Opinion
H040966
01-17-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGEL ANTONIO TORRES, Defendant and Appellant.
ORDER MODIFYING OPINION, NO CHANGE IN JUDGMENT BY THE COURT:
It is ordered that the opinion filed herein on January 17, 2017, be modified in the following particulars:
On page 14, third paragraph, the second sentence is modified to read:
"It also imposed a two-year sentence for defendant's conviction of street terrorism, which it stayed under section 654, and a 10-year sentence on the gang enhancement."
There is no change in judgment. Dated: __________
/s/_________
Premo, J. /s/_________
Rushing, P.J. /s/_________
Elia, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F19685)
Defendant Angel Antonio Torres was convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a)) and street terrorism (§ 186.22, subd. (a)). He was sentenced to a total term of 60 years to life in prison.
Unspecified statutory references are to the Penal Code.
During trial, the prosecution presented evidence the murder was committed as part of Jose Meza's initiation into a gang. Joel Sanchez drove defendant, Meza, and Jose Gonzalez to find a rival gang member to shoot. Both defendant and Meza shot at the victim, who later died of his injuries. The trial court admitted out-of-court statements made by Sanchez to Julian Melgoza, a gang member and confidential informant working with the police. Gonzalez and Christian Lopez, another gang member, testified.
Sanchez, Meza, and defendant were initially tried together as codefendants. In this first trial, the jury found Sanchez guilty of first degree murder and Meza of second degree murder (§ 187, subd. (a)). The jury also found true the allegation that both Sanchez and Meza had committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (a)). The jury could not reach a verdict as to defendant. Sanchez and Meza appealed their convictions, which this court affirmed in an unpublished decision. (People v. Sanchez (Dec. 18, 2015, H040172) [nonpub opn.].) Defendant was retried separately. After retrial, the jury convicted defendant of first degree murder and street terrorism, which is the subject of this appeal.
On appeal, defendant argues: (1) the trial court violated his Sixth Amendment right to confrontation when it admitted the recorded conversation between Sanchez and Melgoza; (2) his convictions violate the Due Process Clause because evidence of his guilt came solely from the uncorroborated testimonies of accomplice witnesses; (3) the trial court erred when it failed to instruct the jury that Sanchez was an accomplice as a matter of law or to permit the jury to find Sanchez to be an accomplice; (4) the trial court erred when it permitted Melgoza to testify about statements made by Lopez about the murder; (5) he suffered cumulative prejudice as a result of all the aforementioned errors; and (6) his conviction for first degree murder should be reversed, because the jury may have improperly convicted him based on the natural and probable consequences doctrine.
As we explain in detail below, we find merit only in defendant's final argument that his conviction must be reversed, because the record is unclear as to whether the jury improperly convicted him of first degree premeditated murder based on the natural and probable consequences doctrine. Accordingly, we reverse and remand the judgment.
BACKGROUND
1. Gang Evidence
Poorside Watsonville is one of two Sureno gang subsets in Watsonville, California. Surenos associate with the number 13 and the color blue. Nortenos associate with the number 14 and the color red. Nortenos and Surenos consider each other rivals. Surenos use the derogatory terms "Chapete" and "Buster" when referring to Nortenos.
Several different officers testified at trial and provided background information on gangs in Watsonville.
A person can join the Poorside gang by going through a ritual called a "jump-in." During the jump-in, three gang members assault the new member for 13 seconds. Afterwards, the new member must complete a "jale," or mission. The jale is an act of violence against a Norteno. The act can be an assault, but killing a Norteno brings greater prestige to the gang.
The goal of a jale is to inflict as much damage as possible. If the jale results in a murder, gang members may brag about the act and save mementos. Gang members use these acts to bolster their reputations. If, however, a gang member takes credit for a crime he did not commit, the gang will discipline him.
There must be confirmation that a new member has completed a jale. Confirmation can come from news articles or reports about the crime. Or, established gang members may accompany an initiate and vouch for him.
Gangs usually have guns that are owned by the entire gang. These guns are passed on to those who are about to complete a jale. Guns that are used in a murder are typically disposed of. In 2009, Poorside had two guns, a nine-millimeter belonging to Sanchez and a .22-caliber belonging to defendant.
In September 2009, defendant was an active member of Poorside. Defendant went by the moniker "Spider." He was also known to some other gang members as "Moco" or "Casper." Sanchez, defendant's cousin, was also a Poorside member. He went by the moniker "Perico." Meza was a Poorside member and went by the moniker "Psycho." Lopez was a Poorside member and went by the moniker "Rhino." Gonzalez, who used to be an active member of Poorside, went by the nickname "Grifo." Melgoza used to be an active Poorside member and went by the nickname "Sniper." Sanchez had two brothers that were Poorside members, Abraham Sanchez ("Baby Perico") and David Sanchez ("Demon").
2. Richard Campos's Murder
On September 15, 2009, Richard Campos was 21 years old. Campos was staying at his family's house on Roache Road at the time. Campos had met Jessica Lopez a month before. Sometime after 9:30 that evening, Jessica called Campos. Campos spoke to Jessica on the phone while sitting in a car parked on Roache Road. After a few minutes, Jessica heard a second male voice over the phone. The male voice asked Campos, "Where you from?" Campos answered that he did not "bang," and he "wasn't from anywhere." Afterwards, all Jessica could hear was static. She sent Campos a text message and called him again, but he did not respond.
We refer to Jessica Lopez by her first name to avoid confusion with Christian Lopez.
At approximately 9:45 p.m., Frederick Wells, a night watchman at a nearby storage facility, heard approximately three or four gunshots, a pause, and three or four additional gunshots. Wells went outside and saw Campos slumped over between a red car and a van. The red car's window had been shattered and the door was open. Wells called the police.
When officers arrived at the scene, they observed that Campos had been shot in the neck. The Watsonville Fire Department attempted to perform CPR on Campos, but he was pronounced dead at the scene.
That same night, officers found spent nine-millimeter casings next to Campos's car. The following day, officers found part of a nine-millimeter bullet jacket in the rear floorboard of the passenger side of the car, a nine-millimeter full metal jacket bullet in the passenger side's rear tire, a metal fragment from a .22-caliber bullet in the back rest of the driver's seat, and bullets in the rim of the right rear tire and the windshield trim on the driver's side.
An autopsy was performed on Campos's body. Campos had been shot in the chest and neck. He was killed by a nine-millimeter bullet that penetrated the front of his chest, front of his neck, carotid artery, and right lung. The bullet was lodged in Campos's shoulder.
Sergeant Anthony Magdayao testified that Campos was killed in a predominantly Norteno neighborhood. Magdayao recognized Campos. Campos had previously admitted he was affiliated with the Nortenos and had several Norteno-affiliated tattoos.
3. Evidence from Julian Melgoza
a. Melgoza's Status as a Confidential Informant
Earlier, Melgoza had agreed to cooperate with police on an unrelated case. He told police about a location where Poorside gang members would sometimes meet. Officer Juan Alfonso Trujillo set up concealed audio and video recording near the meeting location. Trujillo saw footage of defendant attending one of the Poorside meetings.
Later, at the same location, Officer Trujillo activated the video recording and obtained a video of Melgoza and his girlfriend setting fire to a car. Melgoza agreed to cooperate with police. In exchange, his and his girlfriend's arson case would be dismissed and he would plead to vehicle theft with a 180-day suspended sentence. Thereafter, Melgoza assisted Trujillo with several controlled buys of guns. Melgoza told police he would stay in touch, but Trujillo lost touch with him between August and September 2009. Trujillo submitted Melgoza's arson case to the district attorney's office. After Campos's murder, Melgoza called Trujillo and told him that Poorside was involved.
b. Melgoza's Testimony
Melgoza was jumped-in to the Poorside gang when he was approximately 16 or 17 years old. In 2009, he was still an active member of Poorside. Melgoza testified that a jale is something that a new gang member must complete in order to be initiated into the gang.
Melgoza testified that he met with Lopez in a parking lot to purchase drugs the night of Campos's murder. During the transaction, Melgoza noticed police cars driving by with their sirens on. Lopez told Melgoza the job had been done and used the term "jale."
Afterwards, Melgoza called Officer Trujillo. Melgoza told Trujillo that Lopez had told him that a "homie" ("Psycho," Meza) was going to get jumped-in, and the "homies" were going to be completing a mission. "Perico" (Sanchez) and "Moco" (defendant) accompanied Meza.
After speaking with Officer Trujillo, Melgoza agreed to wear a wire to a Poorside meeting at Sanchez's house. Melgoza was instructed to listen and to get as much information as he could about Campos's murder.
Melgoza testified that when he arrived at the meeting, Sanchez was the only Poorside member present. They talked for about an hour and half to two hours. Melgoza remembered that Sanchez told him that Poorside was behind Campos's murder. Sanchez said he participated in the jale along with defendant and Meza, and defendant and Meza were the shooters. The gang members had used Sanchez's mother's car to complete the jale. Afterwards, Melgoza called Officer Trujillo, went to the police station, and turned over the recording of the conversation with Sanchez.
Aside from the deal he received for his pending arson case, Melgoza received no other offers from the district attorney's office. Melgoza's family had been threatened as a result of his cooperation with the police.
c. The Recording of the Conversation Between Melgoza and Sanchez
The recorded conversation between Melgoza and Sanchez took place on September 20, 2009. The conversation was primarily in Spanish and was translated by Officer Trujillo after he listened to the recording approximately 10 to 12 times. The recording was also analyzed by Denise Choate, a Spanish interpreter, who listened to the recording approximately 12 times.
The transcript produced by Officer Trujillo was introduced into evidence.
According to both Trujillo and Choate, the recording was not of the best quality. A movie was playing in the background while Melgoza and Sanchez were talking, which sometimes made the conversation difficult to hear.
Officer Trujillo described the conversation between Sanchez and Melgoza as follows: Early in the conversation, Sanchez mentioned Campos's killing. Sanchez mentioned that someone had a disagreement with one of Campos's relatives. Sanchez said that it was "fine" as long as he did not get blamed and that "they" would be the only ones to get into trouble. Sanchez said the news had reported that Campos was talking to a woman on the telephone at the time. He also mentioned that Poorside may get blamed for the killing.
Later, Melgoza asked Sanchez about "Spider" (defendant). Sanchez told Melgoza that he and defendant "threw" the jale with "Psycho" (Meza) and "Grifo" (Gonzalez). He explained that "the kids" were the ones who "threw down," and Gonzalez stayed in the car. Sanchez said they had used his mother's car, and "everything came out really nice." He said they had "two homies" and used "two guns."
Sanchez said that Campos was inside the car when he was shot and described the jale: "[W]hen I got there I parked right away, the doors opened, poom poom and then ch-ch-ch."
Choate testified about the differences between her translation and Trujillo's translation of the recorded conversation. She explained that some of Trujillo's translations had a different meaning than the statements that she heard in the recording. Choate did not hear the reference to the term "jale" in the recording. She also did not hear Sanchez say that "Grifo" (Gonzalez) stayed in the car while the others went outside to shoot Campos.
4. Jose Gonzalez's Testimony
In September 2009, Gonzalez was a 16-year-old member of the Poorside gang. He went by the moniker "Grifo." Gonzalez and Meza went to school together. Gonzalez could not recall if he was present when Meza was jumped-in to Poorside, but he acknowledged that Meza was required to complete a mission after he was jumped-in. Meza told Gonzalez that Sanchez had given him a nine-millimeter gun to complete his mission.
The night of Campos's murder, Meza called Gonzalez and asked for help finding someone to shoot to complete his jale. Meza went to Gonzalez's house riding a bike and carrying a scooter. Gonzalez saw that Meza had a gun and recognized it as a .22-caliber revolver he had seen at Sanchez's house. Meza said he borrowed the gun from defendant. Meza told Gonzalez he did not feel confident using the nine-millimeter gun, which was a semiautomatic, so he had switched it out for the .22-caliber. Gonzalez said that their plan was to go around the neighborhood and look for a Norteno to complete the mission.
Gonzalez and Meza spent about an hour outside searching for a victim to complete the jale. Unsuccessful, they returned to Meza's house. Meza went to the backyard and put away the bicycle and scooter. When he returned, he told Gonzalez he had called Sanchez and arranged for them to get a ride. Sanchez arrived at the house driving an SUV with defendant in the passenger seat.
Sanchez drove the men around looking for Nortenos. Eventually, they came across Campos. Campos was standing next to a utility pole talking on a cell phone. Meza said he recognized Campos as Northerner with an "XIV" tattoo on his arm. Sanchez parked the car and chose defendant and Meza to go outside. At that time, Gonzalez heard a noise that sounded like the cocking of a semiautomatic gun coming from the passenger side of the car where defendant was sitting. Defendant and Meza got out of the car. Gonzalez's understanding of the situation was that someone was going to get shot. Meza and defendant were outside for only a few seconds before they returned. They did not complete the mission, because they had seen someone standing outside of a house nearby.
Sanchez drove the car a short distance, made a u-turn, and parked close to where they had seen Campos. Defendant and Meza got out of the car again and walked toward the driveway of the house where they had seen Campos. Gonzalez lost sight of defendant and Meza but heard approximately seven gunshots. The gunshots did not sound the same. Defendant and Meza ran back to the SUV. Defendant said he fired his gun twice and was sure he had shot Campos in the head. Defendant also said his gun had jammed. Gonzalez described defendant as bragging about the crime. Afterwards, Sanchez drove the men back to his house.
The next day, Gonzalez went to school and saw a newspaper article about the previous night's shooting on a teacher's desk. Meza saw the article, became excited, and placed the article in his pocket.
Approximately two months later on November 9, 2009, Gonzalez became involved in another jale for a newly jumped-in member of Poorside. The new member, like Meza, was given a gun and was expected to carry out his mission within a few days. Gonzalez drove the new member during the jale. The new member fired two shots but missed his targets. Gonzalez was arrested and charged after the incident. He pleaded guilty to a charge of attempted assault with a firearm and received a five-year sentence.
Gonzalez served part of his sentence in juvenile hall. In May 2010, Officer Trujillo visited Gonzalez at juvenile hall and asked him about Campos's murder. Trujillo told Gonzalez he knew that Gonzalez was there when Campos was killed.
Initially, Gonzalez refused to give Officer Trujillo information about Campos's murder. Gonzalez, however, became concerned that he would get into trouble. Later, he spoke with Henry Montes, an investigator with the district attorney's office. Gonzalez first told Montes he had no knowledge of Campos's murder. In a second interview, Gonzalez told Montes that he was there when Campos was killed. He also told Montes that defendant was one of the shooters and Sanchez had driven the car.
On September 3, 2010, Gonzalez entered into a plea agreement for Campos's murder. He agreed to plead guilty to conspiracy to shoot into an occupied vehicle with the understanding that he would serve a five-year concurrent sentence with the five-year sentence he had already received for the November 2009 jale.
After Gonzalez cooperated with police, he was placed in a witness relocation program and moved out of the county. He received compensation in the form of rent, food, and money for expenses while in the witness relocation program. He was labeled a snitch and would be killed by Poorside members.
In May 2012, Gonzalez was released from custody and was out on parole for his involvement in the November 2009 jale. While he was out on parole, he was the driver in another drive-by shooting in December 2013. When cross-examined about the shooter, Gonzalez said he had only known the shooter for a few months and admitted it was easy to "make up a lie and point the finger at him."
5. Evidence from Christian Lopez
Lopez was a Poorside member. He went by the gang moniker "Rhino."
Lopez was present during Meza's jump-in. After the jump-in, Lopez recalled that a few gang members took a nine-millimeter gun and went with Meza to complete his jale. They did not complete the jale, because they were unable to find any targets.
Some time later, Sanchez and several other gang members again went with Meza to complete his jale. Lopez was there when the gang members set off, and he saw several men get into a car with Sanchez driving. Defendant was in the passenger seat, Meza was sitting behind him, and there was a fourth person in the car sitting in the back seat. Lopez could not remember who the fourth person was.
After Sanchez and the rest of the gang members left, Lopez received a call from Melgoza, who wanted to purchase drugs from him. Lopez met with Melgoza at a parking lot and sold him some drugs. While they were there, they saw several police cars drive past them toward Roache Road. Lopez thought Sanchez and the rest of the members had completed Meza's jale. Lopez called Sanchez and asked if the mission had been completed. Sanchez responded that everything had gone well, and he was driving back home. Lopez then went with Melgoza to a nearby motel. At the motel, Lopez told Melgoza about the mission, including who was at Sanchez's house.
Lopez did not know that anybody had died as a result of the jale until he read about Campos's murder in the newspaper. He called Sanchez and asked him if he had seen what had happened. Sanchez responded, "yeah."
Sometime after the shooting, defendant spoke to Lopez about the murder. Defendant told Lopez that Campos was sitting and talking on his cell phone when the shooting occurred. Defendant said he had asked Campos where he was from then shot him in the face with a nine-millimeter gun. He then told Meza to shoot at Campos. When speaking to Lopez about the murder, defendant sounded like he was bragging about the crime.
Approximately a week after the murder, Lopez talked to Sanchez about the crime. Sanchez described the jale to Lopez. He told Lopez that he and the other gang members were driving on Roache Road when they saw Campos. Sanchez recognized Campos, because he had problems with Campos's brother in the past. Sanchez said he parked the car a few houses down from where Campos was sitting, and Meza and defendant approached him to complete the jale.
In December 2009, Lopez and Meza were arrested after burglarizing a house. Officers spoke with Lopez and informed him that they knew he was somehow connected to Campos's murder and could face a life sentence. At the time, Lopez was on probation and was not supposed to be associating with gang members. He was facing up to six years in prison for a probation violation alone.
Lopez decided to give the police some information about Campos's murder. He was not completely truthful the first time he spoke with the officers. For example, he initially told officers he did not have a gang moniker. He also told officers that defendant was one of the shooters, but denied knowing who the other shooter was. At that time, Lopez already knew that Meza was the other shooter. After speaking with the police, Lopez agreed to work for them under a cooperation agreement.
In March 2011, Lopez was interviewed again about Campos's murder. He admitted he did not initially tell the police about Sanchez's involvement in the crime, because he had known Sanchez for a long time. He had also known Meza and Gonzalez for a long time. He was not as familiar with defendant.
Due to his cooperation with the police, Lopez was no longer a member of Poorside. If other Poorside members saw him on the street, they would assault him. He had to be kept in protective custody in jail. At one point, he was accidentally housed with active Poorside members in jail who tried to assault him. Despite the risks, Lopez decided to cooperate as a testifying informant. He wanted to be released from jail so he could spend time with his children. He was granted full transactional immunity for any offenses stemming from Campos's murder.
6. Defendant's Gang Ties
On September 17, 2009, defendant spoke with Abraham Sanchez on the phone. Defendant told him that he had gotten a tattoo "like the one Speedy had on his hand." Speedy had a tattoo on his forearm that said "buster free," with a falling shattered star. Officer Trujillo testified that a falling star tattoo meant that the individual had committed an act of violence against a Norteno. Sergeant Morgan Chappell, the prosecution's gang expert, testified the falling star was a way of showing disrespect to Nortenos. Lopez said the falling star tattoo stood for the downfall of the Nortenos and denied that an act of violence against a Norteno is required to get the tattoo.
"Speedy" is the moniker of another Poorside member.
"Buster" is a derogatory term for Nortenos.
On September 22, 2009, Officer Trujillo was at Sanchez's house. He made contact with defendant and took photos of his tattoos, several of which were gang related. Trujillo noticed defendant had a shattered falling star tattoo on his hand.
While in custody, defendant was housed with other Poorside gang members and admitted to officers that he was a member of Poorside.
7. The Trial and Sentencing
On May 4, 2011, the Santa Cruz County District Attorney's Office filed an information charging defendant with murder (§ 187, subd. (a)) and street terrorism (§ 186.22, subd. (a)). It was also alleged as to the murder charge that a principal personally and intentionally discharged a firearm (§ 12022.53, subd. (d)) and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). Meza and Sanchez were listed as codefendants.
On April 24, 2013, the jury found Sanchez guilty of first degree murder and Meza guilty of second degree murder. The jury was unable to reach a verdict as to defendant, so the court declared a mistrial.
On January 23, 2014, a new jury was sworn in for defendant's retrial. On February 27, 2014, the jury found defendant guilty of first degree murder and of street terrorism. The jury also found true the gang enhancement and the allegation that a principal had personally and intentionally discharged a firearm.
On May 2, 2014, the trial court sentenced defendant to consecutive terms of 25 years to life for the murder count and 25 years to life for the firearm enhancement. It also imposed a two-year sentence on the gang enhancement, which it stayed under section 654. Defendant appealed.
DISCUSSION
1. Admission of Melgoza's Recorded Conversation with Sanchez
First, defendant argues the trial court erred when it admitted the recorded conversation between Sanchez and Melgoza, which was made when Melgoza was acting as a confidential informant for the police.
a. Applicability of the Aranda-Bruton Rule
Sanchez was a codefendant in defendant's first trial. Defendant argues the trial court violated his Sixth Amendment right to confrontation and the Aranda-Bruton rule when it admitted the recorded conversation between Melgoza and Sanchez, which implicated him in Campos's murder.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." A problem arises when an out-of-court confession implicates not only the defendant but a codefendant who has invoked his or her Fifth Amendment right against self-incrimination and declines to testify. Under the Aranda-Bruton rule, "admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant." (People v. Fletcher (1996) 13 Cal.4th 451, 455; Bruton v. United States (1968) 391 U.S. 123, 126-137; People v. Aranda (1965) 63 Cal.2d 518, 528-530.)
Nearly 40 years after Aranda and Bruton were decided, the Supreme Court clarified the scope of the Confrontation Clause in Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford), holding that the prosecution may not introduce "[t]estimonial statements" from witnesses absent from the trial, unless the witness is unavailable or the defendant had a prior opportunity for cross-examination.
The parties do not dispute that Sanchez was unavailable to testify at defendant's second trial due to his pending appeal.
Crawford did not expressly overrule Aranda or Bruton. Nonetheless, following Crawford, several California appellate courts and federal courts have concluded the Sixth Amendment prohibits only the admission of testimonial statements from an absent witness, even if the statement is a confession of a codefendant. (People v. Arceo (2011) 195 Cal.App.4th 556, 576 (Arceo); People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402 (Arauz); U.S. v. Johnson (6th Cir. 2009) 581 F.3d 320, 326; U.S. v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85.) Although the California Supreme Court has yet to decide this exact issue, it has recognized that "[o]nly the admission of testimonial hearsay statements violates the confrontation clause . . . ." (People v. Gutierrez (2009) 45 Cal.4th 789, 812.)
Defendant acknowledges the existence of these cases but dismisses them as being inconsistent with the Aranda-Bruton rule. He insists the Supreme Court has never explicitly overruled Bruton; therefore, Bruton should still be applied to exclude nontestimonial confessions made by codefendants.
This argument was considered and rejected by the appellate court in Arceo. There, the defendant argued that "the Bruton line of cases represents a 'special rule' that applies to extrajudicial statements of unavailable codefendants who make incriminating statements, 'a rule that survives the "testimonial vs. nontestimonial" classification.' " (Arceo, supra, 195 Cal.App.4th at p. 574.)
In order to come to its conclusion that the confrontation clause applies only to testimonial statements, including those statements made by a codefendant, Arceo analyzed Davis v. Washington (2006) 547 U.S. 813 (Davis), People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger), and People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes). (Arceo, supra, 195 Cal.App.4th at pp. 573-574.)
Davis analyzed Crawford and explained the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial, unless the witness was unavailable or the defendant had a prior opportunity for cross-examination. (Davis, supra, 547 U.S. at p. 821.) Critically, Davis reiterated that "[o]nly statements of this sort ['testimonial statements'] cause the declarant to be a 'witness' within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Ibid.)
Greenberger, a case pre-dating both Davis and Crawford, held that "admission of a statement possessing sufficient indicia of reliability to fall within the hearsay exception of a declaration against penal interest does not deny a defendant the right of confrontation guaranteed by the United States Constitution." (Greenberger, supra, 58 Cal.App.4th at pp. 330-331.)
And in Cervantes, the appellate court relied on Crawford and Greenberger to conclude that nontestimonial statements are subject to the rules of evidence including hearsay rules. (Cervantes, supra, 118 Cal.App.4th at p. 173.) Therefore, the Cervantes court concluded the trial court did not err when it admitted a codefendant's nontestimonial statements against other defendants, because the statement was a declaration against interest and was trustworthy. (Id. at p. 177.)
Examining the aforementioned cases, Arceo drew one conclusion: "[T]he confrontation clause applies only to testimonial statements—and nothing in the cases applying that principle to extrajudicial statements by nontestifying codefendants is inconsistent with or purports 'to overrule Bruton,' which itself did not address 'any recognized exception to the hearsay rule.' " (Arceo, supra, 195 Cal.App.4th at p. 575.) Arceo then held that if the declarant's statements fall within one of the state law exceptions to the hearsay rule, the court did not err in admitting them. (Ibid.)
We agree with Arceo and the line of cases holding that the Aranda-Bruton rule does not apply when the codefendant's statements are nontestimonial as set forth under Crawford, supra, 541 U.S. 36. Our conclusion is bolstered by the Supreme Court, which has itself reiterated that only testimonial statements render a declarant a "witness" under the Sixth Amendment. (Davis, supra, 547 U.S. at p. 821; Whorton v. Bockting (2007) 549 U.S. 406, 420 ["Under Crawford . . . the Confrontation Clause has no application to [out-of-court nontestimonial statements] and therefore permits their admission even if they lack indicia of reliability."].) If a codefendant's confession is nontestimonial, admission of a codefendant's confession despite his or her unavailability does not offend a defendant's rights under the Confrontation Clause.
In his reply brief, defendant argues the Supreme Court's jurisprudence actually reflects two distinct lines of cases on the use and admissibility of accomplice confessions against a codefendant. Defendant posits that one line of cases, including Bruton and Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), analyzes the efficacy of jury limiting instructions in preventing prejudice to a defendant when the codefendant's admissions are admitted against the codefendant during a joint trial. The second line of cases, including Lee v. Illinois (1986) 476 U.S. 530 and Douglas v. Alabama (1965) 380 U.S. 415, concern situations where the codefendant's confession is introduced to the jury as substantive evidence of the defendant's guilt. Defendant argues the Supreme Court has categorically found the Confrontation Clause to be violated in the latter line of cases, and his case falls squarely within the purview of this jurisprudence.
In Richardson, the Supreme Court held that the "Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Richardson, supra, 481 U.S. at p. 211.)
Defendant's focus on cases like Lee and Douglas, which predate Crawford, ignores Crawford and later cases interpreting the Crawford decision, such as Davis. Courts have held that "[t]he Bruton/Richardson framework presupposes that the aggrieved co-defendant has a Sixth Amendment right to confront the declarant in the first place. If none of the co-defendants has a constitutional right to confront the declarant, none can complain that his right has been denied. It is thus necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause 'has no application.' " (U.S. v. Figueroa-Cartagena, supra, 612 F.3d at p. 85.) Likewise, cases like Lee and Douglas similarly assumed the codefendant has the right to confront the declarant. However, "[o]nly [testimonial] statements . . . cause the declarant to be a 'witness' within the meaning of the Confrontation Clause." (Davis, supra, 547 U.S. at p. 821.)
Therefore, introduction of Sanchez's statements to Melgoza would violate defendant's right to confrontation under the Sixth Amendment only if the statements were testimonial.
b. Sanchez's Statements to Melgoza Were Not Testimonial
Defendant argues the statements made by Sanchez to Melgoza during their recorded conversation were testimonial. We apply an independent standard of review to this claim. (See People v. Seijas (2005) 36 Cal.4th 291, 304.)
Crawford did not explicitly define " 'testimonial statements.' " (Crawford, supra, 541 U.S. at p. 51.) It did, however, describe types of statements that constitute a "core class of 'testimonial' statements" (ibid.): (1) an " 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially' " (ibid.), (2) " 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions' " (id. at pp. 51-52), and (3) " 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Id. at p. 52.)
In Davis, the Supreme Court considered what types of statements made to the police may be deemed testimonial under Crawford. The statement at issue in Davis was between a 911 operator and a caller. (Davis, supra, 547 U.S. at p. 817.) The Davis court found the 911 call to be nontestimonial, and concluded that "[s]tatements 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.)
To determine the " 'primary purpose' " of an interrogation under Davis, courts must engage in an objective inquiry. (Michigan v. Bryant (2011) 562 U.S. 344, 360 (Bryant).) "An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the 'primary purpose of the interrogation.' " (Ibid.) Matters of objective fact include the circumstances of the interrogation, including the location (i.e., at a police station or at the scene of the crime), and the formality or informality of the encounter.
Applying these principles, we conclude Sanchez's statements to Melgoza were not testimonial. Melgoza's conversation with Sanchez was casual. The conversation took place at an informal location, Sanchez's house. The topic of conversation was not limited to Campos's murder. The two men spoke about a variety of subjects and used gang slang. The conversation lacked both solemnity and formality. There is nothing to indicate the conversation was conducted under the type of circumstance that would reasonably lead Sanchez to believe that his statements would be used in a future judicial proceeding.
Our conclusion is in accord with numerous state and federal decisions holding that statements unwittingly made to police informants are not testimonial for the purposes of the confrontation clause. (Arauz, supra, 210 Cal.App.4th at p. 1402 [holding that statements made to jailhouse informant are not testimonial]; U.S. v. Smalls (10th Cir. 2010) 605 F.3d 765, 778; U.S. v. Saget (2nd Cir. 2004) 377 F.3d 223, 229-230; U.S. v. Underwood (11th Cir. 2006) 446 F.3d 1340; U.S. v. Tolliver (7th Cir. 2006) 454 F.3d 660.) These statements are nontestimonial even if the informant is prepared by the police. (Arauz, supra, at p. 1402.)
Defendant acknowledges these cases, but argues many of them are inapplicable since they were decided before the Supreme Court's decision in Bryant, which made it clear that we must not consider only the declarant's statements and actions when determining whether statements are testimonial. (Bryant, supra, 562 U.S. at pp. 367-370.) In Bryant, the Supreme Court recognized the statements and actions of both the declarant and the interrogator are objective evidence of the primary purpose of the interrogation. (Id. at p. 367.) Pointing to an extreme example, the Supreme Court noted that if a police officer asked a victim, " 'Tell us who did this to you so that we can arrest and prosecute them,' " the victim's answer would be purely accusatory based on the phrasing of the question, since the victim would have prosecution on his or her mind when answering. (Id. at p. 368.)
Defendant argues that Melgoza's subjective intent as a confidential informant when speaking with Sanchez rendered the statements testimonial. We reject this argument. Bryant requires an objective, not subjective, analysis of the purpose of an interrogation, which must take into account the statements and actions of both the police and the defendant. (Bryant, supra, 562 U.S. at pp. 367-370.) "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." (Id. at p. 360.) Melgoza, working as a confidential informant, may have held a subjective intent to elicit information from Sanchez for future prosecution. This subjective intent, however, was not detectable from the tenor of his conversation with Sanchez. Melgoza's statements and actions did not objectively reflect a prosecutorial tone, and he spoke in a casual manner with Sanchez. There is no indication that Sanchez knew Melgoza was cooperating with the authorities.
Additionally, the perspective of the parties is but one circumstance that courts must consider. "In determining whether a declarant's statements are testimonial, courts should look to all of the relevant circumstances." (Bryant, supra, 562 U.S. at p. 369.) The other objective circumstances of the encounter, including the fact the conversation was held between two gang members in Sanchez's own home, leads to the conclusion that Sanchez's statements were not testimonial. Based on the objective circumstances, no reasonable person in Sanchez's position would have believed his statements would be introduced at a later prosecution.
Thus, we must reject defendant's argument that admission of the statements despite Sanchez's unavailability offended his constitutional right to confrontation under the Sixth Amendment.
c. Sanchez's Statements Were Admissible as Declarations Against Interest
Next, defendant argues Sanchez's statements were inadmissible, because they did not meet any of the exceptions to the hearsay rule.
Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
Again, the parties do not dispute that Sanchez was unavailable to testify at defendant's retrial. The parties dispute only whether Sanchez's out of court statements were against his penal interest and were reliable enough to be admitted.
The proponent of such evidence must also show that the statement has sufficient indicia of trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 614.) " 'To determine whether [a particular] declaration [against penal interest] passes [section 1230's] required threshold of trustworthiness, a trial court "may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." ' " (Ibid.) We review the trial court's admission of a declaration against interest for an abuse of discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143.)
Defendant insists the trial court erred when it found Sanchez's statements within the declaration against interest hearsay exception. First, defendant argues Sanchez's statements minimized his own criminal culpability, because he deflected the blame from himself to defendant and Meza when he named them as the two shooters.
Defendant relies on People v. Smith (2005) 135 Cal.App.4th 914. In Smith, an accomplice, Taffolla, told his girlfriend he had acted as a lookout while the defendant went inside a motel room to rob the victim. An altercation occurred, and the defendant was injured. Taffolla maintained the victim was not supposed to be killed during the robbery. The victim was later found dead in the motel room. (Id. at pp. 919-920.) At trial, the girlfriend testified about Taffolla's statements to her implicating the defendant. The defendant sought to exclude the girlfriend's testimony on the basis it would violate the Aranda-Bruton rule and violate his right to confrontation. The appellate court noted the trial court correctly decided the declaration against interest exception to the hearsay rule did not apply, because Taffolla's statements specifically laid the blame for the murder on the defendant. (Id. at p. 922.) Furthermore, Taffolla's statement that the victim was not supposed to be killed was not specifically disserving toward him. (Ibid.)
We find defendant's reliance on Smith to be misplaced. The statements made by Sanchez to Melgoza are more akin to the declarations against interest contemplated in Arceo, supra, 195 Cal.App.4th 556 and Arauz, supra, 210 Cal.App.4th 1394.
In Arceo, a codefendant recounted several murders to a relative of another codefendant. (Arceo, supra, 195 Cal.App.4th at p. 576.) One codefendant bragged about how he killed one person and handed the gun to the defendant, who shot a second victim when she resisted. (Ibid.) The appellate court found the statements were properly admitted as a declaration against interest, because the statements subjected the codefendant to criminal liability. (Ibid.) This conclusion was equally applicable to the codefendant's statement that he handed the gun to the defendant, because this statement clearly subjected the codefendant to criminal liability for the second murder. (Id. at p. 577.)
Likewise, in Arauz, an accomplice told a jailhouse informant that he had driven the two codefendants to a shooting. (Arauz, supra, 210 Cal.App.4th at p. 1399.) He then described the guns the codefendants had and told the informant that the two codefendants shot the victims. (Ibid.) The appellate court held that the statements were properly admitted, because they were specifically against his own penal interest. The statements also had an indicia of trustworthiness, because the accomplice identified the codefendants by their gang monikers and his statements were a detailed explanation to someone who he thought was " ' running court' " for the Mexican Mafia. (Id. at p. 1401.)
In this case, Sanchez's statements were made to Melgoza in a noncoercive setting, Sanchez's own home. Sanchez also included details about defendant and the other accomplices, including their names and gang monikers. Furthermore, unlike the statement contemplated in Smith, Sanchez's statements were specifically disserving. Defendant characterizes Sanchez as deflecting the blame for the shooting to Meza and defendant, but Sanchez's statements reflected he was providing a narrative of the crime. He freely admitted to driving the car. He also admitted he participated in the jale and that "everything came out really nice." In effect, Sanchez, unlike the accomplice in Smith, characterized the jale as a success, because they had shot and killed Campos. Melgoza did not accuse Sanchez of a greater role in the shooting, and Sanchez did not thereafter attempt to deflect and shift blame from himself to the other participants. Thus, Sanchez "clearly subject[ed himself] to criminal liability" when he made the statements to Melgoza. (Arceo, supra, 195 Cal.App.4th at p. 577.)
Defendant argues that even if portions of Sanchez's testimony are contrary to his penal interest, the trial court erred in admitting those portions of Sanchez's statements where he identified defendant, Meza, and Gonzalez as the participants in the jale and named "the kids" as the two shooters. He claims these statements in no way affected Sanchez's penal interests.
In People v. Grimes (2016) 1 Cal.5th 698 (Grimes), our Supreme Court recently reiterated that courts must take a contextual approach when evaluating statements that are offered under the declaration against interest exception. In Grimes, the trial court permitted admission of an accomplice's statement that he had murdered the victim. The trial court, however, excluded the portion of the accomplice's statement where he stated the defendant had not taken part in the killing, finding this portion of the statement not to be disserving to the accomplice's interest. (Id. at p. 710.) Our Supreme Court reasoned the trial court's ruling reflected a misunderstanding of the law governing admission of declarations against interest and the rule set forth in People v. Leach (1975) 15 Cal.3d 419 (Leach), which provides that "any statement or portion of a statement not itself specifically disserving to the interests of the declarant" cannot be admitted under Evidence Code section 1230. (Leach, supra, at p. 441.)
Grimes held "the nature and purpose of the against-interest exception does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not 'further incriminate' the declarant. Ultimately, courts must consider each statement in context in order to answer the ultimate question under Evidence Code section 1230: Whether the statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant's interest, such that 'a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true.' " (Grimes, supra, 1 Cal.5th at p. 716.) Thus, Grimes concluded the entirety of the accomplice's statement, even the portion exculpating the defendant for the murder, was admissible. (Id. at pp. 718-719.)
This type of contextual approach has also been utilized by the Supreme Court. In Williamson v. United States (1994) 512 U.S. 594 (Williamson), the Supreme Court considered rule 804(b)(3) of the Federal Rules of Evidence, which provides for a hearsay exception for declarations against interest similar to Evidence Code section 1230. There, the court noted that "statements that are on their face neutral may actually be against the declarant's interest. 'I hid the gun in Joe's apartment' may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self-inculpatory. 'Sam and I went to Joe's house' might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant's interest." (Williamson, supra, at p. 603.)
Examining Sanchez's statements in context, we find the trial court did not abuse its discretion when it admitted the portions of Sanchez's statements that named the participants in the jale and the two shooters. As we previously acknowledged, Sanchez's statements constituted an account of the crime, including the subsequent shooting. The references to how "the kids" shot Campos and the identification of the members who participated in the jale were an integral part of the statement inculpating Sanchez in the murder of Campos as an accomplice or an aider and abettor. These statements were against Sanchez's penal interest, and they need not be redacted or excised simply because they may also inculpate others. (Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Wilson (1993) 17 Cal.App.4th 271, 276.)
Additionally, despite defendant's argument to the contrary, we find the circumstances surrounding Sanchez's conversation with Melgoza to be indicative of its trustworthiness. Again, Sanchez was speaking in confidence to a known gang member, Melgoza. " 'Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. [Citations.] Indeed, that makes such declarations more trustworthy.' " (People v. Valdez, supra, 55 Cal.4th at p. 144.)
Defendant claims it is unclear whether Sanchez was aware that admitting he participated in the jale as the driver subjected him to criminal liability. Defendant notes that at one point, Sanchez remarked to Melgoza that "[t]hey're [Meza and defendant] the only ones who will get in trouble."
Appellate courts have held "[t]he litmus test of determining the admissibility of the extrajudicial statement under [Evidence Code] section 1230 is whether the declarant should have realized or did realize that the statement when made was distinctly against his penal interest." (People v. Johnson (1974) 39 Cal.App.3d 749, 761.) Although Sanchez implied to Melgoza earlier in their conversation that only the two shooters, Meza and defendant, would get in "trouble," the statement was vague. It is unclear whether Sanchez meant he believed that Meza and defendant would be the only ones subject to any sort of criminal liability stemming from the shooting, or he believed they would be the only ones subject to punishment for murder. Additionally, Sanchez freely admitted to participating in the jale and declared the jale to be a success because Campos was killed. He participated in and facilitated the crime. Sanchez should have realized these statements would be against his own penal interest.
Defendant insists the statements were unreliable, because the quality of the audio recording made by Officer Trujillo was "horrendous." Defendant claims that even though Trujillo and Choate, the defense interpreter, listened to the recordings multiple times, both still had "substantial" disagreements about the contents of the conversation. We disagree with defendant's interpretation of Choate's testimony. At trial, Choate testified about the differences between what she heard on the recording and what Trujillo transcribed. For the most part, the differences were primarily words or phrases that were different. Choate sometimes heard more words than Trujillo, and vice versa. The major discrepancies include the fact that Choate did not hear Sanchez's reference to the term "jale," and she did not hear Sanchez say that Gonzalez stayed inside the car during the jale. Choate, however, did hear Sanchez use the term "mission," describe how Campos was sitting inside his car when he was shot, and identify defendant, Gonzalez, and Meza by their gang monikers as participants in the crime.
Lastly, defendant insists that Sanchez's statements are unreliable, because they came under suspect circumstances. Defendant argues that Melgoza was a high ranking member of the Mexican Mafia, and Sanchez had only recently been elevated to a leadership position within the gang. Therefore, Sanchez may have exaggerated the crime in order to impress Melgoza. He may have also been attempting to inflate defendant's reputation since defendant had only recently moved to the area.
Perhaps Sanchez did have ulterior motives when he spoke to Melgoza about the jale. We cannot, however, say the trial court abused its discretion in finding the statements to be reliable enough to admit under the declaration against interest exception. Objectively, there is nothing in Sanchez's statements to suggest he was exaggerating the shooting. Nor is there anything in his statements to suggest he was attempting to somehow inflate defendant's reputation. Furthermore, Officer Trujillo testified at trial that bragging about a murder or taking credit for a crime that one did not commit would get a gang member in trouble with the gang. It therefore seem unlikely that Sanchez would attempt to either impress Melgoza or bolster defendant's reputation by fabricating details of the jale.
Accordingly, we find the trial court did not abuse its discretion when it admitted Sanchez's statements to Melgoza as declarations against interest.
Based on this conclusion, we need not address defendant's argument that the court erred in admitting the statement under the coconspirator hearsay exception. We also need not address defendant's claim that admission of the statements caused him prejudice.
2. Uncorroborated Testimony from Accomplice Witnesses
Next, defendant argues Gonzalez, Lopez, and Sanchez were all accomplices as a matter of law. Much of the evidence presented at trial came from either their trial testimonies or their out-of-court statements. Therefore, defendant insists his convictions must be reversed, because his guilt rested on the uncorroborated testimonies and statements of accomplices in violation of section 1111.
a. Sanchez's Out of Court Statements to Melgoza Were Not "Testimony" Under Section 1111
First, we consider whether Sanchez's out of court statements to Melgoza constituted "testimony" within the meaning of section 1111.
Section 1111 provides that "[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." "An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Ibid.)
"Penal Code section 1111, by its terms, only applies to 'testimony.' " (People v. Jeffery (1995) 37 Cal.App.4th 209, 217 (Jeffery).) " 'Testimony' is generally described in both statutory and decisional law as oral statements made by a person under oath in a court proceeding." (People v. Belton (1979) 23 Cal.3d 516, 524.) It also includes all "out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police. These circumstances are most likely to induce self-serving motives and hence untrustworthy and unreliable evidence." (Jeffery, supra, at p. 218.)
In contrast, out of court statements that are not given under suspect circumstances, including statements that fall within the purview of a recognized hearsay exception, do not require corroboration under section 1111. For example, in People v. Sully (1991) 53 Cal.3d 1195 (Sully), the Supreme Court held that an accomplice's excited utterance did not require corroboration, because it was not "testimony" within the meaning of section 1111. (Sully, supra, at p. 1230.) "The usual problem with accomplice testimony—that it is consciously self-interested and calculated—is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence." (Ibid.) And in Jeffery, supra, 37 Cal.App.4th 209, the appellate court determined statements unwittingly made to an undercover police officer during the course of methamphetamines sales were not testimony within the meaning of section 1111 and needed no corroboration. (Jeffery, supra, at p. 218.)
We have already determined that Sanchez's statements to Melgoza were specifically disserving toward his penal interest and fell within the declaration against interest hearsay exception. Furthermore, his statements were not made under suspect circumstances. Sanchez spoke with Melgoza in an informal setting at his own home. He was speaking to a fellow gang member. He was not speaking to the police. The fact that Melgoza was working as an informant for the police does not change our analysis. (See Jeffery, supra, 37 Cal.App.4th at p. 218.) Sanchez was unaware of Melgoza's role as a confidential informant. Accordingly, Sanchez's statements were not "testimony" under section 1111.
b. Gonzalez and Lopez's Testimonies Were Sufficiently Corroborated
Gonzalez and Lopez testified during Torres's trial. Defendant argues that as accomplices, their testimonies lacked sufficient corroboration.
During trial, the jury was instructed that Gonzalez and Lopez were accomplices as a matter of law. Therefore, the jury could not convict defendant of the charged crimes based on their testimonies alone.
"Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. [Citations.] It need not be sufficient to establish every element of the charged offense or to establish the precise facts to which the accomplice testified. [Citations.] It is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' " (People v. Valdez, supra, 55 Cal.4th at pp. 147-148.) Corroborating evidence must "tend to implicate the defendant by relating to an act that is an element of the crime." (People v. Nelson (2011) 51 Cal.4th 198, 218.)
Defendant argues that the evidence of his falling star tattoo and the testimony of Jessica Lopez were insufficient to corroborate the accomplice testimony. We have, however, already determined that Sanchez's out of court statements to Melgoza were not "testimony" within the meaning of section 1111. Accordingly, Sanchez's out of court statements can also be used to corroborate Gonzalez and Lopez's testimonies at trial. Examined together, Sanchez's statements, Jessica's testimony, and defendant's tattoo all provided sufficient corroboration.
Sanchez's statements specifically identified defendant, Meza, and Gonzalez as participating in the jale. Sanchez also described how the men came across Campos when he was sitting in a parked car. He also characterized the mission a "success" after Campos was shot. Likewise, Jessica testified she heard someone ask Campos where he was from before her phone conversation with Campos ended. Defendant had a "buster free" tattoo, which Officer Trujillo testified meant that he had committed an act of violence against a Norteno. Nine-millimeter bullet casings, the same type that was allegedly used by defendant, were found around the crime scene.
Based on the foregoing, there was sufficient evidence to corroborate Gonzalez and Lopez's testimonies.
In their respondent's brief, the People argue Melgoza's testimony about the conversation he had with Lopez the night of Campos's murder was not "testimony" as defined under section 1111. Therefore, the People insist that Lopez's out of court statements can also serve to corroborate Gonzalez and Lopez's testimonies. Since we find Sanchez's statements not to be testimony within the meaning of section 1111 and further find his statements, along with the other evidence presented at trial, to be sufficient corroboration, we need not address this argument.
3. The Trial Court's Failure to Instruct or Permit Jury to Find Sanchez as an Accomplice
At defendant's trial, the trial court instructed the jury that Gonzalez and Lopez were accomplices. The court, however, denied defendant's request that the jury also be instructed that Sanchez was an accomplice as a matter of law. Defendant argues the court erred when it denied his request to instruct the jury that Sanchez was an accomplice as a matter of law. He also argues the court erred when it did not permit the jury to find Sanchez to be an accomplice. We find the court properly denied defendant's request to provide the jury with these instructions.
At defendant's first trial, the trial court also declined to instruct the jury that Sanchez was an accomplice as a matter of law. The court, however, did instruct the jury that if it found Sanchez to be an accomplice, it could not convict the other defendants (defendant and Meza) based on Sanchez's out of court statements alone. At his retrial, defendant requested the jury be instructed with modified versions of CALCRIM Nos. 335 and 301. In part, the modified version of CALCRIM No. 335 identified Sanchez as an accomplice and informed the jury that it could not use Sanchez's out of court statements to convict defendant unless it was sufficiently corroborated. It also cautioned the jury that accomplice testimony should be viewed with caution. The modified version of CALCRIM No. 301 informed the jury that aside from the out of court statements made by Sanchez, the testimony of any one witness can prove a fact. The court declined both requests.
As previously discussed, section 1111 prohibits a defendant from being convicted solely on testimony provided by an accomplice. We have already determined that Sanchez's out of court statements to Melgoza were not testimony under section 1111. Therefore, there was no need for the trial court to instruct the jury that Sanchez was an accomplice as a matter of law, or permit the jury to make its own finding as to whether Sanchez was an accomplice. (See People v. Davis (2005) 36 Cal.4th 510, 547 [trial court did not err when it refused to give accomplice instructions when statements were made during jail cell conversation participants believed to be private]; Jeffery, supra, 37 Cal.App.4th at p. 218.)
Based on our conclusion, we need not address defendant's argument that the purported instructional error altered the prosecution's burden of proof and prejudiced him.
4. Admission of Lopez's Conversation with Melgoza
In a supplemental brief, defendant argues the court erred when it permitted Melgoza to testify about statements Lopez made to him the night of Campos's murder. He claims these statements do not fall within a recognized hearsay exception and should not have been admitted.
a. Lopez's Statements to Melgoza
Defendant objected to the admission of Lopez's statements to Melgoza. The People argued that the statements were admissible under the hearsay exception for coconspirator statements, declarations against interest, past recollection recorded, and prior consistent statements. The trial court admitted the statements, provided that Lopez established during his testimony that his statements to Melgoza were based on personal knowledge. We review the trial court's admission of evidence for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
Under Evidence Code section 791, a prior consistent statement is admissible over a hearsay objection if (1) evidence of a statement that is inconsistent with the witness's trial testimony has been admitted for the purpose of attacking the witness's credibility, and the prior consistent statement was made before the inconsistent statement, or (2) if "[a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791, subd. (b).) "In evaluating the admissibility of prior consistent statements, the focus is on 'the specific agreement or other inducement suggested by cross-examination as supporting the witness's improper motive.' " (People v. Crew (2003) 31 Cal.4th 822, 843.)
For example, in People v. Belmontes (1988) 45 Cal.3d 744 (Belmontes), overruled on another point in People v. Cortez (2016) 63 Cal.4th 101, our Supreme Court upheld the admission of a witness's girlfriend's testimony under Evidence Code section 791 implicating defendant in a murder. (Belmontes, supra, at p. 778.) The statement to the girlfriend was made before the witness entered into an immunity agreement with the prosecution, which was a motive for fabrication or bias. (Ibid.)
Here, defense counsel's strategy was to attack the credibility of all of the prosecution's witnesses, including Lopez. During cross-examination, defense counsel questioned Lopez about the motivations behind his cooperation with the police. Lopez admitted he talked to the police so he would not have to go to prison for a probation violation, and so he could get consideration for his other pending cases. He also stated that when he initially spoke with the police about Campos's murder, he was motivated by fear that he may be facing murder charges himself, because police had indicated to him that they knew where he was at the time of the shooting. Lopez also confirmed he had received benefits from the relocation program he was placed in. And defense counsel brought up the subject of Lopez's immunity agreement with the prosecution, which exempted him from any liability stemming from Campos's killing.
In short, defense counsel repeatedly implied during Lopez's cross-examination that he had a motive to lie about Campos's murder. Accordingly, Melgoza's testimony regarding the conversation he had with Lopez about the shooting was properly admitted as a prior consistent statement. The conversation with Melgoza occurred before Lopez was granted immunity, agreed to work as a confidential informant with the police, and was placed in the relocation program, which were improper motives or biases that defense counsel argued may have improperly influenced his testimony.
We note that when the trial court found Lopez's statements to Melgoza to be admissible, it did not clearly state its basis for its ruling. Earlier, it had indicated it was inclined to admit the statements under the hearsay exceptions for coconspirator statements and declarations against interest. Later, the People also argued the statements were admissible as a prior consistent statement. Based on the reporter's transcript of the colloquy between the court, the People, and defense counsel, it is unclear which legal theory the court based its decision on. "[I]f a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Since we find that the trial court properly admitted evidence of Melgoza and Lopez's conversation as a prior consistent statement, we need not decide whether the statements also fell within the purview of the hearsay exceptions for coconspirator statements and declarations against interest.
b. Transcript of Melgoza's Conversation with Officer Trujillo
When Melgoza testified, he was unable to recall some of the details of the conversation he had with Lopez. Accordingly, the trial court permitted the prosecutor to introduce a transcript of the conversation Melgoza had with Officer Trujillo, during which Melgoza repeated the statements Lopez had made to him. Defendant argues admission of the transcript was erroneous, because the transcript did not fall within the hearsay exception for a past recollection recorded.
Evidence Code section 1237 sets forth the hearsay exception for past recollections recorded. Under Evidence Code section 1237, a past recollection recorded is not made inadmissible by the hearsay rule if (1) the statement would have been admissible if made by the witness while he or she testified, (2) the witness is unable to adequately recall and testify fully and accurately about the matter in question, and (3) the recorded statement was made when the fact was fresh in the witness's mind, was made by the witness or by another person for the purpose of recording the witness's statement, is affirmed by the witness as true, and is offered after the writing is authenticated as an accurate record.
Defendant concedes that all of the requirements of Evidence Code section 1237 are met, except for the requirement that the statement would have been admissible if made when Melgoza testified. Defendant argues that Melgoza's conversation with Lopez was inadmissible hearsay. We have, however, determined the statements were admissible under the hearsay exception for prior consistent statements. Accordingly, the transcript of Melgoza's conversation with Officer Trujillo was also property introduced as a past recollection recorded.
5. Cumulative Error
Defendant argues the admission of Sanchez's recorded conversation with Melgoza, the failure to instruct the jury that Sanchez was an accomplice as a matter of law, and the admission of Lopez's statements to Melgoza cumulatively prejudiced him. Having found no individual errors, we conclude there was no cumulative error.
6. Defendant Was Improperly Convicted of First Degree Murder
Lastly, defendant argues he was improperly convicted of first degree premeditated murder, because the jury was improperly instructed he could be found guilty of the crime based on the natural and probable consequences doctrine. The People concede the issue, and we find their concession appropriate.
In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), our Supreme Court held that "punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine. . . . [W]here the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine. An aider and abettor's liability for murder under the natural and probable consequences doctrine operates independently of the felony murder rule." (Id. at p. 166.)
"Aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. [Citation.] Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." (Chiu, supra, 59 Cal.4th at pp. 166-167.)
At trial, the jury was instructed on conspiracy, aider and abettor liability, and the natural and probable consequences doctrine. In part, the People argued the jury could find defendant guilty based solely on the natural and probable consequences doctrine. Based on the instructions and argument presented, the jury was permitted to improperly convict defendant of first degree premeditated murder based on the natural and probable consequences doctrine. It is not clear from the record whether the jury based its verdict on the legally correct theories that defendant was the actual shooter or that he directly aided and abetted the murder.
The verdict form required the jury to determine whether a principal discharged a firearm, not whether defendant personally discharged a firearm.
Accordingly, we must reverse defendant's conviction for first degree murder. (Chiu, supra, 59 Cal.4th at p. 168.) On remand, the People may either accept the reduction of the conviction to second degree murder or retry the greater offense. (Ibid.)
DISPOSITION
The judgment is reversed, and defendant's conviction for first degree murder is reduced to second degree murder. On remand, the People may either accept the reduction of the conviction to second degree murder or retry the greater offense.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.