Opinion
H028703
5-24-2007
THE PEOPLE, Plaintiff and Respondent, v. HOMERO MORA VILLALOBOS, et al., Defendants and Appellants.
NOT TO BE PUBLISHED
A jury found Homero Villalobos and Miguel Maltos guilty of four counts of attempted premeditated murder and one count of shooting into an occupied vehicle. The jury found true various weapon and gang enhancements. Maltos contends that the trial court denied him due process by prohibiting him from calling Villaloboss brother to testify that Villalobos had admitted to being the shooter. He further contends that the trial court violated his due process rights by denying him a one-day continuance to procure the attendance of a witness and that defense counsel provided ineffective assistance of counsel by failing to oppose a motion to strike testimony from a witness that Villalobos was the shooter and by failing to cross-examine the witness about his prior testimony in which he identified Villalobos as the shooter. Maltos further contends that the trial court committed instructional error. Villalobos joins in several of these contentions. Maltos and Villalobos contend that there was insufficient evidence as to the gang enhancements and that there was a Confrontation Clause violation as to that evidence. Villalobos further contends that the prosecutor prejudicially commented on his failure to testify and that the trial court erred in sentencing. We agree that the trial court prejudicially erred in ruling that appellant Maltos could not introduce evidence that Homero Villalobos had admitted to his brother that he had been the shooter. We also agree that there was insufficient evidence to support the gang enhancement. By separate order we have disposed of the petition for writ of habeas corpus filed by Maltos.
The Trial
One October night in 2002, two young men, members of the Varrios Gramercy Locos street gang, approached a 1968 Impala with four people inside that had stopped on Elodie Way in San Jose. After a brief exchange with the front seat passenger, one of the men shot the passenger and fired several more rounds at the car injuring the driver as well. Much of the testimony at trial focused on which of the two men, appellants Miguel Maltos and Homero Villalobos, had been the shooter.
Peter Calderon testified that he was sitting in the front passenger seat of the Impala which was being driven by his friend Baldemar Mejia, Sr. Behind Calderon was Baldemar Mejia, Jr., and behind the driver was Calderons nephew Charles McMasters. The four were traveling along Capitol Expressway in San Jose on their way to get something to eat when they saw a sheriff. They decided to stop to get rid of Calderons open beer bottle. They turned off Capitol Expressway and stopped on Elodie Way.
Calderon opened the car door to dispose of the bottle. He shut the door and began adjusting the stereo. Immediately, he saw Villalobos and Maltos side by side just outside the car. Calderon testified that Maltos was directly to the left of Villalobos "pretty much touching. Thats how close they were." Villalobos was wearing a grey, hooded sweatshirt. Calderon testified that Villalobos asked him, "what the fuck are you doing in our hood?" Villalobos also asked him, "what do you claim?" or "where are you from?" Calderon told Villalobos that he was from San Jose and that "We dont claim anything." As Villalobos took one step closer to the car, Calderon leaned to his left turning toward Mejia, Sr. and said, "lets get the hell out of here." Calderon "got shot right after that."
Calderon testified, "Maltos never stepped up to the vehicle, you know, that I saw." He testified, Maltos "wasnt really saying anything" but that "Villalobos was really loud." Officers showed Calderon photo lineups. Calderon picked Villaloboss picture out of one but was unable to identify Maltos.
Charles McMasters testified that after the Impala stopped on Elodie Way, "my uncle closed the door from letting his beer bottle out and he was messing with the radio and two guys walked up on us. They came out of nowhere." He said that Villalobos asked them, "what do you guys claim" and "are you guys Nortenos." He testified that while this went on, Maltos was "off to the side just a little bit, but they werent too far away from each other." Villalobos had his hands in the front pocket of the hooded sweatshirt he was wearing. McMasters testified Villalobos "pulled out a gun." He explained, "Villalobos was wearing a gray sweater and he was talking to my uncle, so when he pulled out a gun, I [saw] the gun and a hand with the sweater so I believe it was the same person." He said, "Im not positive but Im pretty sure I [saw] the person with the gun wearing a gray sweater." McMasters acknowledged that in speaking to the police the night of the shooting he "told the police that the same person who approached the car and was asking all the questions was the same person that fired the shots in the car." He acknowledged that at that time "the only description [he] could give of the second individual was he was just Hispanic." He believed that that person was standing more toward the front of the car.
Baldemar Mejia, Jr., testified that when Villalobos and Maltos approached the car "they were both talking" but that he could not recall "who said what." The person who was doing most of the talking was directly across from Calderon. That person was "jump[ing] back and forth, and he was kind of like waving his hands like if he was trying to start problems." The other person was standing more toward the rear of the car. Mejia, Jr., testified that "The quieter guy . . . moved forward" and Mejia, Jr., could see that "there was something in his hand." Mejia, Jr., heard a noise and saw a flash. Mejia, Jr., testified, "I remember one of them was wearing a sweater and Im pretty sure it was the quieter one." He acknowledged testifying at the preliminary examination that "the one asking all the questions" was "the one that was wearing the gray sweatshirt."
Baldemar Mejia, Sr., testified that when Villalobos approached the car Mejia, Sr., had his head down looking for his cell phone. He testified that Villalobos was "bouncing back and forth, being more angry. . . . like he wanted to start something." Villalobos was wearing a gray hooded sweatshirt. Maltos was in the "blind spot" of the car "between the back window and the passenger side." Mejia, Sr. testified that Maltos was "just kind of standing kind of back there in the shadows with his hands in his pockets, kind of looked inside the car, kind of looked around to see who was in it." He said, "I really never heard him say a word at all the whole time." Mejia, Sr. testified that Villalobos became more agitated and then "It looked like [Maltos] was going to slug [Calderon] in the back." Mejia, Sr., testified that he did not see who shot Calderon but he saw a hand with a gun. He believed Maltos was the shooter because "when I was pulling away, I still [saw] the gentleman that approached the vehicle first standing on the curb while there were gunshots coming through the back window. . . . [H]e was still gesturing and talking and jumping around." Mejia, Sr., denied having told San Jose Police Detective Joe Campagna that "the shooter was the one that was doing all the talking." He said, "I cannot recollect that I said something like that. It might have been misinterpreted."
As the four drove away in the Impala, several more shots from the same gun were fired at the car. One bullet grazed the side of Mejia, Sr.s head. Afterwards, the car had "a blown out back windshield and two bullet marks in the quarter panels on each one." The police found six bullet casings in the area of the shooting. Mejia, Sr., drove the car to his house and had his son call 911 on the way. Calderon was taken by ambulance from the Mejia home to the hospital. Calderon had been shot just under his right armpit and the bullet exited out of his chest. He was in the hospital for seven weeks.
Detective Campagna testified that he interviewed Villalobos and asked him to tell him what had happened. Villalobos said, "If I tell you the truth, Im guilty" and "Campagna, you got me." When Campagna asked Villalobos for his side of the story, Villalobos said, "its too late, man." However, he denied shooting anyone and said that he was only carrying a knife.
Campagna, an expert on Sureno street gangs, said that Surenos and Nortenos are rivals and confrontations result when the two meet. He said that Maltos and Villalobos had admitted to him that they were members of Varrio Gramercy Locos (VGL). Maltos has "Varrio Gramercy Locos, 13" in large letters tattooed across his chest. Since his arrest, Villalobos had a new tattoo of a star under his left eye that was a reward for having "done something" for the gang. Campagna testified that VGL is a Sureno street gang and that the charged crimes were committed for the benefit of VGL. There was no evidence that the men in the Impala had any gang ties.
In his opening argument, the prosecutor argued, "Would it be nice to know which one of the defendants was the actual shooter? Sure. Does it matter? No." He argued that one defendant had fired the gun and the other defendant had aided and abetted the shooting. Counsel for Villalobos argued that when Villalobos confronted the four men in the car "He did not have a weapon in his possession and he did not know that Mr. Maltos had the gun." He urged the jury to reject the prosecution argument that "if one of them had a gun, the other knew that he had the gun" and asserted that there was "no proof" that Villalobos was the shooter. Counsel for Maltos stressed that the testimony showed that Villalobos was the one who approached the car and who was wearing a gray sweatshirt. He reviewed the evidence that Villalobos was the shooter and argued that Maltoss gang membership did not prove that Maltos "wanted to help [Villalobos], wanted to shoot in that car as well, wanted to be a part of that."
The jury found both appellants guilty of all four counts of attempted murder, finding true the allegation that each attempted murder was willful, deliberate, and premeditated. (Pen. Code, §§ 664, subd. (a), 187, 189.) The jury found both appellants guilty of shooting at an occupied motor vehicle. (Pen. Code, § 246.) The jury found true enhancements as to the attempted murder count in which Calderon was the victim that a principal in the offense discharged a firearm and proximately caused great bodily injury and found that enhancement not true as to a second count in which Mejia, Sr. was the victim. (Pen. Code, § 12022.53, subds. (d), (e)(1).) The jury found true a firearm use enhancement as to two attempted murder counts. (Pen. Code, § 12022.53, subds. (c), (e)(1).) The jury found true an allegation as to each count that the offense was committed for the benefit of a street gang. (Pen. Code, § 186.22, subd. (b)(1).) The trial court sentenced each defendant to a determinate term of 40 years and a consecutive indeterminate term of 85 years to life.
The Trial Courts Ruling on the Proposed Testimony of Jose Villalobos
Appellant Maltos contends, "The trial court violated the Fourteenth Amendments due process clause by prohibiting appellant from calling Homeros brother, Jose, to testify that Homero had admitted to being the shooter in the October 16, 2003 shooting incident." Respondent does not address the correctness of the trial courts ruling on the admissibility of this proposed testimony. Respondent argues, "Maltos may not complain that he was denied the right to present evidence from a witness who, through no fault of the state, never came to court to testify."
Background
The prosecutions list of potential witnesses for this trial, filed March 7, 2005, included Jose Villalobos, the brother of defendant Homero Villalobos. That same day, before jury selection and after dealing with the issues raised by Maltoss filed motions in limine, the trial court asked counsel for Villalobos if he had any motions in limine. Villaloboss counsel asked whether the prosecution planned to introduce any statements made by Maltos to Detective Campagna or to Maltoss family members from the jail. The prosecutor indicated that he did not plan to introduce those statements. Counsel for Villalobos then said, "With respect to prosecution witness Jose Villalobos, I would object to the prosecution presenting any evidence by or related to Jose Villalobos that during an interview that Mr. Villalobos had with law enforcement, Jose Villalobos told law enforcement his brother . . . would try to, quote, cover it up, end quote, and would not be honest. Thats speculative." The prosecutor answered, "I had no intention of doing so." After taking up other motions by Villalobos, the court heard a motion by the prosecution that "the defendants be prevented from introducing statements of the defendants themselves to Detective Campagna or in any respect." Seeking to clarify the scope of this motion, counsel for Villalobos said, "My understanding is the prosecution will present Jose Villalobos as a witness in this case. Once he testifies, I think Im going to be able to get into just about everything he discussed with Detective Campagna." The prosecutor announced, "I didnt intend on putting on Jose Villalobos."
Counsel for Maltos asked to be heard and told the court that Jose Villalobos had been "on the prosecution witness list from the beginning of this case. . . . He was present in court the other day. He was ordered back or to be on phone contact with [the prosecutor.]" Counsel asked that Jose Villalobos "be made available to us so that we could bring him in as a witness." Counsel said that he was giving notice of his intention to call Jose Villalobos as a witness.
Counsel for Villalobos also confirmed, "Jose Villalobos was here in court and in fact I even talked to him. He sat in the back row there."
Referring to Homero Villaloboss admission to his brother that he had been the shooter, the prosecutor, apparently referring to Evidence Code section 1220, told the court, "My position is that as the People, if we chose to bring in that evidence, we could because it would be an admission by a party opponent. [¶] The defendant Mr. Maltos would not be able to elicit those same statements from Jose Villalobos regarding what Homero said because Mr. Maltos is not an opponent. They are not on opposite sides. Its not an admission by a party opponent. There is no hearsay exception."
The court asked the prosecutor if he would make Jose Villalobos available to the defense. The prosecutor said that he would, noting that Jose Villalobos was "currently under subpoena." The court asked counsel for Maltos for "an idea of what the testimony of this witness might be." Counsel said that Jose Villalobos had been taken into custody on a CYA hold and Detective Campagna asked Jose Villalobos if he knew anything about the October shooting. Counsel told the court, referring to a police report, "[Jose Villalobos] tells [Detective Campagna] yes, my brother was involved in a shooting, however, it was in self-defense, some Nortenos pulled up and he shot in the car in self-defense." Based on this, Detective Campagna assembled the photo lineup from which Calderon identified Homero Villalobos.
Counsel told the court that Detective Campagna had Jose Villalobos call his brother. Jose Villalobos then told the officers, "I spoke to my brother, I told him that you are looking for him, but he told me not to say anything. He is telling me to deny that he was involved in a shooting. . . . hes going to try to cover it up, hes not going to tell the truth."
Counsel for Maltos told the court that he was "seeking to admit the conversations made between Homero and Jose in which Homero admits to shooting in this car in self-defense but nonetheless admits to being the person that discharged the firearm at these four individuals in the car . . . . This is a statement against interest." Counsel said, "I have a transcript of his tape. We all have the recorded conversation that Jose made with the detective." At this point, despite having described the statement moments earlier as "an admission by a party opponent" the prosecutor took the position that the statement by Homero to Jose was not a declaration against penal interest because "Mr. Villalobos would have no expectation that his brother would tell this to the police or it would immediately get him into trouble in regards to that." Counsel for Villalobos told the court that if the court allowed this statement to come into evidence he would move for severance.
Counsel for Maltos gave the court more detail about the statement based on the police report. Jose Villalobos told Detective Campagna, "his brother told him that he dumped the gun somewhere in the hills, but then went back to get it, but then he gave the gun to someone else that lives in Gramercy. And it also appears that [counsel for Villalobos] has got a police report about another incident in which the same gun was used. And this is supported by Joses statements that the gun was now given to someone else."
The prosecutor argued, "it just doesnt qualify as a declaration against [penal] interest because its not being told at a time when this persons penal interest would be implicated if hes telling it to his brother." The trial court told counsel for Maltos to "address much more clearly the issue of this statement being admissible under Evidence Code section 1230. I suggest that you take a few moments and cite some authority to this Court with regard to the opposition [the prosecutor] has raised."
After a brief recess and a more detailed recitation by counsel of Jose Villaloboss statement concerning what his brother had told him about the shooting, the court told counsel, "There is no question whatsoever that this evidence, if admissible, is relevant insofar as your clients case is concerned. . . . The issue I asked you to address was whether or not you can establish the necessary foundation for the admissibility of this evidence under Evidence Code Section 1230. Please address that issue." This led to a discussion of whether Homero Villalobos, as Maltoss co-defendant, was unavailable for purposes of Evidence Code section 1230. Counsel for Villalobos said he did not yet know whether Homero Villalobos would testify. The court said, "If Mr. Villalobos asserts his Fifth Amendment privilege and thus is clearly unavailable to you, then at that point we will address the issue of the introduction of this evidence. . . . I have very serious concerns . . . that the evidence satisfies the against penal interest element of Evidence Code Section 1230 such that it would be admissible."
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 declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants 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."
The next day, the court summarized the positions of Villalobos and the prosecutor on this issue saying, "that they do not qualify as declarations against interest under Evidence Code Section 1230 nor do they qualify. . . . under Evidence Code 1220, because they are being offered by the codefendant or by the People by the codefendant [sic]." The court told counsel for Maltos that his "first and fundamental burden" was to establish that counsel had "taken every appropriate course to make the declarant [Homero Villalobos] available to you." The court told counsel for Maltos that he should have asked for a severance "to make Mr. [Homero] Villalobos available since hes no longer a defendant in that proceeding as to the extent he could be available." The court set the matter for an Evidence Code section 405 hearing, cautioning counsel for Maltos that he would have to convince the court that the statements were "true declarations against interest" and "whether or not you are in fact a party opponent and thus the statement would qualify under [Evidence Code] 1220 when offered by you on behalf of your client."
Counsel for Maltos filed a motion attempting to address the trial courts expressed concerns about the statements admissibility. At the hearing, counsel argued that the statement was admissible under both Evidence Code section 1220 and section 1230. Counsel for Villalobos withdrew his objection to the statement. The prosecutor argued that, as to admissibility under Evidence Code section 1230, counsel for Maltos was "attempting to bootstrap and try to form some reliability in regards to Homero Villaloboss statement based on other evidence at trial." As for admissibility under section 1220, the prosecutor argued that co-defendants "are not party opponents." The court ruled, "I do not find that Evidence Code section 1220 contemplates in a criminal case the introduction of one defendants statement as against another defendant." As for admission under Evidence Code section 1230, the court said, "[A] declaration which admits mere presence at a scene or participation in an event that might otherwise be deemed criminal which statement offers a complete exonerating theory is not incriminating within the meaning of Evidence Code 1230. It is inherently unreliable." Counsel argued that excluding the statement would deprive Maltos of due process.
The trial began and, at the close of the prosecutions case, counsel for Maltos tried again. He informed the court that he had had his investigator subpoena Jose Villalobos for the afternoon session, but that Jose Villalobos was not present. Counsel tried to convince the court to reconsider its earlier ruling that the statement was not a declaration against penal interest. Counsel argued that "someone would not admit to shooting in an occupied car . . . unless [he] actually did those things. And an individual would not tell a police officer this unless he also believed that these incidents happened." The court responded, "Unless that individual were in custody facing a pending prosecution himself and seeking to curry favor with law enforcement."
The court reiterated its position that the statement was not a declaration against interest under Evidence Code section 1230. The court said, "I have to find that the declaration that he attributes to the defendant is in fact reliable in the sense that it is a true declaration against interest made by the defendant such that it carries indicia of trustworthiness and reliability that justify its admission in spite of the lack of opportunity to cross examine." The court denied counsels request for a one day continuance saying, "You have made no offer of proof that suggests to me that there is any reasonable likelihood that the witness will proffer any testimony that will affect my previous finding on the reliability of the declaration against interest as you call it."
Discussion
As soon as the prosecution announced that it would not be calling Jose Villalobos to testify to what the prosecutor characterized as an admission by Homero Villalobos that he had been the shooter, Maltos sought to introduce this same evidence. Maltos sought admission under Evidence Code section 1220 and section 1230 and as a matter of due process.
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." The plain language of the statute is at odds with the trial courts ruling that the statement was inadmissible under that section. Section 1220 does not contain the term "party opponent." The evidence Maltos sought to introduce was of a statement, defendant Villalobos was the declarant, the statement was offered against him to show that he fired the gun, and he was a party to the action. "The hearsay rule does not compel exclusion of any statement offered against a party declarant, whether or not it can be described as an admission." (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
As our Supreme Court has explained, "Evidence Code section 1220 does not define when a declarant-partys extrajudicial hearsay statement becomes relevant to be admissible against such party under the personal-admission exception to the hearsay rule. . . . [H]owever, . . . for such a statement to be admissible against a party as an admission, the statement must assert facts which would have a tendency in reason either (1) to prove some portion of the proponents cause of action, or (2) to rebut some portion of the party declarants defense." (People v Allen (1976) 65 Cal.App.3d 426, 433, disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 39.) Here, Maltos, the proponent of this evidence, sought its admission to support his defense that he was not the shooter. He also sought its admission to rebut the argument, which was Villaloboss defense and the prosecutions alternative argument, that Maltos, rather than Villalobos, was the shooter. This evidence was relevant and admissible.
Respondent makes no attempt to defend the trial courts ruling that appellant Maltos could not call Jose Villalobos as a witness to testify that his brother had told him that he had been the shooter. Respondent argues that appellant Maltoss claim that the trial court erred in refusing to permit him to introduce this evidence is "spurious" because "the defense never satisfied its burden of presenting a foundation upon which the trial court could find that the evidence was admissible." Respondent argues that "Maltos is making the incoherent claim that the state violated his rights by preventing him from presenting evidence he was never prepared to present." The record does not support this characterization of the events in the trial court. Once the trial court indicated that it would not consider allowing the statement into evidence under Evidence Code section 1220, counsel tried to appease the trial courts insistence that the evidence meet other criteria for admission, such as Homero Villaloboss unavailability, none of which should have been required. Counsel continued to try to convince the court to admit this evidence and had Jose Villalobos subpoenaed at the close of the prosecutions case, but the court reaffirmed its earlier erroneous ruling. An examination of the courts stated reasons for doing so confirms that the fact that Jose Villalobos did not appear for the afternoon session for which he had been subpoenaed made no difference in the courts ruling. The parties did not dispute Detective Campagnas report of what Jose Villalobos had told Campagna about his brothers involvement in the shooting. What could Jose Villalobos have been expected to tell the trial court to persuade it to change analysis concerning what "Evidence Code Section 1220 contemplates in a criminal case"?
For example, the court told counsel for Maltos, "I have very serious concerns . . . that the evidence satisfies the against penal interest element of Evidence Code Section 1230" and that counsel should have asked for a severance "to make Mr. [Homero] Villalobos available since hes no longer a defendant in that proceeding as to the extent he could be available." However, under Evidence Code section 1220 "any prior statement of a party may be offered against the party, even though it may not have been against the partys interest or even may have been self-serving when made. (See People v. Zack (1986) 184 C.A.3d 409, 417, 229 C.R. 317, quoting the text; People v. Mendoza (1987) 192 C.A.3d 667, 675, 238 C.R. 1, quoting the text; Model C., Rules 506, 509, Comments; 1 Jefferson, California Evidence Benchbook 3d, §3.20; 1 U.C.L.A. L. Rev. 20.)" (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 93, p. 797.) As for the courts mention of severance, this seems to reflect the idea that in a joint trial, an admission by one criminal defendant that implicates a codefendant may not be introduced even with an appropriate limiting instruction. If the statements implicating the codefendant cannot be effectively deleted without prejudice to the declarant, the prosecution must choose between separate trials and proceeding without the admission. (People v. Aranda (1965) 63 Cal.2d 518.) The statement here did not trigger Aranda concerns. Nor does the courts assertion that there was an insufficient foundation for the reliability of the statement support the exclusion of the statement. "The rationale underlying the party admission exception to the hearsay rule is that, as a matter of policy, a party cannot be permitted to object to his or her own hearsay statement as being unreliable and untrustworthy because of the absence of an oath when the statement was made, or the lack of opportunity to engage in cross-examination at that time. . . . It is to be noted, therefore, that indicia of trustworthiness are not part of the justification for this exception to the hearsay rule." (1 Jefferson, Cal. Evidence Benchbook (3d ed.), § 3.12, pp. 88-89.) The courts comment about Jose Villalobos wishing to curry favor with the police appears to invoke the concerns about informants addressed by Penal Code section 1127a. However, under the circumstances of this case, Jose Villalobos would not qualify as an in-custody informant. (See Pen. Code, § 1127a, subd. (a).)
There is nothing in the record to suggest that although Jose Villalobos was not present for that one afternoon session that he would not come to court to testify at trial. Jose Villalobos had given information to Detective Campagna, had made a recorded telephone call to his brother at Campagnas request, was present earlier in the proceedings, had talked to counsel, and was in telephone contact with the prosecutor.
Maltoss defense, as argued by defense counsel, was that the evidence showed that Villalobos was the instigator of the confrontation and the shooter and that Maltos was merely present at the scene of the shooting. Relying on Chambers v. Mississippi (1973) 410 U.S. 284, 294, Maltos contends that the courts ruling deprived him of his right to present a defense. Therefore, he argues, the omission is of constitutional magnitude and is subject to either a reversible per se standard as structural error or the harmless beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.). However, where a trial courts ruling does not constitute a refusal to allow a defendant to present a defense, but merely rejects certain evidence concerning the defense, the proper standard of review is that enunciated in People v. Watson (1956) 46 Cal.2d 818, that is, whether it is reasonably probable that the defendant would have obtained a more favorable result absent the error.
In People v. Cudjo (1993) 6 Cal.4th 585, 611-612, Armenia Cudjo was convicted of murdering a victim who was killed by "multiple blows to the back and sides of the head, fracturing the skull and lacerating the brain." (Id. at p. 598.) Armenias brother, Gregory Cudjo, "did not testify at trial [having asserted his right against self-incrimination], but the prosecution introduced evidence of the testimony he had given at [Armenias] preliminary hearing and statements [Gregory] had made to investigating officers during a tape-recorded interview the morning of the day after the murder." (Id. at p. 600, see pp. 599, 604.) According to that evidence, Gregory claimed he was not present at the killing and implicated Armenia as the murderer. (Id. at pp. 600-601.) During the defense case, Armenia unsuccessfully attempted to introduce the testimony of Gregorys cellmate, who "was prepared to testify" that Gregory had confessed to the cellmate that it was Gregory who had inflicted the beating which resulted in the victims death. (Id. at pp. 604-606.) Holding that the trial court erred in excluding this evidence (id. at pp. 604-605, 608, 610), our Supreme Court rejected a claim that this erroneous ruling was Chapman error which deprived Armenia "of the right to present a defense." (Id. at p. 611.) The court found the error simply deprived Armenia of the opportunity to present certain evidence to support a third party culpability defense and, thus, "the applicable standard of prejudice" is that set forth in Watson. (Ibid.)
Here, Maltos was not prevented from presenting a third party culpability defense. Most of the prosecution witnesses testified that Villalobos was the shooter and Maltos had ample opportunity to cross-examine them about the matter, as well as to argue during closing argument his theory that Villalobos was the shooter and that there was no evidence that Maltos had the requisite specific intent of an aider and abettor. Thus, the Watson standard of prejudice applies. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The trial courts ruling was, however, a rejection of the most powerful evidence concerning this defense. Three of the passengers portrayed Villalobos as aggressive and challenging and testified that Maltos said nothing. Although Mejia, Jr. testified at trial that both men were talking to Calderon, at the preliminary examination this witness had said that Villalobos had been the one asking all the questions. The eyewitness testimony suggesting that Maltos was the shooter was equivocal and inconsistent with earlier statements by the witnesses. Evidence that Villalobos had admitted to being the shooter would have greatly strengthened Maltoss defense, supporting in the strongest manner the argument that he was not the shooter and concentrating its focus on evidence to support the argument that he was merely present. Although Maltos need not have been the shooter to be convicted on an aiding and abetting theory, the remaining eyewitness testimony concerning Maltos, that he said nothing, stood in the shadows, and just looked at the men in the car, wholly supported his defense.
The record suggests that the prosecutor understood that Jose Villaloboss testimony that Homero Villalobos had admitted being the shooter would make it harder to secure a conviction against Maltos. Jose Villalobos was on the prosecutions witness list and under subpoena by the prosecution until the start of this trial. At that point, in a very uncommon turn of events, the prosecutor declined to present, and then objected to the introduction of, evidence of an admission by a defendant to the commission of the charged crime. At the conclusion of the preliminary examination Maltoss counsel had argued that the testimony had established that Villalobos was the shooter and that there was no evidence other than that concerning Maltoss gang affiliation and presence at the scene on which to base an order holding Maltos to answer for the charges. The prosecutor responded that he "believ[ed] for preliminary examination theres more than sufficient evidence," arguing that while Villalobos was issuing gang challenges Maltos was "not actively stopping Mr. Villalobos from doing any of this stuff." While this argument sufficed to obtain a holding order it would, of course, be rather vulnerable at trial in light of the jury instruction that "Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (CALJIC 3.01.)
This case was charged in manner consistent with the theory that Villalobos was the shooter, with the information alleging that Villalobos personally inflicted great bodily injury. When, at the end of the trial, the prosecutor moved to dismiss this allegation, counsel for Maltos objected on notice grounds saying, "It affects how the defense presents their case. It shows that at the beginning of this case and for the last year and whatever months that the People believed that it was Mr. Villalobos who was the person that discharged the firearm . . . ." Nevertheless, the allegation was dismissed and the prosecutor went on to argue, "Would it be nice to know which one of the defendants was the actual shooter? Sure. Does it matter? No." When arguing that Maltos was the shooter, the prosecution had ample evidence to support a theory that Villalobos had aided and abetted the shooting. Far less convincing was the alternative argument. When arguing that Villalobos was the shooter, the prosecutor focused on the evidence that Maltos was an admitted gang member with a gang tattoo. He said, "So when Mr. Maltos is there and listening to what Mr. Villalobos is saying, there is only one reason hes there. And thats to back his play against the Nortenos. Hes there. Hes aiding his presence. . . . [M]ere presence at the crime scene wouldnt constitute aiding and abetting but there is something different here. . . . Thats what we were talking about, how close they are together."
Given the strength of the eyewitness testimony that Villalobos was the shooter and that Maltos said and did nothing, had the jury heard that Villalobos had admitted to being the shooter it would likely have concluded that Maltos could only be convicted as an aider and abettor. Maltoss gang affiliation and tattoo, and the expert testimony about gang behavior in general, certainly hurt Maltoss defense. However, we are not prepared to say that being a gang member at the scene of a crime necessarily insures ones conviction as an aider and abettor. Had the excluded evidence been admitted, it is reasonably probable that Maltos would have obtained a more favorable result.
Accordingly, we do not reach Maltoss contentions that the trial court abused its discretion in refusing to grant a one-day continuance to secure Jose Villaloboss attendance or that trial counsel was ineffective in not opposing the motion by counsel for Villalobos to strike the testimony by Calderon in which he identified Villalobos as the shooter.
Jury Instructions
Mere Presence
Focusing on part of the aiding and abetting jury instruction, Maltos contends that the trial court erred in instructing the jury with the "mere presence" language of CALJIC 3.01. With no objection from defense counsel, the court instructed the jury, "A person aids and abets the commission of a crime when he, one, with knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime and, three, by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime which does not itself assist in the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
Appellant Maltos argues that CALJIC No. 3.01 "misstates the law by suggesting that a defendants mere presence constitutes aiding and abetting if that presence happened to assist the perpetrator in his commission of the crime." He explains that the "mere presence" part of the instruction is contrary to the law because "it suggests, by negative implication that mere presence at the crime scene does amount to aider and abettor liability if the defendants presence itself assists the perpetrator in his commission of the crime." He argues, "The problem with CALJIC No. 3.01 is that it has two separate provisions which are in conflict with each other. One provision states that the aider and abettor must possess the requisite specific intent. The other suggests that presence alone is sufficient to convict — a notion which is plainly at odds with a requirement of intent."
Although we are reversing the judgment as to Maltos, we consider this contention because Villalobos expressly joins in it "except . . . to the extent that [it] assume[s] that appellant [Villalobos] was the shooter." Whatever force this argument might have had as applied to Maltos is completely dissipated when it is considered as to Villalobos. Villaloboss defense to the aiding and abetting theory was that he did not have knowledge of Maltoss unlawful purpose and did not have the specific intent to promote, encourage, or instigate the shooting. The evidence showed that Villalobos approached the car and questioned the occupants in a challenging manner concerning their gang affiliation. In other words, he was far more than merely present. The "mere presence" sentence appears in CALJIC No. 3.01 in brackets with the comment that it should be given if the evidence so warrants. Arguably, there was no evidentiary basis for giving the "mere presence" portion of the instruction as to Villalobos. Although the instruction was given, based on this record there was no reason for the jury to consider acquitting Villalobos on the basis of the "mere presence" language in CALJIC No. 3.01 without considering the other instructions that required proof of the requisite intent.
Natural and Probable Consequences
Appellant Maltos contends that the trial court erred by failing to instruct the jury that he could not be guilty of aiding and abetting attempted premeditated murder under a natural and probable consequences theory unless he personally acted willfully, deliberately, and with premeditation. He asserts, "The natural and probable consequences doctrine is inherently at odds with the concept of a willful, deliberate, and premeditated attempted murder." Villalobos joins in this contention "except . . . to the extent that [it] assume[s] that appellant [Villalobos] was the shooter." On this issue, appellant Villalobos "submits that it was he who did not know that Maltos intended to shoot or kill the occupants of the vehicle. Thus, with respect to prejudice, [Villalobos] submits that the record could rationally lead to a finding that he did not know that Maltos had a firearm and thus could not have acted willfully, deliberately, and with premeditation."
Under the natural and probable consequences doctrine, "an aider and abettor is guilty not only of the intended crime, but also `for any other offense that was a "natural and probable consequence" of the crime aided and abetted. [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1117, quoting People v. Prettyman (1996) 14 Cal.4th 248, 260, 267.) Under Penal Code section 664, subdivision (a), a life term for a conviction of attempted willful, deliberate, and premeditated murder "shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact."
In People v. Lee (2003) 31 Cal.4th 613, our Supreme Court held that "section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor." (Id. at p. 627.) The Lee court said that "section 664(a) states only that the murder attempted must have been willful, deliberate, and premeditated, not that the attempted murderer personally must have acted willfully and with deliberation and premeditation." (Id. at p. 622.) Appellant acknowledges Lee but asserts that Lee is distinguishable, arguing that Lee did not involve an application of the natural and probable consequences doctrine and that its rational suggests that liability under that doctrine would require premeditation. Appellant states that a "key to the [Lee] Courts analysis" was its recognition that "one who knowingly assists the commission of a willful, deliberate, and premeditated killing cannot plausibly claim to have acted without the same level of intent as the perpetrator." This reasoning does not apply to an aider and abettor charged under a natural and probable consequences theory because that theory is based on an objective analysis of causation, that is, whether a reasonable person would see the crime as a reasonably foreseeable consequence of the act aided and abetted. This reasonable person standard is "fundamentally inconsistent with the concepts of deliberation and premeditation" which would require subjective inquiry into the aider and abettors state of mind.
Appellant contends that two Second District cases, People v. Francisco (1994) 22 Cal.App.4th 1180 and People v. Cummins (2005) 127 Cal.App.4th 667, which upheld findings of deliberation and premeditation based on a natural and probable consequences theory, were wrongly decided.
However, the Supreme Court in Lee made dicta statements that at least suggest that the court would consider a defendant convicted under the natural and probable consequences doctrine to be sufficiently culpable to warrant a life sentence. The Lee court stated: "Although defendants again argue that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is insufficiently blameworthy to be punished with life imprisonment, their argument . . . ignores the very substantial blameworthiness of even this sort of attempted murderer—necessarily so in the general case, and possibly so even under the natural-and-probable-consequences doctrine." (Lee, supra, 31 Cal.4th at p. 627, italics added.) The Lee court further explained, "defendants argument seems predicated on an assumption that punishment must be finely calibrated to a criminals mental state. Such an assumption is unsound. Punishment takes account not only of the criminals mental state, but also of his or her conduct, the consequences of such conduct, and the surrounding circumstances. [Citations.] Such circumstances may include the fact that the murder attempted was willful, deliberate, and premeditated." (Ibid.)
If, as Lee states, "the consequences" of the aider and abettors conduct are a valid ground for determining the appropriate punishment, then one who aids and abets an offense with actual or constructive knowledge that the probable consequence of his conduct is an attempted murder is as culpable as one who directly aids and abets the attempted murder. The Supreme Court in Lee further noted that although considerations of culpability might have justified the Legislature in enacting section 664, subdivision (a) to decline to extend liability to an aider and abettor who does not personally act with premeditation, it had not done so. The court specifically mentioned the natural and probable consequences doctrine even though it was not strictly relevant. The court said, "Of course, where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so." (Lee, supra, 31 Cal.4th at pp. 624-625.)
The Legislature could have provided in section 664, subdivision (a) that an aider and abettor who intends to facilitate a target crime rather than the attempted murder itself is not subject to a life sentence unless he personally deliberates and premeditates. However, it did not do so, again refuting any suggestion that it did not consider such an aider and abettor sufficiently blameworthy to merit a life sentence. Although the Lee courts statements regarding the natural and probable consequences doctrine were dicta, "`[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. [Citation.] [Citation.]" (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
We find in Lee no indication that section 664, subdivision (a) should not apply to an aider and abettor who is guilty of premeditated attempted murder under the natural and probable consequences doctrine unless he personally acted with premeditation. We believe Lees discussion of culpability fully applies to attempted murder under the natural and probable consequences doctrine. We therefore conclude Lees holding that personal premeditation is not required should apply to this case.
Accordingly, we reject appellants contention that, "The courts instructions removed the element of `willfulness, deliberation, and premeditation from the jurys consideration in violation of the Sixth and Fourteenth Amendments to the United States Constitution."
Instruction on the Target Crimes
In instructing on the natural and probable consequences doctrine, the court told the jury that to convict appellants of attempted murder it must find attempted murder was a natural and probable consequence of the target crimes. The court further told the jury that if it found appellants guilty of attempted murder, it would then have to decide whether the attempted murder was premeditated. The jury was not instructed that it could not convict appellants of premeditated attempted murder under a natural and probable consequences theory without finding that premeditated attempted murder was a natural and probable consequence of the target crimes. Appellant Maltos contends that the trial court erred in its instructions on the target crimes in that a jury may not convict an accomplice of premeditated attempted murder under a natural and probable consequences theory without finding that the perpetrators premeditated attempted murder was a natural and probable consequence of the target crimes. Appellant contends that by failing to modify CALJIC 3.02 to make clear that, to convict and aider and abettor of willful, deliberate and premeditated attempted murder, the jury had to find that willful, deliberate, and premeditated attempted murder was a natural and probable consequence of the target crime, the trial court deprived him of his Sixth and Fourteenth Amendment rights to a jury trial based on proof beyond a reasonable doubt.
Villalobos joins this argument by Maltos except to the extent that it assumes that Villalobos was the shooter. Villalobos argues "that the error was prejudicial because there was substantial evidence that appellant was not aware that Maltos had a weapon or that Maltos intended to open fire on the vehicle or that Maltos would act willfully, deliberately, and with premeditation."
In People v. Seel (2004) 34 Cal.4th 535, our Supreme Court held that the premeditation allegation of section 664, subdivision (a) constitutes an element of the offense of attempted premeditated murder. From Seel, appellant argues that in a case prosecuted under the natural and probable consequences doctrine, the crime which must be a natural and probable consequence of the target crime is not just attempted murder, but willful, deliberate and premeditated murder.
In People v. Cummins (2005) 127 Cal.App.4th 667, the court relied on Lee to reject this argument. (Id. at p. 680.) Appellant argues that Cummins was wrongly decided and respondent allows that "because Lee never addressed the claim raised in Cummins (and in appellants claim now), Cummins erroneously relied on Lee to reject that claim."
"Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 677.) Even assuming arguendo that it was necessary to inform the jury that premeditated attempted murder had to be a natural and probable consequence of the target crime, any error in failing to do so was harmless. The court instructed: "Whether a consequence is natural and probable is an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. . . . [¶] A natural consequence is one which is within the normal range of outcomes that may reasonably be expected to occur if nothing unusual has intervened." (See CALJIC No. 3.02.) The court further instructed: "Premeditated means considered beforehand." It then instructed: "To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against the choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being." (CALJIC No. 8.67.)
Under these instructions, to convict Villalobos of premeditated attempted murder on a natural and probable consequences theory, the jury had to find (1) a reasonable person would have foreseen it was likely that in the course of committing the target crimes Maltos would try to kill the victims, and (2) Maltos decided before he shot at the victims that he would try to kill them. It is not reasonably possible that having made those findings, the jury would have concluded that attempted murder was a natural and probable consequence of the assaults, but that premeditated attempted murder was not. To reach such a conclusion, the jury would have to find that it was foreseeable Maltos would shoot at the victims in an attempt to kill them, but not foreseeable that he would consider his actions beforehand. The two findings are too inherently contradictory to have been a reasonably possible outcome on this record. Any instructional error was harmless.
Gang Evidence
Both appellants contend that the evidence presented to support the Penal Code section 186.22 gang enhancements was insufficient.
"In determining whether the evidence is sufficient to support a conviction or an enhancement, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] Under this standard, `an appellate court in a criminal case . . . does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. [Citation.] Rather, the reviewing court `must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] This standard applies to a claim of insufficiency of the evidence to support a gang enhancement. [Citation.]" (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
To establish that a group is a criminal street gang within the meaning of the statute, the prosecution must prove that "the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a `pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called `predicate offenses) during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617.)
The prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) Expert testimony is admissible to address the definition of a criminal street gang, the requisite primary activities and predicate offenses, and the gangs past criminal conduct and ongoing criminal nature. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620; People v. Duran (2002) 97 Cal.App.4th 1448, 1463.) An experts testimony is also admissible about the existence, size, or composition of a gang; an individuals membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Expert testimony may be premised on material that is not admitted into evidence, or on material that is not ordinarily admissible, such as hearsay, if that material is reliable and of a type that is reasonably relied upon by experts. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Numerous cases have held that an expert may rely on hearsay in forming his or her opinion. (See People v. Catlin (2001) 26 Cal.4th 81, 137; People v. Montiel (1993) 5 Cal.4th 877, 919; People v. Duran, supra, 97 Cal.App.4th at p. 1463; People v. Valdez (1997) 58 Cal.App.4th 494, 510-511.) An expert witness whose opinion is based on inadmissible matter can, when testifying, describe the material that forms the basis of his or her opinion. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) "Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.] Likewise, an individuals membership in a criminal street gang is a proper subject for expert testimony. [Citations.]" (People v. Duran, supra, 97 Cal.App.4th at pp. 1463-1464.) However, an expert may not testify to incompetent hearsay under the guise of stating reasons for an opinion. (People v. Killebrew, supra, 103 Cal.App.4th at p. 659.)
Background
Detective Campagna testified as an expert on Sureno street gangs. He said that Surenos are rivals of Nortenos and that when a Sureno gang member and Norteno gang member come across one another it "usually always results in a confrontation" by which Campagna meant "a shooting, stabbing, fight." Campagna testified that VGL was a Sureno criminal street gang that identifies with the color blue and the number 13. VGL was very territorial and claimed Rainbow Park, Elodie, Gramercy and Madden as their territory. VGL had about 70 members. Campagna said that VGL members "are not going to back down" to anyone who comes into their neighborhood.
The prosecution introduced into evidence an abstract of judgment that showed that on November 13, 2001, one Felipe Rendon had been convicted of second degree robbery and assault with a deadly weapon and that a gang enhancement had been found true. The prosecution also introduced into evidence a minute order showing that Felipe Rendon had been convicted of making a criminal threat.
Campagna testified that in his opinion, the primary activities of VGL were robbery, assault with deadly weapons, and terrorist threats. He said he based his opinion on "past reports I have reviewed and convictions Im aware of." The prosecution referred to the two exhibits concerning Felipe Rendons convictions that had been introduced into evidence and asked Campagna "have those cases aided in forming your opinion as to whether or not the primary activities of Varrio Gramercy Locos are committing assaults with deadly weapons, terrorist threats and robberies?" Campagna answered, "Yes." Over continuing hearsay objections by defense counsel, Campagna described the circumstances of the first Rendon case, which resulted in convictions for robbery and assault with a deadly weapon with gang enhancements, this way: "On March 21st, 2001 in the area of Gramercy a small boy was pushing a scooter down the street. Several people that lived in the neighborhood grabbed the boys scooter and took off with it. A couple of Nortenos that were driving by observed that one gentleman jumped out, grabbed the scooter back from the other person and ran back to return it. [¶] At that time Mr. Felipe Rendon and other members of VGL saw this, ran after the party that took the scooter back to the boy, chased him down, [broke] off a piece of fence post and beat the citizen with it and also took his chain."
The trial court instructed the jury, "With respect to this experts testimony regarding anything he may have learned from reading reports, reviewing documents or from statements he heard out of court from other law enforcement officers or members of the police department, that information is admitted only for the limited purpose of explaining the basis or reason for his opinion. And you may not consider that evidence for any other purpose other than how it bears on the believability of his opinion."
Campagna described another case that had aided in forming his opinion about the primary activities of VGL. He said, "On August 16 of 2000, a boy lived in the neighborhood which VGL members felt that he was a Norteno, was walking, and again Mr. Felipe Rendon had a pit bull chase the subject back to his residence. The boy went inside, told his. . . mother and another gentleman. They went outside to confront Mr. Rendon. At that time, Mr. Rendon got in his vehicle and as he was driving by, he pulled a knife out of a sheath and told them that he would be back or Ill be back for your bitches." In this case, Rendon was convicted of criminal threats with a gang enhancement.
Campagna testified that Homero Villalobos was a member of VGL based on Villaloboss admission of current VGL membership to Campagna, his past police contacts, and his wearing of various items of blue clothing. These past contacts took place near Villaloboss Gramercy address. Gramercy is around the corner from Elodie Way, the scene of the charged shooting. Campagna testified that Maltos was a VGL member based on Maltoss admission of membership to Campagna, his past police contacts on Gramercy, and his "gang specific tattoos" including "`Varrio Gramercy Locos, 13 across his chest in large letters."
Campagna testified that, in his opinion, the shooting in this case was committed for the benefit of VGL. He said "they were asking what are you, are you a Sureno, or Norteno, what do you claim" and said the "specific questions that they are asking that will always result or almost always result in some sort of confrontation with another gang member."
Discussion
As part of proving a gang enhancement allegation the prosecutor must show that the gang includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit or soliciting two or more of the enumerated offenses during the statutorily defined period. (Pen. Code, § 186.22, subd. (5)(e).) The predicate offenses need not be gang-related. (People v. Gardeley, supra, 14 Cal.4th at p. 621.) Past crimes by members of the same gang, whether gang-related or not, qualify as proof of predicate acts. (Id. at pp. 621, 624, fn. 10.) As was noted in Gardeley, an expert can rely on hearsay information for the purpose of forming his or her opinion. However, he or she cannot prove such matters by the recitation of that hearsay information. (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)
Appellant Maltos, joined by Villalobos, contends that "the prosecutor presented no substantial evidence to show that VGLs members, individually or collectively, have committed two or more predicate crimes." They argue that the court documents from Felipe Rendons cases that included gang enhancements do not satisfy the predicate acts component of the gang enhancement because Detective Campagna never actually testified that Felipe Rendon was a member of VGL and thus, "there was no evidence that the crimes which led to Rendons convictions were committed by VGLs members."
The term "predicate offenses" has become the accepted usage for reference to the statutorily required offenses although that term is not used by the statute.
Respondent acknowledges that Campagna did not testify that Rendon was a member of VGL. Respondent acknowledges that neither the abstract of judgment nor the minute order introduced into evidence concerning Rendons convictions "shows that Rendon belonged to VGL or that a VGL member committed the crime." Respondent acknowledges that Campagnas testimony about the information contained in the police reports of the Rendon incidents was admitted for the limited purpose of explaining the basis or reason for Campagnas opinion that VGLs primary activities were robbery, terrorist threats, and assaults with deadly weapons. Respondent acknowledges that, as the jury was instructed, the information in those reports could not be considered for any other purpose other than how it bore on the believability of Campagnas opinion. Yet respondent argues that a reasonable jury could have inferred that Rendon was a member of VGL. As respondent puts it, "the substantial evidence question for this Court is whether a reasonable jury could have concluded beyond a reasonable doubt from all the evidence — including Campagnas testimony, the conviction records, and the `reports (but without considering the latter for the truth of the matters asserted therein) — that Campagna was believable in implicitly opining that the predicate crimes were committed by VGL."
In In re Leland D. (1990) 223 Cal.App.3d 251, the court held that the expert testimony was insufficient to prove a gang enhancement because the expert did not provide any details of the crimes he attributed to the gang and based his opinion solely on "hearsay statements from unidentified gang members and information pertaining to arrests of purported gang members. . . ." (In re Leland D., supra, 223 Cal.App.3d at p. 259.) The experts testimony was the only evidence offered to prove the gang enhancement, and the evidence did not specify exactly who, when, where, and under what circumstances gang crimes were committed. Because this testimony provided no more than conclusional and general pronouncements about the gangs primary purpose of committing "gang crimes," the appellate court found the experts testimony insufficient as a matter of law to prove the gang enhancement. (Id. at pp. 259-260.) Similarly, the court in In re Nathaniel C. (1991) 228 Cal.App.3d 990 found the experts testimony insufficient. There, the expert witness, a South San Francisco police officer, learned about the offense from San Bruno police officers. The incident involved the shooting of a person the San Bruno police believed to be a member of the gang. The expert said the San Bruno police believed the shooter also was a gang member and the shooting was gang-related. (Id. at p. 998.) The court concluded the expert "offered only nonspecific hearsay of a suspected shooting of one [gang] member by another. The [expert] witness. . . had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting. Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred." (Id. at p. 1003.)
By contrast, in In re I.M. (2005) 125 Cal.App.4th 1195, the experts testimony based upon police reports was held sufficient to support the gang enhancement. The expert testified in detail to the specific facts of three police reports regarding the crime, and he stated that he believed that the offender had been convicted and was being released from custody. (Id. at p. 1206.) The court concluded this evidence was more compelling than that in In re Nathaniel C. or In re Leland D. and adequately established at least one predicate offense. (In re I. M., supra, 125 Cal.App.4th at p. 1207.) The court stated that, unlike the expert witness in In re Nathaniel C., the expert had personal knowledge that the offender was a member of the gang. The police reports were admissible to show the police were investigating the offender in connection with the specified crimes. The experts testimony reasonably demonstrated his personal knowledge that the offender was being prosecuted for the crime, and the fact that the offender was being prosecuted allowed the conclusion that there was significant evidence he had in fact committed the offense. The evidence, therefore, adequately established that the offender was a member of the gang that had committed a predicate offense. (In re I. M., supra, at pp. 1207-1208.)
Respondent argues, "If a jury could reasonably infer commission of the offense from prosecution for it, as in I.M., it could reasonably infer VGL membership from gang membership under the circumstances here, given that those circumstances supported the reliability of such an inference." However, the expert in I.M. had personal knowledge that the offender was a member of the gang. Here, Campagna did not claim any personal knowledge of Rendon or his gang membership. Campagna testified that, in his opinion, one of the primary activities of VGL was the commission of certain criminal acts enumerated in the statute, namely robbery, assault with a deadly weapon and terrorist threats. He explained that this opinion was based on what he had read about VGL activities in the Rendon police reports. Campagnas testimony about the contents of these reports was admitted for limited purpose of explaining the basis or reason for his opinion and the jury was specifically instructed not to consider that evidence for any other purpose other than how it bore on the believability of that opinion. In order to use this evidence as support for an implied opinion that the Rendon convictions were committed by a VGL member, as respondent invites us to do, this court would have to consider the Rendon police reports for the truth of the information contained in them. There is no basis for Campagnas implied opinion that the predicate crimes were committed by VGL members other than these reports.
Because the trial court granted appellants motion to exclude the Rendon police reports for their truth, and the jury was told not to consider the testimony about them for any purpose other than assessing the believability of Campagnas expert testimony, we cannot use the contents of these reports, or Campagnas testimony about them, as proof that Rendon was a VGL member. Keeping in mind the deferential standard of review, we do not consider this evidence that was not admitted for the truth, combined with Campagnas expressed opinions, to provide sufficient evidentiary support for an opinion which the witness did not express. Because there was insufficient evidence that Rendon was a member of VGL, there was insufficient evidence that VGL included members who have engaged in a pattern of criminal gang activity by committing two or more of the enumerated offenses during the statutorily defined period. Accordingly, we must reverse the Penal Code section 186.22 finding.
In light of this conclusion, we do not consider appellants contentions that the evidence of primary activities was insufficient to sustain the convictions, that there was insufficient evidence of a specific intent to promote, further, or assist gang activity apart from the substantive offense, and that the admission of testimonial hearsay to prove elements of the gang enhancement violated appellants confrontation and due process rights.
Comment on Failure to Testify
In opening argument, the prosecutor explained that for an aider and abettor to withdraw from participation in a crime he must try to prevent its commission. He said, "What we have are two gang members coming out of nowhere at the same time approaching this car and challenging the victims at the very place to fight. Mr. Villalobos said he had a knife. We know someone had a gun. We know there is going to be an attack and this attempted murder is a probable consequence of the challenging. . . . I have just explained to you that it doesnt matter, but the defendant Mr. Villalobos never said that he didnt know anyone had a gun. He said he didnt have a gun. He had a knife." The prosecutor went on to argue that the entry wound on Calderon "Seems to be coming from the back to the front."
Appellant Villalobos argues, "the prosecutors argument was reasonably understood by the jury as a reference to appellants failure to testify and a request that the jury draw the inference that appellant knew Maltos had a gun from his silence." He argues that "to the extent the foregoing claim may be barred by counsels failure to object to the argument" he received ineffective assistance of counsel.
A prosecutor may neither comment on a defendants failure to testify nor urge the jury to infer guilt from such silence. (People v. Hardy (1992) 2 Cal.4th 86, 154; Griffin v. California (1965) 380 U.S. 609, 615.) "`Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.] " (People v. Hovey (1988) 44 Cal.3d 543, 572.) In reviewing a claim of Griffin error, we ask whether there was a reasonable likelihood that the remarks could have been understood, within their context, to refer to a defendants failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, the prosecutor argued that it did not matter which defendant was the shooter because both defendants were liable based on principles of accomplice liability. He explained that the law did not specifically require that one defendant know that the other had a gun because guilt could be predicated on a finding that a shooting was the natural and probable consequence of a challenge to fight. Villalobos characterizes the prosecutors comment this way: "The prosecutor, having asked the jury to conclude that it did not matter whether or not [Villalobos] knew Maltos had a gun, then asked the jury to infer, based on appellants failure to ever deny that he had such knowledge, that appellant knew Maltos had a gun and that, therefore, he had knowledge of Maltos unlawful purpose to commit the crimes of assault with a firearm and attempted murder. Thus, the prosecutor permitted the jury to resolve the issue before them on appellants failure to address them on the question of knowledge."
We disagree with Villalobos that the prosecutors argument was reasonably understood by the jury as a reference to Villaloboss failure to testify and a request that the jury draw the inference that he knew Maltos had a gun from Villaloboss silence. Taken in context, the prosecutors remark that "Villalobos never said that he didnt know anyone had a gun. He said he didnt have a gun. He had a knife." When viewed in context, it is clear that the prosecutor was not commenting on appellants failure to testify at trial in violation of Griffin. Rather, he was referring to inferences to be drawn from appellants statements to Detective Campagna, which was proper argument. (See, e.g., People v. Mincey (1992) 2 Cal.4th 408, 446 [in context, prosecutors remarks regarding defendants interview statements simply a fair comment on state of the evidence, which falls outside Griffin ].) This may explain why defense counsel did not object. Appellant has failed to show Griffin error or ineffective assistance.
Sentencing
Appellants contend and respondent concedes that the trial court "ran afoul" of Penal Code section 12022.53, subdivision (e)(2) when it sentenced appellants in each of counts 1, 3, 4 and 5 for both the gang enhancement under Penal Code section 186.22, subdivision (b)(1) and for the firearm use under Penal Code section 12022.53, subdivisions (c) and (d). Penal Code section 12022.53, subdivision (e)(2) provides, "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." Here, the jury did not find that either appellant personally used or personally discharged a weapon. Furthermore, the firearm enhancements apply to one who has been found to have violated Penal Code section 186.22, and, as discussed above, there was insufficient evidence to support the Penal Code section 186.22 allegation. Therefore, the firearm enhancements were not supported by the evidence.
Disposition
As to appellant Maltos, the judgment is reversed. As to appellant Villalobos, the judgment is affirmed except for the enhancements imposed pursuant to Penal Code section 186.22, subdivision (b)(1), and the firearm enhancements imposed pursuant to Penal Code section 12022.53, subdivision (e)(1), which are reversed.
On March 14, 2007 our Supreme Court denied a petition for review, granted review on the courts own motion, and transferred the matter to this court "with directions to modify the judgment to conform with the appellate opinions resolution of the issue."
We concur:
RUSHING, P. J.
PREMO, J.