Opinion
B160403.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. REY DAVID QUINTERO, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
Rey Quintero appeals from the judgment entered following a jury trial in which he was convicted of two counts of attempted premeditated murder, each with personal and intentional use of a firearm proximately causing great bodily injury. He contends that the trial court prejudicially erred in allowing evidence that an unknown person shot at defendants house and that he is entitled to an additional day of custody credit. We modify to correct the credit award and affirm the judgment as modified.
BACKGROUND
On the evening of June 16, 2001, Cesar Reyna and Armando Aguilera were walking on Dyer Street in Los Angeles County when they were confronted by defendant, who asked for their gang affiliation. Reyna and Aguilera responded that they were not in a gang and tried to keep walking. After defendant repeated his question and Reyna and Aguilera repeated their answers, defendant pulled a gun. He shot Reyna in the leg and Aguilera in the arm and stomach. Someone in a nearby car said, "Rey" or "Raymond," "get in the car." Defendant said, "Fuck Toonerville," got in the car, and fled.
The victims were taken to a hospital, where Reyna stayed for about a week and Aguilera remained for three weeks. Each was interviewed by officers a few days after the incident. The victims described the shooter as having worn a hood that covered all but the front of his face. Each was also shown a six-pack photographic lineup.
Reyna selected defendant, who was in the No. 2 position in the six-pack, as the shooter. Reyna also stated that he thought the shooter was in the "San Fer" (San Fernando) gang because "on that street [(Dyer)] there is writing San Fernando all over the place" and it is "primarily the gang that may be in that area." Nonetheless, Reyna refused to circle defendants photo and sign the six-pack when asked by an officer to do so.
Soon after the interview, Reynas brother contacted the police for assistance with Reynas medical bills. Reynas family was told about the victim assistance program and that Reyna would have to cooperate with the police if he wanted assistance. Reyna, who was aware of this information, spoke with officers again on June 25, 2001. This time, he confirmed in writing that he had selected defendants photo from the six-pack, identifying defendant as the person who had shot him.
In Aguileras interview at the hospital, he told officers that the men in the No. 2 and No. 4 positions of the six-pack looked like the shooter. About two months before trial, Aguilera obtained a school year book from the high school defendant had attended and looked up defendants photograph.
Reyna and Aguilera also identified defendant at trial. Aguilera testified that he was fearful about appearing in court and that a neighbor had told him there would be retribution for his testimony. Reyna testified that he was afraid to appear at trial because there were gang members near where he lives. Three months before trial (which took place a year after he and Aguilera were shot), there had been a drive-by shooting at Reynas house and bullets had hit a car in the driveway. After this testimony, counsel stipulated that there was no information to link the shooting with the San Fer gang or with defendant, who was in custody at the time. (During the defense case, an officer testified that Reyna had continually said that he was afraid of retaliation and that San Fer gang members know where he lives.)
Defendant was arrested in November 2001, spray painting San Fer gang graffiti on a wall in Los Angeles County. A gang expert testified that defendant was a member of the San Fer gang, with the moniker "Little Rey." The area where the victims were shot is in San Fer territory. Toonerville and San Fer are rival gangs. There are approximately 950 San Fer members. According to police records, 12 to 14 of the San Fer members are named "Raymond." Defendant always identified himself as "Rey."
Testifying in his own behalf, defendant admitted being a San Fer member but denied having any knowledge of the shootings. Reyna and Aguilera were shot on a Saturday night. Defendant asserted that his routine on Saturday nights was to be at home with his girlfriend, then to go out very late. Defendants girlfriend testified that they never left the house before midnight. Various other witnesses testified that defendant never went by the name "Raymond" and was always known as "Rey."
Defendant argued to the jury that he had been misidentified by the victims. The argument was based on, among other things, his alibi, the obscured view and short period of time the victims had in which to see the shooter, and the victims statements that someone had called the shooter "Raymond," not "Rey."
DISCUSSION
1. Evidence of Drive-by Shooting at Reynas House
Prior to Reynas appearance at trial, an attorney representing him asked that Reyna "be allowed some type of confidentiality when he testifies," suggesting that a hat and glasses be used to alter Reynas appearance. In the course of this discussion, reference was made to a drive-by shooting at Reynas house. The court deferred ruling on Reynas appearance and requested more information on the shooting. The prosecutor explained that it occurred in March 2003, involved six to eight shots, that some of the shots hit a car in the driveway, and that no evidence had been developed as to the identity of the shooter. The prosecutor requested permission to present the evidence of the drive-by in his case-in-chief, arguing that because Reyna was fearful about testifying, the evidence was extremely relevant to Reynas credibility.
Defendant opposed introduction of the evidence, arguing it was unduly prejudicial inasmuch as it happened nine months after Reyna had been shot and had identified defendant to the police, a neighbors house and car also had bullet holes, and no connection had been shown between the shooting and the San Fer gang.
The court ruled that the evidence could be introduced, stating the following: "The demeanor, attitude and manner of testifying by a witness are, of course, something that the jury is invited to and told that they must and should consider. [¶] If there is violence directed in the neighborhood of the victim close enough to him as these events seem to be . . . [¶] . . . obviously it would be a terrifying experience. [¶] It doesnt matter — doesnt make it less terrifying, whether it comes from the defendant or anybody associated with him for it to be terrifying. [¶] Its prejudicial, that is true; but it is certainly probative as to the testimony of the witness how and why he may testify as he does, his attitude and demeanor as he does testify. [¶] So I will permit it [sic] to be questioned concerning; but there can be no intimation as to who did the shooting because there is nothing known to the People at this time . . . ." (As noted above, counsel later stipulated that there was no information linking the San Fer gang or defendant to the shooting.)
We reject defendants contention that the trial court erred in accepting representations about Reynas fearfulness and abused its Evidence Code section 352 discretion in admitting the evidence.
With respect to the fact of Reynas fearfulness, defendant misplaces reliance on People v. Murphy (2003) 107 Cal.App.4th 1150. The court there found error in permitting an adult sex crime victim to testify behind one-way glass through which she could not see the defendant, in part because the trial court had acceded to the prosecutions request for this procedure without holding a hearing to assess the nature the victims anxiety about testifying. (Id. at pp. 1157—1158.) Here, although the record does not establish whether the trial court was aware of the equivocal nature of Reynas initial identification at the time it made its ruling, the court had just heard an attorney representing Reyna request, based on Reynas fear, that Reyna be allowed to alter his appearance when testifying. Thus, in contrast to Murphy, there was a substantial basis for the trial courts expectation that Reyna would be affected by his fear while testifying. And given the lack of physical evidence against defendant, it was also apparent that the credibility of the identifications made by Reyna and Aguilera would be at the heart of the prosecutions case.
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "A trial courts exercise of discretion under Evidence Code section 352 will not be reversed unless it `exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Tran (1996) 47 Cal.App.4th 759, 771.) "In most instances the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise. [Citation.]" (People v. Feaster (2002) 102 Cal.App.4th 1084, 1092.)
A "witnesss `demeanor while testifying and the manner in which he testifies may be relevant to credibility." (People v. Lewis (2001) 26 Cal.4th 334, 361, citing Evid. Code, § 780, subd. (a).) "`Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.] [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.)
Defendant correctly notes that evidence of efforts by third persons to intimidate a witness is generally inadmissible unless the defendant was present or authorized the effort. (See People v. Williams (1997) 16 Cal.4th 153, 200; People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) But the possibility that the jury here would draw an improper inference that the drive-by shooting was an attempt by defendant or his associates to intimidate a witness was counteracted by stipulated evidence, which the trial court required be put before the jury, that there was no information linking defendant or any other San Fer member with the drive-by shooting.
As to the probative value of the evidence, "[a] witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendants conduct or disapproves of the victim. It could come from a person who perceives a social or political agenda to have been advanced by the defendants actions. It could come from a member of the witnesss profession, religion, or subculture, who disapproves of the witnesss involvement for some reason. It could come from a zealot of any stripe, large groups of whom seem ready to rally to virtually any cause these days. [¶] Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear." (People v. Olguin, supra, 31 Cal.App.4th at pp. 1368—1369.) Thus, as in Olguin, "[t]he trial court acted well within its discretion in insuring the jury would have such evidence and would properly evaluate it." (Id. at p. 1369.)
2. Custody Credits
The record reflects that defendant was arrested on November 4, 2001, and sentenced on July 18, 2002. He was awarded 256 days of actual custody and 38 days of local conduct credit, for total credits of 294 days. Defendant contends and the Attorney General aptly concedes that the period from November 4, 2001, to July 18, 2002, is 257, not 256 days and that his total credit award should therefore be 295 days. (The increase in actual days does not affect the local conduct credit, which under Penal Code section 2933.2, subdivision (c), is limited to no more than 15 percent of actual time.) We shall modify the judgment accordingly.
DISPOSITION
The abstract of judgment is modified to reflect 257 days of actual custody and 294 days total custody credit, and the trial court is directed to forward a copy of the modified abstract to the Department of Corrections. As modified, the judgment is affirmed.
We concur: SPENCER, P. J. and ORTEGA, J. --------------- Notes: Reyna testified on direct examination that the person said "Rey," but on cross-examination said that he had told an investigating officer that he had heard the name "Raymond." Aguilera also testified on direct examination that he had heard the name "Rey." On cross-examination, he said he was unsure if it was "Rey" or "Raymond." An investigating officer testified that Aguilera had reported the name as "Raymond."