Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 061163-2-A
Margulies, J.
A jury convicted defendant Anthony Rosier Wilson of murder with a special circumstance that the murder was committed for the benefit of a criminal street gang. The trial court sentenced him to a term of life without parole for the special circumstance murder, with a consecutive 25-years-to-life term for a gun enhancement. Defendant contends his murder conviction resulted from the trial court’s prejudicial errors in (1) admitting an informant’s testimony that a witness to the shooting told him defendant was the shooter, and (2) precluding him from offering evidence of an associate’s potential culpability for the crime. Finding no error, we affirm the judgment.
I. BACKGROUND
Defendant was charged by information with one count of first degree murder (Pen. Code, § 187), with a special circumstance allegation that the murder was committed for the benefit of a criminal street gang (Pen. Code, § 190.2, subd. (a)(22)). The information also alleged a gun enhancement for personal use and intentional discharge (Pen. Code, § 12022.53). The information alleged a second count of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). Defendant pleaded not guilty to both charges. A jury trial commenced on January 22, 2007.
A. Prosecution Case
Hugo Diaz testified he and the murder victim, Rodrigo Cadenas, spent part of the evening of December 23, 2005 at a gathering with friends in Diaz’s home. Close to midnight, Cadenas and Diaz left the house in a car Cadenas had borrowed, to meet up with a friend in North Richmond. Cadenas, who was driving, was highly intoxicated.
Cadenas drove to the area of Third Street and Silver Avenue in North Richmond. This intersection was where the “Third and Silver” gang congregated to sell narcotics. According to Diaz, as Cadenas stopped at a stop sign at Third and Silver, three to five Black men approached the car. Diaz could see at least two of the men pull out guns. As the men approached the car, Cadenas sped through the intersection and turned right on Silver, traveling westbound. Cadenas hit a pedestrian in the knee approximately one-half block from the intersection, before side-swiping a green Nissan Armada parked on the north side of Silver Street. He also struck a white van later determined to belong to Robert Moore (aka “Poppy”), a Third and Silver gang member. The group chased Cadenas as he circled the block and returned to Third and Silver. At that point, Cadenas got out of the car while it was still moving and ran west on Silver toward Second Street. Diaz stopped the car and got out and started to walk up Third Street, but was immediately surrounded by a group of Black men who pushed him and threw him down. Diaz heard gunshots a few seconds later.
Diaz testified that shots were fired at Cadenas’s vehicle, but the sheriff’s officers found no bullet holes in the vehicle.
Contra Costa Deputy Sheriff Christina Holder was the first to respond to a radio call reporting a shooting victim lying in a driveway on Second Street in North Richmond. The driveway was near the middle of the block, closer to Market Street than to Silver Street. Holder found Cadenas lying partially in the road at the bottom of the driveway with a pool of blood around him and some brain matter next to his head. He had injuries to his head, was not moving, and did not appear to be breathing. An autopsy later determined Cadenas died of multiple gunshot wounds to the head. He had been hit with as many as 10 shots from a nine-millimeter Glock pistol. Eight of the shots had perforated his body and two more had grazed his skin. The first shots were fired from at least several feet away. At least three additional rounds were fired into Cadenas from less than two feet away. Finally, as Cadenas lay on the ground, the shooter fired three “contact” wounds directly into Cadenas’s forehead.
Sheriffs recovered 10 nine-millimeter cartridge casings and two bullet fragments near Cadenas’s body and two other casings were located at the corner of Second and Silver. Other physical evidence, including a jacket, was recovered in the area. The sheriffs were unable to find any percipient witnesses. The lead investigator in the case, Detective Cary Goldberg, who was familiar with the difficulties of investigating gang-related violence in North Richmond, testified gang members congregating in the area where a crime takes place would typically flee the area before the police arrive, and finding witnesses willing to talk about what they saw is usually very difficult.
Defendant-whose street name was “Coush” or “Coush Bob”-was known by police to be the leader of the Third and Silver gang. In fact, police considered him to be at the top of the drug pyramid in North Richmond. Detective Shawn Pate testified virtually every street corner in the North Richmond area was controlled by a different “set” or “crew” of armed individuals who prospered by selling drugs at that location. Each set or crew was an offshoot or subset of the gang that controlled the drug trade in North Richmond, whose members sometimes called themselves “Project Trojans.” To protect their drug income, sets would use force and violence to instill fear in the community so rival dealers would not try to encroach on their territory. Although each set had its own territory, the North Richmond sets socialized together and worked in concert to keep outsiders from coming into North Richmond, which not infrequently required the use of violence and killings. Defendant controlled all of the North Richmond sets, and enjoyed a very large income from their sale of drugs. Police surveillance established defendant drove a $90,000 Mercedes Benz as one of his vehicles, wore costly items of jewelry, and possessed four very expensive homes at various locations in the county.
On December 21, 2005, the FBI began tapping the phones of defendant and Michael Johnson (aka “Project Mike”), believed to be defendant’s second-in-command. The FBI had access to most of defendant’s cellular telephone calls from December 21, 2005 to January 12, 2006. This was part of a joint gang investigation with local law enforcement in which Detective Pate was also participating. Through his previous gang work in North Richmond, Pate had cultivated contacts with informants in the community who in the past had helped Pate solve crimes. On the morning of the murder, Pate began contacting his sources to see what information he could obtain. He called a low-level gang member named Juwan Veal who had provided consistently reliable information in the past. Veal was not aware of the Cadenas shooting when Pate first reached him. Pate asked him to go out and see what information he could pick up. Veal called back that afternoon and sounded very excited. He had been hanging out with his friend, fellow gang member Leonard Lakhan. Pate recounted Veal told him, “Coush Bob had done the killing, and that he had spoken to Mr. Lakhan and that Mr. Lakhan had provided him with details.” The details included the fact the victim had been driving a car that sideswiped a vehicle owned by Tylesha Robinson (aka “Puff”) and had struck a pedestrian named Daniel Humphries (aka “Dirty Dog” or “Dog”).
Due to technical problems not discovered until December 26, no calls were monitored or recorded from 11:30 p.m. on December 23, 2005, until midday on December 26, 2005.
Lakhan testified before Veal at the trial and denied witnessing the killing or speaking to Veal about it.
According to the reporter’s transcript, Veal also referred at one point to a “Dana Humphries” and defense counsel, during his cross-examination of Veal, used the name, “David Humphries.” From the context it appears these references are to Daniel Humphries.
At trial, Veal testified he had known Lakhan since they were young children. They were both members of drug crews in the neighborhood and had once been part of the same crew. On the day after the murder, Veal, Lakhan, and another friend were hanging out at Silver and Harrold Street, a few blocks west of the shooting site, when Lakhan asked Veal whether he had been outside the night before. Veal told him he had not, whereupon Lakhan said, “Well, you missed it, boy, ” and proceeded to describe the events. According to Veal, Lakhan said: “A Mexican come through drunk, man, he hit the cone on the block on 3rd. Sideswiped Tylesha’s car. Hit Dog [Daniel Humphries].... Sideswiped a parked car. Then tried to bounce on and explain himself, man. [¶]... [¶] Man, he got his head blew off, man, Coush blew that niggar’s head off. Domed him.” Veal explained “domed” meant shot in the head point blank. On cross-examination, Veal admitted that he could not remember whether Lakhan told him he actually witnessed the shooting.
After speaking to Veal, Pate notified the FBI agents involved in the wiretap investigation that defendant had been named as the shooter in the Cadenas murder. Even though defendant’s cell phone calls on the night of the murder were not recorded, a check of the wiretap information was able to confirm defendant had placed cell phone calls from the area of Third and Silver at the time of the murder, and had left the area shortly after it occurred. Detectives Pate and Goldberg decided the best course of action at that point was to feed limited information about the Cadenas investigation to defendant’s known associates on the street, hoping defendant could be recorded discussing and reacting to the information on his cell phone. They began by feeding information to known associates of defendant that the police were looking for Puff and a gang member known as “Cheeseburger.” Shortly after the information was put out, defendant told Robert Moore, referring to Cheeseburger and Puff, “Them little niggers didn’t see shit no way.” Moore and defendant then discussed attempts by other associates to find Cheeseburger, and defendant instructed Moore to tell Cheeseburger, “Nobody hit him with shit. He didn’t get hit.” In the same conversation, Moore told defendant, “Puff said she gonna say she didn’t get hit, ” to which defendant responded, “Hell, yeah.” The police had not fed any information about Cheeseburger and Puff being hit.
Pate then fed information about a jacket found at the scene. Defendant discussed the jacket but commented that it was not involved in the shooting: “Why? There ain’t no coat. [¶]... [¶]... Them motherfuckers are bootsy.” Defendant and the caller agree there was nothing to worry about concerning the jacket. Defendant was also recorded discussing alternative explanations in case DNA was found on the shell casings, and the fact there was a Mexican passenger in the Toyota. This discussion took place before police even knew there had been a passenger with Cadenas.
The wiretap eventually uncovered a plan by defendant to purchase an automatic weapon in Oakland on January 7, 2006. When Oakland Police Department officers were about to move in to arrest him, defendant spotted them and fled the location, leading the officers on a high-speed chase that ended miles away when defendant’s vehicle struck another car. Inside defendant’s car, under the right front passenger seat, police found a nine-millimeter Glock handgun later determined to have fired all 10 of the expended shell casings found at the site of Cardenas’s murder. A few days after his arrest and release on bail, defendant was recorded on the wiretap discussing and agreeing with an unidentified female that if the police had evidence or suspected the Glock taken from his car was connected to Cardenas’s killing, he would not have been allowed to make bail.
Ten months after the shooting, another gang member, Kay Daniels, who was in custody awaiting sentencing in a federal drug case, offered to testify against defendant in return for help in getting leniency in the federal case. At trial, Daniels testified he had been out buying marijuana at Third and Silver on the evening of the shooting, and had seen defendant sitting on the hood of his Mercedes Benz on Silver Avenue near Third Street talking to a female. According to Daniels, he returned home and was speaking with Craig Brown by cell phone three or four hours later. At some point during the conversation, Brown started narrating to Daniels what he was seeing on the street. He told Daniels a Hispanic guy had hit Cheeseburger and a female with the street name Puff. Brown was expressing amazement at what he was seeing. Still talking to Brown on his cell phone, Daniels left his house and started making his way toward Third and Silver. Over the cell phone, he heard a female voice screaming, “Baby, no, baby, no, ” followed by the sound of gunshots. The gun shots could be heard through the phone and on the street. Daniels stopped moving at that point and asked Brown what was going on. Brown said “Coush Bob had shot someone.” Brown was saying, “[M]an, why you do that, man, why you do that.” He told Daniels Coush had said he was “just going to pop him or put one in him, ” but he had instead shot him multiple times. Daniels spotted Brown when he reached Silver a moment later, and Brown repeated Coush had shot the man multiple times and “he didn’t have to do it.” Daniels also saw Coush’s Mercedes Benz driving off.
Brown also testified at the trial. He denied being in North Richmond at the time of the murder, denied telling anybody that Coush Bob was the shooter, and denied even knowing who Coush Bob was.
B. Defense Case
The defense called no witnesses. Defense counsel argued to the jury there was a reasonable doubt about defendant’s guilt on a number of grounds. There were dozens of armed and dangerous men at the murder scene who could have been the shooter. Various circumstances cast doubt on whether defendant was the one who pulled the trigger. If anyone in that community knew to dispose of a gun after it has been used in a crime, it would have been defendant, who had not risen to the top of the drug trade by being careless. In addition, defendant would have understood an unnecessary shooting of this kind was bad for his drug business by bringing unwanted police attention to the area. If anything, defendant’s possession of the weapon at the time of his arrest proves he did not know it was the murder weapon. He bought and sold Glocks all the time and must have unwittingly purchased the gun that turned out to have been used to kill Cadenas. Had he known it had been used in a murder, he would not have kept it. If he had known it was the murder weapon, he would have most likely left town after he was first arrested and released on bail. Further, despite an extensive search, no blood evidence was found linking defendant to the crime even though (1) plenty of blood would have gotten on the shooter’s clothes and shoes, (2) blood is hard to completely get rid of, and (3) the police were well aware of defendant’s homes and cars and could have gotten search warrants to look for such evidence within one or two days of the crime. If defendant had committed the crime and gone to the trouble of cleaning up all of the blood evidence, it made no sense that he would have kept the murder weapon in his car.
As a result of their own negligence, counsel argued the police lost the most conclusive evidence of whether defendant committed the crime or not, by failing to check their wiretap in the hours immediately following the murder. The wiretap evidence that does exist proves, at most, defendant did not want the actual shooter to be caught-either out of loyalty to his gang or because the shooter might be pressured into snitching on him.
Counsel also attacked the credibility of witnesses Leonard Lakhan, Juwan Veal, and Kay Daniels.
C. Verdicts, Sentencing, and Appeal
The jury convicted defendant of both charges, and found the enhancement allegations true. The trial court sentenced defendant to a term of life without parole for the special circumstance murder, with a consecutive 25-years-to-life term for the gun enhancement. A two-year term for the street gang conviction was stayed under Penal Code section 654. This timely appeal followed.
II. DISCUSSION
Defendant contends the trial court committed prejudicial error by (1) admitting the testimony of Juwan Veal, and (2) precluding him from offering evidence of an associate’s potential culpability for the crime.
A. Admission of Veal’s Testimony
The admissibility of Juwan Veal’s testimony about his conversation with Leonard Lakhan the day after Cadenas’s murder was extensively litigated in the trial court. Defendant’s trial counsel moved in limine to exclude the testimony on the grounds it constituted hearsay impinging on defendant’s Sixth Amendment confrontation clause rights since the prosecutor failed to lay an adequate foundation demonstrating Lakhan had personal knowledge of the shooting. Defendant concedes that if Lakhan was a percipient witness to the shooting, Veal’s testimony would be admissible as an exception to the hearsay rule under Evidence Code section 1235 as a prior inconsistent statement. Section 1235 applies because Lakhan testified he did not make the statements to Veal about the shooting and Veal testified he did. Defendant’s contention is that Lakhan’s alleged statements to Veal were inadmissible under Evidence Code section 702, which provides, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Evidence Code section 770 generally allows the admission of extrinsic evidence of a witness’s prior inconsistent statement provided the witness was either given an opportunity to explain or to deny the statement while testifying, or has not been excused from giving further testimony in the action.
In the trial court, both parties agreed the standard to be applied by the court was whether there was evidence from which a rational trier of fact could find Lakhan had percipient knowledge of the events he described. (See People v. Anderson (2001) 25 Cal.4th 543, 573–574, italics omitted [“ ‘[T]he court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he has such knowledge’ ”].) The trial court agreed with defendant that once the defense interposed an objection under Evidence Code section 702, it was the prosecution’s burden to show the evidence was sufficient to satisfy the standard. Defendant insisted there were no facts from which a reasonable juror could infer either that Lakhan was a percipient witness to the murder or that he was not.
The court reviewed the testimony of Veal and Lakhan at the preliminary hearing as well as the sheriff’s department’s report of its interview with Veal. The court noted the magistrate’s finding-based on Veal’s and Lakhan’s preliminary hearing testimony-that Lakhan was describing events based on his personal knowledge. The court found the magistrate’s finding to be “informative as to whether a reasonable juror could reach the same conclusion, ” although not binding on the court. In addition, the court found Lakhan’s “step-by-step description of the actions of both the victim in the car and the shooting itself” to be sufficiently detailed that it, too, supported a reasonable inference Lakhan was a percipient witness. Further, the court pointed to the fact that the details of the event recounted by Lakhan to Veal were largely corroborated by the statements Hugo Diaz made to the sheriff’s department, which Detective Goldberg had testified to at the preliminary hearing.
There was further evidence presented at trial that Lakhan frequented the location where the crime took place, and associated with Third and Silver gang members.
On appeal, defendant claims there was no evidence Lakhan had personal knowledge of the shooting, citing People v. Valencia (2006) 146 Cal.App.4th 92 (Valencia), because Lakhan consistently denied he had personal knowledge and “nothing whatsoever in the record puts him at the scene.” The defendant in Valencia had been convicted of, among other charges, the continuous sexual abuse of his sister, D., which required proof of three or more acts of abuse over at least a three-month period. (Id. at pp. 94, 101.) The defendant argued his trial counsel had been prejudicially ineffective for failing to object on grounds of lack of personal knowledge to the testimony of a school employee, Rosalia Correa, that the defendant’s sister, L., had told her the defendant had been touching D. inappropriately since D. was four years old. (Id. at pp. 101–102.) The Court of Appeal agreed, and pointed to the fact L. had consistently and repeatedly stated she did not even learn defendant had abused D. until July 15, 2004, the day L. and D. ran into another school employee while at a drugstore, who spoke with the girls about the abuse, took the girls home with her, and called the police. (Id. at pp. 95, 104.) According to Correa, the conversation with L. she testified about took place after that, in August 2004. (Id. at pp. 97–98.) By the time of trial, L. and D. were both denying the defendant had ever molested D., despite considerable evidence to the contrary. (Id. at p. 99.)
Valencia is not persuasive. It was undisputed in that case that on July 15, 2004, the day police first became aware of abuse occurring in L.’s home, L. told police she had had no knowledge of D.’s molestation until D. spoke to her about it that day. (Valencia, supra, 146 Cal.App.4th at pp. 95, 97.) If that was true, then L.’s statement to witness Correa a month later about her brother molesting D. since she was four could not have been based on L.’s personal knowledge. In fact, there was no evidence and no argument presented that L. had a motivation to lie to the police about how she first learned of D.’s molestation. The evidence negated any such motivation. During the police interview, L. freely provided information about the defendant’s acts of molestation against her, and recounted in detail what D. and their other two sisters, K. and N., had told her concerning their sexual abuse at the defendant’s hands. (Id. at pp. 96–97.) There was no conceivable reason for L. to falsely deny firsthand knowledge of D.’s molestation during the initial police interviews since she and her sisters were not holding back any other incriminating evidence against their brother that day. There was also nothing in the content of L.’s statement to Correa about D. that suggested she was speaking from personal knowledge as distinguished from what she had heard from D. and her other sisters.
Valencia is thus distinguishable from our case in at least two critical respects. First, as discussed, there was no basis in Valencia to question the declarant’s veracity in denying personal knowledge of D.’s molestation. She disclaimed personal knowledge at a time when she and her sisters were fully cooperating with police in providing incriminating information against their brother. She would have had no motive to lie about this one specific issue. Lakhan, in contrast, had never cooperated with the police investigation in any respect. He denied speaking to Veal at all, denied being present when the shooting occurred, and even denied knowing Veal at the preliminary hearing despite photographic evidence and Veal’s testimony to the contrary. Lakhan had an obvious motive to falsely deny knowledge of the crime-fear of being killed if he cooperated with the prosecution. Second, unlike L.’s very general hearsay statement in Valencia, that her brother had been molesting D. since the age of four, Lakhan’s detailed and accurate account of the events leading up to the murder, given to Veal within hours after it occurred, itself provided evidence of his personal knowledge. In short, Valencia is distinguishable because here there was evidence from which a reasonable jury could have inferred the declarant had personal knowledge notwithstanding his denials, whereas in Valencia there was no such evidence.
Lakhan knew the driver was “Mexican” and that he was drunk. He knew the car hit the cone on Third Street. He knew Tylesha Robinson’s car and another car were sideswiped, and that Daniel Humphries was hit. He knew the driver got out of the car and that the shooter “domed” him, meaning he shot him in the head point blank. The content of Lakhan’s statement also showed he knew the people who hang out near Third and Silver, and their gang monikers, facts that further support the inference he was present.
Defendant also claims the admission of Lakhan’s statement violated his confrontation clause rights under Crawford v. Washington (2004) 541 U.S. 36. Because, according to defendant, the prosecution laid no foundation Lakhan’s statement implicating him was based on personal knowledge, the only reasonable inference is that the incriminating information came from some other unidentified person who was not subject to cross-examination at trial. We are not persuaded. The jury was instructed to disregard Lakhan’s statement unless it found he had personally observed the shooting. Lakhan did testify and was available for cross-examination. Thus, if the jury found Lakhan was not present, no evidence affecting its verdict could have presented a confrontation clause issue. In addition, an erroneous admission of hearsay does not violate the confrontation clause under Crawford unless it is testimonial in nature. (People v. Gutierrez (2009) 45 Cal.4th 789, 812–813.) The exchange between Lakhan and Veal was a casual conversation between acquaintances, not anything resembling formal testimony or interrogation. Crawford is therefore inapplicable in any event. (Gutierrez, at pp. 812–813.)
B. Exclusion of Third Party Culpability Evidence
Defendant sought to introduce evidence that two days after the murder, Third and Silver gang members Robert Moore and Michael Johnson conspired to lie to the police and fabricate an alibi to conceal Moore’s presence at the murder scene. Moore was a gang member who resided at 218 Silver, near the murder scene. His van was observed leaving the scene shortly after the murder occurred, and the sheriffs wrote a search warrant for it the day after the shooting. Specifically, defendant sought to introduce three FBI summaries of wiretap calls between Moore and Johnson he contends would have raised a reasonable doubt about his guilt.
The wiretaps show at noon on December 26, 2005, Johnson told Moore to lie to the police about Moore’s van being involved in the collision, to deny he had been in North Richmond recently, and to deny he knew anything about the homicide. Johnson also told Moore he had store receipts he could give him so Moore could tell police he was out Christmas shopping. In the second call, Johnson asked Moore if he had talked to that “Mother Fucker, ” referring to Detective Pate, and Moore said Pate told him “someone hit his Van, and was killed after he hit it.” In the third wiretap, Johnson told Moore to get his story straight with another gang member the police had connected to the van.
The trial court excluded the evidence on the grounds it was relevant if at all only to a potential motive Moore might have had for committing the crime-anger over the damage to his van. It did not, in the court’s view, provide any direct or circumstantial evidence Johnson or Moore actually committed the crime. Evidence going solely to a third party’s motive or opportunity to commit the crime is not sufficient to raise a reasonable doubt about the defendant’s guilt, and is therefore not admissible. (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).)
Defendant agrees the admissibility of third party culpability evidence is controlled by Hall, but argues the wiretap evidence inferentially inculpates Moore because if he was not the shooter Johnson would not have been talking to him about (1) concealing evidence his van was hit or he was present when the shooting took place or (2) manufacturing an alibi as to his whereabouts at the time it occurred. According to defendant, this inference would have raised a reasonable doubt about his guilt.
In our view, the trial court ruled properly. At most, the three wiretap summaries would have shown Moore had a potential motive and Johnson, acting in concert with defendant, was trying to make the police investigation as difficult as possible. This was consistent with other wiretapped calls between defendant and Moore in which defendant instructed Moore to tell Cheeseburger and Puff the same things-they were to tell the police they were not hit, were not there, and knew nothing about the shooting. Contrary to defendant’s suggestion, the absence of wiretap evidence that defendant personally instructed Moore to lie to the police about the van or create an alibi does not strengthen the inference Moore was the shooter. It is more significant the wiretaps show Johnson, defendant’s second-in-command, instructing Moore what to say rather than Moore instructing Johnson, or soliciting his help. No reasonable inference can be drawn from these conversations that Moore rather than defendant was the shooter. The evidence was therefore properly excluded under Evidence Code section 352.
Even assuming for the sake of analysis the trial court erred in excluding the evidence, we would find the error harmless. Although defendant contends otherwise, error in excluding third party culpability evidence is reviewed under the state law harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836, not under the more stringent standard established for federal constitutional error by Chapman v. California (1967) 386 U.S. 18. (People v. Cudjo (1993) 6 Cal.4th 585, 611–612.) In this case, we would find the error harmless under either Watson or Chapman. We disagree with defendant’s contention the trial evidence overall “presented a close question for the jury.” Given the testimony of Veal and Daniels, defendant’s possession of the murder weapon, his incriminating conversations captured by the wiretap, and the meager probative value of the third party culpability evidence he sought to have introduced, we find beyond a reasonable doubt the jury would have reached the same verdict had the latter evidence not been excluded.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Dondero, J.