Opinion
G043736
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE SERNA, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 07CF3342)
OPINION
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
Guadalupe Serna (defendant) was charged by information with the murder of Ryan Patrick Todd (Todd), in violation of Penal Code section 187, subdivision (a). A jury found defendant guilty of first degree murder, and found to be true that Serna caused Todd's death by personally discharging a firearm during the commission of the murder. (Pen. Code, §§ 667.5, 1192.7, 12022.53, subd. (d).) The court sentenced defendant to state prison for a term of 50 years to life.
Defendant appeals. He argues that there is no substantial evidence to support a finding, beyond a reasonable doubt, that he was the person who shot Todd, and that the court erred in admitting certain impeachment evidence. We disagree and affirm.
I
FACTS
A. Todd Shooting:
In January 2005, Todd was in jail for stealing his uncle's car. Todd had a bad drug problem and used crack cocaine.
On the night of January 20, 2005, Todd was released from jail, at about 3:00 a.m. Taxi driver Michael Weingart picked him up near the jail. Todd was going to have Weingart take him to a Travelodge in Costa Mesa where his mother was waiting for him. However, he asked Weingart to stop off at an area on Walnut Street on the way. Weingart knew the area to be a violent drug area. He told Todd that he would drop him off and wait for him at a taco stand on the corner of Walnut Street and Bristol.
Weingart dropped Todd off and started to head towards the taco stand, but never even made it to the parking lot. Less than a minute after Todd got out of the taxi, Weingart heard the loud footsteps of someone running. It was Todd, in a big hurry to get back in the vehicle. Todd got back in and said, "Go, go, go." Weingart hesitated a few seconds, out of bewilderment. Then he heard gunshots and saw someone chasing Todd.
The gunshots shattered one of the taxi windows. When Weingart realized what was going on, he floored the gas pedal and "got the hell out of there." He turned onto another street and then asked Todd if he had been hit. Todd did not respond. When Weingart realized that Todd had been shot, he drove to a nearby hospital. He immediately got medical help and asked for someone to call the police. As it turned out, Todd had suffered three gunshot wounds. He bled to death from his wounds.
The police found two rocks of rock cocaine on the backseat of the taxi. Weingart testified that he had not put them there.
Santa Ana Police Officer Robert Romero responded to the call at the hospital. There, he interviewed Weingart. Romero drove Weingart to the vicinity of the shooting, so Weingart could show Romero where he had stopped the taxi and dropped Todd off.
The police found shattered glass and two shell casings in the street, at the scene of the crime. They also found another shell casing in an alley. The casings were from a nine-millimeter gun.
The police also found some beer bottles about 20 to 30 feet away from the bullet casings, near a residence. There was another beer bottle two or three houses away. All of the beer bottles looked clean, as though they had not been lying there long. They were collected for evidence and swabbed for DNA samples. DNA testing showed that defendant's DNA was present on one of the bottles. The parties stipulated that the DNA of a man named Mauricio Sanchez was found on another of the bottles.
B. Discovery of Murder Weapon:
On March 8, 2005, around 4:50 or 5:00 a.m., when it was still dark, Santa Ana Police Officer Daniel Park observed a car double parked on Walnut Street. Its hazard lights were on. Park could see someone moving around in the car, down towards the floor. He and a second officer approached the car and found defendant inside, along with methamphetamine and rock cocaine. The officers arrested defendant and had his car impounded. Although they opened the trunk of the car and saw some men's clothing inside, Park and the other officer did not do a thorough search of the trunk at that time, since a shift change was coming up and they were busy dealing with defendant. Defendant acknowledged at the time of the arrest that the clothing in the trunk of the car was his.
The car defendant was driving was a rental car. The person who had rented the car was an acquaintance of defendant's named Janice Devenney. She had rented the car for defendant three days earlier, and defendant had gone with her to pick up the car.
A couple of weeks after Devenney rented the car, she received a call from defendant. He was in jail at the time and asked her to get some stuff out of the trunk of the car, including some clothing and jewelry, a vacuum cleaner, and a gun. She went to the tow yard where the car was impounded, so she could pick up the car and return it to Hertz, and get defendant's stuff out of the trunk. When she got there she found out she couldn't retrieve the car because she did not have title to it and the rental agreement had expired.
Jay Hamblett, manager of the tow yard, testified that Devenney was adamant about wanting to go look in the car, but he would not give her access to it. Eventually, she told Hamblett there was a gun in the car. Hamblett then went and found the gun, in the left side kick panel of the trunk. When he found it, he called the police. Hamblett got other stuff out of the car and gave it to Devenney. She was asked not to leave. A police officer arrived and spoke to Devenney at the tow yard.
The police officer located the gun in the trunk of the car. The gun was a Lorcin, loaded with nine-millimeter bullets. It had no identifiable finger prints on it. A forensic examiner later determined that the Lorcin gun found in the trunk of the car was used to shoot the bullets found at the crime scene.
C. Defendant's Testimony:
At trial, defendant admitted that he had prior drug convictions, firearms convictions and convictions for receiving stolen property. He also admitted that he sometimes engaged in the selling of guns or drugs. Walnut Street was the primary area where he sold drugs.
On the night Todd was shot, defendant went down to Walnut Street to see if there was anything he could do to make money. He was hoping to sell some drugs, so he got there around midnight—the time people start coming around to buy drugs. Defendant said that he was not on Walnut Street at the time Todd was shot, that he did not shoot Todd, and that he did not shoot the taxi. He also said that he does not carry a gun when he sells drugs. He only carries a gun if he's trying to sell it.
Defendant said that, on the night in question, he got there, had some beer with Sanchez, and left after 45 minutes to an hour. He left because Hector, a man with whom he did not get along, showed up. When defendant departed, he just left the beer bottles there.
After January 20, the night Todd was shot, defendant left town for a week or so. Defendant's birthday is January 21, so he went to Bloomington to be with his children.
Defendant further stated that he acquired the Lorcin gun from Sanchez about 10 to 14 days after Todd had been shot. Defendant paid $100 for the gun and it was easily worth $200 to $300. He thought he could make some money off of it. He was unaware that the gun had been used in a crime. Even though defendant acquired the gun around February 4 or 5, for the purpose of resale, he had not yet sold it by March 8.
In addition, defendant acknowledged that Devenney had rented the car for him. He explained that his own car was broken down and he needed a car to go visit his children.
Defendant admitted that he called Devenney from the jail, asked her to get some things from the car, and told her there was a gun in the car. He wanted her to retrieve the gun from the car because he did not want to get caught with weapons and because he was losing money on the gun. Defendant knew that he was not supposed to be in possession of a weapon.
D. Impeachment Testimony:
At trial, the people called Abel Quintero to testify for impeachment purposes. He described an incident that took place at a party in Garden Grove on December 3, 2006. Some people got into an argument outside. Quintero's father tried to break up the argument. When Quintero arrived on the scene, defendant was holding a gun pointed at Quintero's father. Quintero stood next to his father and tried to pull him back. Another person pushed defendant's arm upward. A shot was fired into the air. The incident was reported to the police. Quintero went to the police station at a later date and identified defendant from a picture, as being the man who had pointed the gun at his father.
II
DISCUSSION
A. Sufficiency of the Evidence:
Defendant first argues that there is no substantial evidence to support a finding, beyond a reasonable doubt, that he was the person who shot Todd. We disagree.
"The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] '"[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder."' [Citation.] 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt."' [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
According to defendant, all the evidence shows is that he drank beer on Walnut Street on the night Todd was shot and that six weeks later the murder weapon showed up in a car he was driving. Defendant testified that he left the vicinity of the crime scene prior to the shooting and that he acquired the gun a couple of weeks after the incident, from a man who was also present on Walnut Street on the fateful night. Defendant emphasizes that no one ever identified him as the one who shot Todd and that no one testified to having seen him with the gun at or near the time of the shooting. Defendant says the evidence does no more than suggest that he could have shot Todd, but does not establish that he did so. Consequently, he argues, the evidence is insufficient as a matter of law. Not so.
Defendant concedes it may be inferred from the evidence that Todd decided to stop off at Walnut Street to obtain drugs, and that he nabbed the drugs and ran off without paying for them. He also concedes it may be further inferred that Todd was killed by the person whose drugs he lifted. As defendant himself admits, he went to the area in question on the night Todd was killed, in order to sell drugs. Rock cocaine was found on the seat of the taxi in which Todd was shot, and rock cocaine was found in defendant's possession when he was arrested in March 2005. From this evidence one may infer that defendant dealt in the particular kind of drugs Todd apparently stole.
Defendant testified that he left town the day after the murder. Although he says he went away for his birthday to be with his kids, the trier of fact could conclude that his leaving the area after the crime was committed showed a consciousness of guilt. (People v. Vu (2006) 143 Cal.App.4th 1009, 1030.)
Furthermore, defendant was in possession of the murder weapon approximately six weeks after the killing. Defendant says this shows nothing, because no witness contradicted his testimony that he did not acquire the gun until a couple of weeks after the murder. However, the trier of fact was entitled to question defendant's credibility on this point, for two reasons. First, while defendant says he purchased the gun for the purpose of resale, he still had not sold it a month later. From this one could infer that resale was not his purpose. Second, defendant testified that where he occasionally had possession of a gun solely for the purpose of resale, he did not otherwise carry a gun and did not carry one when he was dealing drugs. However, Quintero testified that defendant had pulled a gun on his (Quintero's) father at a gathering in December 2006. From this one may infer that defendant lied about whether he regularly carries a gun and the purpose for which he possesses a gun. From this one may also infer that defendant is not credible generally.
Finally, defendant's physical description may be construed as meeting the general description given by Weingart. Weingart described the shooter as being a man under six feet tall, with a slim to medium build. Defendant testified that he was about five feet seven inches tall and by the time of trial weighed about 180 pounds. By contrast, Sanchez, from whom defendant says he purchased the gun, was only an inch taller than defendant and weighed over 300 pounds. According to Sanchez's brother, Sanchez had gout, could not walk very fast, and used a cane. The jury could discount the possibility that Sanchez, who was at the scene the night Todd was killed and from whom defendant said he acquired the gun, was the killer.
The foregoing evidence notwithstanding, defendant contends the facts of this case are similar to those in People v. Blakeslee (1969) 2 Cal.App.3d 831, wherein the appellate court reversed a murder conviction based on the insufficiency of the evidence. (Id. at pp. 836, 840.) In Blakeslee, two teenagers, a brother and sister, lived in an apartment with their mother. (Id. at p. 833.) The sister argued with her mother from time to time. (Id. at p. 835.) On the night in question, the brother had an argument with his mother and both teenagers left the apartment. (Id. at p. 839.) Later that evening, the mother was shot. (Id. at p. 833.) The sister was arrested and convicted of murder, even though no murder weapon was ever found and no one witnessed the crime. (Id. at pp. 836, 838, 840.) Although the brother kept a rifle in his room, it was missing when his mother's body was found and it was never located. When the police first came to the scene, the sister lied to the police and told them she did not know her brother kept a rifle. (Id. at p. 835.) At the time of trial, she said she had lied in order to protect her brother. (Id. at p. 838.)
The appellate court focused on "the absence of evidence [it] would normally expect to find in a murder prosecution based on circumstantial evidence." (People v. Blakeslee, supra, 2 Cal.App.3d at p. 839.) It stated: "At bench, the missing evidence is not peripheral but is central to the charge of murder. It consists of (1) evidence of a murder weapon, which we do not have; (2) evidence linking the bullets which caused the victim's death to a particular weapon, which we do not have; (3) in the absence of the first two items, evidence of the type or caliber of weapon used for the murder, which we do not have; (4) evidence to establish a connection between a murder weapon and the defendant, either tangible evidence such as fingerprints, palm prints, or powder burns, or testimonial evidence linking the defendant in some manner to a weapon, which evidence we do not have. [¶] Merely to illustrate the insubstantiality of the case against [the sister] . . . , on the evidence before the court we could draw an almost equally plausible serious of inferences to build a case of murder against [her] brother . . . ." (Id. at pp. 839-840.)
In contrast, in the case before us, we have both a murder weapon and evidence establishing a connection between the murder weapon and defendant. In addition, we have evidence of motive and opportunity. "'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]'" (People v. Blakeslee, supra, 2 Cal.App.3d at p. 836.) "'Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]'" (Id. at p. 837.) It does not so appear. There is sufficient evidence for a rational trier of fact to find, beyond a reasonable doubt, that defendant murdered Todd.
B. Uncharged Assault:
(1) Introduction
Defendant also argues that the court committed prejudicial error in permitting Quintero to testify as to the uncharged assault regarding the incident on December 3, 2006 in Garden Grove. To evaluate this argument, we look first to the general rules pertaining to the use of bad conduct evidence for impeachment purposes.
Impeachment with conduct evidence other than a felony conviction is permissible in a proper case. (People v. Wheeler (1992) 4 Cal.4th 284, 291-292, 295.) Even so, "[n]ot all past misconduct has a 'tendency in reason to prove or disprove' a witness's honesty and veracity. However, . . . 'it is undeniable that a witness' moral depravity of any kind has "some tendency in reason" [citation] to shake one's confidence in his honesty. . . .'" (Id. at p. 295.)
As Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." So, in evaluating whether to admit impeachment evidence other than a felony conviction, courts "should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, fn. omitted.)
(2) Failure to engage in weighing process
Defendant cites People v. Navarez (1985) 169 Cal.App.3d 936 (criticized on a different point in People v. Warner (1988) 203 Cal.App.3d 1122), which provides: "The law is now clear a trial court vested with section 352 discretion must determine probative value, appraise prejudicial effect, and weigh one against the other. The record must affirmatively show the trial judge did in fact weigh prejudice against the probative value. [Citation.] Further, in permitting impeachment, the trial court must explicitly determine the risk of undue prejudice did not substantially outweigh the probative value. Where a trial court fails to exercise section 352 discretion in the manner required . . . , error occurs." (People v. Navarez, supra, 169 Cal.App.3d at p. 948.)
Defendant acknowledges that assault with a deadly weapon is a crime of moral turpitude, evidence of which may be admitted for impeachment purposes. (People v. Cavazos (1985) 172 Cal.App.3d 589, 593-595.) However, he contends the court erred by failing to engage in the process of weighing the prejudicial impact of the evidence against its probative value. We disagree.
The reporter's transcript discloses a lengthy discussion between the court and the attorneys concerning impeachment evidence. Defense counsel expressed concern with respect to what it characterized as "the Garden Grove case wherein the essence of the allegations [was] that [defendant] was involved in a shooting at a party in the Garden Grove area." The court asked whether defendant would invoke his rights under the Fifth Amendment. Defense counsel stated his "first concern [was] with the effect that . . . questions [regarding the shooting would] have on the jury." The court replied: "That's what I was asking, because if that is the case, it obviously wouldn't be done in front of the jury." This exchange shows that the court was concerned with possible prejudicial effect.
Defense counsel stated the Garden Grove case involved allegations of attempted murder and gang allegations. He said: "How much of the evidence, if any of it, is relevant to the credibility of [defendant]? And how much of the evidence, particularly the mention of the word 'gang,' when there's no gang charges in this case, but there are in the [Garden Grove] case, that any mention of that kind of evidence and the effect that that has on the jury is so inflammatory and prejudicial as to cause me to request you that it be excluded from cross-examination, if we get to that point." Thus, defense counsel raised issues of both probative value and prejudicial effect.
In response, the court asked counsel for the prosecution what he planned on doing. Counsel replied that he intended to ask defendant about the conduct for impeachment purposes. The court then stated that defendant was entitled to invoke his Fifth Amendment right and that it would not permit the prosecution to inquire of defendant on the stand if he was going to invoke that right. However, the court also stated that it would permit the prosecution to introduce evidence of the conduct in question through other witnesses, for impeachment purposes. It explained that the proffered evidence was admissible for bad conduct under People v. Wheeler, supra, 4 Cal.4th 284. The court's comments show that, on the one hand, it was concerned about the prejudicial effect if defendant took the stand and invoked his Fifth Amendment right. On the other hand, it impliedly found the proffered evidence to be of probative value.
In addition to the foregoing, the court ruled that it would be inappropriate to bring in any evidence of gang allegations, because evidence of gang activity is so inflammatory. It stated that gang allegations had nothing to do with the charges in the case before it and that to bring in gang evidence for impeachment purposes would be inappropriate under Evidence Code section 352. The court thus demonstrated an intent that the evidence brought in for impeachment purposes be relevant to the charges in question and not be inflammatory.
We disagree with defendant's contention that the court simply did not engage in the required weighing at all. "'The record as a whole shows the court was well aware of, and consistently performed, its duty . . . to balance the probative value of evidence against any prejudicial effect.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1187-1188.)
(3) Abuse of discretion
Notwithstanding the exchange on the record, defendant maintains that the court abused its discretion in admitting evidence of the December 3, 2006 event. Defendant acknowledges that the court precluded counsel for the prosecution from questioning defendant about the incident, so that he would not be prejudiced by having the jury observe him invoke his Fifth Amendment right. He also acknowledges that the court precluded the admission of any gang evidence. However, defendant contends that the court failed to weigh the prejudicial effect of the description of the event itself—his purportedly aiming a loaded gun at Quintero's father and firing the gun—against its limited probative value.
Defendant emphasizes that as an assaultive act, the probative value in connection with honesty was tenuous. Defendant also points out that Quintero was unaware how the fight began—for example, whether defendant may have been acting in self-defense or whether another person may have drawn a gun first. Furthermore, he raises the issue of why Quintero needed to restrain his father if his father was only trying to calm people down. In addition, defendant mentions that the incident would be viewed in a different light if the evidence showed that his gun had gone off accidentally. However, because defendant was unable to testify with respect to the Garden Grove incident, given that the criminal charges against him arising out of the incident were unresolved, he could not provide critical background information and context pertaining to the event. Taken at face value, Quintero's description of the event put defendant in the worst possible light and could leave the jury with the impression that he was "a person who committed violent acts with guns." This prejudicial effect was particularly important in the matter of the Todd killing, where the case against defendant was built on circumstantial evidence and inferences.
However, as the prosecution points out, defendant's focus in the trial court was on the prejudicial effect if he invoked his Fifth Amendment right before the jury and if gang allegations were raised. The court addressed defendant's concerns as expressed at the time, by precluding the prosecution from questioning defendant about the incident and by precluding the admission of evidence pertaining to gang activity.
Furthermore, defendant was not without a means of providing the context in which the Garden Grove incident occurred. He was at liberty to cross-examine Quintero to bring out additional information.
As the prosecution observes, the courts look to several factors in applying Evidence Code section 352 to control the admission of impeachment evidence. With respect to prior felony convictions, for example, the factors include: "(1) whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Here, with respect to the first factor, the incident involving defendant's use of a gun at the party in Garden Grove reflects adversely on honesty or veracity. As stated in People v. Cavazos, supra, 172 Cal.App.3d 589, "assaultive crimes bear some relevance to the credibility of a witness." (Id. at p. 594.) With respect to the second factor, the Garden Grove incident was not too temporally remote to be of probative value, since it took place in 2006, the year after Todd was killed. As for the fourth factor, the admission of the impeachment evidence did not dissuade defendant from testifying with respect to the Todd killing, because the court precluded the prosecution from questioning him about the Garden Grove incident.
In looking at the third factor, we see that the Garden Grove incident was similar to the Todd killing in that a gun allegedly was used in each instance. Because defendant had testified that he did not carry a gun except for the purpose of resale, the similarity of the incidents was particularly probative with regard to defendant's credibility. However, defendant expresses concern that given the similarity of the Garden Grove incident, the jury could conclude that he was someone who engaged in violent acts with guns. As the prosecution observes, this is tantamount to arguing that the jury would likely use the Garden Grove incident as evidence of defendant's propensity to pull guns on others.
However, as the prosecution also notes, the jury was instructed: "If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. . . ." In other words, the jury was not permitted to consider the evidence of the Garden Grove incident as propensity evidence. Indeed, in his argument before the jury, the prosecutor reinforced this point, stating: "Well, it was the defendant who said he only carries guns to sell. It was shown . . . that was a lie. . . . You got a limiting instruction from the judge [on] how you can consider it. You can consider it on his credibility. He took the stand . . . to say he only carries guns to sell guns. He wasn't predicting future behavior." In short, the record is clear that the jury was informed it could consider the Garden Grove incident to reflect on defendant's credibility, but not to demonstrate propensity.
In sum, defendant has not shown that, applying the various factors, the court abused its discretion in permitting Quintero to testify. "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) No such showing was made here.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, ACTING P. J. FYBEL, J.