted that the Zamora and Miller incidents were the only shootings he committed. He believed there would always be killings between Hispanics and Blacks.
According to the gang expert, most members of the East Coast Crips are African-American, and most Florencia 13 gang members are Hispanic.
4. Other Evidence of Uncharged Crimes
In addition to the tape of the Tapia interview, Tapia himself testified that he questioned appellant about other shootings he might have committed, and appellant said he only did the two shootings to which he had already confessed.
As previously indicated, there also was evidence about uncharged crimes from the gang expert, who said that two members of appellant’s gang had recently been convicted of assault and drug crimes.
5. Analysis
Appellant argues that the references to uncharged crimes constituted reversible federal constitutional error because the other crimes were not similar enough to the charged crimes to be admissible under Evidence Code section 1101, Evidence Code section 352, and People v. Ewoldt (1994) 7 Cal.4th 380, 402-404. He further contends that the trial court violated his Fourteenth Amendment right to due process by not giving a limiting instruction, to avoid use of the other crimes to show criminal disposition. He also argues that his counsel rendered ineffective assistance under the Sixth and Fourteenth Amendments by not objecting to the other crimes evidence in the Tapia interview and/or by not requesting a limiting instruction about the uncharged crimes that he denied in the Tapia interview or the criminal convictions mentioned by the gang expert.
As respondent points out, there was no objection to the evidence of uncharged crimes. The trial court cannot be faulted for failing to exclude evidence to which no objection was made, or failing to give an instruction that was not requested.
There also was no denial of appellant’s constitutional right to the effective assistance of counsel. Assuming arguendo that defense counsel should have sought to exclude the other crimes evidence in the Tapia interview, or should have requested a limiting instruction about other crimes evidence, appellant has not met the requisite standard, because there is no reasonable probability that he would have obtained a more reasonable result, but for counsel’s failings. (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, & In re Wilson (1992) 3 Cal.4th 945, 950.)
Appellant’s statements contained overwhelming evidence of guilt. In the telephone call with Perez, he essentially admitted that he shot at Zamora. In the Bravo and Tapia interviews, he thoroughly discussed what he did before, during and after the Zamora and Miller shootings. The combination of his statements and the victims’ injuries shows that he shot at the heads of two complete strangers who happened to be near him, when Perez told him to do so. Given the dreadful nature of the facts that appellant admitted, as to the charged crimes, the jury cannot possibly have been influenced by evidence that he denied other shootings, or that other members of his gang had been convicted of less serious crimes.
For similar reasons, the evidence of uncharged offenses, or lack of a limiting instruction, did not result in a violation of due process. Assuming that the due process issue was preserved for the appeal, even though there was no such objection below, there was no risk that the jury would base its verdict on the uncharged crimes, since appellant made detailed confessions to the charged crimes, and the uncharged crimes played a relatively insignificant role in the trial.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.