Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No No. TA 071763. TA 071763. Robert J. Perry, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Rios.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant Ignacio Cuevas.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendants Antonio Rios and Ignacio Cuevas timely appealed their convictions on two counts of first degree murder (counts I and II) and two counts of attempted, premeditated murder (counts III and IV). Defendants were tried together by separate juries. The juries found various murder special circumstance, gang and firearm allegations to be true. Defendants were each sentenced to state prison for life without the possibility of parole as to each of counts I and II, plus life with the possibility of parole on each of counts III and IV, all to run consecutively. Additional consecutive terms of 25 years to life were imposed on each count pursuant to Penal Code section 12022.53, subdivision (d) for one of the firearm enhancements. The other firearm and gang enhancements were stayed. The main issue raised on appeal is the contention that the trial court improperly admitted into evidence a recording of a jailhouse conversation between defendants. The judgments are affirmed as modified.
Rios was first tried separately; that trial ended in a mistrial.
Unless otherwise noted, all statutory references are to the Penal Code.
FACTUAL BACKGROUND
I. Prosecution Case
A. People
The victims in this case were Susan Estrada, Daizy Ibarra (Estrada’s three-year-old daughter, John Munguia (Estrada’s boyfriend), and Jorge Avalos (a 14-year-old friend of Munguia). Munguia was a member of the Lynwood Mob Gang (Mob) and had a Mob tattoo on his face. In the past, Munguia had problems with the Lynwood Dukes Gang.
The Lynwood Traviesos Gang (Traviesos) were enemies of the Lynwood Mob, but got along with the Lynwood Dukes. The Acuna clique of the Traviesos included brothers David and Joey, defendants Rios and Cuevas and Johnny Espinoza.
Joey Acuna was killed in December 2002.
Espinoza was also charged with these offenses, but his trial was severed from that of defendants.
During January 2000, besides the ongoing dispute between the Mob and the Traviesos, there was also an ongoing dispute between Munguia and the Acuna clique. On March 27, 1999, Debra Acuna, the sister of Joey and David, had reported to police that Munguia pointed a rifle at her and threatened her. On August 30, 1999, a police report was made that shots had been fired at Sara Acuna’s house; Sara was the mother of Debra, Joey and David. The suspect was identified as being in the Mob. Shortly thereafter, Munguia was shot in the leg and then two days later in the chest. The suspects in those two shootings were Espinoza and defendants. No one was prosecuted for shooting Munguia because he would not cooperate.
An informant might have said that David and Daniel Acuna had shot Munguia on one occasion.
Richard Castrellon, who had lived in Lynwood, had been a member of the Lynwood Dukes for many years and had been the go-between for the gang and the Mexican Mafia. Castrellon left gang life after he had been convicted of shooting at an occupied vehicle during the 1990’s and sent to prison. Castrellon’s brothers Joseph and Michael were also Dukes members.
During January 2000, Castrellon worked as a supervisor at City Garment Carriers (City Garments) in Dominguez Hills; his shift started around midnight. Castrellon had a good relationship with defendants and Joey and David Acuna and had gotten Espinoza, Cuevas, and David jobs at City Garments. Rios did not work at City Garments, but he associated with Joey, Espinoza and Cuevas. Castrellon thought Rios and Joey were good friends. Castrellon saw Joey, Espinoza and defendants together; Joey and Rios appeared to lead the group.
B. The Guns (part 1)
In 1999, Castrellon owned two firearms, a Sig Sauer 357 and a Mac-90. Castrellon’s step-father had purchased the guns for Castrellon because Castrellon’s felony conviction precluded his purchasing guns and he wanted them for protection for Y2K and New Year’s Eve. Cuevas said his brother was interested in getting a gun. On New Year’s Eve, Castrellon turned the guns over to Cuevas, who was supposed to pay for them, but never did.
C. The Chase
On January 9, 2000, Susan Estrada was going to participate in a birthday party at South Gate Park. Estrada drove with little Daizy to Munguia’s house in Lynwood where she picked up Munguia’s mother and took her to the park. Estrada then drove back to Munguia’s house between noon and 2 p.m. to pick him up.
Estrada and Munguia were followed from near Munguia’s house by a black Honda. Munguia said to speed up and, “‘Just Go. Those are my enemies.’” Munguia ducked down while the black Honda followed Estrada’s car turn after turn. There were two people in the Honda, a driver and a passenger, both of whom appeared to be Hispanic. At one point, the Honda was riding alongside Estrada’s car. The passenger, who was half in and half out of the window, had a gun. At some point, the driver gave up the chase after Munguia honked the horn and another car became involved in the chase.
In January 2000, Rios drove a black Honda.
Estrada continued on to the park. Later, around 8 or 9 p.m., Estrada took Daizy back to Munguia’s house where Munguia asked Estrada to give him and Jorge Avalos a ride to buy something to eat.
D. The Murders at Taco Bell
Using the same car she had driven earlier, Estrada drove to a Taco Bell restaurant located a few minutes away on Long Beach Boulevard with Munguia, Avalos and Daizy. Munguia sat in the front passenger seat, Avalos in the rear passenger seat and Daizy in the rear driver’s-side seat. Estrada noticed a white van in the rear view mirror.
Estrada pulled in the Taco Bell drive-through lane and waited to place their order. As Daizy asked if they were going to eat, Estrada realized someone was shooting at them. Munguia pushed Estrada’s head under the steering wheel and took cover. The engine stopped running. Over 50 shots were fired.
When the shooting stopped, Estrada, who had received a grazing bullet wound to the right side of her waist, got out to check on Daizy. Avalos was positioned as if he had been trying to protect her. Munguia went to the Taco Bell doors to seek assistance. Estrada tried to get Avalos to move, but he did not move anymore. Estrada told Daizy, “‘Mija, Mija, wake up.’” Daizy did not wake up. Munguia had been shot on his right upper shoulder and the back of his arm.
Dalshone Railback, who was at the Taco Bell, heard a lot of gunshots and then saw two males firing guns. One was large, over 200 pounds. The second was shorter, around 175 to 180 pounds. The two gunmen were near a van which had its two rear doors open. The larger man had a big gun that he fired using two hands. The smaller man had a handgun. One of the gunmen wore dark pants; the other had on beige pants. Both wore dark shirts and something like a ski mask.
The two gunmen got into the van which moved forward slowly and then stopped near Railback’s car. The side door of the van was open, and a “white Hispanic” was kneeling in front of the sliding door looking at Railback and holding a shotgun that appeared to be the same gun she had seen being fired by the larger gunman. The van drove west from the parking lot. The person holding the shotgun in the van was wearing a white T-shirt and was “thick,” clean shaven and had a bald head. Railback could not say whether he was one of the gunmen from outside the van, but he was dressed differently. Railback did not know how many people were inside the van.
Railback saw Estrada seeking help, but the Taco Bell staff had locked the restaurant doors. Railback went to Estrada’s car; they removed Daizy from the back seat. Munguia stood next to the car. Daizy appeared to be asleep, made no sounds and was unresponsive. Avalos did not move at all. Railback drove Estrada, Daizy and Munguia to Saint Francis Hospital, about three miles away.
Daizy died from multiple gunshot wounds to her chest, right upper shoulder-upper arm area and left upper arm. Each of the wounds was probably fatal. Avalos died after sustaining 21 gunshot wounds.
E. Police Response
When Los Angeles County Sheriff’s Deputies arrived at the Taco Bell, Estrada’s vehicle, riddled with bullet holes, was parked in the drive-through lane. Shell casings were on the ground near the drive-through lane. There was a lot of blood, shattered glass, and bullet fragments near the car.
Lieutenant Roderick Kusch responded to the Taco Bell around 1:25 a.m., with his partner Detective Randy Seymour. Railback returned to the Taco Bell, spoke to Kusch and described the suspect vehicle. Railback said she saw a person with a weapon outside the van who fired a gun and then got into the van through the “slider” door. The person who fired the big gun was wearing all black and a hooded garment.
F. The Van
Around the time of the shooting, Martha Aguiar, her mother and her sister were purchasing groceries at a supermarket near the Taco Bell. Aguiar then drove to their house on Los Flores Street. While unloading groceries from the car, Aguiar observed a van driving the wrong way down the street. The van stopped. More than one male Hispanic got out through the van’s slider door. One of the men was carrying a big gun that looked like a rifle. The men ran toward an apartment building, then up its driveway. The van drove away.
Aguiar saw on the television news a report about the Taco Bell shooting involving the van she had seen on her street; she called the police and told an officer what she had seen. According to Detective Seymour, each time Aguiar spoke to police about the case, she consistently described seeing three men run from the van and run towards the back of what turned out to be David Acuna’s house. Aguiar did not want to testify and had expressed fear of testifying.
Seymour later talked to Luis Sanchez, who said that on January 9, between 9:30 and 10 p.m., he saw the van used in the shooting parked on Bellinger Street. Sanchez saw a person who looked similar to Espinoza get out of the van, pass by Sanchez and run towards Los Flores Street. Around 7:50 a.m., on January 10, Deputy Curt Starz saw the white van parked on Bellinger Street by Los Flores. The van, which had been stolen on January 9 between 6:30 and 7 p.m., had been reported stolen on the 10th.
G. The Guns (part 2)
Irene Verdugo, who did not want to testify and was in court under a body attachment, lived on Los Flores street with David Acuna. On January 9, around 10 p.m., Espinoza came to Verdugo’s front door, rang the bell, and said he wanted to talk to David. Verdugo said she would not wake up David because he had to go to work the next day, but Espinoza insisted. David and Espinoza went outside. David walked inside, retrieved an empty laundry bag, then walked back outside. David did not have anything with him when he came inside again.
David called Verdugo the next day around 1 p.m., said he wanted her to go to a location in Bellflower with him, and then drove her there. There were two laundry bags on the backseat which David said contained guns. They drove to “Boxer’s” house in Bellflower. Boxer was a member of the Traviesos. Verdugo knew Castrellon as “Richard from the Dukes,” and understood he would pick up the guns.
Verdugo was later interviewed by Detectives Seymour and Kusch. Verdugo said she thought David had been provided with the guns when Espinoza came to their house the previous evening. It was not “normal” for David to hold guns for others.
H. Richard Castrellon Overhears Bragging
On January 10, Castrellon went to work and saw David Acuna, who said there had been a shooting. Cuevas and Joey Acuna also went to work that day. Castrellon heard Cuevas and Joey talking and bragging about the Taco Bell shooting. Joey, Cuevas, and Espinoza discussed the shooting more or less every day up to January 25.
Joey would laugh about the shooting and talk about how smoothly the gun, a rifle, had fired and how fast he had fired it. Joey said he had laid down in the van and fired the gun when they opened the door. Espinoza said he had stolen the van he drove, they blocked the victims’ car in the drive-through lane, and he had fired from the van. Cuevas said he got out of the van, walked up to the passenger side of Estrada’s car, and before he could fire, people in the van started shooting, almost hitting him.
Rios had also been in the van with the others. Joey said he and Rios had seen a car and chased it earlier that day and then saw the car at the Taco Bell. Joey and Cuevas said the news reports had the wrong descriptions for the shooters; they described the clothes they had been wearing as dark colored beanies and sweaters, which they took to Joey’s mother, who washed them. Cuevas complained Espinoza had cut his hand and possibly left his blood, which could be identified, in the van. Joey said someone he knew who worked at the impound yard where the van was stored said no fingerprints were recovered but the police had found blood. Cuevas and Joey were also upset with Espinoza for leaving the van “around the block.”
Based on the initial conversations that Castellon overheard, he understood his guns had been used in the Taco Bell shooting. On January 10, Castrellon asked Cuevas, “‘What’s up with the guns?’” Either Cuevas or Joey said the guns were in Bellflower. Within a couple of days, Castrellon drove to Boxer’s house, following David. Castrellon waited in his car while David got the guns. Castrellon received back the Mac-90 and the 357. A couple of days later, Joey asked Castrellon to “do him a favor” and pick up more guns at Boxer’s house, so Castrellon brought two guns (a nine millimeter handgun and a .380 handgun) in a diaper bag to his house and put them in a closet. (RT 4055-4057, 4063-4064)~
On January 25, Castrellon was contacted by sheriff’s deputies. Castrellon told the deputies he had some guns at his house. The police recovered bullets from Castrellon’s apartment in a Winnie the Pooh bag, which was the bag Castrellon had gotten from Bellflower when he picked up the guns. Castrellon told the police what he knew about the Taco Bell shooting and never returned to City Garments.
Around February 10, Castrellon was driving through Lynwood when Rios flagged him down and said it was “messed up that little girl was in the car.” Rios asked Castrellon what he had told the police. Castrellon said they “knew everything.” Rios said he did not believe Castrellon was a snitch.
I. Police Investigation
Estrada told investigators about the car chase from earlier in the day and said she did not get a very good look at the Taco Bell gunmen. The deputies showed Estrada some photographs. A photo of Rios looked familiar, from the Honda incident, but Estrada was not certain and did not want to make an identification. During the preliminary hearing, Estrada indicated Espinoza looked similar to the person who was hanging out the Honda window during the initial car chase. Estrada believed Espinoza might have been the driver and Rios might have been the person leaning out of the window with a gun.
J. Physical and Forensic Evidence
Fifty-one expended cartridge casings were collected and filed or booked, some from the van, others from the Taco Bell. Blood and possible vomit were recovered from the van as were a gray bandanna and a screwdriver. The blood recovered from the dashboard of the van matched the DNA of Espinoza. DNA from the bandanna matched that of Joey Acuna. The recovered cartridge cases had been fired from the four recovered guns. Among the bullet fragments recovered at the Taco Bell were some that were consistent with, or definitely fired from, the recovered firearms. Spent projectile fragments recovered from Daizy and Avalos were consistent with having been fired by the recovered firearms, as were some bullet fragments recovered from Estrada’s car. One bullet fragment was inconsistent with any of the four guns.
K. Informant Jesus Chavez
On May 25, 2001, Detective Fredrick Morse spoke with Chavez, who related the following information. Chavez had been at a friend’s house when Cuevas arrived. The morning news was on television featuring a story about the Taco Bell shooting the previous day. Cuevas said he and three other Traviesos had committed the shooting; he, Espinoza, “Creeper,” and Rios saw Munguia in the drive-through lane at the Taco Bell. Cuevas said Espinoza was driving the van and Creeper and Rios were “shooting along with him.” Cuevas said he and Rios each had AK-47 type guns and shot at Munguia.
Morse was not assigned to the instant case. Morse wrote a report regarding Chavez’s statement. Then, during late 2002 or early 2003, Morse attended a gang seminar at which Seymour spoke about gang homicides and discussed the Taco Bell shooting. Morse, realizing the significance of Chavez’s statement, talked to Seymour and then forwarded the statement to Seymour.
Chavez testified; he stated he had been harassed and threatened by law enforcement and was being forced to testify. Chavez knew defendants and guessed the Traviesos was a gang in Lynwood where he had spent half of his life. Chavez was not a gang member and was “not really” familiar with gangs in the area.
On May 21, 2001, Chavez spoke with Morse regarding the Taco Bell shooting. Morse told Chavez about the shooting; they really did not have a conversation about it. Chavez stated he did not remember telling deputies that Cuevas had bragged about participating in the Taco Bell shooting. Chavez also did not remember making various other statements to Seymour.
Seymour testified he interviewed Chavez in the presence of a deputy district attorney on April 26, 2004, at the courthouse where Chavez was in custody on an unrelated matter. Chavez was afraid to be interviewed around other inmates and refused to be tape recorded. Chavez said he would never testify because one day he might end up in prison. Chavez would run if the police tried to make him testify and would never snitch on defendants or Espinoza.
Chavez told Seymour that within a day or two of the Taco Bell murders, he was at the house of a friend who belonged to the Traviesos gang; Chavez had grown up around members of that gang. Chavez and his friend watched a news story about the Taco Bell murders. Chavez was given a ride home by Cuevas, with whom Chavez had grown up. Cuevas said he, Rios and Espinoza had done the shooting at the Taco Bell, Munguia from the Mob had driven past an Acuna house on State Street and shot at it, they followed Munguia to the Taco Bell in a van, Espinoza was driving the van, and Cuevas got out of the van and fired into Munguia’s car with an AK 47. Chavez also gave Seymour information about another murder committed by Espinoza.
L. The Arrests
Espinoza was arrested around September 16, 2003, for a murder unrelated to this case. Cuevas and Rios were arrested on September 23 and then brought to the Norwalk Sheriff’s station and placed in adjoining cells. A recording device had been placed in the area outside the two cells. Seymour talked to each defendant separately in an interview room, told each that he believed they, along with Joey Acuna and Espinoza were responsible for the Taco Bell murders, Espinoza was talking to the police, and the police knew what had happened, including who had dropped off the van following the murders and where the guns were taken the following day.
There is some confusion over Cuevas’s arrest date.
II. Defense Case
On January 25, 200l, while the police searched Castrellon’s vehicle at City Garments, he spent time reading through the search warrant. After finding out the police were going to search his apartment, Castrellon told Detective Chavez he had two weapons inside -- a handgun and an assault-type rifle. Castrellon then said he actually had four firearms -- the Sig Sauer 357 belonged to him and the assault rifle and the two other handguns belonged to his mother’s boyfriend.
David Acuna testified that at about midnight on January 9, 2000, his wife answered the door and told him Espinoza was there. When David went to the door, he did not see Espinoza, but only Michael Castrellon by himself. Michael gave David two or three handguns and told David to give the guns to Michael’s brother Richard. When David went to work the next day, he told Richard that Michael had dropped off the handguns. Richard already knew about the guns. David and Richard arranged to meet later that day in Bellflower to pick up the guns.
Detective Kusch said he spoke to David on February 16. David said he received an AK-47 on January 9 from Michael and two other people he did not know. David said the men gave him two handguns and a rifle and left without further discussion.
David denied telling the police that Michael gave him a rifle or that two other people were with Michael that night. David also denied telling Richard Castrellon that Espinoza, Rios and Cuevas came to his door that night or that he spoke with Richard at work about the Taco Bell shooting.
Investigator William Frayeh testified he interviewed Aguiar for the prosecution on March 9, 2005. Aguiar told Frayeh that on January 9, 2000, she saw two male Hispanic gang members get out of the van and run toward an apartment building on Los Flores. One of the men had a gun. Frayeh also spoke with Aguiar again on February 25, at which time, she again said she had seen two male Hispanic gang members exit the van and one had a gun.
DISCUSSION
An edited recording of the conversation was played for the jury, and the jury was provided with an edited transcript to use when listening to the recording.
Appellants contend the court violated their right to counsel when it admitted incriminating statements they made which the police deliberately elicited.
A. Court Proceedings
Before trial, appellants filed motions to suppress their tape-recorded jailhouse conversation. A hearing was held on the motions. Detective Seymour testified as follows: On September 18, 2003, arrest warrants were issued for appellants. The warrants were held so appellants could be arrested simultaneously because it was easier to conduct interviews and because Seymour had arranged for microphones to be hidden in cells at the Norwalk station. Appellants were arrested on September 23.
Seymour interviewed appellants separately on September 23. Seymour’s technique was to ask innocuous questions, then advise the suspect of his rights, and then tell each suspect there was evidence implicating him in the Taco Bell murders. Seymour began to Mirandize Cuevas, but was cut off when Cuevas stated he had been arrested before and knew his rights. Cuevas indicated he was willing to talk, but he did not want his interview to be tape-recorded. Cuevas said, “‘Joey [Acuna] probably did it.’” Cuevas had nothing further to say and was escorted to his cell. Then Seymour interviewed Rios and advised him of his rights, Rios stated he had nothing to do with the Taco Bell murders and would not say anything about the case.
Appellants were placed in adjoining cells away from other inmates and their conversation was recorded. Seymour hoped appellants would incriminate themselves. No signs stated that inmates were being recorded. Signs by telephones in other jails indicated that inmates’ calls were being recorded.
Seymour did not tell appellants they would not be recorded in their cells and did not obtain a warrant for the tape-recording or contact their attorneys.
Appellants argued that the prosecution deliberately elicited statements from them after the right to counsel had attached and that Seymour had made provocative statements to cause them to talk once placed together. The prosecutor argued in part that Massiah v. United States (1964) 377 U.S. 201 did not apply because there had been no questioning by a clandestine government agent. Citing People v. Champion (1995) 9 Cal.4th 879 disapproved on another point in People v. Ray (1996) 13 Cal.4th 313, 369, footnote 2, the trial court denied the motions finding the police had not elicited the statements but merely recorded them.
B. The Taped Conversation
When Cuevas was placed in the cell next to Rios, they confirmed that neither had talked to the police, complained about Espinoza, and discussed that the police had no evidence. Cuevas said, “We’re gonna ride it then, dog, me and you.” Rios said, “Anyway we don’t know anything, Homie.”
Rios insisted he wanted to see someone testify against him in court; otherwise, the police had no evidence. The only reason defendants were in jail was because Espinoza had “fucked up.” The police had nothing but “he-say-she-say,” and they could “just ride.” Cuevas was thinking of beating up Espinoza, who he thought was “saying everything,” and who Rios thought was worthless. Espinoza was caught “red-handed” for another murder he had done and was cooperating so he could have a release date one day. Defendants knew Espinoza would not testify against them because “[h]e’ll be through.”
The only evidence the police would have was Espinoza’s blood, “Remember that fool cut himself?” Defendants would get attorneys and get out of this. Cuevas said, “The only one that fucked up was [Espinoza] . . . . they’ve got that fool’s blood . . . but they got nothing on me, fool.” With respect to the guns, Rios said, “I didn’t barely touch nothing.”
Defendants said the detective had told them other people besides Espinoza were identifying them. In response to Rios’s question of why they were in jail, Cuevas said, “Cause . . . obviously, someone’s opening their fucking mouth.” Espinoza could help them, if he would say it was just him and a dead accomplice. Cuevas said the police told him they had evidence showing he bought the guns, but that was “bullshit, fool, cause [Castrellon’s ] stepdad bought all the straps, you feel me?” Cuevas said Espinoza “better not say . . . anything,” and he would just say he was “‘Home with [his] girl.’” Defendants would be all right as long as Espinoza did not say anything and as long as they did not say anything. No matter what Espinoza was saying, Cuevas “wasn’t in the van” and did not know anything.
The police had “nothing on” Cuevas, no “hair . . . no blood.” The police had Espinoza “red-handed,” but, according to Cuevas, “Here our shit is like way different, fool.” “[O]ne of the Homies is gone already. And then, one of the other Homie[s] . . . hasn’t even been mentioned” in this matter; he was a “lucky bastard.”
When Cuevas was arrested, he thought Espinoza was “ratting [him] out,” but Cuevas did not remember “doing nothing bad that night” and sent “[Espinoza] to clean . . . up . . . the van.” The police acted as if they had witnesses who saw “everybody jumping” from the van and running into David Acuna’s house and as if someone identified Cuevas. Cuevas emphasized he and Rios should “keep saying that we don’t know and they don’t know what they’re talking about,” and they should say they were home with family. Cuevas was concerned Espinoza might not “ride,” but defendants would do so. “[W]e just gotta keep saying that we don’t know what the fuck happened, and . . . ‘I don’t know what you’re talking about.’” Cuevas said Espinoza was the “only one that assed out, dog.” Cuevas noted he did not go with Espinoza to drop off the van, so no one saw him there and he had sent Jerry to clean up the van, including the dashboard and the door handles. Cuevas noted that if Espinoza was “gonna give us up, he’s just gonna give us all up” and would have said “something about that other fucking fatso” and that the police were just using the information that was on the street to try and trick them. Espinoza was “already caught with this shit, Homes. They don’t know about us.” According to Cuevas, “I don’t know, dog; Our fucking life depends on fucking [Espinoza], fool.” During the conversation, Rios denied having been at the shooting scene, and Cuevas denied having committed the murders.
Respondent asserts the Massiah claim fails at the outset because the right to counsel had not attached. Respondent did not raise this argument below and cannot assert it now. (See People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4.)
“In [Massiah], the United States Supreme Court held that once an adversarial criminal proceeding has been initiated against the accused, and the constitutional right to the assistance of counsel has attached, any incriminating statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against that defendant. In order to prevail on a Massiah claim involving use of a government informant, the defendant must demonstrate that both the government and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements. [¶] Where the informant is a jailhouse inmate, the first prong of the foregoing test is not met where law enforcement officials merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.” (Citations omitted.) (In re Neely (1993) 6 Cal.4th 901, 915; see also In re Wilson (1992) 3 Cal.4th 945, 950 [“[N]o violation of Massiah occurs when an informant-cellmate is simply a ‘listening post’ and does not ask questions or solicit information.”]; People v. Whitt (1984) 36 Cal.3d 724, 742 [“[I]f an informant interrogates an accused, but acts on his own initiative rather than at the behest of the government, the government may not be said to have deliberately elicited the statements.”].)
Appellants assert that it is a violation of the Sixth Amendment to intentionally create a situation likely to provide incriminating statements by a defendant. Appellants cite Whitt, People v. Gonzalez (1990) 51 Cal.3d 1179, 1240 and United States v. Henry (1980) 447 U.S. 264, 273-275 and footnote 11 to support that position. However, those cases dealt with the use of an informant.
The case at bar does not involve the use of an informant, but rather a passive listening device. In Kuhlman v. Wilson (1986) 477 U.S. 436, 459, the court noted “the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. . . . the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed to deliberately to elicit incriminating remarks.” “‘[T]he Sixth Amendment is not violated whenever -- by luck or happenstance -- the State obtains incriminating statements from the accused after the right to counsel has attached.’” (Ibid.)
In United States v. Henry, supra, 447 U.S. at page 271, footnote 9, in discussion whether an informant could be a passive listener, the court observed “[t[he situation where the ‘listening post’ is an inanimate electronic device differs; such a device has no capability of leading the conversation into any particular subject or prompting any particular replies.”
Appellants, of course, contend that Detective Seymour did more than passively listen by having them arrested on the same day, questioning them separately and telling them witnesses had identified them, and then placing them in adjoining cells where their conversation was recorded in hopes of their making incriminating statements. Seymour did not interrogate appellants. Despite appellants’ protest to the contrary, the instant facts are not much different from those in People v. Champion, supra, 9 Cal.4th 879. In Champion, the prosecutor had obtained an ex parte order that two defendants be transported from jail to court together, but separate from other inmates, and their conversation be tape recorded. (Id., at p. 909.) The court concluded the prosecution did not violate defendants’ Sixth Amendment right to counsel because “the prosecution listened to defendants’ tape-recorded conversations, but did not question them; thus, it did not engage in ‘secret interrogation’ by any techniques that were ‘the equivalent of direct police interrogation.’” (Id., at p. 911.)
This court faced a similar situation in People v. Jefferson (2008) 158 Cal.App.4th 830, 839, in which the police placed two defendants who were accused of murder in a bugged cell hoping they would talk to each other. We observed “that ‘interrogation’ is not limited to direct questioning by the police. There also is ‘interrogation’ when police subject a person in custody to its ‘functional equivalent.’ In the context of ‘custodial interrogation,’ the functional equivalent of express questioning includes ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ In making this determination, the focus is on “the perceptions of the suspect, rather than the police.” (Citation omitted.) (Id., at p. 840.)
However, we concluded that it did not matter that the defendants were in jail and that the defendants’ statements were not the constitutional equivalent of police interrogation, reasoning the defendants “were not ‘interrogated.’ ‘Interrogation’ requires ‘a measure of compulsion above and beyond that inherent in custody itself.’ That compulsion is missing when a suspect speaks freely to someone the suspect thinks is a fellow cellmate. ‘When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking.’” (Citations omitted.) (People v. Jefferson, supra, 158 Cal.App.4th at pp. 840-841.) We noted the problem was the opposite of compulsion; the defendants were candid because they thought no one else was listening not because they were getting the third degree. (Id., at p. 841.)
Seymour’s brief interviews imparted no more information than is normal during an arrest. Although Seymour may have hoped to elicit criminating statements from appellants, their jailhouse conversation was not equivalent to police interrogation. Thus, the record supports there was no violation of appellants’ Sixth Amendment right to counsel. (See In re Neely, supra, 6 Cal.4th at p. 917.)
II. Juror Misconduct
Cuevas contends the court violated his right to a fair trial when it refused to grant a mistrial based on juror misconduct or inquire into the misconduct.
A. Court Proceedings re The Deliberations of The Cuevas Jury
On October 10, after the jury had been instructed and heard argument, the court granted requests by two jurors to be discharged and selected two alternates. Deliberations began at 9:45 a.m. The jury deliberated around four and a half hours.
The jury deliberated for a little over four hours on October 11 and 12. On October 13, the jury resumed deliberations around 9:05 a.m. and went through to 12:05 p.m.
During the afternoon session on the 13th, juror number eight submitted a note to the court stating:
This jury has looked at & discussed the facts, evidence, details of this case in a deliberate and serious fashion. I personally have not made a decision as to guilt or innocence of the defendant. However I have asked specific & detailed questions. As a result my colleagues have become disturbed, angry & hostile to the point that I don’t wish to question evidence or say anything. I do believe a decision can be reached but I cannot personally reach one if I cannot speak freely and ask questions as I see fit. As a result I respectfully request I be dismissed from the jury.
The court held a telephonic conversation with Cuevas’s attorney, and it was agreed the court would tell the jury at the next session on October 16 that a member had sent a note to the court. The court would then refer jurors to CALJIC Numbers 17.40 and 17.41. The court so instructed the jurors on Monday the 16th and deliberations resumed.
On October 16, during the morning session, juror number eight submitted a second note requesting to be discharged from the jury; this time for work-related reasons. The court found the request to be discharged for “a different reason” raised “concerns.” The court noted there would probably have been no problem releasing the juror for work-related reasons if he had not written the first note. The court wanted to ensure the juror was not really seeking to be discharged due to problems with the other jurors. The court found this juror was not a juror who had made up his mind and was a holdout juror, but rather he was one who was being subjected to hostile and angry questioning by the other jurors, who were suppressing his desire to ask questions regarding the evidence, “which is not an appropriate thing to be happening in the jury room.”
Defense counsel requested a mistrial based on juror number eight’s comments in his first note. The court found there were no grounds for a mistrial and denied the motion. The court noted, based on the clerk’s view, that relations among the jurors were deteriorating and elected to hold a “little bit of a hearing.” The prosecutor agreed a hearing should be held to determine whether the juror was seeking to be discharged based on his work issue and not because of tensions in the jury room. Defense counsel argued the juror was seeking to be discharged due to juror hostility.
The court questioned the juror, who explained he had mis-calendared a critical work-related event (i.e., a training meeting). The court accepted the juror’s explanation for why he sought discharge from the jury as being related to his job and found the explanation valid. In response to defense counsel’s complaint that another juror would not strongly resist the other jurors, the court commented counsel was anticipating that a replacement juror might not do his or her job properly and was “reading some things into [the first note] that may not be reflective of what he actually said.” The court explained that if it left the juror on the panel, the juror might feel pressured to “cave in to the other jurors, if that is what is going on,” so he could attend his training. The court found there were sufficient grounds to discharge this juror.
Juror number eight was discharged and replaced with an alternate juror. The newly constructed jury deliberated for about three hours that day. On October 17, the jury received additional instruction and deliberated for around five hours. On October 18, the jury deliberated for a little over four hours. On October 19, the jury deliberated for approximately 90 minutes before reaching its verdicts.
B. Discharge
“We review for abuse of discretion the trial court’s determination to discharge a juror and order an alternate to serve. If there is any substantial evidence supporting the trial court’s ruling, we will uphold it. We have also stated, however, that a juror’s inability to perform as a juror must ‘“appear in the record as a demonstrable reality.”’” (Citations omitted.) (People v. Marshall (1996) 13 Cal.4th 799, 843.) Juror number eight requested to be discharged because he had mis-calendared an important training meeting for work. The court questioned the juror about his notes and found the work-related reason to be valid and discharged juror number eight. Thus, to the extent Cuevas suggests the discharge of juror number eight was improper, substantial evidence supports the court’s ruling.
C. Mistrial
“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court’s ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) The crux of Cuevas’s contention that the court should have granted his mistrial motion because the jury was not deliberating was based on the first note submitted by juror number eight. However, “‘“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.”’” (Citation omitted.) (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
In the present case, after receiving the first note and expressing concern about the described behavior of the other jurors, the court instructed the jury with CALJIC numbers 17.40 and 17.41, which basically tell the jurors to reach their own decisions after discussions with other jurors and not to begin deliberations by expressing too emphatic a view because such an approach might prevent them from remaining open to persuasion. (See People v. Engelman (2002) 28 Cal.4th 436, 447.) Human nature being what it is, we do not want courts declaring a mistrial whenever a juror complains about hostility in the jury room. In the instant case, granting a mistrial would have been premature. The court proceeded with caution by first instructing the jury rather than intruding into the deliberations by questioning juror number eight or the other jurors.
The court did not receive any further complaints from the jury about problems with deliberations. Presumably, the jurors followed the instructions. (People v. Cox (2003) 30 Cal.4th 916, 961.) Thus, the court did not abuse its discretion when it denied the motion for a mistrial.
D. Further Inquiry
Cuevas suggests the court should have inquired further to determine if it should excuse any juror, i.e., it should have conducted an inquiry into the allegations of misconduct contained in the juror note. However, the issue in the case at bar was not the possible replacement of a non-deliberating juror but rather a claim by one juror that the other jurors were inhibiting his participation in deliberations, i.e., they were not deliberating.
“Many of the policy considerations underlying the rule prohibiting post-verdict inquires into the jurors’ mental processes apply even more strongly when such inquiries are conducted during deliberations. Jurors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations. The danger is increased if the attorneys for the parties are permitted to question individual jurors in the midst of deliberations. [¶] The need to protect the sanctity of jury deliberations, however, does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations.” (People v. Cleveland (2001) 25 Cal.4th 466, 476.) On the other hand, “[t]he court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” (People v. Ray, supra, 13 Cal.4th at p. 343.)
“[T]he court does have a duty to conduct reasonable inquiry into allegations of juror misconduct or incapacity -- always keeping in mind that the decision whether (and how) to investigate rests within the sound discretion of the court.” (People v. Engelman, supra, 28 Cal.4th at p. 442; see also People v. Hayes (1999) 21 Cal.4th 1211, 1255 [“When a trial court is aware of possible juror misconduct, the court ‘must “make whatever inquiry is reasonably necessary”’ to resolve the matter. It must do so, however, only when the defense comes forward with evidence that demonstrates a ‘strong possibility’ of prejudicial misconduct.” (Citation omitted; original italics].)
In light of these considerations regarding the sanctity of deliberations and the discharge of juror number eight on the court date following his first note, we conclude the court made a reasonable inquiry into the allegations of misconduct raised by juror number eight and was not required to hold a hearing to question the other jurors and make further inquires into deliberations.
III. Gang Allegations
A. Background
Sergeant Scott Orr testified as the gang expert. Gangs in the Lynwood area included the Traviesos, the Mob and the Rude Boys. The Mob was affiliated or allied with the Rude Boys, and both were rivals of the Traviesos. During 2000, in Orr’s opinion, Rios, Cuevas, Espinoza and Joey Acuna were all active Traviesos. In 2000, the Traviesos had between 40 and 70 active members.
The notion of respect was very important to gangs. Gangs gained respect by committing shootings, robberies and intimidating witnesses. “Putting in work” means doing crimes, including stealing cars, committing burglaries, obtaining guns and drugs, and doing shoplifting and drive-by shootings. The more work a member does and the more violent he is, the more respect he earns.
To build their reputations, gangsters often discuss with gang members, and non-gang members whom they trust, crimes they had committed. It was uncommon for gang members to lie or take credit for crimes they did not commit, because, if the person who did the crime found out, that person would most likely retaliate. Also the lying member’s own gang might discipline that member.
It is common for gang members to keep weapons used in a crime at a “stash house” rather than their own home; they often stash the guns with people who are disconnected to the crime or the gang in order to avoid the guns being found in case of a search warrant.
The court instructed the jury that to qualify as a criminal street gang, a group must have as one of its primary activities “the commission of one or more of the following criminal acts, murder, attempted murder, carjacking, shooting at an occupied motor vehicle, narcotic sales.”
B. Primary Activity
Appellants contend there was insufficient evidence the charged crimes were committed in association with a street gang; in particular they assert that there was no evidence the primary activity of the Traviesos consisted of committing any of the enumerated crimes on which the jury was instructed. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 [“To trigger the gang statute’s sentence-enhancement provision . . ., the trier of fact must find that the one of the alleged criminal street gang’s primary activities is the commission of one or more of certain crimes listed in the gang statute.” “The phrase ‘primary activities’ . . . implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.”].)
To establish “the nature of the gang’s primary activities, the trier of fact may look to both the past and present criminal activities of the gang. Isolated criminal conduct, however, is not enough. ‘Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.’ Expert testimony based on an adequate factual foundation might also be sufficient.” (Citations omitted; original italics.) (In re Alexander L. (2007) 149 Cal.App.4th 605, 611.)
Respondent notes Sergeant Orr testified the Traviesos was a gang and defined a gang. Orr testified that the shooting was for the benefit of the Traviesos and that gangs gain respect by putting in work (doing certain crimes), suggesting “Orr did testify to crimes committed by gangs, which would include the Traviesos, and would reasonably fulfill the primary activities requirement.” Certainly respondent is aware that just because gangs in general commit certain crimes that is not evidence the Traviesos committed those crimes. None of that cited testimony goes to the primary activities of the Traviesos but to the other elements needed to prove a gang allegation. Orr offered no testimony about the primary activities of the Traviesos.
Lastly, respondent asserts there was sufficient circumstantial evidence to support the inference the primary activities of the Traviesos met the statutory requirement. Respondent looks to the two shootings of Munguia in which the suspects were members of the Traviesos and claims two Traviesos members chased Munguia and Estrada while brandishing a firearm. Estrada could not identify the persons who had chased her and Munguia earlier that day. It was speculation that Munguia had been previously shot by, or that Estrada and Munguia had been chased by, a member of Traviesos. (See People v. Morris (1988) 46 Cal.3d 1, 21 disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5 [a reasonable inference may not be based on speculation but must be drawn from the evidence].)
Respondent also suggests the present crimes, the use of a vehicle stolen by a member of the Traviesos to commit the Taco Bell shooting, and dropping off the guns used in the shooting at David Acuna’s house constituted circumstantial evidence of the primary activities of Traviesos. All those “crimes” relate to this one event and do not show consistent and repeated crimes by the Traviesos. Although there was evidence Joseph Acuna (a Traviesos) had been convicted of assault with a deadly weapon and David Acuna (who stated he no longer was a Traviesos) testified he was in prison for making criminal threats, those crimes, even when considered with the current crimes, do not show consistent and repeated crimes by Traviesos. Moreover, many of the alleged enumerated crimes respondent claims are shown by the circumstantial evidence were not listed in the instruction.
Accordingly, the jury’s findings on the section 186.22, subdivision (b)(1) criminal street gang allegations and the section 190.2, subdivision (a)(22) special circumstance allegations should be stricken.
IV. Abstracts of Judgment
The abstracts of judgment should be corrected to delete the section 186.22, subdivision (b)(1) enhancements which the court ordered to be stayed (the section 190.2, subdivision (a)(22) enhancements played no role in the sentences imposed on appellants).
In addition, respondent notes the court imposed one security fee of $20 as to each appellant. Section 1465.8, subdivision (a)(1) required the imposition of a $20 court security fee “on every conviction for a criminal offense.” Such a fee must be applied to each conviction, i.e., to each count. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Thus, each abstract of judgment should be corrected to reflect the imposition of four security fees (or $80) for each appellant.
DISPOSITION
The superior court is directed to modify each abstract of judgment to delete the section 186.22, subdivision (b)(1) enhancements imposed and stayed. The superior court is directed to further modify each abstract of judgment to reflect the imposition of an $80 court security assessment. The superior court is ordered to prepare and file with the Department of Corrections amended abstracts of judgment reflecting the changes indicated herein. In all other respects, the judgments are affirmed.
We concur: PERLUSS, P.J. ZELON, J.