Opinion
B160914.
11-5-2003
THE PEOPLE, Plaintiff and Respondent, v. OMAR MONTES ZEPEDA, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Brad D. Levenson, Deputy Attorneys General, for Plaintiff and Respondent.
Omar Zepeda appeals from the judgment entered following a jury trial in which he was convicted of second degree murder and assault with a firearm. We strike a parole revocation fine and affirm the judgment as modified.
BACKGROUND
Defendants crimes arose from a 1986 incident in which a group of men in a shopping center parking lot threw beer bottles at defendant. He left the scene on his motorcycle and returned with his brother on the passenger seat. While riding on the motorcycle, defendants brother shot and killed a bystander who was in her car attempting to protect her baby. Defendants brother then shot a male who was attempting to prevent the brothers escape. The prosecution proceeded on alternate theories of first degree murder, (a) that defendant aided and abetted the premeditated murder of the victim (although the shooter had not intended to kill the victim defendant was nonetheless liable for murder based on transferred intent), (b) that the victim was unintentionally killed by a third party in response to provocative conduct for which defendant was responsible, and (c) that the murder was perpetrated by means of discharging a firearm from a motor vehicle. The defense was alternatively (a) that defendant did not know that his brother was armed or planned on shooting anybody, (b) that defendant and his brother were first fired upon by the people who had previously hit defendant with beer bottles and defendants brother shot in self-defense, and (c) that the victim was accidentally killed in the ensuing gun battle.
The jury found defendant guilty of first degree murder. In his motion for a new trial, defendant argued that because discharge of a firearm from a motor vehicle was not yet enumerated in Penal Code section 189 when he committed his crime, that theory of first degree murder could not be applied to him. The trial court granted relief by reducing defendants murder conviction from first to second degree.
The evidence adduced at trial was as follows:
On the evening of December 28, 1986, defendant was driving his motorcycle in the city of San Fernando and stopped to talk to his girlfriend, Minerva Fabery, who was in a shopping center parking lot at the corner of Rinaldi and Laurel Canyon. The area was a hangout for "cruisers." A group of males, including Sammy Trujillo, approached and threw bottles at defendant. Fabery advised defendant to flee and defendant drove away. Defendant told Trujillo that he would be back.
Around 9:15 that evening, Patricia Lemus, her one-year-old baby, her brother Enrique Lemus, and Enriques girlfriend Ester Esqueda arrived at the shopping center. Patricia Lemus parked her car hood-to-hood with a car driven by Annette Maldonado. Patricia Lemus and Maldonado sat on the hoods of their respective cars, talking. Esqueda remained inside Patricia Lemuss car with the baby. Enrique Lemus got out to talk to friends.
At some point, Trujillo ran through the parking lot yelling that someone had a gun. Maldonado and Enrique Lemus looked up and saw defendant driving a motorcycle with his brother, Carlos Montes, riding on the back. Trujillo was yelling to a friend that the men on the motorcycle had a gun. One of the men on the motorcycle said, "`Sammy [Trujillo], were going to get you." Enrique Lemus heard defendant tell Montes to take out the gun, which Montes did. Maldonado told Patricia Lemus about the gun. Patricia Lemus looked panicked, noting that her baby was in the car. Maldonado got on the ground.
Trujillo continued running toward Patricia Lemuss and Maldonados cars. He went to one side "as if he was using [the] cars as a shield." The motorcycle was on the drivers side of Patricia Lemuss car. Patricia Lemus got off the hood and proceeded toward the drivers side of her car, yelling not to shoot and that there was a baby in the car. Patricia Lemus got into the car, pushed the baby and Esqueda down toward the floor, and laid across the front seat. The motorcycle circled the Lemus and Maldonado vehicles. Montes looked in the direction of Patricia Lemus, which was also the same direction as Trujillo, who was on the other side of Patricia Lemuss car. Montes said, "`I dont give a fuck," and shot in the direction of Patricia Lemuss car. Upon the shot being fired, Enrique Lemus heard the car window break and Maldonado saw Patricia Lemus slouched over in Patricia Lemuss car. Seconds later, Enrique Lemus and Maldonado heard three or more shots being fired from the same direction as the first shot. Neither saw anyone other than Montes with a gun that night.
Patricia Lemus was killed by a single bullet that entered her right nostril and lodged in her brain. Small puncture abrasions present on her face were consistent with glass fragment impact.
Both Enrique Lemus and Maldonado then saw a car ram into the motorcycle, which fell to the ground. Montes and defendant attempted to flee on foot. Ernesto Acosta grabbed Montes. Acosta was shot in the leg, at which point the gun dropped to the ground. Montes picked it up and ran.
Fabery, who also saw defendant and Montes together on the motorcycle, thought that Montes was driving and defendant was the passenger. She heard gunshots and crashes and thought that several guns were being fired because the noises "crossed each other." Larry Sanchez, who was also at the scene, heard a total of two shots, heard Patricia Lemus say that there was a baby in the car, and heard Montes respond, "I dont give a shit." Gina Lindstrom saw a motorcycle passenger with a gun, which was the only gun she saw that evening. She heard one gunshot, and maybe up to four or five shots.
Police who responded to the scene were given a description of the assailants and the motorcycle. The officers found one expended bullet and seven live rounds of ammunition on the ground. Shortly after midnight of the same evening, officers responding to a call regarding shots fired into a house in Pacoima noticed a part of a motorcycle that fit the description of the one belonging to defendant. A gunshot had broken a window of the house, which belonged to defendants mother. About two days after the shooting, defendant telephoned Fabery and asked her to go away with him.
In July 2000, Los Angeles Police Detective Robert Vanina interviewed defendant about the incident. At first, defendant denied any involvement. He later stated that two men had broken a bottle over his head and defendant fought with them, that Montes had a gun about which defendant had not known, and that Montes fired the gun. Yet later in the interview defendant was asked, "You were driving a motorcycle and your brother did the shooting, is that correct?" Defendant responded, "Yeah, it is." He also responded in the affirmative to the question, "Okay. And then somebody hit the motorcycle with the car and another fight starts. Your brother shot [Patricia Lemus], . . . then shoots a guy named Acosta . . . in the leg. And you guys run away. Is that correct?" Defendant further told Vanina that immediately after the shooting he hid with friends. A couple of weeks later he went to Mexico, where he stayed for a few years with relatives. He next went to Tijuana, where he worked as a police officer. He had been in the United States for four months when he was arrested.
Vanina further testified that he had reviewed about 25 statements of witnesses that had been taken within 48 hours of the incident. None of those statements led him to believe that there had been a second gun fired at the scene.
Enrique Lemus testified that about a week before the instant trial he was in custody when he found himself in a holding tank with defendant. Defendant told Enrique Lemus that defendant had little brothers who were now grown, which Enrique Lemus understood as a threat. Defendant also stated that, at the time of the incident, Trujillo had hit him in the head, defendant left to pick up Montes, and defendant told Montes to get his gun so they could go back and get Trujillo.
In defense, Mario Padilla testified he believed he saw a male with his hand over the roof of a car and saw sparks near the mans hand. Two persons shot at each other after the motorcycle was down. Tony Duran heard five or six shots and saw a male with a gun shooting over a car. He believed the male was shooting at the motorcycle.
A trajectory expert was of the opinion that Patricia Lemus was shot through an open car window, although it was not impossible that she had been shot through the closed window on the drivers side of the vehicle. A criminalist opined that it was highly unlikely that the bullet recovered from Patricia Lemuss head has passed through glass. A criminalist examined a gunshot residue test that had been conducted on Montes on the night of the shooting and stated that the test was inconclusive. A psychologist who had examined defendant was of the opinion that defendant was mildly mentally retarded. This would inhibit or diminish defendants ability to participate in a conversation, but there was "no evidence of significant amnesia for autobiographical details related to the 12-28-86 incident."
Alejandro Valverde testified that he was in custody with defendant and Enrique Lemus. He overheard Enrique Lemus tell defendant that Enrique Lemus "was sorry for what the two brothers [(defendant and Montes)] were going through, that they had not done that; that he knew that they did not do that, and that he knew that [Trujillo] had done that."
ISSUES
We address defendants contentions in the order in which they were made: (1) his confession was improperly admitted into evidence; (2) improper limitation was placed on the questioning of one of his expert witnesses; (3) the trial court erred in permitting prior testimony of Carlos Montes to be read to the jury, and alternatively trial counsel rendered ineffective assistance by opening the door to such testimony; (4) a mistrial should have been granted when Ernesto Acosta asserted his Fifth Amendment rights before the jury; (5) a mistrial should have been granted when Detective Vanina testified that there was no evidence of a second gun and the prosecutor argued this evidence to the jury; (6) the evidence was insufficient to support his conviction of assault; (7) the jury was not adequately instructed on the assault count; (8) the flight instruction should not have been given; (9) the matter should have been dismissed based on destruction of evidence; and (10) a parole revocation fine was improperly imposed.
DISCUSSION
1. Confession Issues
Defendant moved to suppress evidence of his statement to Detective Vanina on grounds that (a) he invoked his Miranda rights when he told Vanina, "I got nothing to say"; (b) Vanina failed to secure individual waivers of each of defendants Miranda rights; and (c) the statement was involuntary. Defendant renews these arguments on appeal. We reject them all.
Miranda v. Arizona (1966) 384 U.S. 436 .
At a hearing pursuant to Evidence Code section 402, Detective Vanina testified that shortly before beginning his formal interview with defendant, Vanina was told that defendant had identified himself as Eduardo Montes Zepeda, rather than Omar or Oscar Montes Zepeda, which the police believed to be defendants true name based on an old photograph that was attached to a gang identification card. The card also had a description of defendants tattoos. While in the hallway outside the interview room, Vanina told defendant he believed that defendant was the person in the photograph, who was wanted on a murder warrant, "not the name on the Mexican identification that had been offered to [Vanina] as to who he was." Defendant stated that he had given his true name and did not know why he was at the police station. Vanina showed the card to defendant and asked if it was a photo of him. Defendant gave Vanina a blank look. Vanina then offered to tell defendant what tattoos he would find on defendants shoulder and arms. "And at that point [defendant] began to drop the facade of being someone other than who we both know he was."
Defendant was then taken into the interview room, and his tape-recorded statement, as transcribed by a court reporting service, began as follows:
"Vanina: Oscar, your English is pretty good, isnt it? Obviously, youve been talking to me in English. Do you think if we read your rights to you in English, youd understand them or would you rather have them read in Spanish?
"[Defendant]: Whatever way you want to.
"Vanina: Whatever way we want to?
"[Defendant]: Okay.
"Vanina: Would you rather have them in English or Spanish?
"[Defendant]: Well
"Vanina: Hold on. Ill read it in English and you tell me if you understand — understand me, okay? Oscar, you know, `You have a right to remain silent, if you give up the right to remain silent anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and have an attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning. Do you understand your rights?
"[Defendant]: Yeah.
"Vanina: Yes? I need you to say, `Yes.
"[Defendant]: Yes.
"Vanina: Okay. Are you willing to talk to me today?
"[Defendant]: I got nothing to say (inaudible)
"Vanina: Talk about the reason youre here. Do you want to talk to me about that?
"[Defendant]: Cause thats what — thats what — I dont know.
"Vanina: Do you want to talk to me about why youre here? Are you willing to talk to me about why youre here? I need a yes or a no. Do you want to talk about why youre here?
"[Defendant]: Or else — or else what?
"Vanina: Or else you dont talk. You just go straight to jail. Nobody talks to you. Nobody gets your side of the story. Nobody talks to you.
"[Defendant]: Whats — whats — whats
"Vanina: Do you want to talk to me about what happened so we can get your side of the story of this, yes or no?
"[Defendant]: Yes, I guess."
a. Invocation of Miranda
In rejecting defendants argument that his words "I got nothing to say" constituted an invocation of Miranda, the trial court stated that it had "listened to that inaudible part over and over again, and this is what I believe it says. [Defendant] says: I got nothing to say. To talk about what? [& para;] Then Detective Vanina says: To talk about the reason why you are here. Do you want to talk to me about that?" (Italics added.) "Now, had there just been a statement `I got nothing to say, period, I would agree with the defense position that nothing should have been said thereafter. [¶] But in my opinion, based upon listening to the tape over and over and over again, I believe the defendant was asking for clarification and that is why Vanina immediately said: To talk about the reason youre here. Do you want to talk to me about that? [& para;] To me that makes total logical perfect sense. [¶] So I dont view that to be a violation of Miranda."
As stated by our Supreme Court, "In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda v. Arizona, supra, 384 U.S. 436, the scope of our review is well established. `We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citations.] We apply federal standards in reviewing defendants claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.)
Defendant takes issue with the trial courts interpretation of his tape-recorded confession, asserting "[t]he record barely supports the inference that whatever [he] stated after, `I got nothing to say, was even intelligible." We disagree. We have also carefully listened to the tape and are in accord with the trial courts understanding that defendant had uttered the words "talk about what?" As this interpretation is supported by substantial evidence, we must accept it.
The hearing on admissibility of defendants statement was held in multiple phases. At a phase conducted after the trial court had made its ruling on the instant argument, Detective Vanina testified that the trial courts interpretation of defendants words comported with Vaninas understanding of what defendant had stated.
Defendant further contends that clarification of his desires with regard to invoking Miranda was not permissible. We disagree.
With respect to the level of certainty with which an invocation must be made, our Supreme Court has explained that "in Davis v. United States (1994) 512 U.S. [452, 454] [129 L.Ed.2d 362, 368, 114 S.Ct. 2350], in determining that a suspects remark to Navel Investigative Service agents—`Maybe I should talk to a lawyer— was not a request for counsel, the United Sates Supreme Court has held further that a suspect must unambiguously request counsel. (512 U.S. at p. [459] .) The court in that case stated: `As we have observed, "a statement either is such an assertion of the right to counsel or it is not." Smith v. Illinois [(1984)] 469 U.S. 91, 97-98. . . . Although a suspect need not "speak with the discrimination of an Oxford don[]" . . . (Souter, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards [v. Arizona (1981) 451 U.S. 477] does not require that the officers stop questioning the suspect. [Citation.] [¶] We decline petitioners invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. [Citation.] [Citation.] `[W]e are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue. (512 U.S. at [pp. 461-462] .)" (People v. Crittenden (1994) 9 Cal.4th 83, 129-130.)
"[T]he law is settled that when a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, `the interrogators may clarify the suspects comprehension of, and desire to invoke or waive, the Miranda rights. [Citations.]" (People v. Farnam (2002) 28 Cal.4th 107, 181.) That is precisely what Detective Vanina did in this case. Accordingly, defendants assertion that Vanina should not have sought clarification must be rejected.
b. Individual waivers
The record established that as a matter of practice Detective Vanina did not seek to determine whether defendant understood and waived each of his Miranda rights individually, instead asking defendant whether he understood these rights as a group and was willing to talk to Vanina. Relying on California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3d 1039, defendant contends that Vaninas practice of treating rights collectively rather than individually invalidated the Miranda waiver. Contrary to defendants argument, nothing in California Attorneys for Criminal Justice, which condemned a policy of continuing to question a suspect who had invoked Miranda, addressed the practice about which defendant complains here. Nor has any other case been brought to our attention which prohibits treating Miranda rights collectively for the purpose of waiver. To the contrary, in People v. Mitchell (1982) 132 Cal.App.3d 389, 406, the court held that a "separate, express Miranda waiver of counsel before questioning" is "not required under the Fifth Amendment and Miranda [citations] . . . ." Indeed, an express waiver of Miranda rights is not necessarily required in any event because an effective waiver may be implied when a suspect continues the interview after Miranda warnings have been given. (See People v. Whitson (1998) 17 Cal.4th 229, 247-248.)
c. Voluntariness
Defendant contends that because Detective Vanina knew defendants true identity before questioning him in the hallway outside the interview room, "the only purpose in pressing [defendant] to admit [his identity] was to overcome his free will before advising him of his Miranda rights," thus rendering the confession involuntary. We find no basis for defendants assertion that Vanina was seeking to overcome defendants will. Vanina was about to enter an interview room with someone who appeared to be using a false name. As such, Vanina was simply trying to establish the true identity of the man he was about to interrogate; he was not attempting to elicit an incriminating statement. Miranda does not extend to preliminary inquiries necessary to obtain basic biographical data. (See Pennsylvania v. Munuz (1990) 496 U.S. 582, 601 [110 S.Ct. 2638, 2650]; People v. Hall (1988) 199 Cal.App.3d 914, 921; People v. Johnson (1971) 20 Cal.App.3d 168, 175.) There was nothing improper in Vaninas questioning of defendant outside the interview room.
2. Limitation of Expert Testimony
The prosecution sought to exclude the testimony of Dr. George Henry, the psychologist who testified that defendant was mildly mentally retarded. Henry was also of the opinion that defendants mental retardation affected his ability to understand the questions posed by Detective Vanina in the interview, discussed above. Specifically, when a lengthy question was asked, defendant would not have had the capacity to recall the entire question by the time he gave his answer. Rather, as Henry testified at a hearing pursuant to Evidence Code section 402, defendant "tends to respond to information that either occurred early on in the information or right towards the very end. [¶] So when you get a response, my opinion is, in these very lengthy interchanges, its unclear to me, given his memory capacity, what he is responding yes or no to." Henry further testified that "if we look back at this transcript [of the interview], my concerns are that theres times . . . when the information is so lengthy, its exceeding [defendants] memory capacity to follow, to attend and to respond appropriately."
Henry further explained that he had examined defendant over a period of six hours, which Henry agreed was a "fairly long time for any individual, be it mildly mentally retarded or not, to spend in an interview testing type situation." The memory test was administered about one and one-half hours into the interview. Henry agreed that a different situation existed in the interview at which Vanina asked questions about something that defendant had experienced, as opposed to the interview with Henry when defendant was asked a lengthy question about subject matter with which he was unfamiliar.
The trial court ruled that Henrys testimony should not be excluded but should be limited. The court reasoned that it would be inappropriate for Henry to render an opinion as to "whether the defendant understood a particular question or not." Nevertheless, it would "allow this doctor to get on the stand and say that the defendant, in his opinion, after six hours of testing and interview is mildly retarded and has some problems focusing on alertness and comprehension. Ill then allow the D.A. to cross-examine the doctor exactly as she did today [at the Evidence Code section 402 hearing], comparing the six-hour interview with the one-hour or less interview by the police. [¶] . . . Anything else, in my opinion, is lack of foundation to know what was in the defendants mind, speculation and psycho babble." Immediately before Henrys testimony before the jury, the trial court instructed Henry not to address "whether or not you believe the defendant understood any of the sentences or explanations contained in the interview by the police."
Defendant contends that the trial courts ruling "violated his right to contest the validity of the confession before the jury." Not so. Dr. Henry testified before the jury that a mildly mentally retarded person would not have problems in terms of assessing questions asked if the questions were kept short and the words used were not beyond the persons capacity. He further testified that as information becomes more lengthy, the persons ability to follow and remember would decline. Consequently, this is not a situation as in Crane v. Kentucky (1986) 476 U.S. 683 , on which defendant relies. There, the trial court, after ruling that the defendants confession was voluntary, prevented him from presenting evidence regarding the physical and psychological environment in which the confession had been obtained. (Id. at p. 684.) In contrast, Henry was only prevented from testifying as to whether defendant actually failed to understand the questions that were put to him by Detective Vanina. We find no error in the trial courts ruling.
3. Prior Testimony of Carlos Montes
Defendants brother, Carlos Montes, was captured soon after the incident. He gave a statement to the police in which he claimed that defendant was the shooter, and he testified to that effect at his trial. (Montes was tried in 1987 and convicted of murder.) Defendant moved in limine to exclude Montess postarrest statements from defendants trial. The prosecutor did not oppose the motion, indicating she believed that Montes lied at his trial when he claimed that defendant was the shooter and she would not put on a witness who had perjured himself.
At trial, evidence was adduced that several live rounds of ammunition had been found at the scene. In his cross-examination of a detective who investigated the shooting, defendant asked if police had been able to identify a particular person or place where the live rounds had come from. The detective responded in the negative. The prosecutor asked to approach the bench, objecting that defendants questions were misleading in that counsel knew that Montes had stated that the rounds fell out of his pocket when the motorcycle was rammed by a car. The prosecutor argued that defendants questions had opened the door to use of Montess earlier statements and suggested the possibility of using Montess testimony from his prior trial to establish where the live rounds had come from. The trial court agreed "that the defense has completely opened the door on this issue," but deferred ruling until further research could be conducted. In this regard, the court made reference to People v. Greenberger (1997) 58 Cal.App.4th 298, People v. Duarte (2000) 24 Cal.4th 603, and Lilly v. Virginia (1999) 527 U.S. 116 .
In a later hearing, the prosecutor asked to remedy what it characterized as defense counsels misconduct by admitting a portion of Montess prior trial testimony as a declaration against interest under Evidence Code section 1230. In response to defendants assertion that the prosecutor should be bound to her agreement not to offer evidence she knew to be perjured, the prosecutor explained that the only portion of Montess testimony she considered to have been untruthful was his assertion that it was defendant who fired the gun from the motorcycle. The court and counsel also discussed the requirements of Evidence Code section 1230 that the witness be unavailable and there be sufficient indicia of reliability with regard to the statement. Montes, who was in state prison serving his sentence for the murder of Patricia Lemus, was ultimately ordered to appear.
When Montes was brought to court, he refused to testify, thereby rendering himself "unavailable" for purposes of Evidence Code section 1230. The trial court reviewed Montess prior testimony and concluded that a portion could be read into the record. In that portion, Montes testified that after Ernest Acosta got shot in the leg, the gun fell and Montes picked it up and ran with it; defendant was already running at the time; at his cousins house, Montes removed empty shells from the gun; Montes had taken extra ammunition with him when he first went to the scene of the shooting; he had carried the ammunition in his front pocket and when the motorcycle was rammed, the ammunition Montes had been carrying "all went to the floor."
Defendant contends the trial court erred in permitting Montess prior testimony. He alternatively contends that, if no error is found, trial counsel rendered ineffective assistance for opening the door to this evidence. Neither contention has merit.
In People v. Greenberger, supra, 58 Cal.App.4th at pages 330-331, the court "conclude[d] that admission of a statement possessing sufficient indicia of reliability to fall within the hearsay exception of a declaration against penal interest does not deny a defendant the right of confrontation guaranteed by the United States Constitution." In assessing reliability, "the totality of the circumstances surrounding the making of the statement which render the declarant particularly worthy of belief must be examined. `In other words, if the declarants truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial. [Citation.]" (Id. at p. 327; see People v. Duarte, supra, 24 Cal.4th at pp. 610-611.) "[T]he issue of trustworthiness . . . is an individualized inquiry intimately related to the facts of each case." (People v. Greenberger, supra, 58 Cal.App.4th at p. 334.) The trial courts determination of the issue is reviewed for abuse of discretion. (Id. at p. 335; People v. Lawley (2002) 27 Cal.4th 102, 153-154.)
Defendant avers that the trial court abused its discretion in determining Montess testimony to be trustworthy because the prosecution had already eschewed it as perjured. But the prosecutor made clear that the only portion of Montess version of events that she found not credible was Montess assertion that it was defendant who fired the gun with which Patricia Lemus was killed. The portion of Montess prior testimony regarding who fired the gun at that time was not read to the jury here. Indeed, the only shooting that Montess testimony covered was the gunshot that wounded Ernest Acosta in the leg, and this testimony merely indicated that Acosta got shot, not who shot him.
Defendant further argues that under Lilly v. Virginia, supra, 527 U.S. 116, it was error to treat Montess prior testimony as trustworthy because it was partially exculpatory, attempting to place blame on defendant for being the actual shooter. In Lilly, the Supreme Court observed that statements against penal interest "are suspect insofar as they inculpate other persons. `[T]hat a person is making a broadly self-inculpatory confession does not make more credible the confessions non-self-inculpatory parts [Citation.]" (527 U.S. at p. 139.) But nothing about Montess admission of having dropped his extra ammunition on the ground served to inculpate defendant. Rather, Montes was admitting, at the very least, that he had brought ammunition to the scene of a shooting. As the portion of Montess prior testimony that was read to defendants jury was contrary to Montess interest in avoiding criminal liability and did not attempt to shift any blame to defendant, the trial court did not abuse its discretion in ruling that the testimony could be read to the jury.
In People v. Greenberger, supra, 58 Cal.App.4th at pages 329-330, the court noted that reliability of a statement could be established if the statement came within a firmly rooted exception to the hearsay rule but did not decide whether a declaration against penal interest constituted such an exception. Two years later, the Lilly court held that "`a confession by an accomplice which incriminates a criminal defendant [citation] does not come within a firmly rooted hearsay exception." (527 U.S. at p. 135, fn. 5.)
Nor was trial counsel ineffective for opening the door to this testimony. "To secure reversal of a conviction for ineffective assistance of counsel, a defendant must show that counsels performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsels shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 687-694 [].) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
The evidence in this case was overwhelming. In addition to the incriminating testimony of prosecution witnesses who were at the scene, defendant confessed to being the driver of the motorcycle when Montes shot Patricia Lemus. Given the prosecutions alternate theory of murder that the fatal shooting was in response to Montess and defendants provocative conduct, the only hope for a favorable verdict was to convince the jury not only that there was more than one person firing a gun at the scene, but that the first shots had been fired at, rather than by, Montes. In an attempt to demonstrate that others had fired first, evidence that live rounds of ammunition of unknown origin had been found at the scene would be extremely helpful to defendant. We cannot say it fell below an objective standard of reasonableness for counsel to have gambled that the prosecution would not refute such evidence, as it did through the testimony of a police investigator. And in any event, given that evidence of bullets falling from Montess gun did not rule out the defense theory that Montes was not the only shooter during the incident, counsels failed tactic did not result in any prejudice to defendant.
4. Acostas Assertion of the Fifth Amendment
The prosecutor put Ernesto Acosta on the stand in her case in chief and asked Acosta if he had been shot in 1986. Acosta refused to testify, asserting his Fifth Amendment privilege against self-incrimination. Counsel was appointed to represent Acosta, who was serving a state prison sentence at the time of trial. Following an in camera hearing with Acosta and his counsel, the trial court found that Acostas assertion of the Fifth Amendment was without basis and ordered Acosta to testify when questioning resumed. Acosta stated that he would continue to refuse to testify. Defendant moved for a mistrial.
In discussions regarding the mistrial motion, it was revealed that the prosecutor had been informed by an investigator who visited Acosta in prison that Acosta intended to assert the Fifth Amendment and that Detective Vanina had spoken with Acosta the day before Acosta was called to testify, at which time Acosta also told Vanina that he would assert his Fifth Amendment rights. The prosecutor stated that she had a good faith belief Acosta would in fact testify. The basis of the belief was that in her eight years of gang murder trials, witnesses often said they would refuse to testify and then changed their minds. Acosta had testified at Montess trial and, other than telling investigators at prison that he would not testify, had been very cooperative with the prosecution.
The discussion also covered People v. Lopez (1999) 71 Cal.App.4th 1550, 1555-1556, which held it was proper to require a witness to assert an improper claim of privilege in a gang prosecution in front of the jury "to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members." Defendant, Trujillo, Acosta, and Enrique Lemus had been identified at trial as members or affiliates of the same gang, and it had been agreed by counsel that the case would not proceed on a theory of gang retaliation. Accordingly, argued defendant, Lopez was inapposite. Defendant further asserted prejudice from Acostas assertion of the Fifth Amendment before the jury because it would be interpreted as Acosta being afraid to testify against defendant.
Defendants motion for mistrial was denied, the trial court stating "the jury is entitled to hear a witness assert his Fifth Amendment after the court has ordered him to answer that question." But Acosta did not retake the stand before the jury. Defendant later renewed his mistrial motion, arguing that Acostas assertion of the Fifth Amendment before the jury left the impression that "he is somehow afraid because of the gang relationships in this case." The motion was again denied, the trial court stating, "[I]t would have been nice if I knew that [Acosta was going to refuse to testify] but I dont think that it rises to the level of the necessity to grant a mistrial. [¶] . . . [¶] This is a prosecution witness thats been put on the witness stand by the prosecution who refuses to testify, and [the prosecutor] doesnt get any testimony from him . . . . I have a hard time understanding how that hurts the defense."
We reject defendants contention that the trial court erred in denying his motion for mistrial. It is improper to put a witness on the stand to claim his Fifth Amendment privilege in the presence of the jury when it already is known that the witness will refuse to testify. (People v. Mincey (1992) 2 Cal.4th 408, 442; People v. Lopez, supra, 71 Cal.App.4th at p. 1554.) But even if credence should not be given to the prosecutors belief that Acosta would testify notwithstanding his statements that he would decline to do so, defendant is not entitled to relief. "A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 555.) Here, it is entirely speculative to assume that the jury would see Acostas improper refusal to testify as being based on fear of defendant. As a member of the same gang as defendant, it is just as likely that Acostas assertion of the Fifth Amendment was based on fear of incriminating himself or other gang members, including defendant, or simply lessening his stature in the gang community for testifying for the prosecution. Also, as we have stated, the evidence of defendants guilt was strong, and even if the jury had improperly inferred that Acosta was afraid of defendant, defendants chances of a fair trial were not "irreparably damaged." Accordingly, the trial court did not abuse its discretion in denying defendants mistrial request.
5. Testimony Regarding Lack of a Second Gun
Minerva Fabery told Detective Vanina that she thought she heard multiple guns at the time of the incident. On cross-examination, defendant asked Vanina if he had "follow[ed] up" on that information. Vanina was about to respond when defendant withdrew his question. Defendant next asked if there had been "any physical or scientific follow-up" to the statement. Vanina answered, "No." Vanina answered in the affirmative when asked by defendant if he had "attempt[ed] to go find other potential witnesses that may have been there that night about possibly other weapons." On redirect examination, the prosecutor asked if anything in Vaninas review of the evidence led him to believe there had been a second gun. Vanina answered in the negative. Asked how many interviews he had reviewed, Vanina responded, "[C]lose to 25 statements taken in 1986, 1987," and that the majority had been taken within 48 hours of the crime. Vanina was next asked if there was anything in those interviews that led him to believe there might have been a second gun. Defendant objected on hearsay grounds. The objection was overruled, and Vanina answered the question, "No."
During the prosecutors argument to the jury, she referred to the testimony of defense witnesses Mario Padilla and Tony Duran, asserting it was not credible that "they could see from that far, they could see that well, that they both saw the same thing of the guy shooting over the car, that they both didnt come forward till 16 years later, that Detective Vanina testified that at least 25 people were interviewed initially and not one of them mentioned a second shooter, not one of the people that came forward, the good citizens that came forward, now we have these other two that just split and didnt come forward, and youre supposed to believe them 16 years later that they saw a shooter."
Defendant moved for a mistrial based on that argument. The trial court noted that it had overruled defendants objection to the question regarding Vaninas review of witness statements because defendant had taken the position that the police had not properly investigated the possibility of a second gun. But the court acknowledged that the testimony was hearsay in that it concerned statements of out-of-court witnesses to the incident which were placed in written reports and reviewed by Vanina. The prosecutor suggested the jury be admonished that Vaninas testimony was not admitted for the truth of the lack of a second gun, but to explain why Vanina did not believe there was a second shooter, thereby responding to the assertion that he did not do a proper investigation. Defendant argued that the admonition should not be given because the prosecutor had already argued the matter. The trial court responded: "You cant have it both ways. . . . [¶] . . . [¶] I am ready to give a curative instruction to the jury. They have not begun deliberating. . . . [¶] . . . I am not granting a mistrial."
The court then reread to the jury the portion of Vaninas testimony that was at issue and admonished the jury that "[y]ou cannot consider that evidence for the truth of the matter asserted that all of these witnesses said X, Y or Z. [¶] So you cant consider it for the substance of the truth contained in the representation, only to explain what was done in terms of the investigation of the second gun. [¶] Anybody not understand that distinction? Its a little esoteric, dont be shy. Anybody? [¶] Good. Everyones okay."
Defendant contends that his motion for mistrial was improperly denied. As a preliminary matter, we note that Vaninas testimony had come into evidence for all purposes and therefore, at the time the prosecutor commented on the statement in final argument, the comment could not have constituted misconduct. (People v. Gurule (2002) 28 Cal.4th 557, 627.) With respect to the requested mistrial, "`a mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) We see no principled reason why the admonition given here would not have been adequate. Accordingly, defendants contention must be rejected.
6. Sufficiency of the Evidence of Assault
Defendant contends that the evidence was insufficient to support his conviction of assaulting Ernesto Acosta. The basis of this contention is the following testimony that was read from Carlos Montess trial: "Question [by the prosecutor]: What happened after the gun was fired? [¶] Answer [by Montes]: Ernest Acosta got shot in the leg. [¶] Question: Then what happened? [¶] Answer: The gun fell and I think hit the floor. [¶] Question: What happened after the gun hit the floor? [¶] Answer: I picked it up and I ran with it. [¶] Question: Where was [defendant] at this time? [¶] Answer: He was already in the process of running."
Viewing the evidence in the light most favorable to the People, as we must on sufficiency-of-the-evidence review, the record established that, after having been hit with bottles thrown by Sammy Trujillo, defendant left the scene and returned on his motorcycle with Montes, who was armed with a gun, as his passenger. Defendant drove through a parking lot where many people had gathered in an effort to give Montes a clean shot at Trujillo. This effort failed, resulting in a fatal gunshot wound being inflicted on Patricia Lemus. As defendant and Montes continued on the motorcycle, it was rammed by a car, causing it to fall. Defendant and Montes sought to flee on foot, but Montes was grabbed by Acosta. Montes then shot Acosta and continued to flee on foot.
From this evidence, it may be reasonably inferred that defendant and Montes went to the shopping center parking lot to shoot Trujillo, intending to flee after they did so. They also knew that given the large number of people congregated there, it was unlikely that their flight would be unimpeded. It was therefore reasonably foreseeable that someone at the scene would attempt to prevent the perpetrators from fleeing and that Montess gun would have to be used to thwart this attempt. The assault on Acosta, who got shot in the attempt to capture Montes, was thus a natural and probable consequence of defendants criminal conduct. Accordingly, defendant was properly convicted as an aider and abettor of the assault. (See People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Prettyman (1996) 14 Cal.4th 248, 260-261; People v. Fagalilo (1981) 123 Cal.App.3d 524, 534 [robbery defendants "liability for the assaults committed by one of his robbery partners to effect their escape followed as a natural and probable consequence of their joint commission of the robbery"].)
7. Instruction on Assault
We also reject defendants contention that the instructions on the assault count were defective in that the scope of the natural and probable consequences doctrine was not adequately explained. Although in her concurring and dissenting opinion in People v. Prettyman, supra, 14 Cal.4th at page 291, Justice Brown criticized CALJIC No. 3.02 for failing to provide an "explication of causation," the Prettyman majority expressed no such reservation. And even if CALJIC No. 3.02 as given in this case was ambiguous, defendant was not prejudiced in that the resulting offense (the assault on Acosta) was clearly caused by the commission of the target offense (the shooting that resulted in the death of Patricia Lemus). (See People v. Prettyman, supra, 14 Cal.4th at pp. 273-274.)
Defendant further contends that instruction on assault was inadequate for failure to state that an act of a conspirator that is an independent product and outside the design of the conspiracy does not create liability for a coconspirator. (See CALJIC No. 6.16 (When Conspirators Not Liable for Act or Declaration of Co-conspirator).) But as acknowledged by defendant, it has been held that such instruction is not required sua sponte where, as here, no conspiracy has been charged and the prosecution proceeds solely on a theory of aiding and abetting. (People v. Flores (1992) 7 Cal.App.4th 1350, 1363; People v. Brigham (1989) 216 Cal.App.3d 1039, 1046-1051.) Contrary to the position taken by defendant, we see nothing in Flores or Brigham that is inconsistent with the Supreme Courts holding in People v. Kaufman (1907) 152 Cal. 331.
8. Flight Instruction
Defendant contends that the trial court erred in instructing, over his objection, pursuant to CALJIC No. 2.52 that "[t]he flight of a person immediately after the commission of a crime . . . is a fact which, if proved, may be considered . . . in deciding whether a defendant is guilty or not guilty." He bases his argument on an interpretation of the record that suggests a lack of consciousness of guilt for the crimes. Thus, according to defendant, his "flight from the scene was spurred by the ramming of his motorcycle by a car and the mob attack on his brother. His departure to Mexico occurred in the wake of a shotgun blast into his family residence."
Defendants interpretation of the evidence is the stuff of argument to the jury. CALJIC No. 2.52 does not assume the existence of flight but merely informs the jury that, if proved, it may be considered in determining guilt. Thus, the jury was entitled, not required, to accept defendants version of events. (People v. Hutchinson (1969) 71 Cal.2d 342, 346; see People v. Pensinger (1991) 52 Cal.3d 1210, 1244.) The jury could also reasonably conclude that defendants leaving the scene of the shooting and later leaving the country was motivated in full or in part by a desire to avoid apprehension for his criminal conduct. (People v. Shea (1995) 39 Cal.App.4th 1257, 1270 ["Different inferences from the evidence were possible, including that appellants . . . departure was prompted by a consciousness of guilt"].) The flight instruction was properly given in this case.
9. Destruction of Evidence
Defendant was arrested in July 2000. Before the start of trial, it was determined that the murder weapon and bullets test-fired from that weapon had been destroyed in 1991 following Carlos Montess trial and appeal. Defendant filed a motion for dismissal based on what he characterized as "intentional, willful and/or grossly negligent conduct in failing to preserve evidence which possessed an apparent exculpatory value." Defendant noted that a warrant had been outstanding for his arrest since the time of the murder. He argued prejudice in that he was prevented from demonstrating that the bullet which killed Patricia Lemus had not been fired from the gun characterized by the police as the murder weapon, a theory he asserted was supported by expert opinion that the fatal bullet (which had been preserved) had not passed through glass, as asserted by the prosecution.
The prosecutor argued that prejudice could not be shown because there was no credible evidence of a second gun, and that in any event "[t]here was no way to know that [defense] counsel was going to come along 15 years later and find witnesses who did not come forward and say that there were other guns at the location. All of the witnesses initially said this was the only gun at the location." The prosecutor further explained that the cases against defendant and Montes had been filed under different numbers. Had they been filed under the same number, the evidence probably would not have been destroyed. But the prosecutor did not receive notice that the exhibits were slated to be destroyed. She explained that when the appeal was completed on Montess case, "they didnt know there was another defendant because it was a different case number. [¶] So I didnt pick up on it. Nobody in our office picked up on it." In the course of proceedings on defendants motion, the trial court contacted a supervisor from the clerks office, who stated that when exhibits are to be destroyed, a public notice is posted in the courthouse. Individual notices do not go out to the parties involved.
The trial court ruled that "there is not any bad faith by the prosecution in the destruction of evidence. It was the defendant himself, Mr. Zepeda, who voluntarily left the jurisdiction of the court and remained 13 or 14 years or so out of the jurisdiction of the court, and that is why he was not brought to trial at or about the same time that his brother was. [¶] In terms of prejudice, yes, there exists prejudice with the gun not present and being able to be tested further. But the bullet that was fired from allegedly that gun is present, having been secured at the coroners office. [¶] It seems to me . . . that good cause does not exist for the dismissal of the case. [¶] However, it seems to me all of the problems that the defense has by reason of the evidence being destroyed should come before the jury, and that should be one of the factors that should be considered by the jury in terms of whether or not reasonable doubt exists."
We find no fault with the trial courts ruling. As explained in People v. Roybal (1998) 19 Cal.4th 481, 509-510, "Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence `that might be expected to play a significant role in the suspects defense. (California v. Trombetta (1984) 467 U.S. 479, 488 []; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 [].) To fall within the scope of this duty, the evidence `must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citations.] The states responsibility is further limited when the defendants challenge is to `the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. [Citation.] In such a case, `unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. [Citations.]"
Here, there was no hint until after defendant was captured in 2000 that he would assert the existence of more than one gun being fired at the scene, and therefore the gun had no apparent potentially exculpatory value when it was destroyed in 1991. Nor was any bad faith involved in its destruction. Accordingly, defendants motion was properly denied.
10. Parole Revocation Fine
At sentencing, the trial court imposed and stayed a parole revocation fine pursuant to Penal Code section 1202.45. Section 1202.45 was enacted in 1995, nine years after defendant committed the underlying offenses. (See People v. Callejas (2000) 85 Cal.App.4th 667, 669.) Defendant contends, and under the authority of People v. Callejas, supra, 85 Cal.App.4th 676-678, the Attorney General concedes, that imposition of the fine on defendant would violate the prohibition against ex post facto laws and should therefore be stricken. The concession is well taken, and the judgment shall be modified.
DISPOSITION
The parole revocation fine imposed pursuant to Penal Code section 1202.45 is stricken, and the trial court is ordered to forward a copy of the modified abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
We concur: SPENCER, P. J., and ORTEGA, J.