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People v. Nino

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 19, 2012
No. B219852 (Cal. Ct. App. Jan. 19, 2012)

Opinion

B219852

01-19-2012

THE PEOPLE, Plaintiff and Respondent, v. JOE QUSTA NINO, Defendant and Appellant.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. YA050479)

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed as modified.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

Joe Qusta Nino appeals from the judgment entered after he was convicted of first degree murder and conspiracy to commit murder. Nino contends that some evidence was wrongly excluded, that some evidence was wrongly admitted and violated his constitutional right to confront and examine witnesses, that error occurred in both giving and refusing certain jury instructions, and that there was insufficient evidence to corroborate the inculpatory testimony of an accomplice. We reject these contentions, and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In accord with the usual rules on appeal, we state the facts in the manner most favorable to the jury's verdicts. (People v. Jackson (2005) 129 Cal.App.4th 129, 136.)

The body of 20-year-old Juan Vasquez was found on the campus of the Rancho Del Mar continuation high school in Rolling Hills on the morning of December 5, 2001. Vasquez had six gunshot wounds to the back of his body, including one to the back of his head. Joe Qusta Nino and Miguel Torres were tried together and convicted of murder and conspiracy to murder, with Nino found to be the shooter and Torres his accomplice and co-conspirator. Direct evidence against Nino came from his accomplice, Erick Velasquez, who testified after being granted immunity. We summarize the testimony of Velasquez and other relevant witnesses below.

The judgment on appeal came from the retrial of Nino and Torres after we reversed the judgment in their first trial (case Nos. B168998 and B170306) for jury selection bias. (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.) Torres appealed from the judgment after retrial, but dismissed his appeal.

Erick Velasquez's Testimony

Torres, Velasquez, victim Vasquez, and Jose Gutierrez were part of a group of people who hung out in the garage of the Badalick family, just down the street from the Vasquez house in South Gate. As of December 2001, Nino had only recently begun to go there too. Both Torres and Velasquez were angry with Vasquez. Torres was angry with Vasquez because Nino and Vasquez had agreed to sell Torres a set of tire rims for $1,000, but Vasquez sold them to someone else for more money. Velasquez was angry with Vasquez because Vasquez had crashed Velasquez's car, causing $1,500 damage. Although Vasquez promised to pay for the damage, he had paid only $100 and refused to pay the rest.

On December 3, 2001, Torres phoned Velasquez and told Velasquez that he had some marijuana and would come by to pick him up so they could smoke it. Torres drove up to Velasquez's house soon after, with Gutierrez in the car. Velasquez knew that Torres carried a gun, so in order to impress Torres and feel like "one of the boys," Velasquez brought along a loaded 9 millimeter Smith & Wesson handgun he had stolen from his father 18 months earlier. Velasquez put the gun beneath the front passenger seat, where he was sitting.

After driving around for awhile as they smoked marijuana, Velasquez said they should go to the Badalick's garage to look for Vasquez and see if he had any more of the money he owed Velasquez for crashing his car. Vasquez was there when they arrived, and when Velasquez asked about his money, Vasquez said he was not going to pay the rest. Velasquez told Vasquez that if he did not pay, "that's it." Vasquez laughed in Velasquez's face, which made Velasquez mad, and he left with Torres and Gutierrez. In the car, Torres asked what Velasquez was going to do about it; Velasquez answered that he did not know.

Torres, Gutierrez, and Velasquez drove off and kept smoking marijuana. Torres borrowed Velasquez's cellphone to call Nino, asking him to meet up with them. They decided to meet at Nino's house. After Nino got inside Torres's car, Torres told him that Vasquez was "talking shit" about him, including asking why the others hung out with him when he was not Mexican. Nino asked, "Are you serious?" and "Are you fucking with me?" Torres said he was letting Nino know about those remarks because of Vasquez's decision to sell the tire rims to someone other than Torres. Torres also told Nino about the money Vasquez refused to pay Velasquez, adding that Velasquez had a gun.

Nino asked to see the gun, and examined it after Velasquez handed it to him. Torres asked Nino if he would "take care of [Vasquez] for the gun." Nino said he would, and took the gun. Velasquez did not ask Nino to give him back the gun because he "was scared what he was capable of." Velasquez had heard that Nino was involved in other crimes. He said he also did not ask for the gun back because he was "angry," "got caught up in the moment," and did not want to look like a "pussy or a coward."

Sometime around 10:00 p.m. on December 4, 2001, Torres drove Velasquez and Gutierrez to the Bicycle Club Casino, smoking marijuana as they traveled. On the way there, Nino paged Torres, and Torres used Velasquez's cellphone to call him back. Velasquez heard Torres say, "What's up Joe?," and heard Nino respond "Ding-Da-Da," "Da-Da," or perhaps even "Ba-Da-Bing." Torres asked Nino to meet them at the casino. Gutierrez went inside the casino, and Nino showed up soon after and got inside Torres's car. When Torres asked Nino "Did you really do it?" Nino nodded his head up and down in a way that signified yes. In an apparent reference to the gun Nino received from Velasquez, Nino told Velasquez, "That was a piece of shit, that shit jammed on me." He added that he had "wanted to unload it all on him, but it jammed on me on the fifth, sixth, or seventh shot."

The next day, Velasquez realized he had left his cellphone in Torres's car. He got the phone back from Torres later that day. At around 9:00 p.m. on the following Sunday, Torres phoned Velasquez and said he was on his way to pick him up because Nino wanted to talk to them one last time. Velasquez said he was afraid Nino wanted to harm them, but Torres said he should not worry because he would bring his own gun along. When they met up with Nino, Nino said he was afraid that "they" suspected he had killed Vasquez, and that "they" had taken photos of his house. Velasquez did not speak to Nino again after that meeting.

Sanchez Cousins and Carlos Loaiza

Sisters Brenda and Roxana Sanchez were Vasquez's cousins and lived in the Vasquez home. At around 8:45 p.m. on December 4, 2001, Vasquez told Roxana "he was going with Joe, that he was outside, and that he'll be back." The only "Joe" Vasquez knew was Joe Nino.

On December 5, 2001, the day after the shooting, Carlos Loaiza - a friend of both Vasquez and Nino - phoned the Vasquez house. Brenda asked Loaiza if he knew where Vasquez was. Loaiza phoned Nino and, in a stuttering, nervous tone of voice, Nino claimed he had dropped Vasquez off at the Vasquez house. When Loaiza relayed this information to Brenda's sister, Roxanna, she got him to call Nino back and ask again where Vasquez was. Nino told Loaiza he had dropped off Nino at a corner gas station. When Loaiza called Nino again to ask about Vasquez, Nino said he dropped off Vasquez at gas station and left him with "Little Tony" and "David."

Jose Gutierrez's Testimony

Gutierrez generally corroborated key portions of Erick Velasquez's testimony. Gutierrez recalled being with Torres and Velasquez at the Badalick's house a few days before Vasquez was killed. After Velasquez spoke with Vasquez, Torres, Velasquez, and Gutierrez got in Torres's car, where he heard Velasquez complain that Vasquez had no money, and heard Torres ask what Velasquez was going to do and if he was "going to handle it." According to Gutierrez, Torres then drove them to Nino's house, and Nino got in Torres's car. Torres and Nino had a discussion about buying car rims. There was also more discussion between Torres, Nino, and Velasquez about "handling someone," "kicking somebody's ass," and about Nino obtaining Velasquez's gun. Eventually Nino left the car and told Torres, "I'm not going to do it for you. I'm going to do it for myself."

The next evening, Gutierrez ended up at the Bicycle Club Casino with Torres and Velasquez. On the way there, Torres's pager went off and Torres asked to use Velasquez's cellphone to answer the page. Torres called someone and asked that person to meet up at the casino. As Gutierrez went inside the casino, he saw Nino drive up. When Gutierrez came back outside some time later, Nino was still there. Velasquez left his cellphone in Torres's car that night, and he and Gutierrez used the phone to make several calls.

When first questioned by sheriff's detectives about the murder of Vasquez, Gutierrez concealed what he knew because he was afraid of Nino. Once Nino had been arrested, Gutierrez came forward with the truth.

Other Evidence Linking Nino to the Crime

Slugs and cartridge casings recovered from Vasquez's body and the crime scene were all from nine-millimeter rounds. Although the gun used to shoot Vasquez was never recovered, the slugs and casings were consistent with having been fired from the same weapon. However, there was no fingerprint or other tangible, physical evidence linking Nino to the murder. Instead, there was a trail of circumstantial evidence.

Gary Yardumian lived on a hill overlooking the Rancho Del Mar continuation school. At around 9:34 p.m. on December 4, 2001, Yardumian phoned 911 after hearing several gunshots coming from the school grounds. Right after the shots were fired, Yardumian heard footsteps, a car alarm going off, and a high-pitched, loud car exhaust from a small, dark-colored car that was driving away. Although Yardumian at first said the car was a Honda, he later agreed it could have also been a small Acura, Jetta, or BMW. After Nino was arrested, his car - a blue BMW - was impounded. The car had an alarm, and a sheriff's detective recorded the sounds of both the alarm and the car's exhaust. Yardumian listened to the recordings and said the alarm sound was similar to what he heard before, and that the exhaust sound was familiar because it sounded like the same type of "souped up" car he heard driving away. Although Yardumian could not positively identify Nino's BMW as the car he had seen and heard driving away from the school, he said its appearance was consistent with that car.

Yardumian testified at the first trial, but not at the second trial. Instead, his testimony from the first trial was read to the jury.

A Palos Verdes police detective testified to time and distance measurements from Vasquez's house to the murder scene, and from the murder scene to Vasquez's neighborhood. The distance was 22.4 miles and it took about 25 minutes to travel that distance in either direction.

Records for Nino's and Velasquez's cellphones generally corroborated Velasquez's testimony about the time and location of the several calls made to or from Nino and Torres.

The testimony on this topic was detailed, complex, and required the use of charts. Nino raises no issues on appeal concerning the evidence, so we have decided to briefly summarize it.

CONTENTIONS ON APPEAL

Nino contends we should reverse because the trial court erred: (1) by allowing Roxana Sanchez to testify about Vasquez's statement that he was going with Joe and would be right back, and by allowing a sheriff's detective to testify that Roxana told him the same thing, because the statements were inadmissible hearsay and violated his constitutional rights under the confrontation clause; (2) by allowing the jury to hear testimony from Velasquez about statements made by Torres that implicated him; (3) by allowing witnesses to testify that they feared Nino because they had heard Nino had committed other crimes; (4) by refusing to allow him to impeach Velasquez with evidence of crimes he committed; (5) by refusing his request for an instruction that the prosecution withheld evidence about the condition of his car when it was impounded and its alarm and exhaust sounds were recorded, and about time and distance measurements to and from the crime scene; (6) by giving a confusing instruction concerning Velasquez's status as an accomplice to the crime. He also contends the effect of cumulative errors was prejudicial, and there was insufficient evidence to corroborate Velasquez's testimony.

DISCUSSION

1. Admitting Testimony That Vasquez Implied He Was Leaving With "Joe"

A. Relevant Facts

Nino made a pretrial motion to exclude Roxana's expected testimony that Vasquez said something to the effect that he was leaving with Joe, contending that because sheriff's investigators asked her about the statement, it became testimonial and its admission would violate Nino's confrontation rights. The prosecution opposed the motion on two grounds: (1) the evidence was admissible as an exception to the hearsay rule under Evidence Code section 1250, because it showed Vasquez's intent or plan to go with Nino; and (2) the evidence did not violate the confrontation clause because Vasquez's statement to his cousin was not testimonial. The trial court denied the motion, but ruled that Roxana's testimony on that point would not be admitted for the truth of the matter. When pressed by defense counsel to explain its ruling, the court said, "It's offered to - as they [the prosecution] pointed out in their brief at page --." The court never identified that page number, however.

When the prosecutor began to question Roxana about this matter at trial, defense counsel objected. Although the trial court initially sustained the objection, after being reminded of its pretrial ruling, the court allowed Roxana to testify that Vasquez had said Joe was outside, and he was going with Joe, but instructed the jury that the testimony had not been admitted for the truth of the matter.

Later, the prosecutor asked Sheriff's Detective Rodriguez about his investigation into the killing, including his conversations with Vasquez's family members. The detective said he spoke with Roxana and Brenda Sanchez, and that he believed it was Brenda who provided him the most information. When the prosecutor asked what information Rodriguez got from Brenda, Nino made a hearsay objection. The trial court overruled the objection on the ground that the question sought an answer that went to explain Rodriguez's subsequent conduct in focusing on Nino as a suspect. When Rodriguez went on to say that he got information from Brenda about the person Vasquez went with the night of the crime, defense counsel objected that the evidence was supposed to come in for a limited purpose. The trial court told the jury that the statement was not admitted for its truth, and was to be considered only to explain the detective's conduct in response to the information.

There seems to be some confusion as to whether there were statements by Brenda or Roxana on this subject. Although the detective referred to statements made by Brenda about Vasquez's statements that he was going with Joe, only Roxana testified to that at trial, and Brenda offered no such testimony. Nino's appellate arguments also refer to Brenda's statements to the detective, even though it is unclear whether those statements came from her. For purposes of our analysis, it does not matter, however, and we will assume that Detective Rodriguez was referring to statements made by either Brenda or Roxana when he testified.

When the prosecutor asked Rodriguez what Brenda told him, he replied, "That Juan [Vasquez] was heard stating he was leaving with Joe Nino." The defense objected, and the court sustained the objection and struck the answer. The parties then argued over the meaning and effect of Rodriguez's testimony, in part because the statement he attributed to Brenda - that Vasquez was leaving with Nino - differed from her testimony that Vasquez said he was going with Joe, who was outside. The court reminded counsel about its limiting instruction, and questioning resumed. The prosecutor asked Rodriguez what Brenda had told him about Vasquez's actions on the night of the crime, and the court sustained an objection that the question had been asked and answered. The prosecutor asked Rodriguez what Brenda had told him about Nino's car, and he answered that she said Nino drove a blue BMW. After another hearsay objection, the trial court reminded the jury about its limiting instruction.

B. No Error In Admitting Roxana's Testimony

Nino contends that Roxana's testimony about Vasquez's statement that he was going with Joe and that Joe was outside violated his constitutional right to confront and cross-examine the witnesses against him. (Crawford v. Washington (2004) 541 U.S. 36.) As best we can tell, the argument is based on the notion that because Roxana later conveyed that information to Detective Rodriguez, it became a testimonial statement that was made for purposes of Nino's eventual arrest and prosecution. We disagree. Vasquez's statement to Roxana was a casual remark to his cousin, and by no stretch could be considered testimonial. The statement did not become testimonial as to Roxana just because she later relayed the information to detectives investigating the case. Accordingly, we reject Nino's contention that Roxana's testimony on this point violated the confrontation clause. (People v. Loy (2011) 52 Cal.4th 46, 66.)

The result differs as to the detective's testimony about Roxana's statement to him, as we discuss post.

Nino also contends the statement was inadmissible hearsay. We conclude the statement was admissible under Evidence Code section 1250, which provides that unless evidence of a statement is found untrustworthy under Evidence Code section 1252, "(a) . . . evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." (Pen. Code., § 1250.)

Testimony by the recipient of a statement by a murder victim that the victim was going to meet the defendant shortly before the murder occurred is admissible under this section. (People v. Majors (1998) 18 Cal.4th 385, 404-405 [witness statement that victim said he was going to conduct a drug deal with people from Arizona on the night he was killed]; People v. Jones (1996) 13 Cal.4th 535, 548 [evidence that decedent said she was planning to go out with a man named Frank, the defendant's nickname, on the night she was killed].) Roxana's testimony that Vasquez said "he was going with Joe" clearly falls within this rule.

There once more appears to be some confusion over the source of the trial court's ruling. Respondent seems to argue that the evidence could have been admitted for its truth under Evidence Code section 1250, while Nino contends the trial court gave no reason for denying his motion to exclude the evidence, and argues that section 1250 is inapplicable. We take a different view of the proceedings.
At the hearing on Nino's motion, the trial court said it was denying the motion for the reasons stated in the prosecutor's opposition brief, but stopped before identifying the page or pages where those reasons were set forth in that brief. However, the prosecutor raised only two grounds in opposition: Evidence Code section 1250 as a state law ground, and the nontestimonial nature of Vasquez's statement in regard to the confrontation clause issue. Therefore, the trial court could have based its ruling on only those two grounds. Although the trial court ruled that the evidence could not be admitted for its truth, when in fact it could come in for that purpose under Evidence Code section 1250, we view its ruling in that regard as nothing more than a mistake that favored Nino.
Alternatively, because we may affirm an evidentiary ruling on a ground other than the one that the trial court relied on, we choose to do so here. (People v. Mason (1991) 52 Cal.3d 909, 944; People v. Martinez (2003) 113 Cal.App.4th 400, 408.)

As noted, Roxana testified that Vasquez told her "he was going with Joe, that he was outside, and that he'll be back." Nino contends that Vasquez's statements that Joe was outside and that he [Vasquez] would be back were not admissible under Evidence Code section 1250. As to the first, Nino contends it was a statement of memory or belief to prove the fact remembered or believed, and was therefore not admissible under this section. (Evid. Code, § 1250, subd. (b).) As to the second, he contends it was not admissible because the prosecution did not intend to prove Vasquez in fact came back.

In effect, Nino contends that Vasquez's three-part statement should be disassembled and each part considered separately. We disagree. Nino does not address the critical, first part of Vasquez's statement - that he was going with Joe - which clearly qualifies under Evidence Code section 1250 and both People v. Majors, supra, 18 Cal.4th at pages 404-405 and People v. Jones, supra, 13 Cal.4th at page 548. The additional statement that Joe was outside is nothing more than a complementary part of that statement and was therefore equally admissible under Evidence Code section 1250. Alternatively, because the statement that Vasquez was leaving with Joe was properly admitted, the other two parts of the statement were no more incriminating. When combined with the trial court's instruction that the evidence was not admitted for its truth, we hold any error was harmless.

C. Any Error In Allowing Rodriguez's Testimony Was Harmless

Detective Rodriguez's testimony that Roxana/Brenda told him that Vasquez said he was leaving with Joe was the type of police evidence-gathering statement that is prohibited by the confrontation clause. (Davis v. Washington (2006) 547 U.S. 813, 822; People v. Cage (2007) 40 Cal.4th 965, 984-986.) Assuming for discussion's sake that Evidence Code section 1250 did not allow Rodriguez to convey Roxana's statement to him about what Vasquez said to her, we hold that the error was harmless under the beyond a reasonable doubt standard applicable to the confrontation clause violation. (People v. Loy, supra, 52 Cal.4th at pp. 69-70.) First, the jury was instructed that Rodriguez's testimony on this point was to be considered only in order to explain his subsequent conduct in the investigation. Second, as previously discussed, the jury properly heard Roxana testify to the same thing, and Rodriguez's testimony was at most merely cumulative.

2. Velasquez's Testimony About Comments By Torres That Implicated Nino

Nino contends the trial court erred by letting Velasquez testify to five statements by Torres that implicated Nino because each was inadmissible hearsay. As to three of these, however, the trial court sustained defense objections and told the jury not to consider that evidence, at least as to Nino: (1) After the December 3, 2001, confrontation at the garage, when Vasquez said he would not pay Velasquez, Torres said they should meet up with Nino and talk to him; (2) the night after the murder, when Velasquez asked Torres whether Nino "really did it," Torres said he did not know, but that they would find out right now; and (3) a few days after the murder, Torres phoned Velasquez and said he would pick him up because Nino wanted to meet with them. Although Nino asks us to conclude that the trial court's admonishments were ineffective, he gives us no good reason to depart from the well-accepted rule that jurors are presumed to abide by such instructions, even in cases such as this. (People v. Avila (2006) 38 Cal.4th 491, 573-574.)

As we have already mentioned, Nino and Torres were co-defendants at trial.

The remaining two contentions arise from the following testimony by Velasquez: (1) as Velasquez and Torres drove to the Bicycle Club Casino the night after the killing, Torres talked to Nino on the cellphone and heard Nino say something that might have been "ding da da," "da da," or "ba da bing"; and (2) after Nino showed up at the casino that night, he nodded his head up and down to signify "yes" after Torres asked Nino if he really did it. Nino contends neither was admissible under Evidence Code section 1223, which allows for the admission of one co-conspirator's statement made in furtherance of the conspiracy against other conspirators, and that both violated his rights under the confrontation clause.

Nino's opening appellate brief does not consider the applicability of Evidence Code section 1220, which provides a hearsay exception for admissions by the declarant. Respondent contends the statements were admissible under that provision, and we agree.

First, Nino's up and down shake of the head to signify yes was a statement subject to the hearsay rules. (Evid. Code, § 225; see Comment, Sen. Com. on Judiciary, 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1200, p. 4; People v. Jurado (2006) 38 Cal.4th 72, 129-130.) Evidence Code section 1220 allows evidence of a statement by a declarant that is offered against him, and Velasquez's in court testimony about Nino's nod of head therefore qualified as an admission under that section. Even though it is unclear whether the trial court allowed this evidence under that section, no error occurred because it was admissible as an admission by Nino. (People v. Von Villas (1992) 10 Cal.App.4th 201, 264.) Second, Nino's contention that the statement was not admissible because it was made after the conspiracy had ended is not well taken. That rule comes from Evidence Code section 1223, which has no application when an admission by a conspirator is used solely against that person. (People v. Luparello (1986) 187 Cal.App.3d 410, 433; In re Noday (1981) 125 Cal.App.3d 507, 533.) And, because Nino's nod of the head was his own personal admission, the confrontation clause was not violated. (Jurado at p. 117.)

We believe the same analysis applies to evidence that Velasquez overheard Nino say "da ding," "da da," or "ba da bing" when Torres spoke to Nino by phone. These utterances are certainly ambiguous but, as Nino contends, especially in regard to the phrase "ba da bing," could be viewed as Sopranos-like "mob speak" indicating that Nino had taken care of Vasquez by killing him. To that extent, they were admissions under Evidence Code section 1220, and therefore did not violate the confrontation clause.

3. Testimony That Witnesses Feared Nino

Loaiza, Velasquez, and Gutierrez were allowed to testify, over Nino's objections, that they were afraid of Nino. All three testified their fear kept them from originally telling the truth about the crime. Velasquez also said that his fear of Nino kept him from asking Nino to return his gun. The court ordered that their testimony be sanitized to state that the source of their fear was having heard that Nino had committed other crimes. As to each, the jury was instructed that there was no evidence Nino had in fact committed other crimes, and that the evidence was admitted solely in order to explain the witnesses' states of mind, not for the truth of the matter.

Nino contends that allowing this unsubstantiated and uncorroborated evidence was prejudicial error, in part because the witnesses were unreliable and had reason to lie, and in part because Gutierrez admitted he had not been threatened by Nino. We disagree. The testimony was admissible as evidence of the witnesses' credibility, intending to explain any earlier failure to tell the truth, even though there was no evidence that Nino had in fact ever threatened them. (People v. Valencia (2008) 43 Cal.4th 268, 301-302.)

Nino contends that even though the evidence might have been relevant, its prejudicial value outweighed its relevancy, and that the evidence should have been excluded under Evidence Code section 352. As noted, the evidence was relevant to explain some of the witnesses' conduct that cast doubt on their credibility. The trial court's order sanitizing the extent of their testimony, combined with the court's admonition to the jury strictly limiting the use of that testimony, was more than enough to curb any undue prejudice, and we therefore conclude that the trial court did not abuse its discretion.

Finally, Nino contends that admitting the "fear testimony" violated his constitutional right to a fair trial. Assuming, without deciding, that he did not forfeit the issue by failing to object on that ground at trial, he is wrong. First, the issue is waived here because he has failed to cite to relevant authority or to discuss and analyze the issue. (People v. Thorburn (2004) 121 Cal.App.4th 1083, 1089.) Second, application of the ordinary rules of evidence does not generally violate a defendant's constitutional rights, and Nino has not shown us how his case presents an exception to this rule. (People v. Prince (2007) 40 Cal.4th 1179, 1229.)

4. Exclusion of Velasquez Impeachment Evidence

A. Background Facts

Nino contends that the trial court actually or effectively precluded him from impeaching Velasquez with evidence of prior incidents where he carried a gun and otherwise acted violently. The first of these was the April 2001 Cabrera incident, where Velasquez was a passenger in a car driven by Cabrera, and Cabrera was convicted for pointing a loaded gun at police officers who stopped the car. Velasquez was not charged with any crimes in connection with that incident and was called as a prosecution witness at Cabrera's trial. At the second Nino-Torres trial, defense counsel wanted to call Cabrera as a witness to testify that the gun he used belonged to Velasquez, and that Velasquez handed him the weapon. The other impeaching evidence was the Ontiveros incident from 1996 or 1998, where two witnesses claimed they were riding in a car with Velasquez when he spotted Ontiveros in a parking lot, stopped the car, and then got out and pistol-whipped Ontiveros over an earlier dispute. The defense argued that this evidence would counter any claim by Velasquez that, apart from having supplied Nino with the murder weapon, he did not ordinarily carry a gun.

The defense also wanted to impeach Velasquez with his misdemeanor plea bargain to a simple cocaine possession charge, even though he had been charged with possession for sale and transportation of the drug. Because this incident occurred after the first Nino-Torres trial, the defense contended this evidence was relevant to both Velasquez's general credibility and to the issue of whether he was given favorable treatment by the district attorney's office for his role as a witness in the Vasquez murder trial.

The trial court allowed evidence of the Cabrera incident, but only after ordering defense counsel to turn over any statements taken from Cabrera. One of Torres's lawyers told the court that no written statements had been taken, but she described the contents of her conversation with Cabrera concerning the incident. Just as Cabrera was set to testify, however, the defense rested.

Two witnesses testified at a hearing on the admissibility of evidence concerning the Ontiveros incident. The first said Velasquez pulled a gun from the waistband of his pants and pistol-whipped Ontiveros. However, she pointed out Torres, and then Nino, as being Velasquez, and admitted she really did not recall. The other witness, who was defendant Torres's sister, at first testified that Velasquez pulled the gun from his waistband, but later said that she thought Velasquez got the gun from under his car seat. The trial court excluded the evidence.

As for the misdemeanor cocaine possession conviction, the trial court found it was inadmissible because there was no evidence to suggest that Velasquez received special treatment, or that the disposition was in any way connected to his grant of immunity.

Nino contends that the trial court's rulings violated various state law evidence rules, as well as his constitutional due process right to present a defense.

B. No Error Occurred

Respondent contends that any issues with respect to Cabrera's testimony were waived when the defense rested just as Cabrera was about to take the witness stand. Nino contends the waiver rule should not apply because the trial court's discovery order compelling production of any statements the defense took from Cabrera effectively neutered the impeachment value of that testimony because Velasquez could learn of it beforehand.

Nino was required to turn over to the prosecution all statements, whether recorded or oral, from witnesses he intended to call at trial. (Pen. Code, § 1054.3, subd. (a)(1); Roland v. Superior Court (2004) 124 Cal.App.4th 154, 163-165; Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1167 [but rule not applicable to prosecution witnesses the defense intends to cross-examine]; see Evid. Code, § 769 [no requirement to disclose to witness inconsistent statements being used to impeach him].) The discovery order signed by the court said nothing more than that the defense was to abide by the discovery requirements of Penal Code section 1054.3 and turn over to the prosecution statements obtained from any witnesses the defense intended to call. There is nothing in the record to show that the prosecution alerted Velasquez to the contents of Cabrera's statement to defense counsel. Because the trial court's discovery order was proper, and because there is no indication that Cabrera's statement was relayed to Velasquez, we hold that Nino's decision to rest his case without calling Cabrera waived his claim of error. (People v. Ramirez (2006) 39 Cal.4th 398, 472-473.)

The record also does not show a request by defense counsel to keep the information from Velasquez.

Nino wanted to introduce evidence of the Ontiveros incident in order to counter statements by Velasquez that suggested he did not regularly carry a gun. However, one of the witnesses could not identify Velasquez, and the other was unclear as to whether Velasquez had been carrying his own gun around or pulled one of uncertain provenance from beneath a car seat. We review the trial court's ruling under the abuse of discretion standard (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another ground in People v. Rundle (20080) 43 Cal.4th 76, 151), and on this record, we hold that the trial court did not abuse its discretion by excluding the Ontiveros evidence because it was unreliable and irrelevant to the issue whether Velasquez carried a gun with him on other occasions.

As for the misdemeanor cocaine possession conviction, to the extent Nino contends the evidence was admissible to show he received special treatment as part of his immunity deal, because there was no evidence to support that contention, we hold the trial court did not abuse its discretion. To the extent Nino contends the evidence was admissible on the issue of his credibility in general, we hold that the evidence was properly excluded under Evidence Code section 352 because: (1) it was collateral; (2) Velasquez testified to heavy marijuana use; and (3) he was effectively cross-examined and impeached by evidence that he provided Nino with the murder weapon, by evidence concerning the circumstances of his immunity deal, and by the trial court's instruction that he was an accomplice to the murder as a matter of law. (People v. Richardson (2008) 43 Cal.4th 959, 1009; People v. Chatman (2006) 38 Cal.4th 344, 372-373.)

C. Even If Error Occurred, It Was Harmless

Although we conclude that the trial court's rulings in regard to these three categories of impeachment evidence were correct, we alternatively hold that even if error occurred, it was harmless. As to Velasquez's character, the jury heard that he was a heavy marijuana user, that he loaned his father's gun to Badalick so Badalick could retaliate against people who had attacked him, and that Velasquez later stole his father's gun and gave it to Nino to use on Vasquez. The jury was also instructed that Velasquez was an accomplice as a matter of law, whose testimony should be viewed with distrust. Implicit in this instruction is the notion that an accomplice has a motive to testify in a manner that benefits him. (People v. Malone (1988) 47 Cal.3d 1, 51.) As to the immunity deal for the Vasquez matter, Velasquez was thoroughly cross-examined about the circumstances of that deal, including evidence that the deputy district attorneys who questioned him got angry at his initial answers, but were happy when he changed his answers to something else. Given all this, we conclude that Velasquez's character and credibility were so amply impeached that the error was harmless beyond a reasonable doubt.

We apply the higher standard for harmless error that is applicable to Nino's constitutional error claims. (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.)

5. No Error In Refusing Instruction That Prosecutor Withheld Evidence

Both the prosecution and the defense have reciprocal discovery obligations to turn over to the other side evidence and witnesses they intend to offer at trial. (Pen. Code, §§ 1054.1, 1054.3.) Parties may bring motions to enforce their discovery rights under these provisions (Pen. Code, § 1054.5, subd. (a)), and if a party has not complied with its discovery obligations, a trial court "may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Pen. Code, § 1054.5, subd. (b).) A trial court may consider a wide range of sanctions in response to a discovery violation, and we review its ruling under the abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) The party claiming a discovery violation occurred must show prejudice and that a continuance would not have cured the harm. (People v. Carpenter (1997) 15 Cal.4th 312, 386-387, overruled on another ground in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1105-1106.)

During the morning session of Tuesday, April 21, 2009, the defense rested. During the morning session of Friday, April 24, 2009, defense counsel asked the trial court to instruct the jury with CALCRIM No. 306 that the prosecution had withheld during discovery two pieces of evidence: (1) testimony by a Detective Robinson on April 2, 2009, giving time and distance driving measurements from the crime scene to the area where Nino lived; and (2) the April 16, 2009, testimony of a Deputy Juarez, who impounded Nino's car, that the alarm was sounding intermittently, causing him to disconnect the car's battery. The trial court refused to give the instruction, and Nino contends the court erred. We reject his contention for several reasons.

First, it was Torres's lawyer who asked for the instruction as to Deputy Juarez's testimony, and Nino's lawyer did not join in that request. Waiver principles apply to the reciprocal discovery rights provided under the Penal Code (People v. Edwards (1993) 17 Cal.App.4th 1248, 1260-1261), and we hold that Nino's failure to request the discovery sanction as to Juarez's testimony waived that issue. Second, regardless of who raised the issues, no objection was made until three days after the defense rested, more than three weeks after the first surprise testimony occurred, and more than one week after the second such event. No request for a continuance to allow for further investigation was requested, a point the trial court seized upon when it denied the motion as to the time and distance testimony. We therefore hold that Nino waived his claims by failing to promptly object at a time when any discovery violation might have been cured by a less drastic sanction than an instruction that the prosecution withheld evidence. (People v. Carpenter, supra, 15 Cal.4th at pp. 386-387; Edwards at pp. 1260-1261.)

Torres's lawyer asked the court to reopen the case and allow him to obtain an investigator to look into the time and distance issue, a request that the court also denied. Nino does not raise that part of the court's order as an issue on appeal.

Third, we do not believe that any discovery violations occurred. Time and distance measurements similar to those at issue here were introduced in evidence during Nino's first trial, and he fails to explain how he was surprised by any differences in the testimony on that issue at his second trial. As for Deputy Juarez's testimony about the car alarm, defense counsel pounced on this new evidence and aggressively cross-examined Juarez about why it was never mentioned in his report and how it was he came to recall it. Juarez testified that his memory was jogged right before testifying, and it appears that the prosecution knew about it for no more than 10 or 15 minutes before Juarez testified.

Finally, Nino fails to show how he was prejudiced as a result of either the time and distance or car alarm testimony. Apart from contending that he was deprived of the opportunity to conduct further investigation and therefore better prepare for cross-examination of the witnesses, Nino does not explain how the surprise testimony affected his defense. For instance, he does not dispute the accuracy of the time and distance measurement testimony, and does not contend that he could have done so had he known of the testimony in advance. The same is true as to the car alarm testimony. Nino's father testified that he bought the car for Nino, and that he had driven it and did not recall ever hearing an alarm. Based on this, Nino contends the evidence was in dispute as to whether his car in fact had an alarm. However, he does not explain, and we fail to see, how Juarez's testimony that he heard an alarm on Nino's car that was going off intermittently during the impound process tipped the scales on that issue.

6. The Accomplice Instruction Was Not Confusing

A defendant cannot be convicted by the testimony of an accomplice unless it is corroborated by other evidence. (Pen. Code, § 1111.) If there is evidence that a witness is an accomplice, the trial court must give jury instructions defining "accomplice," that such testimony is to be viewed with caution, and that it must be corroborated. If the evidence establishes that the witness is an accomplice as a matter of law, the court must instruct the jury accordingly. (People v. Felton (2004) 122 Cal.App.4th 260, 267-268.)

The trial court gave these instructions, but Nino contends it did so in a way that confused the jury as to whether Velasquez was an accomplice whose testimony required corroboration. We disagree. The trial court gave CALCRIM No. 301, telling the jury that "[e]xcept for the testimony of Erick Velasquez, which requires supporting evidence, the testimony of only one witness can prove any fact." The court also gave CALCRIM No. 334, which stated that before considering Gutierrez's testimony against Nino, the jury had to determine whether Gutierrez was an accomplice. The instruction concluded by stating: "If the crimes of Murder or Conspiracy to Commit Murder were committed, then Erick Velasquez was an accomplice to those crimes and his testimony is subject to the rules requiring corroboration stated above."

Nino contends the jury should have instead been instructed with CALCRIM No. 335, which would state that Velasquez was an accomplice whose testimony had to be corroborated. The instructions given told the jury just that, and we therefore hold that no instructional error occurred.

7. Substantial Evidence Corroborated Velasquez's Testimony

A defendant cannot be convicted based solely on the uncorroborated testimony of an accomplice. (Pen. Code, § 1111.) Nino contends we should reverse his convictions because there was insufficient evidence to corroborate Velasquez's testimony. We disagree. The corroborating evidence need not meet the standard applicable when determining whether there was substantial evidence on an issue. Instead, the corroboration does not have to establish every element of the crime. The evidence can be circumstantial, slight, and entitled to little consideration by itself, so long as it tends to implicate the defendant by relating to an act that is an element of the crime. (People v. Abilez (2007) 41 Cal.4th 472, 505.) The defendant's own admissions may also serve as corroborating evidence. (People v. Williams (1997) 16 Cal.4th 635, 680-681.) The jury's findings on this issue is binding on us unless the evidence should not have been admitted or does not reasonably tend to connect the defendant with the crime. (Abilez at p. 505.)

The corroborating evidence in this case satisfies these requirements. The cellphone records and cell tower location evidence were consistent with the calls made by Nino that Velasquez testified about. Nino's car, car alarm, and car exhaust sound were all consistent with what witness Yardumian observed and heard at the time of the murder. When questioned by Loaiza about Vasquez's whereabouts the night before, Nino gave inconsistent versions and stuttered nervously. Roxana testified that Vasquez said he was leaving with Joe, and that Nino was the only person named Joe who Vasquez knew. There was also Gutierrez's testimony that after the December 3, 2001, meeting where the conspiracy was formed, that Nino told Torres he was "not going to do it for you. I'm going to do it for myself." Taken together, this evidence tends to connect Nino with the commission of the crime and is therefore sufficient to corroborate Velasquez's testimony.

We are required to imply findings of fact that Gutierrez was either not an accomplice, or that if he was an accomplice, his testimony was corroborated. (People v. Martinez (1982) 132 Cal.App.3d 119, 138, fn. 1.)

8. Cumulative Error

Finally, Nino contends that the cumulative effect of some or all the errors he raises as issues on appeal call for a reversal. We have held that only one error occurred, when the trial court allowed a detective to testify about cousin Roxana Sanchez's statement to him concerning Vasquez's statement that he was leaving with Joe. We held that error was harmless. In regard to excluding impeachment evidence of Velasquez, we held that no error occurred, but, in the alternative, that any error was harmless. We will not reverse for cumulative error unless it is reasonably probable that the jury would have reached a different verdict without those errors. (People v. Carrera (1989) 49 Cal.3d 291, 332.) We conclude that the combined effect of these two errors does not reach that standard.

9. Modifying Restitution Order

When sentencing Torres and Nino, the court imposed restitution of $8,000 and said it was to be joint and several. However, the abstract of judgment does not reflect that fact, and Nino contends the abstract should be modified. Without conceding the point, respondent does not object to the request. We therefore order the judgment modified to state that the restitution order is joint and several.

DISPOSITION

The matter is remanded to the superior court with directions to modify the abstract of judgment to state that the $8,000 victim restitution fine is joint and several with Torres. The court is to transmit a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

FLIER, J.


Summaries of

People v. Nino

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 19, 2012
No. B219852 (Cal. Ct. App. Jan. 19, 2012)
Case details for

People v. Nino

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOE QUSTA NINO, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 19, 2012

Citations

No. B219852 (Cal. Ct. App. Jan. 19, 2012)