Opinion
A127514
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR VELEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 208631)
This is an appeal from final judgment following the conviction by jury of defendant Hector Velez for involuntary manslaughter. Defendant challenges his conviction on the grounds that the trial court erred in denying his motion to quash a search warrant and to suppress evidence recovered pursuant to the warrant, and in excluding evidence of a key witness's gang affiliations. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 8, 2009, an information was filed charging defendant with murder by personal use of a deadly or dangerous weapon in violation of Penal Code sections 187, subdivision (a), and 12022, subdivisions (b)(1). This murder charge was based on events occurring in the Tenderloin District of San Francisco on September 21, 2008.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Specifically, at about 10:30 a.m. in front of several witnesses, defendant, age 61, began arguing and then fist-fighting with the victim, Ralph Ruiz, who appeared to be in his late 60s, on Hyde Street. Ultimately, this fight culminated in defendant stabbing the victim in the heart with a knife, causing his death. Although police arrived at the scene within minutes of death, no murder weapon was recovered. Tests later revealed the victim had a blood alcohol level of between .06 and .07 percent, and had ingested a high level of opiates. In the victim's pocket, police found a pocket knife, nail file and key ring with tiny scissors attached. The victim had been prescribed medication for tongue cancer.
I. The Prosecution's Case.
At trial, which began in July 2009, eyewitness Johnson Nguyen testified that, while driving on Hyde Street on the day in question, he saw the victim chase defendant, whom he described as a "chubby bald head gentleman," across the street directly in front of Nguyen's car. Nguyen then saw defendant "take out a knife and stab [the victim] in the chest two times." According to Nguyen, the victim was unarmed and no one else was involved in the altercation. Although defendant's life did not appear to be in danger, Nguyen believed that, "in a way," defendant was trying to protect himself. Nguyen later assisted police in preparing a composite drawing of defendant and then identified him in court as the assailant.
Raymond Marrero, a close friend of the victim, also saw the homicide. Marrero described the victim as elderly, frail and suffering from cancer, and explained that he considered the victim like an "Uncle" and was helping care for him during his illness. According to Marrero, he had earlier in the day broken up a verbal altercation between defendant and the victim that was initiated by defendant. Ultimately, the altercation became physical. However, by the time Marrero could separate the two men, defendant had already inflicted the lethal chest wound on the victim with what Marrero described as a "buck knife." Marrero did not know defendant's name, but recognized him from the neighborhood. Marrero yelled at defendant for stabbing the victim, to which defendant replied, "Fuck it," before walking away. Marrero, in turn, punched defendant in the face before calling 911. Like Nguyen, Marrero helped police prepare a composite sketch of defendant and later identified him in a photo lineup.
On cross-examination, Marrero acknowledged having met the victim in state prison over a decade ago, having a lengthy criminal history, including a pending drug charge, and being on probation for another drug conviction.
II. The Defense Case.
Michael Lettow testified regarding a conversation he had with Marrero about three days after the homicide, during which Marrero told him both defendant and the victim had knives on the day in question. Lettow acknowledged, however, that he did not tell police the victim had a knife until the day before trial. Lettow lived in the same building as defendant's girlfriend, Brenda Lopez, and had twice spoken to her about the case. He acknowledged a prior felony conviction for making terrorist threats.
On cross-examination, Marrero denied telling Lettow the victim had a knife, or that he had joined the victim in attacking defendant.
Another of defendant's friends, Marion Fisher, testified that he saw the fight between defendant and the victim from across the street, and that the victim was carrying something "shiny" in his hand just before he was stabbed. Fisher acknowledged having cataracts in both eyes, but denied telling police he was too far away to see if the victim had a knife. His statement, however, was later contradicted by San Francisco Police Inspector Richard Martin, who testified on rebuttal that Fisher told him he was too far away to see if the victim had a knife.
Finally, defendant testified on his own behalf that he stabbed the victim, but only in self-defense. Defendant explained that the victim and Marrero attacked him first without provocation, prompting him to take out his knife and stab the victim in the chest, but with no intent to actually kill him. He discarded the knife out of fear following the homicide, but was arrested about a week later at the Jefferson Hotel.
On cross-examination, defendant admitted that, before the homicide, his girlfriend, Brenda Lopez, told him the victim owed her $50 from a heroin sale five years earlier. He also admitted two prior felony convictions for selling drugs.
III. The Verdict and Sentencing.
On July 23, 2009, following the prosecution's case-in-chief, the trial court granted a defense motion for acquittal on the first degree murder charge. The jury thereafter returned a guilty verdict on the lesser included offense of involuntary manslaughter and found true the enhancement allegation that defendant personally used a deadly or dangerous weapon.
On December 18, 2009, the trial court granted defendant's motion to strike the personal use enhancement, and sentenced him to the low term of two years in prison with 657 days of credit. On January 4, 2010, defendant filed a timely notice of appeal.
DISCUSSION
Prior to trial, defendant moved to quash a warrant issued by a San Francisco judge to search his residence and to suppress evidence retrieved during that search. The trial court denied his motion. On appeal, defendant contends the trial court erred in doing so because the signed warrant application on file with the court failed to set forth facts establishing probable cause. In a related argument, defendant also contends the trial court erred in admitting certain statements his girlfriend, Brenda Lopez, made to police during an interrogation that followed their search of his residence because her statements were "the fruit of the unlawful warrant search." Finally, defendant contends the trial court erred by precluding him from cross-examining prosecution witness Marrero regarding his gang affiliations. We address each contention in turn.
I. The trial court properly denied defendant's motion to quash a search warrant and to suppress evidence.
Defendant's motion sought to quash a warrant to search his residence and to suppress certain evidence seized during the search, including statements made to police by his girlfriend, Brenda Lopez, during an interrogation following the search. In opposing defendant's motion, the prosecution conceded the relevant search warrant application failed to establish probable cause. However, the prosecution insisted that five paragraphs of information sufficient to establish probable cause were inadvertently omitted from the application before it was filed in court but after it was considered by the trial court judge who signed the warrant. Consistent with this contention, Inspector Martin testified at the hearing that the search warrant application he prepared for the case and presented to the trial court included the missing paragraphs. Inspector Martin was unsure, however, what happened to the page containing those paragraphs when the application was filed, and did not realize it was missing until he later found out defendant was moving to quash the warrant. Inspector Martin acknowledged his own copy of the file-stamped application was likewise missing the paragraphs.
To summarize, these five paragraphs included descriptions of conversations police had with confidential informants linking defendant to the homicide. For example, two paragraphs described police meetings with individuals who witnessed the stabbing and then identified defendant in photo spreads as the assailant. Another paragraph described a police meeting with a person who "heard the person who killed Ralph Ruiz goes by the street name of 'Cano' and that 'Cano' stayed at the Jefferson Hotel located on Eddy Street. This person also told [police] that the suspect's girlfriend (Brenda Lopez) told [the confidential informant] that Cano killed victim Ralph Ruiz."
As proof the missing paragraphs were originally included in the application, Inspector Martin pointed to a second warrant application issued by the trial court to search defendant's cell phone records, which contained the missing paragraphs. Inspector Martin explained that he prepared this second application using the same information contained in the first warrant application, but then added two paragraphs of relevant information, one at the beginning and one at the end of the application, based upon cell phone evidence seized from defendant's residence during the search that occurred pursuant to the first warrant.
The trial court judge who signed both the first and second search warrants, Honorable Wallace Douglass, also testified at the hearing. Judge Douglass did not recall signing the warrants, or what was stated in them at the time of signing, but he recognized his signatures. His "general memory" of the warrants was likely due to his recent review of them in anticipation of the motion to suppress hearing rather than to his review prior to signing them. Nonetheless, Judge Douglass insisted he would not have signed the first search warrant if it contained only the information included in the version of the application that was filed in court because it was "pitifully" lacking in probable cause.
Judge Douglass recused himself from hearing the motion to quash and to suppress.
In denying the defense motion, the trial court credited the testimony of both Inspector Martin and Judge Douglass in finding that the version of the first warrant application on file in court was inadvertently missing the five paragraphs of information establishing probable cause for searching defendant's residence that had in fact been presented to the judge. Alternatively, the trial court found that, even if the missing information was not presented to Judge Douglass, any error in signing the warrant without adequate probable cause was "cured" by reference to the external evidence reflected in the missing paragraphs.
Following the trial court's ruling, the prosecutor elicited from defendant during cross-examination an admission that Lopez had told him the victim owed her money from a drug deal to support its theory that defendant was the aggressor in the altercation with the victim. Specifically, the prosecutor asked defendant whether Lopez told him the victim owed her $50, and whether she asked him to "collect" the debt. According to defendant, admission of this evidence was unlawful in that it flowed from the issuance of a defective search warrant, and prejudicial in that it was the sole support for the prosecution's murder theory. The following legal principles are relevant to these claims.
Lopez did not testify at trial.
A search warrant issued without probable cause is subject to suppression by the trial court. (§ 1538.5, subd. (a)(1)(B); § 1524, subd. (a).) "When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the trial court's express or implied findings of fact if the facts are supported by substantial evidence." (People v. Lim (2000) 85 Cal.App.4th 1289, 1296 (Lim).) However, we are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. (Lim, supra, 85 Cal.App.4th at p. 1296; In re Lance W. (1985) 37 Cal.3d 873, 896.)
The relevant federal constitutional standards are rooted in the Fourth Amendment of the United States Constitution. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (See also People v. McDonald (2006) 137 Cal.App.4th 521, 529 [the legality of a search or seizure is measured by "the facts, as found by the trier [of fact], against the constitutional standard of reasonableness"].) Thus, under the judicially-crafted "exclusionary rule," certain evidence obtained in violation of the Fourth Amendment must be excluded. (United States v. Leon (1984) 468 U.S. 897, 906.) However, the exclusionary rule is designed to deter constitutional violations by law enforcement officers. "It is not a personal constitutional right of the party aggrieved; it was not intended to protect against all illegalities connected with a search; and it was not intended as a sanction against judges and magistrates. (United States v. Leon, supra, 468 U.S. at pp. 906-913 [82 L.Ed.2d at pp. 687-692].)" (People v. Ruiz (1990) 217 Cal.App.3d 574, 585-586.)
California Constitution article I, section 13, provides nearly identical protection.
Here, defendant's challenge to the legality of the search warrant is two-fold. First, defendant claims the evidence failed to establish that the court-filed search warrant application, which the prosecutor conceded lacked probable cause, differed from the application presented to the trial judge who actually signed the warrant. Second, defendant claims that, even if substantial evidence supports the trial court's finding that the trial judge considered a different version of the application, there was insufficient evidence to determine what information was actually contained in that application, precluding meaningful appellate review. As such, defendant reasons, the trial court's denial of his motion to quash the warrant and to suppress the evidence obtained under it must be reversed.
Turning to defendant's first claim, we conclude substantial evidence supports the trial court's finding that the prosecution prepared and presented to the signing judge a search warrant application containing several paragraphs of information not included in the version of the application maintained in the court file. (See Lim, supra, 85 Cal.App.4th at p. 1296.) For example, without wholly rehashing the evidence set forth above, we note that Inspector Martin testified under oath that the search warrant application he prepared for the case and presented to the trial court for signature on October 15, 2008 included five missing paragraphs of information, although he was unsure what happened to those paragraphs when the application was actually filed in court. Inspector Martin added that a second warrant application to search defendant's cell phone records, which was then signed by the trial court on October 24, 2008, contained the missing paragraphs. Inspector Martin explained that, to prepare the second application, he simply used the information already contained in the first application and then added two paragraphs of information relating to cell phone evidence seized from defendant's residence pursuant to the first warrant.
Corroborating Inspector Martin's testimony in this regard was Judge Douglass, the signer of both warrants. Judge Douglass testified that, although he had no distinct memory of the contents of either warrant, he would not have signed the first warrant in the form found in the court file because it was "pitifully" lacking in probable cause.
We defer to the trial court's decision to accept the testimony of both Inspector Martin and Judge Douglass, given that it was neither arbitrary nor irrational. (People v. Stewart (2000) 77 Cal.App.4th 785, 790 ["the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact"]; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) In doing so, we recall our obligation on appeal to consider the evidence, and reasonable inferences that may be drawn from it, in a light most favorable to affirming the judgment. ( People v. Pelayo (1999) 69 Cal.App.4th 115, 120-121; People v. Kurey (2001) 88 Cal.App.4th 840, 848 ["review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision"].) Under this standard, defendant's first claim presents no basis for reversal.
The record, considered again under our deferential standard of review, likewise disposes of defendant's second claim - to wit, that there was insufficient evidence to determine what information was contained in the version of the warrant application presented to the trial court, thereby precluding meaningful appellate review of the court's denial of his motion. While we wholly agree all criminal defendants are entitled to an appellate record adequate to permit meaningful appellate review, where, as here, a criminal defendant seeks review of the validity of a search warrant supported by an affidavit not found in the court file, "[t]he absence of [such] affidavit . . . does not invalidate the warrant when 'other evidence may be presented to establish the fact that an affidavit was presented, as well as its contents.' (U.S. v. Lambert (11th Cir. 1989) 887 F.2d 1568, 1571-1572; accord, U.S. v. Gibbs (5th Cir. 2005) 421 F.3d 352, 356 [quoting Lambert]; U.S. v. Towne (9th Cir. 1993) 997 F.2d 537, 543 [same]; U.S. v. Campbell (E.D.Mich. 2007) 525 F.Supp.2d 891, 907 [same]; see generally State v. Raflik (2001) 248 Wis.2d 593 [636 N.W.2d 690, 697 ["most federal courts have not seen fit to suppress evidence because of a failure to record some or all of the warrant application"].) . . . " ' "[R]eversal is indicated only where critical evidence or a substantial part of a [record] is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised.' " ' [Citations.]" (People v. Galland (2008) 45 Cal.4th 354, 370.) Moreover, "[w]e review the superior court's findings regarding the reconstruction of the original search warrant affidavit, which are essentially factual, under a deferential substantial evidence standard," and then "independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully. (People v. Osband (1996) 13 Cal.4th 622, 662 [55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Clark (1993) 5 Cal.4th 950, 1011 [22 Cal.Rptr.2d 689, 857 P.2d 1099] ["This court has repeatedly recognized that settlement of the record is primarily a question of fact to be resolved by the trial court."].)" (People v. Galland, supra, 45 Cal.4th at p. 370.)
Here, the testimony we have already discussed above, which was provided by Inspector Martin and corroborated in part by Judge Douglass, provided an adequate factual basis for the trial court's reconstruction of the first warrant application to include the five additional paragraphs of information. Defendant does not dispute that these paragraphs were in fact included in the second warrant application signed by the trial court on October 24, 2008, or that defense counsel received a copy of the second application on that date. In addition, the record reflects that a copy of the missing paragraphs was attached to the prosecution's opposition to defendant's motion to quash and to suppress, as was a copy of the prosecution's email to defense counsel on April 20, 2009, advising that the information was inadvertently omitted from the first application when filed in court. Under these circumstances, we conclude defendant has received the meaningful appellate review to which he was entitled.
Finally, taking our analysis to the logical next step, we find no basis on this reconstructed record for reversing the trial court's finding that the first warrant application, including this additional information, adequately demonstrated probable cause to search defendant's residence, such that no error was committed in permitting the prosecution to question defendant regarding statements made by Lopez to police during an interrogation arising out of their lawful search. Simply put, because the search of defendant's residence was indeed lawful, defendant's inconsistent claim that Lopez's statements should have been excluded as the fruit of an unlawful search fails.
II. The trial court properly excluded evidence relating to the alleged gang affiliations of prosecution witness Raymond Marrero.
We turn now to defendant's remaining claim that the trial court committed prejudicial error by barring him from questioning Marrero, a key prosecution witness, regarding Marrero's alleged gang affiliations. Specifically, defense counsel sought to question Marrero regarding his association with the Nortenos criminal street gang, as well as his belief at the time of the victim's death that defendant was a member of a rival gang, the Surenos. According to defendant, this questioning should have been permitted to demonstrate Marrero's motive to attack him on the day in question (bolstering his self defense theory), and his bias in testifying against him at trial.
As the prosecution points out, before trial, the prosecutor advised the court she would not present any gang-related evidence. However, during trial, when defense counsel asked Marrero whether he was "worried about [the victim's] family," Marrero mentioned gang involvement when responding: "I thought [defendant] was a Sureno. I thought his family was a gang banging family, you know. [¶] . . . I thought his family was someone else." The prosecution's prompt objection to his response was overruled by the trial court to allow the defense to "clear this up," a ruling that led to the following exchange: "THE COURT: Right now you don't think [defendant is] a gang member or his family is involved in gangs, is that right? "THE WITNESS: No. "THE COURT: But at the time you suspect that; is that right? "THE WITNESS: Correct. "THE COURT: Okay. Go ahead [defense counsel]."
At this point, defense counsel moved to expand the inquiry into Marrero's gang affiliations. Opposing the motion, the prosecutor noted she had no evidence the crime was gang-related and no intention of eliciting evidence to the contrary. Rather, the prosecutor deemed the crime a "personal beef that arose from a dispute of a $50 debt that [the victim] owed the defendant's girlfriend."
Prior to trial, the prosecutor consulted with a Latin gang expert in the police gang task force, and was told Marrero was not considered a gang member.
The trial court agreed with the prosecution, relying on Evidence Code section 352 (section 352) in finding that permitting testimony on gang-related issues would needlessly prolong trial "for days about what the turf is, what older gang members may or may not do, who is or who is not a gang member, who protected whom in state prison . . . ." The trial court added: "At this point this is a personal beef on the street, and I haven't heard anything right now in the evidence that indicates to me that it should be expanded beyond that. [¶] . . . You can renew [the motion] later if you think it's appropriate." For reasons to follow, we affirm the court's ruling.
A trial court has wide discretion to admit or exclude evidence. (People v. Kelly (1992) 1 Cal.4th 495, 523.) Even if evidence is in fact relevant, the trial court may exclude the evidence if the court finds that its probative value is substantially outweighed by its prejudicial effect. (People v. Champion (1995) 9 Cal.4th 879, 922, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 868; Evid. Code, § 352.). On appeal, we reverse a trial court's decision in this regard only if the defendant proves abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Brown (2003) 31 Cal.4th 518, 547.) Such abuse is established only where the trial court acts in an arbitrary or irrational manner, exceeding all bounds of reason. (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574; People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
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."
Here, we find nothing arbitrary, capricious, or irrational about the trial court's decision to exclude evidence relating to Marrero's gang affiliations under section 352. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.) In cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. ( People v. Hernandez (2004) 33 Cal.4th 1040, 1047 [16 Cal.Rptr.3d 880, 94 P.3d 1080].)" (People v. Albarran (2007) 149 Cal.App.4th 214, 223.)
In this case, we agree with the trial court that defendant's questions regarding Marrero's gang-related affiliation were of marginal probative value. Marrero's credibility, including his potential bias against defendant, was amply demonstrated at trial even without defense counsel's proposed questioning regarding his gang-affiliations. In particular, the jury heard testimony that Marrero considered the victim like an "Uncle," and had known him since their time together in state prison, where Marrero had relied on him for protection. The jury was also advised that Marrero had a lengthy criminal history, including several past felony convictions. Given this record of Marrero's close relationship with the victim, their shared time in prison and Marrero's testimony that he relied on Ruiz for protection while they were incarcerated, as well as Marrero's past criminal history, defendant's proposed inquiry into the subject of gang affiliation would have added little with respect to the defense objectives of showing Marrero's motive, bias and lack of credibility. (See People v. Cardenas (1982) 31 Cal.3d 897, 904-905.) Conversely, defendant's exploration of Marrero's gang affiliation, the conflict between Nortenos and Surenos and the relationship of that conflict to the conduct of the combatants would have resulted in undue consumption of time. As such, the trial court's exclusion of such evidence under section 352 was reasonable.
We also reject defendant's contention that the trial court failed to weigh the probative value of Marrero's gang affiliation testimony as required by section 352. The record amply demonstrates the court exercised its considerable discretion in disallowing the testimony.
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In any event, even assuming the trial court erred by excluding the gang-related evidence, the trial court's ruling must be affirmed because there is simply no reasonable probability defendant would have obtained a more favorable result had the evidence been admitted. (See People v. Avitia, supra, 127 Cal.App.4th at p. 194.) Putting aside Marrero's testimony, there was other, quite ample, evidence of defendant's guilt. For example, prosecution witness, Johnson Nguyen, provided unchallenged testimony that he personally observed defendant "take out a knife and stab [the victim] in the chest two times" even though the victim was not holding a weapon. Unlike Marrero, Nguyen had no prior relationship or contact with defendant or the victim, rendering neutral his perspective of the events in question. In addition, defendant himself admitted killing the victim during the altercation, even though he denied intending to do so. The jury apparently accepted defendant's explanation, finding him guilty of involuntary manslaughter but not guilty of second degree murder and voluntary manslaughter.
Given this record, even if the trial court had permitted Marrero to discuss his gang background, we conclude defendant has failed in his burden to prove a reasonable probability that the outcome of trial would have been more favorable to him. (People v. Coleman (1988) 46 Cal.3d 749, 777; People v. Carter (2005) 36 Cal.4th 1114, 1152; Evid. Code, § 353; Cal. Const., art. VI, § 13.) As such, we find no error in the trial court's decision to exclude the proposed evidence.
DISPOSITION
The judgment is affirmed.
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Jenkins, J.
We concur:
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Pollak, Acting P. J.
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Siggins, J.