Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA080881, Raul A. Sahagun, Judge.
Mark Shapiro for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Juan David Rivas appeals from the judgment entered following his convictions by jury on count 1 – first degree murder (Pen. Code, § 187) and two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187; counts 2 & 3) with findings as to each offense that appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), and personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)), that a principal personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subds. (c) & (e)(1)), and a principal personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subds. (d) & (e)(1)), and that the offense was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced him to prison for 90 years to life. Appellant challenges the sufficiency of the evidence as to count 1 and claims the trial court committed errors. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on August 12, 2003, Hector Medrano was driving a green Pontiac in South Gate. Diego Avendano and George Zamudio were passengers. All three were members of the Watts Varrio Grape gang.
A brown car was pursuing the Pontiac. Appellant and Alex Ybarra, members of the Ivy Street Watts gang, were occupants of the brown car. Someone in the brown car made a gang sign. At some point, Medrano made a Grape Street Watts gang sign and said “‘Grape Street Watts.’” The occupants of the brown car fired shots at the occupants of the Pontiac, mortally wounding Medrano and causing the Pontiac to crash. Avendano and Zamudio exited the Pontiac and fled.
See footnote 2.
After the crash, the brown car drove near the Pontiac. Someone exited the brown car and tried to pursue Avendano and Zamudio. However, persons in the brown car told the person who had exited to hurry and reenter the brown car. The person who had exited the brown car reentered it and it drove away.
Medrano had been shot twice in the back, and two bullets were recovered from him during his autopsy. Bullets struck the Pontiac seven times from behind. One strike occurred at the base of the driver’s side headrest. Three strikes penetrated the headrest. A fourth shattered the back windshield. There were two strikes in the area to the left of the Pontiac’s exhaust pipe. Eight .25-caliber bullet casings were recovered from the scene. The casings, and bullets recovered from Medrano, were fired from the same gun.
In September 2003, police found the brown car at Ybarra’s grandmother’s house. In October 2003, police recovered from appellant’s bedroom a photograph of appellant and Ybarra, Ybarra’s identification card, and an envelope addressed to Ybarra. In 2003, the Ivy Street Watts gang and the Watts Varrio Grape Street gang were at war with each other. A gang expert testified the crimes were committed for the benefit of the Ivy Street Watts gang. The expert also opined that appellant was a member of that gang.
The gang expert opined that appellant and Ybarra were members of the gang based on the following facts. On one occasion, a person shot appellant while he was visiting an Ivy Street Watts gang member on Ivy Street, and the shooter shouted, “‘Fuck Ivy.’” In May 2003, appellant, Ybarra, and three other males were in a vehicle stopped by an officer and, according to the officer, all five admitted they were members of Ivy Street Watts. Police found in appellant’s residence a photograph depicting appellant and Ybarra with their arms around each other. Some of Ybarra’s personal property was found in appellant’s bedroom. A person who lived near 87th and Grape identified Ybarra as an Ivy Street Watts gang member.
Appellant presented no defense evidence. We will provide additional facts where pertinent below.
Ybarra, appellant’s codefendant, presented an alibi defense. Ybarra is not a party to this appeal.
CONTENTIONS
Appellant claims (1) there was insufficient evidence that he was a participant in the shooting or that he acted with premeditation, (2) gang testimony was inadmissible, and (3) the gang testimony was so prejudicial that appellant’s trial counsel’s failure to object thereto violated due process and should be excused, and said failure constituted ineffective assistance of counsel.
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Conviction on Count 1.
Appellant claims there was insufficient evidence “to support the conclusion that he was involved in the shooting of Hector Medrano.” We disagree.
a. Pertinent Facts.
There is no dispute that someone deliberately shot and murdered Medrano. The remaining issue is identity. Pablo C., who was 16 years old at the time of the 2005 trial, testified as follows. As the brown car passed by Pablo, the car’s front passenger turned around, looked at Pablo, then looked forward. Pablo made brief eye contact with the front passenger. Part of the front passenger’s shoulder was outside the window, and his hands were together and extended downward as if he were holding something. Shortly thereafter, the green car crashed, the brown car stopped next to it, and two or three people, including the front passenger, exited the brown car and went to the green car. The person who had been the front passenger in the brown car was running and holding a gun.
Appellant’s heading refers to a sufficiency challenge to the evidence of premeditation, but he makes no supporting argument. There is no need to address the issue. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Callegri (1984) 154 Cal.App.3d 856, 865.)
According to Pablo, Los Angeles Police Detective Stephen Weireter showed him a photographic lineup, and Pablo identified appellant as the front seat passenger from his photograph. Pablo may have told police that the front passenger was wearing a Hawaiian shirt. Police also showed Pablo another photographic lineup, and Pablo identified two persons, including Ybarra, as possible suspects. Pablo made no in-court identification of anyone at trial.
Weireter testified he showed Pablo a photographic lineup, and Pablo identified appellant as the right front passenger from his photograph. Pablo told Weireter that Pablo saw appellant holding a gun with both hands as he was leaning out the brown car’s passenger window. Pablo also told Weireter that Pablo saw the brown car’s driver. Weireter showed Pablo a second photographic lineup containing Ybarra’s photograph, and Pablo selected two photographs, each of which possibly depicted the driver.
Briana J. testified as follows. She saw the brown car pull up to a car that had crashed. A man wearing a Hawaiian shirt and holding a gun exited the brown car, went to the driver’s side of the crashed car, and looked inside. The man then yelled something and ran back to the brown car. The man entered the back seat of the brown car and it drove away.
Weireter showed Briana a photographic lineup and she identified appellant’s photograph as depicting the person who had exited the brown car. Weireter showed Briana a second photographic lineup and Briana identified Ybarra’s photograph as depicting a person who perhaps remained in the back seat of the brown car. Briana testified that appellant, in court, “looks like the guy in that picture that I picked out as the one who got out of the car.”
Maria Avila (Maria) testified she heard cars crashing and a gunshot. She saw two young men run into her backyard, pursued by a third. The third man was wearing a white T-shirt and shorts, and was holding a gun. The gunman stopped in her front yard. The closest he came to Maria was about a foot. After a few minutes, the brown car pulled up and someone inside it said something like, “‘Come on, let’s go.’” The gunman entered the car and it drove away.
According to Maria, Weireter showed her a photographic lineup, and she selected appellant’s photograph and the photograph of a second person as depicting “possibles.” She testified that appellant or that second person must have been the driver, then testified she did not remember. Weireter showed Maria a second photographic lineup, and she identified Ybarra’s photograph as depicting the gunman. She did not remember at trial whether she told Weireter that Ybarra was the brown car’s driver.
Weireter testified that when he showed Maria the photographic lineups, she identified appellant as the gunman and Ybarra as the driver. Maria made no in-court identification of anyone at trial.
Crescencio Avila (Crescencio), Maria’s husband, was in his house when he heard a car crash and gunshots. Crescencio went outside and saw the brown car stopped in front of a location where another car had crashed. After a few minutes, the brown car drove away. Police showed Crescencio a photographic lineup, and Crescencio identified appellant’s photograph as depicting the brown car’s driver. Crescencio described the driver to police as a 38-year-old Hispanic who was nearly bald and was wearing a white T-shirt. At trial, Crescencio denied that appellant, in the courtroom, was the person whom Crescencio had identified in the photographic lineup.
Deisy Avila (Deisy), the daughter of Crescencio and Maria, was at her parents’ home when she heard a crash. She went outside and saw that a blue car had crashed. She also saw a brown car with two occupants. Two men fled from the blue car and into her backyard. A man was in front of her front yard, holding a gun and trying to pursue the two men who had fled. The gunman was wearing a white T-shirt and shorts. Friends of the gunman told him to get into the brown car. He entered its back seat and the brown car drove away. In November 2003, Weireter showed Deisy a photographic lineup, and Deisy identified appellant’s photograph as depicting the brown car’s driver. Weireter showed Deisy a second photographic lineup, and she identified Ybarra’s photograph as depicting the gunman. Deisy made no in-court identification of anyone at trial.
Marisela Jardines was driving home when a green car tried to pass her. She later heard a noise that sounded like nine or ten firecrackers. Jardines saw a brown car behind the green car, and a passenger in the brown car was leaning his upper body out of the car and shooting a gun. The green car hit Jardines’s car, causing her to lose control of her car. The green car kept going and the brown car turned onto a street.
In August 2003, Weireter showed Jardines a photographic lineup, and she tentatively identified appellant’s photograph as depicting the gunman. She selected the photograph because of appellant’s round face and skin tone. Jardines made no in-court identification of anyone at trial.
Pablo, Briana, Maria, Deisy, and Jardines each indicated that he or she was afraid to testify or was concerned for his or her safety when testifying.
b. Analysis.
“On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.]
“While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. [Citations.]
“Identification of the defendant by a single eyewitness may be sufficient to prove the defendant’s identity as the perpetrator of a crime. [Citation.] Moreover, a testifying witness’s out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm it in court. [Citations.] Indeed, ‘an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification: “[T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. [Citations.] . . .” [Citations].’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480, italics omitted.) We employ the substantial evidence test to evaluate the sufficiency of an out-of-court identification to support a conviction, whether the witness’s identification is merely not confirmed, or is repudiated, by the witness at trial. (People v. Cuevas (1995) 12 Cal.4th 252, 257, 271-275.)
We have recited the pertinent facts. Pablo, Briana J., Maria, Crescencio, Daisy, and Jardines each made out-of-court identifications of appellant as an occupant of the brown car, although Jardines’s identification was tentative. In those out-of-court identifications, Pablo, Briana J., Maria and Jardines identified appellant as the gunman, and Crescencio and Deisy identified appellant as the driver.
The jury was able to evaluate in light of all of the evidence the significance of the fact that the out-of-court identifications were not confirmed. The jury reasonably could have concluded that the out-of-court identifications were mutually confirming by their numerosity, and reasonably could have discounted the significance of the fact that the witnesses did not agree on whether appellant, whom they unanimously identified extrajudicially, was the driver or gunman. The jury also reasonably could have discounted the significance of the fact that the identifications were not confirmed at trial in light of the fact that nearly all of the witnesses expressed a fear of retaliation for their testimony. We conclude there was sufficient evidence, including sufficient identification evidence, to support appellant’s conviction on count 1. (Cf. People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
We note the trial court instructed the jury pursuant to CALJIC No. 2.21.1 that, “Discrepancies in a witness’s testimony or between a witness’s testimony and that of other witnesses, if there were any, do not necessarily mean that [any] [a] witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. You should consider whether a discrepancy relates to an important matter or only to something trivial.”
To the extent appellant makes the same sufficiency claim as to the remaining counts, we reject it.
2. The Gang Testimony Was Admissible.
a. Stevens’s Testimony Regarding Appellant’s Statements.
(1) Pertinent Facts.
During the People’s direct examination of Officer Scott Stevens, a gang expert, Stevens indicated he knew Claudio Preciado was a member of the Ivy Street gang. The following then occurred: “Q And are you aware of a conversation that Mr. Rivas had with Detective Linda Compton from L.A.P.D.? [¶] A Yes. [¶] Q Specifically where he says he got shot by a guy wearing a bandana, shouted ‘Fuck Ivy” and this all happened when he was visiting Claudio Preciado at the house on Ivy Street? [¶] A Correct.” After Stevens responded to additional questions, the prosecutor asked Stevens whether, “[b]ased on those things,” Stevens had an opinion as to whether appellant belonged to a criminal street gang. Stevens replied yes and opined that appellant was a member of the Ivy Street Watts gang.
(2) Analysis.
Appellant suggests that “statements by the defendant . . . that he had been previously shot by Grape Street gang members” were irrelevant, and claims the statements were hearsay which could not properly be received in evidence as a basis for Stevens’s opinion. We conclude otherwise.
First, appellant waived the issues by failing to object below on the above grounds. (Cf. People v. Garceau (1993) 6 Cal.4th 140, 179; People v. Rodriquez (1969) 274 Cal.App.2d 770, 775-776.) Moreover, appellant waived the issue of whether the statements were relevant because his argument that they were “likely” irrelevant is perfunctory. (Cf. People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Gionis, supra, 9 Cal.4th at p. 1214, fn. 11.)
As to the merits, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including rulings on relevance and hearsay issues. (Cf. People v. Waidla (2000) 22 Cal.4th 690, 717-718, 725.) There is no dispute as to the admissibility of Stevens’s opinion that appellant was a member of the Ivy Street Watts gang. The challenged testimony from Stevens was relevant to form part of the basis for that opinion in order to permit assessment of the opinion’s weight. (See People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; Evid. Code, § 210.)
Stevens’s testimony that he was aware of a conversation did not recount the contents of any statement made; therefore, the testimony did not relate hearsay. (Cf. Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1348.) Steven’s testimony relating any statement by appellant to Compton was not offered for its truth but to permit assessment of the weight of Stevens’s opinion (cf. People v. Thomas, supra, 130 Cal.App.4th at p. 1210); therefore, that testimony did not relate hearsay, since hearsay is offered for its truth. (Evid. Code, § 1200, subd. (a).) Even if appellant’s statements were hearsay, expert opinion testimony properly may be based on hearsay. (Cf. People v. Catlin (2001) 26 Cal.4th 81, 137.) Finally, any hearsay statement made by appellant fell within the admissions exception to the hearsay rule. (Evid. Code, § 1220.)
To the extent appellant comments on the admissibility of his statements under “Aranda Bruton standards,” his comment is perfunctory and there is no need to address it. (Cf. People v. Gionis, supra, 9 Cal.4th at p. 1214, fn. 11; People v. Callegri, supra, 154 Cal.App.3d at p. 865.)
b. Stevens’s Testimony Regarding the Mexican Mafia and Prison Gangs.
(1) Pertinent Facts.
During the People’s direct examination of Avendano, Avendano denied that he told detectives that he had heard someone laughing in the car that was chasing him. Avendano testified he panicked when talking with a detective and had just wanted to get out of the police station. Avendano also testified that prior testimony by him, that he had heard the occupants of the pursuing car laughing and had told detectives that he had heard that laughter, was a lie.
Moreover, Avendano testified at trial that he lied when he told police that he saw someone in the pursuing car make a Watts gang hand sign, and that Avendano’s prior testimony that he saw that was a lie. Avendano also testified to the effect that his prior testimony that Medrano made gang signs and said “‘Grape Street Watts’” was a lie. Avendano acknowledged during trial that he previously had testified that he had referred to Ivy Street when talking to police, but he later recanted that testimony. Avendano acknowledged he had stated to police that four males were chasing him, but Avendano recanted that statement at trial. Avendano testified that the Ivy Street gang and Grape Street gang always had gotten along. At the time of the trial, Avendano was a jail inmate kept in the general inmate population with other gang members.
During the People’s direct examination of Stevens, he testified without objection to the effect that once Hispanic gang members from Southern California entered jail or prison, the Mexican Mafia made sure that the gang members set aside their differences. The Mexican Mafia did this to ensure control over Hispanic gang members in custody. Stevens testified concerning the interplay of the Mexican Mafia and other prison gangs on the issue of the Mexican Mafia’s control over gang members in custody.
We have summarized the pertinent challenged testimony, which appellant indicates may be found at “(RT 913-914 1-6).”
(2) Analysis.
Appellant claims Stevens’s testimony was irrelevant hearsay. The claim is unavailing since appellant did not object to the testimony on those grounds. (Evid. Code, § 353, subd. (a).) Even if he had, the testimony was relevant to explain why Avendano, a jail inmate at the time of his trial testimony, recanted statements he had made. (Evid. Code, § 210.) None of the challenged testimony was hearsay.
c. Prosecutor’s Cross-Examination of Juliana Contreras.
Appellant claims the trial court impermissibly allowed the prosecutor to cross-examine beyond the scope of direct examination a witness, Juliana Contreras, who had been called as a witness by appellant’s codefendant only, and the cross-examination prejudiced appellant. Appellant waived the issue by failing to object on that ground. (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7.) Moreover, appellant waived the issue by failing to point out the page of the record where the alleged error is supposed to have occurred. (Cf. People v. Mendoza (1986) 183 Cal.App.3d 390, 398; see Cal. Rules of Court, rule 8.204(a)(1)(C).)
Appellant frequently has failed to specify the page in the record where alleged error has occurred, or to specify pages where the alleged error does not appear. Appellant does not dispute respondent’s assertion that appellant has failed to accurately cite the record on appeal. To the extent appellant’s arguments in his brief rely on such deficient citations, this provides an independent reason why we need not consider such arguments.
3. Appellant Did Not Receive Ineffective Assistance of Counsel and Was Not Denied His Right to a Fair Trial.
Appellant claims the cumulative effect of his claimed errors denied him his right to a fair trial and his above discussed failures to object should therefore be excused, and trial counsel’s failures to object constituted ineffective assistance of counsel. In light of our conclusions that (1) there was sufficient evidence supporting appellant’s conviction on count 1, (2) the challenged testimony of Stevens regarding appellant’s statements, and regarding the Mexican Mafia and prison gangs, was admissible, and (3) appellant waived any issues regarding Contreras, appellant has failed to demonstrate he was denied his right to a fair trial or that error occurred.
Moreover, the record sheds no light on why counsel failed to act in the manner challenged, counsel was not asked for an explanation, and we cannot say that there simply could have been no satisfactory explanation. Accordingly, we reject appellant’s ineffective assistance claim. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219-1220.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.
The prosecutor also asked the expert to assume as a basis for his opinion that appellant and Ybarra were in the brown car, the brown car was pursuing the green car, shots were fired only from the brown car, and Medrano was shot in the back.