Opinion
B227143
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER KEVIN SANTANA, Defendant and Appellant.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA083187)
APPEAL from a judgment of the Superior Court of Los Angeles County, Tia Fisher, Judge. Affirmed.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Joseph P. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial, appellant Christopher Kevin Santana was convicted of first degree murder (Pen. Code, § 187, subd. (a)) committed during a burglary (§ 190.2, subd. (a)(17).) The jury found appellant personally and intentionally discharged a handgun causing the victim's death. (§ 12022.53, subd. (d).) Appellant was sentenced to life without the possibility of parole plus a consecutive 25 years to life.
All further statutory references are to the Penal Code unless otherwise noted.
Appellant contends the trial court committed reversible error in failing to instruct the jury it had to unanimously agree whether appellant committed premeditated murder or felony murder. Appellant also argues it was error to admit evidence a non-testifying co-perpetrator, Christopher Stratis, said appellant shot the victim. We find no prejudicial error and, therefore, affirm the judgment.
II. FACTS
A. Prosecution Evidence
On March 19, 2008, appellant, Stratis and Victor Maurtua entered Michelle Hsu's residence on Cameron Avenue in Covina Hills. Christine Alegre and Magali Fernandez accompanied the three men but waited outside. Hsu dialed 911 at 11:40 a.m. As she spoke to the emergency operator, appellant fired multiple shots at Hsu, killing her. Appellant targeted Hsu's house because he thought an ex-girlfriend who had "nice stuff" lived there and it would be an easy house to enter.
The transcript of the 911 call reads as follows: "Michelle Hsu: Hello 911 [¶] Operator: 911 What's your emergency? [¶] Michelle Hsu: Someone broke . . . someone broke into my house. [¶] Operator: Somebody broke into your house? [¶] Michelle Hsu: Yes. [¶] Operator: Are they there now? [¶] Michelle Hsu: 179 . . . 19721 . . . [¶] Operator: Ok. Are they [unintelligible] . . . [¶] Michelle Hsu: [screaming] [gunshots] [¶] Operator: Who is it ma'amm? [sic] Do you know who it is? Hello? Hello? Hello? Hello? Hello? Hello?"
Following the murder, appellant, accompanied by the four others, drove to his house. Fernandez testified at trial that during the drive, Stratis made reference to the fact that "[appellant] shot her." Alegre testified that when they arrived at appellant's residence, appellant exited the vehicle followed by Maurtua and then Stratis. Stratis, who was the last of the men to get out, said, "[Appellant] shot her." A short time later, Alegre asked appellant, "Who did you shoot?" Appellant replied, "[S]ome bitch."
After appellant drove Alegre home, she asked him again what had happened. Appellant told her he went inside the house while Maurtua and Stratis were looking around the garage. He heard someone on the telephone and he shot her. During a recorded interview with a police detective, Fernandez said appellant told the others that "he shot [the victim]" because "she was talking on the phone" and "she wouldn't shut up"; he heard the victim on the telephone, followed her voice to her location, shot her first from the doorway, and then again at closer range.
A K-9 unit led law enforcement officers to several discarded items including latex gloves, blue surgical booties, bandanas, hooded sweatshirts and a backpack. The backpack contained, among other things, a ski mask and a loaded .40 caliber Glock firearm. The ski mask contained appellant's DNA. The cartridge casings and bullets recovered from the crime scene were fired from the Glock. A pancake holster found underneath appellant's bed contained impressions that corresponded to the Glock. Appellant told a fellow inmate he committed a robbery and somebody died. He said, " . . . I guess, she was on the phone and somebody blasted her." Appellant admitted he had touched the gun and that his fingerprints were "most likely" on it.
B. Defense Evidence
Appellant's former pastor, a fellow church member, appellant's aunt and his older brother each testified appellant was a nonviolent, respectful, friendly, quiet and disciplined person. Appellant sang in a church choir and played an instrument in his high school band. He played high school football and wrestled. None of the defense witnesses had heard that appellant was a member of the El Monte Flores gang. That he had the name "Viciouz" tattooed on his chest did not change their opinions of appellant.
Appellant testified it was Stratis and Maurtua's idea to burglarize a house. Appellant was hesitant but they convinced him to participate. He put on his ski mask and entered the house. While in the house, appellant heard gunshots. All three men ran out of the house. As they escaped, appellant discarded his backpack, shirt and ski mask. Appellant never intended for anyone to be shot nor did he shoot anyone. He did not know anyone who had lived in Hsu's house.
After high school, appellant had joined the army where he was trained to use firearms. He worked in the psychological operations unit and had "secret clearance." He got the "Viciouz" tattoo when he was in the military. It was not a gang moniker. He appeared in a photograph making the "F" gang sign for Flores because he had friends who were members of the gang. He denied that the Glock was in his backpack when he discarded it. Appellant implied Stratis and Maurtua must have put it there after he dropped the backpack.
III. DISCUSSION
A. Unanimity Instruction
Appellant argues the trial court erred prejudicially in failing to give a unanimity instruction with respect to the murder charge. Appellant correctly concedes, however, that the California Supreme Court repeatedly has decided this issue adversely to him. (People v. Russell (2010) 50 Cal.4th 1228, 1256; People v. Taylor (2010) 48 Cal.4th 574, 626; People v. Morgan (2007) 42 Cal.4th 593, 617; People v. Nakahara (2003) 30 Cal.4th 705, 712-713; People v. Kipp (2001) 26 Cal.4th 1100, 1132; see Schad v. Arizona (1991) 501 U.S. 624, 640-642 [plur. opn. of Souter, J.], 649-651 [conc. opn. of Scalia, J.].) We are obligated to follow Supreme Court authority and reject his claim (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Co-Perpetrator Statement
1. Sixth Amendment Violation
Appellant asserts admitting Stratis's statement violated appellant's Sixth Amendment rights. Stratis's out-of-court statement implicating appellant as the shooter was offered to prove the truth of the matter asserted and was accordingly hearsay. (Evid. Code, § 1200, subd. (a); People v. Blacksher (2011) 52 Cal.4th 769, 816.) However, Stratis's statement was not testimonial. (See, e.g., People v. Blacksher, supra, 52 Cal.4th at p. 816; People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19.) Because Stratis's statement was not testimonial, its admission did not violate appellant's Sixth Amendment rights. (People v. Clark (2011) 52 Cal.4th 856, 927; People v. Blacksher, supra, 52 Cal.4th at p. 813; see Michigan v. Bryant (Feb. 28, 2011) 562 U.S. ____, ____ [131 S.Ct. 1143, 1152-1153].)
2. Hearsay
Appellant contends it was error to admit Stratis's statement under the coconspirator exception to the hearsay rule, Evidence Code section 1223. Appellant argues at length the exception was inapplicable because there was insufficient evidence of a conspiracy and insufficient evidence Stratis made the statement in the course of the conspiracy. We agree with the Attorney General that appellant forfeited any objection by failing to interpose a timely and specific hearsay objection in the trial court. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Wheeler (1992) 4 Cal.4th 284, 300.) Appellant's reliance on the futility exception to forfeiture (People v. McDermott (2002) 28 Cal.4th 946, 1001-1002; People v. Hill (1998) 17 Cal.4th 800, 820-822) is unavailing. The trial court willingly entertained and even invited objections to its evidentiary rulings. (See People v. Blacksher, supra, 52 Cal.4th at p. 823; People v. Redd (2010) 48 Cal.4th 691, 730, fn. 19.)
Evidence Code section 1223 reads: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of the conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence." The trier of fact must disregard the proffered statement unless it finds that the preliminary facts in subdivisions (a) and (b) exist. (People v. Brawley (1969) 1 Cal.3d 277, 287; People v. Talbott (1944) 65 Cal.App.2d 654, 663; see Evid. Code, § 403; CALCRIM No. 418.)
Even if not forfeited, appellant's argument fails. The trial court initially ruled Stratis's statement was admissible under the coconspirator exception to the hearsay rule. Ultimately, however, with the express agreement of both the prosecutor and defense counsel, the trial court abandoned its reliance on that exception. The trial court further agreed, as requested by both counsel, not to instruct the jury on the applicability of the coconspirator exception. As the trial court recognized, reliance on the coconspirator exception would have required it to instruct the jury, sua sponte, to decide the foundational facts necessary to its application. (People v. Herrera (2000) 83 Cal.App.4th 46, 63; People v. Jeffery (1995) 37 Cal.App.4th 209, 215; see CALCRIM No. 418.) The trial court could not have erred in admitting Stratis's statement under the coconspirator exception to the hearsay rule because it did not rely on that exception.
The trial court ruled Stratis's statement was admissible as an adoptive admission (Evid. Code, § 1221) or a spontaneous statement (Evid. Code, § 1240). Defense counsel raised no objection to that ruling. Appellant's trial attorney forfeited any argument concerning the application of those exceptions by failing to object on such grounds in the trial court. (People v. Waidla, supra, 22 Cal.4th at p. 717; People v. Wheeler, supra, 4 Cal.4th at p. 300.) Further, in his opening brief, appellant does not argue error in the application of the adoptive admission or the spontaneous statement exceptions to the hearsay rule. The first mention appellant makes of those exceptions is in his reply brief. Therefore, appellant forfeited on appeal any argument those exceptions were inapplicable. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350; People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.)
Even if it was error to admit Stratis's statement, the error was not prejudicial. (People v. Loy (2011) 52 Cal.4th 46, 67 [because there was no federal Constitutional error, we review any state error under the Watson test]; People v. Gutierrez (2009) 45 Cal.4th 789, 813 [same]; People v. Watson (1956) 46 Cal.2d 818, 836.) Apart from Stratis's out-of-court statement, overwhelming evidence pointed to appellant as the shooter. The murder weapon was found in his discarded backpack. A holster found under appellant's bed contained impressions corresponding to the murder weapon. Additionally, in his conversation with a fellow inmate, appellant implied that he was the shooter. Fernandez heard appellant say he shot the victim. And appellant himself twice told Alegre that he shot Hsu. Moreover, the only evidence pointing to anyone else as the gunman was appellant's self-serving testimony that although he heard gunshots in the house, he did not shoot anyone. It is not reasonably probable the jury would have found appellant was not the shooter absent evidence of Stratis's out-of-court statement.
3. Ineffective Assistance of Counsel
Appellant argues in the alternative that his attorney was ineffective for failing to object or by inviting the erroneous admission of Stratis's statement. The record does not show counsel's reasons for his actions or inaction. Under these circumstances, appellant's ineffective assistance of counsel claim should be raised, if at all, in a habeas corpus proceeding. (People v. McDermott, supra, 28 Cal.4th at p. 1002; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In any event, because there was no prejudice, appellant's ineffectiveness of counsel claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 693; People v. Stewart (2004) 33 Cal.4th 425, 459; People v. Sapp (2003) 31 Cal.4th 240, 263.)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J.
KRIEGLER, J.