Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. VA098620, Dewey Lawes Falcone, Judge.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant, Angel Omar Ruiz.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant, Adrian A. Contreras.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Adrian Alexander Contreras and Angel Omar Ruiz appeal their convictions of second degree murder with several enhancements. Their principal argument is that their constitutional right to confront witnesses against them was violated by the admission of the extrajudicial statement of their codefendant, Jayson Godoy. We agree, and further conclude that the admission of Godoy’s statement was not harmless beyond a reasonable doubt. We reverse the judgments of conviction.
PROCEDURAL BACKGROUND
In a two-count information, Contreras and Ruiz (collectively defendants), along with Godoy, were charged with murder (Pen. Code, § 187). Godoy also was charged with being an accessory after the fact (§ 32). Firearm use enhancements (§ 12022.53) and a criminal street gang enhancement (§ 186.22) were alleged.
Undesignated statutory citations are to the Penal Code.
Prior to trial, the prosecutor requested the court empanel dual juries -- one for Godoy and the other for Ruiz and Contreras. In his motion for dual juries, the prosecutor argued, “Godoy is being prosecuted primarily under a theory of aiding and abetting. Although he denies knowledge of the intended purpose of use, he admits to providing the guns that were used in this murder. Godoy’s statements and those of Witness Martinez will show that the two other defendants, Ruiz and Contreras... admitted that ‘they’ had shot someone. Defendants Ruiz and Contreras killed the victim together and acted in concert throughout the criminal event. The statements made by defendant Godoy implicate defendants Ruiz and Contreras. It is impossible to draft a redacted version of the statements which would not directly implicate the co-defendants. Furthermore, a hearsay exception does not exist that would allow us to introduce the statements against the defendants.” The trial court denied the prosecutor’s motion, and the case was tried before a single jury. Neither defendants nor Godoy testified.
The trial court repeatedly instructed the jury that it could consider Godoy’s statement only with respect to him. In addition, the following instruction was given to the jury just before jury deliberations: “Evidence has been received of a statement made by Mr. Godoy after his arrest. [¶] At the time the evidence of this statement was received you were instructed that it could not be considered by you against the other defendants. [¶] Do not consider the evidence of this statement against the other defendants.”
The jury found true the allegations that Godoy was an accessory after the fact and committed that crime in association with or for the benefit of a gang, as defined in section 186.22. It acquitted Godoy of the murder charge. The jury found Ruiz guilty of second degree murder and concluded that a principal intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (e)(1), (b), (c), and (d). The jury found the gang enhancement true, but found not true the allegation that Ruiz personally and intentionally discharged a firearm or personally used a handgun. The jury convicted Contreras of all of the same charges, and additionally concluded that Contreras personally used and personally discharged a firearm.
The court sentenced Contreras to a 15-year-to-life term for the murder, and a consecutive 25-year-to-life term for the personal firearm use enhancement. It imposed and stayed the remaining enhancements. The court sentenced Ruiz to a 15-year-to-life term for the murder and a consecutive 25-year-to-life term for the firearm-use-by-a-principal enhancement. It imposed and stayed the remaining enhancements.
FACTUAL BACKGROUND
On November 8, 2006, at approximately 11:30 p.m. outside a Burger King Restaurant, Alfredo Cervantes was shot multiple times. Cervantes was a member of the Florencia gang, and his moniker was Shadow. Shortly after the shooting, Cervantes informed Detective Rick Curiel that two Hispanic men with shaved heads in a green Honda had shot at him several times. Seven bullet casings, stamped with the number 32, were recovered from the scene of the shooting. Cervantes subsequently died of two fatal gunshot wounds.
The gang is also referred to as Florencia 13 and as Florence.
When Detective Curiel arrived at the scene of the shooting, he did not see any signs that Cervantes was using spray paint or writing graffiti.
That same evening, Elena Toro heard gunshots and looked out the window of her apartment, which was near the Burger King. She saw two Hispanic males, whom she later identified from photographic lineups as Ruiz and Godoy. When shown a photographic lineup with Contreras’s picture, Toro did not identify anyone. She failed to identify anyone in court.
On November 19, 2006, Daniel Martinez told Officer Stephen MacInnis and Deputy Sheriff Wilson Wong that Contreras and Ruiz killed Cervantes. In return, Martinez was released from custody despite the issuance of a “no-bail” warrant for his arrest. Martinez testified at trial that he could not recall his statements made on November 19, 2006, or in a subsequent interview on December 4, 2006. A recording of Martinez’s December 4, 2006 interview constituted the centerpiece of the prosecution’s case against Ruiz and Contreras.
1. Martinez’s December 4, 2006 Statement
Martinez admitted that he was a member of the Dog Patch gang and said his moniker was “Slim.” He was friendly with members of the Ghetto Boys and Aztlan gangs. Martinez was neighbors and friends with Godoy, also known as “Bane,” from the Ghetto Boys gang. Martinez gave further descriptions of Ruiz and Contreras, identifying Contreras as a member of the Ghetto Boys gang and Ruiz as a member of the Aztlan gang. According to Martinez, prior to Cervantes’s killing, Ruiz had been shot in his right hand, and Contreras had been shot in the leg and buttocks. Martinez implied that someone from a gang other than Florencia was responsible for shooting Contreras and Ruiz. Martinez identified Contreras, Ruiz, and Godoy in photographic lineups.
On November 8, 2006, Martinez heard shots, and shortly afterwards, Contreras and Ruiz walked up to him and said, “we just caught a flower at the corner and we hit him up.” (“Flower” is a derogatory term used to describe a member of the Florencia gang.) Ruiz and Contreras said “we just got one of them... flowers right there at Burger King. And we just... let him have it and bam.” Martinez thought Ruiz and Contreras “probably caught [Cervantes] tagging.” Contreras had a.32-caliber gun and Ruiz had a.38- or.45-caliber gun. According to Martinez, using Godoy’s guns Contreras and Ruiz “pulled the trigger and shot that guy at the Burger King.” Martinez heard six shots, and Ruiz said he had shot twice. Martinez explained that Contreras and Ruiz had informed him of the shooting because they trusted him.
2. Martinez’s Trial Testimony
At trial, Martinez admitted that he “claim[ed]” Dog Patch, a gang in Paramount, which was not a rival to Ghetto Boys or Atzlan but was a rival to Florencia. Martinez had used drugs for over eight years and had suffered two felony convictions.
Martinez testified that he recognized Godoy, but did not know Ruiz or Contreras. Martinez testified that at 11:00 p.m. on November 8, 2006, he was sleeping. He had used “all kinds of drugs that day.” Martinez did not know what happened that evening. Initially, Martinez denied telling officers that he knew about the murder of Cervantes. Later, he acknowledged that he may have described a murder but testified that his description was simply a lie made up to avoid incarceration. Martinez testified that “[e]verything I said in the past, I can’t remember. Because my brain is so messed up on meth[amphetamine], I can’t remember.” Martinez did not remember saying that Contreras and Ruiz were the ones who pulled the trigger.
On cross-examination, Martinez testified he stole from his family to support his habit and that at times, he hallucinated. He stated he would have told the officers anything to avoid incarceration. When stopped by police on November 19, 2006, Martinez was not charged for possessing a pipe or a credit card bearing someone else’s name, both of which he had in his possession. Officer MacInnis released Martinez, though MacInnis was aware that a no-bail warrant had issued for Martinez’s arrest.
3. Godoy’s December 14, 2006 Statement
Detectives Michael Gallegos and Carlos Rodriguez interviewed Godoy on December 14, 2006 and recorded the interview. A redacted recording of the interview was admitted, and a redacted transcript of the interview was provided to the jury. Godoy admitted that he was a member of the Ghetto Boys gang and that his moniker was “Bane.” Godoy stated that he often spent time with a “homie” from Ghetto Boys and sometimes with Aztlan gang members. Four months earlier Godoy had been shot, but did not know who committed the shooting. Godoy heard about Florencia trying to recruit Ghetto Boys and knew that a Florencia member had shot at his house.
Regarding the shooting of Cervantes, Godoy said that he was with Martinez and others when he heard four gun shots. Five minutes after the shots, Godoy’s “homies” returned. Godoy acknowledged that the guns used in the shooting belonged to him, and stated that he had given “him” a gun for protection. Godoy did not know who pulled the trigger, but knew that he gave a.32- and a.38-caliber gun to one or more people prior to the shooting. He knew “they” took off with the gun.
After the shooting, Godoy told “them” to get rid of the gun. Godoy hid the.32-caliber gun and then sold it. Godoy also knew the victim of the shooting was from Florencia.
4. Gang Evidence
According to Detective Gallegos, Contreras admitted being a member of the Ghetto Boys gang and stated that his moniker was “Largo” or “Flaco.” Contreras had a letter G tattooed on the side of his head, and the back of his head bore a tattoo saying “ghetto.” Contreras’s fingers bore the letters “GETO BOYS” and “GBZ” was tattooed on his inner hand. In his home, Contreras kept a notebook containing a picture of a flower, followed by the word “killa,” and a dufflebag with the same inscription.
Detective Gallegos testified that Ruiz admitted to being a member of the Atzlan gang and admitted his moniker was “Maniac.” Photographs of gang members and gang signs were found in Ruiz’s home, along with ammunition for a.9 millimeter gun and a.38-caliber gun. Officers also found a tapestry with the letters “F.K.” and abbreviations for the Atzlan gang. “F.K.” stood for “Flower Killer” or “Florencia Killer.”
Detective Richard Martinez testified that in December 2006, there was tension between members of the Florencia gang on the one hand, and the Ghetto Boys and Aztlan gangs on the other. Florencia was attempting to absorb Atzlan and Ghetto Boys, but the latter two gangs were resisting that effort. Detective Martinez learned of this tension from gang members and community members.
Officer Ronald Berdin testified there were approximately 100 members of the Ghetto Boys gang, of whom 40 to 50 were active. A person from one gang may associate with members of another gang. The primary activities of the Ghetto Boys gang were felony vandalism, gun possession, assault with deadly weapons, attempted murders, and murders. Members of the Ghetto Boys had committed five or six murders in the last three years. A person gains respect in a gang by putting in work for the gang, one example of which is committing crimes against rival gangs. When asked hypothetical questions based on facts similar to this case, Berdin opined that the murder was committed in association with the Ghetto Boys gang. Berdin also concluded that it was for the benefit of Ghetto Boys because gangs are territorial and will use force to stake their claims to territory.
DISCUSSION
Defendants’ principal challenge is based on the Confrontation Clause of the Sixth Amendment to the United States Constitution as applied in Brutonv. United States (1968) 391 U.S. 123 (Bruton) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” The right of confrontation includes the right of cross-examination. (Pointer v. Texas (1965) 380 U.S. 400, 404, 406-407.)
Defendants challenge the admission of Godoy’s statement, portions of Martinez’s statement, and brief portions of the gang expert’s testimony. Additionally, defendants argue that evidence of a prior shooting was irrelevant. We conclude that the admission of Godoy’s statement in a joint trial constituted prejudicial error. We discuss those issues most likely to recur in a retrial, but do not consider defendants’ claims of prosecutorial misconduct, lack of sufficient evidence to support the gang enhancement, or sentencing error.
1. The Confrontation Clause -- Legal Background
a. Bruton and Its Progeny
“A recurring problem in the application of the right of confrontation concerns an out-of-court confession of one defendant that incriminates not only that defendant but another defendant jointly charged. Generally, the confession will be admissible in evidence against the defendant who made it (the declarant). (See Evid. Code, § 1220 [hearsay exception for party admissions].) But, unless the declarant submits to cross-examination by the other defendant (the nondeclarant), admission of the confession against the nondeclarant is generally barred both by the hearsay rule (Evid. Code, § 1200) and by the Confrontation Clause (U.S. Const., 6th Amend.). If the two defendants are tried together, the trial court may instruct the jury to consider the confession in determining the guilt only of the declarant, but it may be psychologically impossible for jurors to put the confession out of their minds when determining the guilt of the nondeclarant.” (People v. Fletcher (1996) 13 Cal.4th 451, 455, fn. omitted (Fletcher).)
In its landmark case Bruton, supra, 391 U.S. at pages 126-127, the Supreme Court held that because jurors cannot be expected to ignore one defendant’s confession that is “powerfully incriminating” as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant. (Id. at pp. 126-137.) The high court concluded that in this context, the risk that a jury would not follow the limiting instruction was “so great, and the consequences of the failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” (Id. at p. 135.)
The California Supreme Court earlier had reached a similar conclusion on state law grounds, finding that the practice of allowing a confession of one defendant to be admitted in a joint trial of multiple defendants was “prejudicial and unfair to the nondeclarant defendant....” (People v. Aranda (1965) 63 Cal.2d 518, 530.) The judicially created rule has since been abrogated by the Truth in Evidence Act (Cal. Const., art. I, § 28, subd. (f)(2)). (Fletcher, supra, 13 Cal.4th at p. 465 [Aranda abrogated by the Truth in Evidence Act].)
Bruton’s scope subsequently was limited to confessions that are both facially and “powerfully” incriminating. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208 (Richardson).) Where a confession is not facially incriminating, such as where all references to the nondeclarant defendant including that person’s name and role in the crime are redacted, the nondeclarant’s right to cross-examination is not jeopardized by the admission of the confession. (Id. at pp. 203, 211.) Thus, in Richardson, the court found no error in the admission of a confession that described a conversation between the declarant defendant and a nondefendant, where no reference had been made to the nondeclarant defendant. (Id. at p. 211.) Where a confession is incriminating only when linked with other evidence, the jury may be able to follow an instruction requiring it to consider the evidence only with respect to the declarant defendant. (Id. at p. 208.) Richardson expressly left open the question whether simply redacting the nondeclarant defendant’s name would, standing alone, be sufficient to safeguard the nondeclarant’s confrontation rights. (Id. at p. 211, fn. 5.)
That question was answered by our Supreme Court, which held that a case-by-case approach was necessary. (Fletcher, supra, 13 Cal.4th at p. 456.) Our high court explained: “The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.” (Ibid.) The court further reasoned that “[s]ubstituting a pronoun or other neutral term for the defendant’s name will make the confession less directly incriminating, but it does not invariably provide sufficient assurance that the average reasonable juror will be able to obey an instruction to disregard the confession when considering the guilt of the nondeclarant. A confession redacted with neutral pronouns may still prove impossible to ‘thrust out of mind’ [citation] if, for example, it contains references to distinctive clothing, mannerisms, place of residence, or other information that readily and unmistakably identifies the person referred to as the nondeclarant defendant.” (Id. at pp. 465-466.) Our high court further clarified that “[a]s we have seen, redaction that replaces the nondeclarant’s name with a pronoun or similar neutral and nonidentifying term will adequately safeguard the nondeclarant’s confrontation rights unless the average juror, viewing the confession in light of the other evidence introduced at trial, could not avoid drawing the inference that the nondeclarant is the person so designated in the confession and the confession is ‘powerfully incriminating’ on the issue of the nondeclarant’s guilt.” (Id. at p. 467; see also People v. Burney (2009) 47 Cal.4th 203, 231.)
The United States Supreme Court reached a similar conclusion in Gray v. Maryland (1998) 523 U.S. 185 (Gray). In Gray, a confession was redacted by substituting either a blank space or the word “‘deleted’” in lieu of the nondeclarant defendant’s name. (Id. at p. 188.) The court found this insufficient to protect the nondeclarant’s confrontation rights. (Id. at p. 195.) The court explained its rationale by describing a hypothetical case: “Consider a simplified but typical example, a confession that reads ‘I, Bob Smith, along with Sam Jones, robbed the bank.’ To replace the words ‘Sam Jones’ with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase ‘I, Bob Smith, along with, robbed the bank,’ refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge’s instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.” (Id. at p. 193.)
Applying these cases, we held no Bruton error occurred in a joint trial where the nondeclarant defendant was alleged to have driven a getaway car and the declarant codefendant’s statement had been edited to delete all references to a driver. (People v. Hampton (1999) 73 Cal.App.4th 710, 721 (Hampton).) We emphasized that not only did the redacted statement contain no mention of a driver, but it contained no substituted symbol for an unnamed person who could have been the driver. (Id. at p. 715.) In contrast, we held that Bruton error did occur where the declarant codefendant’s statement presented in a joint trial indicated he took the murder victim to the nondeclarant defendant’s address. (People v. Archer (2000) 82 Cal.App.4th 1380, 1385.) Although any mention of the name of the nondeclarant defendant had been deleted, the confession nevertheless implicated him. (Id. at p. 1388.) As we explained, “[w]hile appellant’s name [wa]s not mentioned in the statement, the existence of another participant [wa]s obvious from the statement itself.” (Id. at p. 1390.) “The statement, even with redaction, facially incriminate[d] appellant.” (Ibid.)
b. Crawford
The United States Supreme Court again considered the reach of the Confrontation Clause in Crawford. The high court held that out-of-court statements that are testimonial must be excluded, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 53-54, 68-69.) “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 98-69.) Although the court did not provide an exhaustive definition of “testimonial,” it concluded that statements made during a police interrogation are testimonial. (Ibid.) The court distinguished testimonial statements from a casual remark to an acquaintance, stating, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Id. at p. 51.)
Additional elaboration on the term “testimonial” was provided in Davis v. Washington (2006) 547 U.S. 813, 823 (Davis). The high court explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822.)
“The same redaction that ‘prevents Bruton error also serves to prevent Crawford error.’” (People v. Stevens (2007) 41 Cal.4th 182, 199.) Where a confession is properly redacted it contains no evidence against the codefendant and therefore does not implicate the Confrontation Clause. (Ibid.)
2. The Admission of Godoy’s Statement Violated Contreras’s and Ruiz’s Right to Confrontation
a. Even Redacted, Godoy’s Statement Implicated Contreras and Ruiz
The redaction of Godoy’s statement was ineffective, because even without mentioning defendants’ names, it implicated them. (People v. Mitcham (1992) 1 Cal.4th 1027, 1046 [“Redaction is ineffective where, for example, the confession includes a reference to ‘the other guy’ which, in the context of other evidence, implicates the nondeclarant defendant.”].) Godoy’s statement made clear that someone else shot Cervantes. It did not delete references to other participants as in Richardson and Hampton. Additionally, without mentioning Ruiz’s and Contreras’s names, Godoy expressly stated he spent time with someone from the Ghetto Boys gang and someone from the Atzlan gang, fitting the oft-repeated descriptions of Ruiz and Contreras. Godoy further stated that Martinez was present when “they” returned with the guns, thereby linking his statement to that of Martinez, who told police that Ruiz and Contreras arrived shortly after the shooting, carrying guns. There could thus have been little doubt whom “they” referred to. In closing argument, the prosecutor argued that “Danny Martinez’s testimony is corroborated... by Mr. Godoy[’s],” stressing that Godoy said Martinez was there when Ruiz and Contreras returned.
Numerous objections and motions for mistrial were made during the prosecutor’s closing argument and rebuttal argument. The court again instructed the jury that Godoy’s statements should be considered only with respect to Godoy. The court found that the argument did not “constitute such a prejudice that would impede a fair trial to these two defendants....” The court found no mistrial was warranted because “substantial evidence independent of [the] argument” was presented.
The “average juror” viewing the evidence at trial could not avoid drawing the inference that Godoy’s reference to “they” meant Contreras and Ruiz, and that Godoy’s statement implicated Contreras and Ruiz in a murder. (See Fletcher, supra, 13 Cal.4th at p. 467.) In this case, the substitution of the word “they” for Contreras and Ruiz was not meaningfully different from leaving a blank space in lieu of the name of the nondeclarant defendant that the Supreme Court in Gray found insufficient to protect the nondeclarant’s right to confrontation. (See Gray, supra, 523 U.S. at pp.185, 192.)
b. Ruiz and Contreras Suffered Prejudice
The remaining issue is prejudice. We must consider whether the admission of Godoy’s statement was harmless beyond a reasonable doubt. (People v. Archer, supra, 82 Cal.App.4th at p. 1390.) “That analysis generally depends on whether the properly admitted evidence is so overwhelming as to the guilt of the nondeclarant that a reviewing court can say the constitutional error is harmless beyond a reasonable doubt.” (Ibid.)
Although the properly admitted evidence was sufficient, it was not so overwhelming that the constitutional error may be deemed harmless beyond a reasonable doubt. Cervantes identified the culprits as persons in a green Honda, a car linked to neither Contreras nor Ruiz. Toro initially identified Godoy and Ruiz but failed to do so at trial and never identified Contreras. Martinez’s statements to police officers were strong, but he repudiated them at trial, and his credibility was significantly impeached by his status as a felon, his admission to being a longtime drug addict, and his motive to falsify his account in order to obtain his freedom from a no-bail warrant. Even the prosecutor candidly recognized the deficiencies in Martinez’s testimony, acknowledging that “[i]f this case was only Danny Martinez, it would be very difficult perhaps for [you to] convict these three defendants.” We agree. Absent Godoy’s corroborating statements regarding giving guns to “them” and “their” return five minutes after the shooting to Godoy’s house where Martinez too was present, a reasonable juror would have had far less reason to credit Martinez’s self-serving statements to police officers. Because the prosecution’s case depended so heavily on the concededly fragile testimony of Martinez, Godoy’s corroboration of that testimony cannot be deemed harmless beyond a reasonable doubt.
3. The Admission of Martinez’s Recorded Statement Did Not Violate the Confrontation Clause
In addition to challenging Godoy’s statements, defendants also challenge Martinez’s recorded statement on Crawford and Bruton grounds. Crawford is inapplicable because, by its own terms it governs only testimonial statements. (Crawford, supra, 541 U.S. at pp. 68-69.) Statements made by Contreras and Ruiz to Martinez were not testimonial statements as they were made among friends and were informal. (Davis, supra, 547 U.S. at p. 830, fn. 5 [formality is essential to a testimonial utterance].) Even Martinez concluded that Contreras and Ruiz reported the shooting to him because they trusted him.
Defendants’ claim that the principles of Bruton were violated by admission of their statements to Martinez lacks merit. Bruton “presumes the statement is an admissible admission by the declarant and inadmissible hearsay against the codefendant.” (People v. Smith (2005) 135 Cal.App.4th 914, 922, overruled on another ground as explained in People v. Garcia (2008) 168 Cal.App.4th 261, 291-292.) If, “the statement is admissible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant; no reason exists for severance or redaction.” (Smith, supra, at p. 922.)
Ruiz’s and Contreras’s statements to Martinez were adoptive admissions, and therefore were admissible against both. (People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844 [statements made by defendants to each other in recorded jail cell conversation were adoptive admissions]; Evid. Code, § 1221 [“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”].) The prosecutor argued that the statements were adoptive admissions, and defendants have demonstrated no error in the admission of those statements.
Contreras and Ruiz appear to challenge statements Godoy made to Martinez. However, they identify no specific statement Godoy purportedly made to Martinez, which should have been excluded. We find no statements made by Godoy in the redacted version of Martinez’s statements given to the jury and included in our record. Martinez’s testimony that he did not remember telling police that “Bane [Godoy] started screaming, hey, you should have seen Largo [Contreras] shoot” was not evidence because Martinez denied making the statement.
4. The Admission of Officers Martinez’s and Berdin’s Gang Expert Testimony Did Not Violate the Confrontation Clause
Defendants argue that their rights under the Confrontation Clause were violated because the gang experts relied on testimonial hearsay. Defendants argue that Officers “Martinez’s and Berdin’s conversations with police contacts in the community, and information from informants and gang members all fall within the category of testimonial statements as defined by Crawford and Davis.”
The same argument has been rejected by other California courts. (People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas); People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez).) In Thomas, the court held that “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.” (Thomas, supra, at p. 1210.) Similarly, in Ramirez, supra, 153 Cal.App.4th 1422, the court held that “[h]earsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned.” (Id. at p. 1427.)
Thomas and Ramirez apply here. An expert may form an opinion based on information that is not admissible if it is the type of evidence that reasonably may be relied upon by an expert in forming an opinion. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) Defendants’ statement that Detective Martinez and Officer Berdin improperly repeated out-of-court statements lacks merit because they identify no such statements and instead cite only to Detective Martinez’s opinion regarding tensions between Florencia and the Ghetto Boys gang. Moreover, defendants fail to demonstrate that the information gathered by Martinez and Berdin was in the context of custodial interrogations. (Cf. United States v. Mejia (2d Cir. 2008) 545 F.3d 179, 183, 187, 188 [finding expert witness testimony about gang was improper where expert based opinion on information learned during custodial interrogation].) In short, defendants have not shown that the expert opinions should have been excluded. (People v. McDaniels (1980) 107 Cal.App.3d 898, 905 [rejecting argument that gang expert relied on improper hearsay where defendant made no showing that matter “was other than of ‘a type that reasonably may be relied upon by an expert’”].)
5. The Admission of Evidence of Another Shooting Should Have Been Excluded
The court found the evidence of a prior shooting in which Contreras, Ruiz, and Godoy were victims was relevant to prove motive and identity. Defendants argue that the court erred in admitting irrelevant evidence. “‘[T]he trial court “has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence” [citation].’” (People v. Sisneros (2009) 174 Cal.App.4th 142, 151.)
a. Additional Factual Background
Martinez told officers that Contreras and Ruiz were shot by members of a gang, but not by members of Florencia. According to Martinez, Contreras was shot in the buttocks and Ruiz in the right hand. Martinez further described Ruiz as having a bandaged finger. In Godoy’s statement, he acknowledged that he previously had been shot several times, including by Florencia. But Godoy clarified that on the occasion he was shot along with Ruiz and Contreras, he did not know who shot him. Deputy Sheriff Richard Thomsen testified that he responded to a call of a shooting August 15, 2006. Godoy, Ruiz, and Contreras were the victims of the shooting, and Ruiz was injured in his left hand.
During an Evidence Code section 402 hearing outside the presence of the jury, Thomsen stated that the victims gave him no information about what happened.
b. Analysis
Only relevant evidence is admissible. (People v. Lucas (1995) 12 Cal.4th 415, 466.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
The evidence of the prior shooting involving defendants and Godoy was not relevant to prove motive or identity. It was not relevant to motive because neither the shooter nor any gang affiliation was ever identified. Without that information, the purported inference that defendants were retaliating against a member of the Florencia gang for a prior shooting by a member of that gang lacked any foundation. Nor was evidence of the prior shooting relevant to prove identity. Other evidence established that all three defendants knew each other, and the fact that the three were together on August 15, 2006, did not tend to show they were together on November 8, 2006, or that they were at the Burger King when Cervantes was shot.
DISPOSITION
The judgments are reversed.
We concur: EPSTEIN, P. J.WILLHITE, J.