Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF087807D, SF087807C
CANTIL-SAKAUYE, J.
In November 2002, Kerry MacDougall awoke to find his son shot in the head in the hallway. Fourteen-year-old Daniel MacDougall was killed in what proved to be a foiled home invasion robbery. The district attorney charged Victor Barragan, Terry Gonzales, Jr., Luis Dominguez and Gerardo Herrera with the crime. The information alleged the following felony offenses and enhancements as to all defendants: (1) in count 1, murder (Pen. Code, § 187), with the special circumstances of felony murder/attempted robbery and felony murder/attempted burglary (§ 190.2, subds. (a)(17)(A) & (G)), and an enhancement for the intentional discharge of a firearm (§ 12022.53, subds. (d) & (e)(1)); (2) in count 2, burglary (§ 459) with a personal firearm use enhancement (§ 12022.5, subd. (a)); and (3) in count 3, attempted home invasion robbery (§§ 664/211) with enhancements for the intentional discharge of a firearm (§ 12022.53, subds. (d) & (e)(1)) and for committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The information also alleged in counts 4 and 5 that Barragan and Gonzales were each felons in possession of a firearm. (§ 12021, subd. (a).) As to all relevant counts, the information alleged that Gonzales had a prior violent felony conviction. (§ 667, subd. (b)-(i).)
Hereafter, undesignated statutory references are to the Penal Code.
Codefendant Dominguez was severed from the trial of Gonzales and Barragan and codefendant Herrera pled guilty to manslaughter and being an active participant in a criminal street gang, and admitted a “strike.” He testified as a prosecution witness. This is an appeal from the joint trial of defendants Barragan and Gonzales.
The jury convicted Barragan and Gonzales of all counts and found true all special allegations. The court sentenced Barragan to life without the possibility of parole for murder with special circumstances in count 1, plus 25 years to life for the firearm discharge enhancement, plus 10 years for the criminal street gang enhancement, all consecutive to a three-year determinate term for being a felon in possession of a firearm in count 5. The “strike” resulted in a significantly longer sentence for Gonzales: life without the possibility of parole for murder with special circumstances in count 1, plus 50 years to life for the firearm discharge allegation, plus 20 years for the criminal street gang enhancement, all consecutive to a six-year determinate term for being a felon in possession of a firearm in count 4.
On appeal, defendants collectively make over 20 claims of error. They argue that they are entitled to reversal because of evidentiary error, prosecutorial misconduct, instructional error, and sentencing error, among other claims. We shall strike the section 186.22, subdivision (b)(1)(C) enhancement imposed on each defendant in count 1, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
A. Robberies Near Modesto - October 2002:
On October 27 and 28, 2002, two men robbed a Motel 6 in Modesto, a Stop ‘N Save convenience store in Modesto, a Quik Stop convenience store in Ripon, and a Denny’s restaurant in Lathrop. The robbers were dressed in dark clothing, ski masks and gloves. One robber had a gun. The victims were unable to identify the two men who robbed them.
B. Discovery Of Daniel MacDougall’s Body - November 5, 2002:
Fourteen-year-old Daniel MacDougall lived with his parents Kerry and Elizabeth MacDougall in Tracy. Kerry MacDougall worked nights. He suffered from a partial hearing loss and was a heavy sleeper. Kerry did not hear Elizabeth leave for work before dawn on the morning of November 5, 2002.
Daniel usually left for school around 6:30 or 7:00 a.m., turning off the house alarm and locking the front door with his key. He telephoned his friend V.M. at 6:22 a.m. on November 5, 2002, but did not show up to walk to school with her as planned. V.M. tried unsuccessfully to reach Daniel by phone between 7:00 and 7:30 that morning.
Manuel Reyes, who lived in the neighborhood, drove past the entrance to the MacDougall’s street at 6:30 a.m. on November 5, 2002. He noticed that the front door of the MacDougall house was standing open. Reyes saw two young men walking toward the door. The first man was about 5 feet 10 inches tall. The second man’s face was red, as if he had been running, but he had a lighter Hispanic complexion than the first man. Both wore dark, baggy clothing and head coverings.
Kerry discovered Daniel’s body in a large pool of blood in the front entry hallway when he came downstairs around 9:00 a.m. Daniel was dressed for school and held the front door key in his hand. Kerry called 911 and waited for the police to arrive.
The initial police investigation revealed that Daniel had died an hour or more before Kerry discovered the body. Nothing in the rest of the house was disturbed or bloodstained. However, the front door was damaged and investigators found a shoe impression near the door handle.
The MacDougalls, who were ex-Marines, had a gun collection which they kept in a large gun safe in the garage and a smaller safe in the master bedroom. The only fingerprints on the gun safe were Kerry’s. None of the MacDougall weapons fired the fatal shot.
The autopsy revealed that the cause of death was a massive head wound from a .38 or .357-magnum round-jacketed hollow bullet. Investigators found no weapon at the scene. Daniel was shot at close range. The bullet lodged behind his left jawbone.
Tracy police detectives had no specific suspects after nearly two months of investigation, but the case started to break at the end of December 2002 with the recovery of Gonzales’s cell phone and Gonzales’s return to Duell Vocational Institute (DVI) for a parole violation.
C. Recovery Of Gonzales’s Cell Phone - December 22, 2002:
On December 22, 2002, Modesto Police Detective Phillip Owen responded to a call from a Modesto store owner who had shot a man who had attempted to rob him. The would-be robber, later identified as Manuel “Wino” Quijas, was dead at the scene. Owen found a loaded handgun and a cell phone in Quijas’s possession. The cell phone belonged to Gonzales.
In an attempt to identify the body, Detective Owen left messages for Gonzales to call him. Gonzales contacted Detective Owen two days later and confirmed that his cell phone had been missing from his bedroom for a couple of days.
The prosecution produced the records for Gonzales’s cell phone at trial. The records for November 5, 2002, were consistent with other testimony regarding contacts between Gonzales and the principal players in the MacDougall crime.
D. Gonzales Requests Meeting With Police - January 27, 2003:
In August 2002, Gonzales was released on parole after serving a prison sentence for assault with a deadly weapon. On December 24, 2002, he was rearrested for a parole violation after failing a drug test. Gonzales arrived at DVI on December 30, 2002.
On January 27, 2003, Sergeant David Stapp, the supervisor of the reception center at DVI, received a letter from Gonzales requesting a confidential meeting. Gonzales indicated that he had urgent information about a murder. Stapp set up the meeting. He observed that Gonzales was very nervous. Gonzales asked Stapp to contact Detective Phillip Owen of the Modesto Police Department, stating that he had information about the Sund-Palosso murders in Yosemite and a recent murder in the local area.
Sergeant Stapp and Owen both knew that Cary Stayner had been convicted of the Sund-Palosso murders, and Detective Owen was unaware of any other unsolved murders in the Modesto area. Owen asked Sergeant Stapp to get more information from Gonzales.
E. Statements Made By Gonzales - January 31, 2003:
During his second interview with Sergeant Stapp, Gonzales stated that he had information about the murder of Daniel MacDougall in Tracy. He added, “‘I was there.’” Gonzales requested that an attorney be present before he continued his conversations with law enforcement. Stapp ended the interview and contacted Detective Dean Hicks at the Tracy Police Department. Hicks arranged to conduct a videotaped interview with Gonzales at DVI that afternoon.
Detective Shawn Steinkamp and Deputy District Attorney Todd Turner accompanied Detective Hicks to the interview. According to Hicks, Gonzales was willing to provide information but did not want to receive any time as a result of doing so. Steinkamp explained to Gonzales that they needed to hear what Gonzales knew before they could make any deals. Gonzales responded, “[It] ain’t gonna work that way.”
F. DVI Contacts Lead To Christina Flores:
Sergeant Stapp identified Gonzales’s girlfriend Christina Flores as a frequent visitor to Gonzales at DVI. Stapp discovered two addresses for Flores in the DVI records: (1) as Gonzales’s girlfriend living at an address in Tracy; and (2) as his wife living at the same address as Gonzales’s parents in Modesto.
Flores and Gonzales’s mother, Deborah Phipps, visited Gonzales on February 15, 2003. Stapp and Detective Hicks reviewed the audio recording of that visit. Among other things, Gonzales told the two women to make sure that Flores stayed at his parent’s residence to keep her from “running her fucking mouth to the homicide detective” and others.
Modesto police executed a search warrant at the parent’s address on February 27, 2003. The search revealed gang indicia, rap lyrics that appeared to have been authored by Gonzales at DVI, and letters from Gonzales to his mother and Flores. The officers found Flores in her bedroom. She asked to be taken to the police department in handcuffs so that Gonzales’s parents would be unaware that she wanted to cooperate. The police provided Flores with protection. Flores became the prosecution’s star witness.
G. Flores’s Sister Was The Link To Daniel:
Christina Flores’s younger sister, S.F., was Daniel’s girlfriend. In October 2002, Gonzales and Flores overheard a cell phone conversation between S.F. and Daniel. Gonzales took the phone and the conversation turned to what types of guns Daniel’s father collected. After the phone conversation about the guns, S.F. invited Flores and Gonzales to Daniel’s house to meet Daniel face-to-face. Daniel, who was home alone, gave them a tour of the house and garage where they saw the safe containing the gun collection. Daniel explained that only his father could open the safe. S.F. did not tell police about the phone call or home tour until they served a search warrant on the Flores family residence in Tracy on February 27, 2003.
H. Flores Provides Information About Daniel’s Murder:
Flores had a juvenile record and associated with Norteños and Norteño “wannabes” at the time of Daniel’s murder. She enjoyed the gang identity, personal notoriety and respect.
Both Gonzales and Barragan told Flores that they shot Daniel. Gonzales confessed to Flores within hours of the murder; Barragan confessed to her in February 2003.
Flores knew about the plans for a home invasion robbery and observed Gonzales’s efforts to recruit others to take part. Gonzales shared his plans with Barragan, Herrera and Dominguez. Gonzales bragged that they could get 45 guns from the MacDougall house. According to Flores, Gonzales and his cohorts considered several approaches to the problem of opening the gun safe without a key or combination. Flores provided information about the interior of the MacDougall home. Gonzales eventually decided to take Daniel hostage before school and wait for his parents to return home to unlock the safe. The four participants would divide up the guns to sell or keep for themselves. Flores would share what Gonzales received. They purchased a scanner, walkie-talkies and masks.
Flores testified that on the morning of November 5, 2002, Gonzales left their apartment around 4:00 a.m. He returned around 9:00 a.m., wearing all black. Flores described his face as pale “beyond white.” Gonzales wrapped himself around Flores and started crying. Flores asked if anybody got hurt. Gonzales responded, “Titi, Daniel’s dead.” He told her that he had driven Barragan, Herrera and Dominguez to the MacDougall house in her father’s Mazda. The four participants watched someone drive away from the house at 5:30 a.m. At that point, Gonzales and Barragan went up to the house and Gonzales kicked the door. When Daniel came out of the house, Gonzales and Barragan ran up wearing masks and told Daniel to go inside. Gonzales told Flores that he shot Daniel in the head when Daniel took off running. Gonzales stopped Flores from calling her sister. He told her to stay quiet because the others wanted to kill her.
I. Flores Links Barragan And Gonzales To The October Robberies:
Flores also testified that Barragan and Gonzales were responsible for the four unsolved robberies that took place in October 2002 in the Modesto area. Defendants wore masks and gloves and at least one of them carried a gun. Flores participated in three of the robberies.
J. Statements Made By Gonzales - February 27, 2003:
Detective Hicks returned to DVI after interviewing Flores on February 27, 2003, and told Gonzales that there would be “no deal” and no immunity from prosecution. Hicks advised Gonzales of his Miranda rights. Gonzales started crying and repeated over and over, “Take me to trial.”
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
K. Statements Made By Gonzales - March 12, 2003:
On March 12, 2003, at DVI, Detective Hicks served an arrest warrant on Gonzales and transported him to the Tracy Police Station where he was booked and interviewed. Detective Steinkamp advised Gonzales of his Miranda rights and Gonzales responded that he understood. When advised again that there would be no immunity deal, Gonzales stated that the district attorney “better . . . come in with immunity or he wasn’t gonna say anything.” At one point, Steinkamp told Gonzales that he knew Gonzales was there when Daniel MacDougall was murdered. The conversation turned to the murder weapon and Gonzales said that he knew that Steinkamp did not have the gun. Gonzales then asked, “‘What if I could get it for you?’” He continued, “‘What if I told you I saw Daniel MacDougall die?’” The interview ended with Gonzales reiterating his desire for immunity and Steinkamp saying that it “wasn’t gonna happen.”
Detectives Steinkamp and Hicks took Gonzales’s fingerprints and palm prints at booking. As Hicks took the palm prints, Gonzales laughed and said, “‘What are you doing that for? I was wearing gloves.’” Hicks asked, “‘What kind of gloves,’” and Gonzales responded, “‘Burners.’” Hicks testified to his understanding of the term “burners.”
L. Gonzales’s Statements To Michael Cain - March 2003:
Meanwhile, at DVI, inmate Michael Cain contacted Sergeant Stapp. Cain provided Stapp with notes from a series of conversations he had with Gonzales when both were housed in the same wing. Gonzales told Cain that he and his homies of the Nuestra Familia planned the home invasion robbery of the MacDougall home in order to get guns and other weapons, including a grenade launcher, from three safes. He identified himself, Barragan, “Huero” and “Spider” as the perpetrators. Gonzales said that he and Barragan accosted Daniel as he started to leave the house. Gonzales warned Daniel not to look at him and shot him when he did. Gonzales told Cain at least 15 times that he was the shooter. Other times, Gonzales stated that Barragan fired the fatal shot.
Gonzales said that his cell phone wound up in the hands of “Wino” who was killed in a robbery. Gonzales made threats against Flores and other family members who knew about his crimes.
M. Barragan’s Statements To Marcos Medina - April 2003:
Meanwhile, defendant Barragan returned to prison custody on a parole violation. In April 2003, Marcos Medina and Barragan spent four hours in adjoining holding cells at DVI. Barragan, who introduced himself as “Psycho” and “Victor,” told Medina that he was on the way to court in Tracy in connection with the murder of a boy in a home invasion robbery. Barragan said that the only proof against them was a female witness, “Stranger’s” girlfriend. Barragan planned to save up money to have one of his codefendants take the blame or to kill the witness. He maintained that they would “beat the case” if she were gone.
N. Juan Carlos Herrera And The Murder Weapon – May 2003:
When Juan Carlos Herrera was arrested in May 2003 for being a felon in possession of a firearm, he mentioned to the arresting officers that he had information about the Tracy [MacDougall] murder. Juan Carlos, a brother to Gerardo Herrera then a codefendant in the MacDougall case, cut a deal in which the district attorney would drop the charge of illegal possession, ask the California Youth Authority (CYA) not to violate his parole, and provide him with protection. Juan Carlos testified that he heard Barragan and Gonzales talking about the murder a few days after Daniel was shot, when a group of Norteños gathered at Dominguez’s house. Barragan said that they intended to do a home invasion robbery and “a kid got killed” inside the residence. Barragan had mentioned Gonzales’s name in front of Daniel so Gonzales told Barragan to kill him. Gonzales knew the people at the MacDougall house. When Barragan told Gonzales something like “You [could] end up like that little kid,” Gonzales laughed.
Barragan stated at the gathering that the murder weapon had been melted down, but Juan Carlos did not believe it. He noticed a chrome, snub-nosed .357 Rossi on the table. Juan Carlos told Detective Hicks that he had fired the Rossi six months earlier in Del Puerto Canyon in Patterson. With the help of Juan Carlos, Detective Hicks recovered bullets at that site. Analysis revealed that the bullets found in Patterson were fired from the same gun that fired the bullet that killed Daniel.
O. Gerardo Herrera Testifies Against Barragan and Gonzales:
Police arrested Gerardo Herrera in March 2003. He faced the same charges as Barragan, Gonzales and Dominguez. After the preliminary hearing in September 2003, Herrera agreed to cooperate with the prosecution. He entered a plea for which he received an 11-year sentence.
Herrera testified that he, Dominguez, and Gonzales were Norteños. Barragan was a Norteño part of the time. The four of them met the night before the murder at Dominguez’s house. Barragan and Gonzales needed money and wanted to commit the robbery at the MacDougalls’ home. They told Herrera that they would telephone him when they decided what to do. Herrera stated he had no plan to share any of the weapons with the Nuestra Familia.
According to Herrera, it was agreed that Gonzales and Barragan would break into the house. They made several unsuccessful attempts while Herrera and Dominguez drove around the area. Herrera and Dominguez picked up Gonzales and Barragan after the last attempt. Barragan appeared frightened and said, “Go. Go. Just speed up.” Barragan told them that he had shot Daniel.
They drove to Stockton. Barragan telephoned his girlfriend Melynda Silveria who lived there. Silveria picked up Herrera, Dominguez and Barragan. Gonzalez drove away in the Mazda. Herrera left the Rossi gun on the table at Dominguez’s house.
P. The Norteño Connection:
Detective Richard Delgado, the prosecution’s gang expert, described the Norteños as a criminal street gang that answered to the Hispanic prison gangs. He testified that in the hierarchy of northern gangs, the Nuestra Familia prison gang was above the Northern Structure prison gang. In Delgado’s view, Gonzales, Barragan, Dominguez, and Herrera were active members of a Norteño street gang on November 5, 2002. Delgado opined that the Norteño gang, as well as the Northern Structure, had directed its members to form teams and commit home invasion robberies to obtain weapons for the benefit of the gang.
Q. Gonzales Testifies At Trial:
Gonzales’s account of the events minimized his participation and differed from the testimony provided by others in one significant detail – he substituted Herrera for Barragan. He testified that Herrera was the organizer and shooter. Gonzales claimed that he participated because he feared Herrera. He testified that en route to Tracy, he disagreed with Herrera’s plan to go to the MacDougalls’ house. Gonzales heard Herrera cock a gun and saw Herrera’s finger on the trigger.
Gonzales also testified that he was on the doorstep of a nearby house at the moment Daniel was shot. He explained his confession to Flores as something Herrera told him to do. Gonzales testified that Herrera’s rationale was that Flores would go to the police if she knew that Herrera shot Daniel, but would not tell the police if Gonzales were the killer. Gonzales also denied any involvement in the October 2002 robberies.
R. Barragan’s Defense:
Barragan’s attorney reminded jurors in closing argument that Gonzales and Flores knew that Barragan was on the Norteño’s “bad news list.” He reviewed the several ways a person could get his name on the list: “Either you didn’t back up another fellow Norteño, or sometime in the past you snitched, gave information to law enforcement, whatever it is. You can’t be trusted.” Barragan’s attorney argued that no dedicated Norteño like Gonzales would have committed a crime like this one with someone on the “bad news list.”
DISCUSSION
Barragan and Gonzales raise numerous issues in this appeal, each joining in some of the issues raised by the other. We address each issue chronologically, as it developed in the course of the trial indicating which defendant raises the issue or if it is a joint issue.
I.
Barragan’s Faretta Motion [Barragan]
On July 29, 2003, the fifth day of a nine-day preliminary hearing, Barragan requested a Marsden hearing. Barragan argues that he made a timely and unequivocal request under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta) to represent himself after the court denied his Marsden motion, and the court erred in denying it. We conclude that Barragan’s request to represent himself was neither unequivocal nor timely, and the court did not err in denying it.
People v. Marsden (1970) 2 Cal.3d 118.
Criminal defendants who want to act as their own attorneys have a constitutional right to do so. (People v. Hines (1997) 15 Cal.4th 997, 1028, citing Faretta, supra, 422 U.S. at p. 834.) The erroneous denial of a request for self-representation is reversible per se. (People v. Joseph (1983) 34 Cal.3d 936, 948.) However, the defendant’s request must be timely and unequivocal. (People v. Horton (1995) 11 Cal.4th 1068, 1107.) “The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (People v. Marshall (1997) 15 Cal.4th 1, 23, italics added.)
Frustration is a common response when the court denies a defendant’s request to substitute counsel, often rendering the subsequent Faretta motion equivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1087 [defendant’s single reference to representing himself was properly viewed as an “impulsive response” to the court’s refusal to immediately consider his Marsden request]; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888 [Faretta request not unequivocal where it was an “impulsive response” to the trial court’s denial of defendant’s motion to substitute counsel and was not renewed at the next court date].)
To assess a Faretta claim, we review the entire record de novo to determine whether the defendant’s invocation of the right to self-representation was knowing and voluntary. (Marshall, supra, 15 Cal.4th at p. 24.) The standard of review applicable to the court’s determination that defendant’s request was equivocal or untimely is less clear. (Id. at p. 25.) However, we conclude that under either de novo review or the deferential substantial evidence standard, the court properly rejected what was clearly an untimely “motion for self-representation made in passing anger or frustration.” (Id. at p. 23.)
We summarize the Marsden hearing in detail because it provides the context within which Barragan raised Faretta. The in camera Marsden hearing took place during the preliminary hearing testimony of Melynda Silveria, Barragan’s former girlfriend. Barragan initially complained about his inability to view certain videotapes even though the court had continued the preliminary hearing for that purpose. Barragan also complained of his limited contact with his attorney Doug Jacobsen and his investigator since his arrest in March. Barragan stated, “I just feel I should be better represented . . . .” Attorney Jacobsen explained the difficulty with arranging for Barragan to see the videotapes.
The court found that “[n]one of this, as far as I can tell, has to do with the quality of representation that Mr. Jacobsen’s giving under the circumstances.” The court expressed doubt that Barragan had any “constitutional or statutory right to [the videotapes] prior to the preliminary hearing.” The court assured Barragan that he had a well-respected criminal defense attorney and found that there had been “no substantial impairment of [Barragan’s] right to counsel.”
The discussion continued. Barragan complained that he did not understand his case. He had done research and cited the legal premise that inadequate investigation denies a criminal defendant a meaningful defense. Jacobsen returned to the limited contact issue and responded that although he had difficulty scheduling meetings with Barragan at DVI he had talked with him between 15 and 20 times -- “almost every time we come to court.” Jacobsen believed that he had excellent communication with Barragan.
The court explained matters to Barragan and ultimately denied the Marsden motion.
After a brief discussion about transportation issues, Barragan reiterated his complaint that he did not understand what was going on in his case in spite of receiving regular written reports. The court stated, “We’re going to proceed today.” Barragan responded: “[I]f this is not granted, I would like to file a Faretta motion.” This prompted the following exchange:
“THE COURT: Well, wait a minute. I don’t understand. Do you understand what a Faretta motion is?
“DEFENDANT BARRAGAN: Yeah, it’s basically pro per with co-counsel, and I’ve read up a little bit. I don’t really understand that.
“THE COURT: You don’t, because if you ask to represent yourself, that doesn’t mean you get co-counsel.
“DEFENDANT BARRAGAN: That’s fine.
“THE COURT: And you just got through telling me that you don’t understand what’s going on now. The two concepts are completely diametrically opposed. That means it doesn’t make any sense that you don’t understand what’s going on, but at the same time you want to represent yourself. That would be probably one of the stupidest things you ever did in your life, and the law requires me to tell you how stupid that is.
“DEFENDANT BARRAGAN: That’s fine.
“THE COURT: So I’m telling you that now, okay. I think you ought to sleep on that at least. But for now, it’s real late to ask to represent yourself. We’re in the middle of the preliminary hearing. I’m not going to give you time to get up to speed to represent yourself. If you want to renew your Faretta application at the conclusion of the preliminary hearing, I suppose I have to consider that, but right now
“DEFENDANT BARRAGAN: What can I do?
“THE COURT: Excuse me, right now, I’m going to find that that is -- the request is late and it will only serve to disrupt the proceedings, and we’re going to let Mr. Jacobsen continue to represent you at this stage.”
At that juncture, Barragan stated that he did not want to be represented by Jacobsen, did not get along with him, and did not want to sit down in the courtroom. The court asked the bailiff to take Barragan back to the courtroom, Barragan repeated that he did not want to go to the courtroom and did not want to be represented by Jacobsen. When the court asked, “Are you refusing to go back into the courtroom?” Barragan responded, “I would like to practice my rights of the Faretta motion.” The court stated, “Yeah, that will be denied based on what I just said.” Jacobsen asked for leave to talk to his client.
This record reveals that Barragan had two opportunities during the Marsden hearing to convince the court that Jacobsen failed to communicate or keep Barragan abreast of what was happening in the case. With each denial, Barragan continued to try to frustrate the court’s effort to proceed with the preliminary hearing by stating that he did not understand what was happening in the case. The court noted that reports summarizing the case had been available.
Considering Barragan’s conduct as well as his words (Marshall, supra, 15 Cal.4th at p. 23), we conclude that Barragan’s request to proceed “in pro per” was a passing, impulsive response to the court’s denial of his request to replace Jacobsen. The record suggests that the tension continued to build after the court encouraged Barragan to be patient, trust his attorney, and not let his emotions get away from him. It culminated in Barragan’s request to represent himself and apparent refusal to return to the courtroom. Based on Barragan’s repeated claim that he did not understand the case, we cannot say that his Faretta request was informed or unequivocal.
The court encouraged Barragan to “sleep on” the request to represent himself. Barragan did not renew his Faretta request during the preliminary hearing -- another indication that the initial request was merely a passing, impulsive response to the court’s denial of the Marsden motion. (See Jackson v. Ylst, supra, 921 F.2d at p. 888.)
The record also supports the court’s finding that Barragan’s request was untimely. Barragan complained that he did not understand the case just before he asked to proceed in pro per. It was therefore reasonable for the court to conclude that a ruling in Barragan’s favor would disrupt the proceedings, requiring a continuance to enable Barragan to review the videotapes he had not been able to view at DVI, get up to speed on what he did not understand about his case, and prepare to actively participate in the remainder of the preliminary hearing. The court, five days into a nine-day preliminary hearing had already continued it for more than five weeks.
II.
Shackling of Gonzales at Trial [Gonzales & Barragan]
Citing People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran), Gonzales contends that the court abused its discretion in ordering that a restraint chair be used during trial because there was no showing of “manifest need.” He also argues that there is no support for the court’s finding that the shackles were not demeaning. Gonzales asserts that he is entitled to reversal because, in spite of the court’s efforts to hide the physical restraints from view, the jurors saw them on several occasions. Barragan does not appeal his own shackling but joins in Gonzales’s argument regarding shackles, maintaining that Gonzales’s credibility was key to his own defense. We conclude that the court did not abuse its discretion in ordering the use of the restraint chair, and even assuming there were brief jury sightings of Gonzales in restraints as he was moved to court, defendants suffered no prejudice.
This court recently reviewed the law governing the use of physical restraints in People v. Vance (2006) 141 Cal.App.4th 1104. “‘[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ ([Duran, supra, 16 Cal.3d at pp. 290–291]; see also § 688 [‘No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge’].) ‘“Manifest need” arises only upon a showing of unruliness, an announced intention to escape, or “[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained . . . .”’ (People v. Cox (1991) 53 Cal.3d 618, 651 . . . (Cox), quoting Duran, supra, at p. 292, fn. 11.) ‘Moreover, “[t]he showing of nonconforming behavior . . . must appear as a matter of record . . . . The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.”’ (Cox, supra, at p. 651, quoting Duran, supra, at p. 291.) The burden is on the People to establish in the record the manifest need for the shackling. (People v. Prado (1977) 67 Cal.App.3d 267, 275 . . . .)” (Vance, supra, at p. 1112.)
Where the circumstances require the use of visible restraints, “the court shall instruct the jury sua sponte that such restraints should have no bearing on the determination of the defendant’s guilt. However, when the restraints are concealed from the jury’s view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided.” (Duran, supra, 16 Cal.3d at pp. 291-292.)
The Duran court also described the nature of the prejudice suffered where restraints are used without the required showing of manifest need. The negative impact of physical restraints includes “possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand . . . .” (Duran, supra, 16 Cal.3d at p. 290.) However, a juror’s brief observation of physical restraints is not prejudicial. (Id. at p. 287, fn. 2; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 584 (Tuilaepa).) With these principles in mind, we turn to the facts of the case before us.
A. Determination of Manifest Need:
Motions in limine filed by Gonzales and Barragan included the request that defendants not be shackled in court and that the court, not security personnel, make the determination of manifest need for restraint. After an initial, unreported discussion in chambers, the court indicated that it intended to have defendants shackled to restraint chairs. The court explained: “For the record, the restraint chair is a blue chair . . . . Kind of a cross between a lounge and an office chair. It’s on wheels. It’s got an opening in the back that’s not visible to the jury that has restraint chains. The chains wrap around the defendant’s waist, cannot be seen by anybody other than by crawling under the table and looking at them that way.”
The court’s ruling on Barragan’s motion in limine is not challenged in this appeal.
The restraint chair used in this case differs from the visible ankle and wrist shackles used in Duran (16 Cal.3d at p. 288), the visible leg shackles used in Vance (141 Cal.App.4th at pp. 1107-1108), and the invisible, high-voltage stun belt used in People v. Mar (2002) 28 Cal.4th 1201, 1205-1206 (Mar).
Both defendants objected. In response to a question by Gonzales’s attorney, John Panerio, the court clarified that Gonzales’s hands would be free. Panerio also suggested that defendants be seated in the restraint chairs before the jury was seated. The court agreed and stated that defendants would enter through an adjoining courtroom, rather than the outside hallway. The court explained that the jurors would not “have access to the defendants or see them being escorted.” After Panerio expressed concern about the pouches that held the chains on the back of the restraint chair, it was decided that defendants and counsel would all sit in the restraint chairs. Panerio also voiced Gonzales’s concern that the chains around his waist were noisy. The court did not believe that the jury could hear the chains, given the poor acoustics in the courtroom.
At that juncture, the court cited 10 incidents involving Gonzales that occurred in court and at the jail, and expressly found that there was a manifest need to use the restraint chair. The jail incidents revealed a consistent pattern of non-conforming conduct over more than a year. The court also documented an aggressive confrontation between Gonzales and former codefendant Dominguez while the two were being transported to their cells from the court. In that incident, the defendants ignored an order from the officers to stop. In addition, the court personally witnessed Gonzales taking a step toward Flores during a court hearing, and cocking his head. It appeared to the court that “the movement was an attempt to intimidate the witness.”
Gonzales argues that the incidents listed by the court were insufficient to establish manifest need because some occurred two years before trial, another involved “a verbal disagreement of a mutual nature,” and the others “had nothing to do with violence or attempts to escape . . . .” He contends that the only relevant incident was when he took a step toward Flores. In our view, Gonzales’s arguments ignore his pattern of recalcitrant, defiant and sometimes aggressive behavior. Moreover, efforts at witness intimidation raised legitimate security concerns in the context of a gang-related crime.
Quoting Mar, Gonzales next emphasizes the psychological impact of physical restraints. In that case, the California Supreme Court considered the application of Duran and its progeny to the use of a stun belt, which was invisible to jurors, but could be activated at any time, intentionally or accidentally. (28 Cal.4th at pp. 1204-1205.) Gonzales’s reliance on Mar is misplaced. Here, the court ordered the use of a restraint chair which employed passive restraints, not the high-voltage stun belt challenged in Mar. (Id. at pp. 1205-1206.) Gonzales’s hands were free. He, Barragan and counsel all sat in restraint chairs. The record supports the court’s finding that the arrangement was not demeaning. And based on the nature of the restraints, we reject Gonzales’s claim that they imposed a prejudicial psychological impact on his ability to testify.
For all these reasons, we conclude that the record provides substantial evidence of the manifest need to use physical restraints. The court did not abuse its discretion in ordering the use of the restraint chairs.
B. Impact of Jurors Seeing Gonzales’s Restraints:
In spite of the court’s efforts to avoid jurors seeing defendants’ physical restraints, Gonzales and his attorney reported five instances where a juror may have seen the restraints used with Gonzales:
1. On one occasion, Gonzales reported that people attempted to look into the courtroom that he passed through on the way to the courtroom where the trial took place. The court assumed that those people were simply waiting for the first courtroom to open.
2. On another occasion, the officers failed to follow the court’s order and led Gonzales to the courtroom through a short hallway where he was visible to two jurors. Gonzales told the court that one of the jurors saw him adjust his leg restraint and gave him what he took as a dirty look. The court concluded that there was no prejudice. It explained that although the court had attempted to minimize the occasions that the jurors saw defendants in the hallway, “the legal reality and the practical reality of it is, jurors know when a defendant’s in custody, whether they see him in custody, or in chains, or not . . . .” The court invited defense counsel to request an instruction on physical restraints if they decided it was needed.
3. Gonzales took the oath sitting down when he testified at trial.
4. The back of Gonzales’s restraint chair fell down and the deputy put it back in position. Defendant acknowledged that the jury did not see the chain, but stated that they may have heard it and did, in fact, see the deputy move toward the chair.
5. During deliberations, the jury foreperson stepped into the hallway outside the jury room when a deputy was taking the handcuffed Gonzales through the same hallway. Counsel agreed that the court should give a modified version of CALJIC No. 1.04. Immediately thereafter, the court instructed the jury as follows: “The fact that a defendant is or may be in custody must not be considered by you for any purpose. That fact is not evidence of guilt and must not be considered by you as any evidence that a defendant is more likely to be guilty than not guilty. You must not speculate as to the reason a defendant is or may be in custody. In determining [the] issues in this case, disregard this matter entirely, okay?”
The record does not support defendants’ claim of prejudice. At no time did defense counsel ask the court to question jurors about what they, in fact, saw. As to the first three incidents there is no evidence the jurors saw defendant in restraints and in the fourth incident defendants concede the jury did not see the restraints. Moreover, with the exception of the last incident involving the jury foreperson, the court made no findings crediting defendants’ claims; it is mere speculation that members of the jury actually saw Gonzales’s physical restraints.
As to the juror seeing Gonzales in handcuffs, in accordance with Duran, supra, 16 Cal.3d at pages 291-292, and the agreement of counsel, the court specifically instructed the jury to disregard the fact a defendant might be in custody. We presume that the jurors followed this instruction. (People v. Smith (2007) 40 Cal.4th 483, 517-518.) Accordingly, we conclude that Gonzales and Barragan suffered no prejudice from whatever brief glimpse jurors may have had of Gonzales’s restraints.
III.
Barragan’s Statements To Medina and Flores [Gonzales]
A. Introduction:
After the death of Daniel MacDougall, defendants Gonzales and Barragan made a series of statements to a girlfriend, local law enforcement, prison authorities, and fellow inmates. The following sections address the defendants’ objections to the admission of these statements at trial.
Gonzales argues that the court violated his Sixth Amendment right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), by admitting statements that Barragan made to inmate Medina in DVI and Flores, Gonzales’s girlfriend. Gonzales also contends that he was prejudiced by Barragan’s statement to Medina which implicated him through the use of a collective pronoun. As to Baragan’s statement to Flores, Gonzales asserts that it was inadmissible, self-serving hearsay. There is no merit in Gonzales’s arguments.
B. Barragan’s Statement to Medina:
1. The Statements:
As we explained, Barragan conversed with Medina in April 2003 while the two men awaited transfer from adjoining holding cells at DVI. Medina testified at the preliminary hearing that Barragan told him that he was headed for court in a murder case. Barragan described the weakness of the prosecution case which he said depended on the testimony of a female witness, the girlfriend of his codefendant who was known as “Stranger.” The prosecutor asked Medina, “What, if anything, did he say he [Barragan] was going to do to fight th[e] case?” Medina responded, “He said that he was planning on saving up money, about 50, 60,000, to have either Stranger or one of the co[]defendants accept a guilty deal, take the case, or have the witness removed, taken out.”
See Factual and Procedural Background, ante, at page 12.
The prosecution moved to admit Barragan’s statement at trial arguing that it was trustworthy. The court admitted the part of the statement in which Barragan referred to having Stranger’s girlfriend removed because it did not implicate Gonzales. After the Supreme Court decided Crawford in March 2004, the court expressly found that Barragan’s statements to Medina were not testimonial because they were made to another inmate, not a police interviewer. Closer to trial, the court revisited the question whether the remainder of the statement was admissible. It ruled that the entire statement was admissible because it was indicative of Barragan’s intent and consciousness of guilt. The court observed that the statement was not necessarily a declaration against interest because it was not admitted for its truth. The court noted that Barragan’s statement did not implicate “Stranger” in the plan to eliminate witnesses and bribe codefendants to enter a plea, and suggested it could be admitted in a joint trial with a limiting instruction. The court invited a response from Gonzales’s counsel who offered no objection.
At trial, however, Medina’s testimony went beyond his preliminary hearing testimony in some areas. After describing Barragan’s plan to save up money to “take out” the witness or pay a codefendant to accept a plea, the following exchange took place:
“Q. What was presently being done to find Stranger’s girlfriend?
“A. That they were looking for her, but they were unsuccessful.
“Q. What, if anything, did he tell you Stranger was doing at that time?
“A. That he was also looking--trying to find her, but I guess they couldn’t find her. [¶] . . . [¶]
“Q. [D]id [Barragan] tell you whether he wanted her killed?
“A. Did [Barragan] tell me that Stranger wanted her killed?
“Q. Yes.
“A. He didn’t say those exact words, I don’t believe, but he said that he was also looking for her. So I don’t know what he could have meant by those terms.” (Italics added.)
Gonzales’s counsel did not object to this testimony by Medina.
2. The Confrontation Clause Challenge:
Crawford holds that “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability [of the declarant] and a prior opportunity for cross-examination.” (541 U.S. at p. 68 [158 L.Ed.2d 203].) Gonzales argues that Barragan’s statements to fellow prisoner Medina in the holding cell at DVI were testimonial within the meaning of Crawford. Specifically, he asserts that Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton) and Lilly v. Virginia (1999) 527 U.S. 116 [144 L.Ed.2d 117] (Lilly) apply to make the statements testimonial.
Defendant is wrong.
Both Bruton and Lilly focused on accomplice confessions, unlike Barragan’s statements to Medina, and both cases pre-dated Crawford. First, Bruton held that in a joint trial defendant’s right of cross-examination was violated by the admission of the non-testifying codefendant’s confession which inculpated the defendant, notwithstanding jury instructions that the codefendant’s confession must be disregarded in determining defendant’s guilt or innocence. (391 U.S. at pp. 124-125 [20 L.Ed.2d at pp. 478-479].) Lilly held that the trial court erred in admitting the confession of an accomplice because confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule. (527 U.S. at p. 134 [144 L.Ed.2d at p. 133].) The United States Supreme Court remanded the case to allow the trial court to determine whether the error was harmless beyond a reasonable doubt. (527 U.S. at pp. 139-140 [144 L.Ed.2d at p. 136].) Neither addresses the scope of the term “testimonial.”
Second, and most important, Barragan’s statements to Medina are not testimonial as post-Crawford cases have defined that term. In Davis v. Washington (2006) 547 U.S. 813, 821 [165 L.Ed.2d 224, 237] (Davis), the United States Supreme Court reiterated that “[i]t is the testimonial character of the [out-of-court] statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Drawing from the analysis in Davis, the California Supreme Court in People v. Cage (2007) 40 Cal.4th 965 listed the factors for courts to consider in differentiating between testimonial and non-testimonial statements. “First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Id. at p. 984, fns. omitted.) Where Crawford is inapplicable, we review the admission of evidence, including hearsay issues, for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1144.)
The record amply supports the court’s finding that Crawford was inapplicable and the statements admissible. None of the factors set forth in Cage were present in the conversation between Barragan and Medina. Barragan was speaking to a mere acquaintance, a fellow inmate. The casual exchange between Barragan and Medina lacked the “formality and solemnity characteristic of testimony.” (Cage, supra, 40 Cal.4th at p. 984.) Viewed objectively, the statements were not made by Barragan or received by Medina “primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial.” (Ibid.) The fact that a statement might be used at a subsequent trial is not enough to render ordinary hearsay testimonial. (Id. at p. 984, fn. 14.) Because the statements were not testimonial, they were not subject to the requirements of Crawford. The court did not abuse its discretion in admitting them at trial.
3. Use Of The Collective Pronoun:
Medina’s preliminary hearing testimony formed the basis for the court’s ruling on the admissibility of Barragan’s statements to Medina. Gonzales cites Medina’s trial testimony and contends that the statement that “they” were looking for Stranger’s girlfriend implicated Gonzales in the plan to kill witnesses to the crime. He maintains that the statement was “inflammatory in itself, and more so to Gonzales because it was his girlfriend and her relatives.” Gonzales testified at trial that he participated in the robbery at the MacDougall’s under duress, and asserts that “his participation in a plot to kill his girlfriend and her relative would severely undermine that defense.”
We conclude that Gonzales forfeited this issue by failing to make a specific and timely objection to Medina’s testimony. (People v. Alvarez (1996) 14 Cal.4th 155, 187, fn. 4.) Indeed, Gonzales made no objection whatsoever. In any event, in light of Medina’s clarifying response and all the participants in the crime, the fleeting mention of a collective pronoun was harmless. Once Medina clarified the prosecutor’s question asking if Barragan told him that Stranger wanted Flores killed, Medina’s answer did not implicate Gonzales. Medina answered, “He didn’t say those exact words, I don’t believe, but he said that he was also looking for her. So I don’t know what he could have meant by those terms.” So, contrary to Gonzales’s claim, Medina did not directly implicate Gonzales in the plot to kill witnesses.
Additionally, the audio tape of Flores’s and Phipps’s visit to Gonzales at DVI on February 15, 2003, revealed that Gonzales wanted Flores to stay with his parents to prevent her from “running her fucking mouth to the homicide detective” and others. Flores was aware it would be dangerous to approach the police. When Modesto police found her during the search of Gonzales’s parents’ apartment on February 27, 2003, Flores asked to be taken away in handcuffs to hide the fact that she was willing to cooperate. Thereafter, the police provided Flores with protection. This and other evidence showed that Gonzales had already enlisted his parents’ help in attempting to prevent Flores from becoming a witness against him. Thus, Medina’s suggestion that Gonzales was looking for Flores in April 2003 did little if anything to further undermine Gonzales’s defense of duress.
C. Barragan’s Statement to Flores:
1. The Statement:
The prosecution also moved to admit Barragan’s February 2003 statement to Christina Flores that Gonzales kicked in the front door and Barragan shot Daniel while Herrera and Dominguez were outside in the car. The court ruled that Barragan’s statement was trustworthy and admissible as a declaration against interest, based on its findings that it was made to Flores, then viewed as an ally, under circumstances of relative privacy, with words of self-incrimination, and based on first-hand knowledge. The court reviewed its ruling after the decision in Crawford and People v. Cervantes (2004) 118 Cal.App.4th 162, and rejected any claim that the statement was testimonial. The court noted that there was no suggestion that Barragan made the statement with the knowledge or expectation that it would be used later in court. Thereafter, Flores testified: “He [Barragan] told me, basically . . . they kicked in the door. It didn’t work. And they went--they left. They went back. Daniel’s out the door. They took him in and he had taken off running. But he [Barragan] said that he [Barragan] had shot Daniel at that point.”
2. The Confrontation Clause Challenge:
We reject Gonzales’s claim that “[i]n a joint trial, the statements of a non-testifying accomplice are by nature the equivalent of other ‘testimonial’ hearsay which cannot be admitted without confrontation, no matter how reliable they may otherwise appear to be.” Like the statements made by Barragan to Medina, the statement made by Barragan to Flores involved none of the factors highlighted in Cage. The record supports the trial court’s findings and Crawford was therefore inapplicable.
Gonzales’s reliance on Crawford and Lilly suggests he also claims that Barragan’s statement to Flores was unreliable and self-serving because Barragan attempted to shift the blame to Gonzales. (See Lilly, supra, 527 U.S. at pp. 130-134 [144 L.Ed.2d at pp. 130-133].) He argues that the court should have excised any reference to Gonzales. Barragan accepted responsibility for shooting Daniel, clearly a statement against his interest. As cited in the prosecution pretrial motion, Barragan told Flores that Gonzales was responsible for kicking the door, hardly the kind of blame-shifting described in Lilly. The record supports the court’s findings and there was no abuse of discretion in admitting Barragan’s statement. In any event, Flores’s testimony before the jury indicated that kicking the door was an ineffective group effort. Barragan did not single out Gonzales by name. There was no prejudice.
IV.
Gonzales’s Statements To Law Enforcement [Gonzales]
Gonzales made several statements to law enforcement officers between January 31, 2003, and March 12, 2003, which he attempted to suppress at trial. On appeal, Gonzales contends that the court erred in admitting the statements because they: (1) violated Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694]; (2) were involuntary; and (3) were inadmissible hearsay.
Miranda holds that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. at p. 444 [16 L.Ed.2d at p. 706].)
Subsequent cases have refined the definition of custody. In non-arrest situations, courts apply an objective test to determine, based on all the circumstances, whether a reasonable person in the suspect’s position would have believed he or she was free to leave. (Stansbury v. California (1994) 511 U.S. 318, 323 [128 L.Ed.2d 293, 298].) “A different approach to the custody determination is warranted in the paradigmatic custodial prison setting where, by definition, the entire population is under restraint of free movement.” (United States v. Conley (4th Cir. 1985) 779 F.2d 970, 973.) In these circumstances, courts consider “whether the inmate was subjected to more than the usual restraint on a prisoner’s liberty to depart.” (Ibid., italics added.) “The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] ‘Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’” (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.) We apply a deferential substantial evidence standard to the trial court’s factual findings, including its assessment of the credibility of the witnesses. “Having determined the propriety of the court’s findings under that standard, we independently decide whether ‘a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.’ [Citation.]” (Id. at p. 402.)
Miranda requires that law enforcement officials advise the defendant of the right to remain silent and the right to counsel before interrogation begins. (384 U.S. at p. 444 [16 L.Ed.2d at p. 706].) If, after receiving these admonitions, the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” (Id. at pp. 444-445 [16 L.Ed.2d at p. 707].) Once an accused expresses the desire to deal with the police only through counsel, he or she “is not subject to further interrogation by the authorities until counsel has been made available . . ., unless the accused . . . initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona (1981) 451 U.S. 477, 484 [68 L.Ed.2d 378, 386]; see also McNeil v. Wisconsin (1991) 501 U.S. 171, 177 [115 L.Ed.2d 158, 168] and People v. Storm (2002) 28 Cal.4th 1007, 1023-1024.) However, invocation of the right to counsel is ineffective if asserted outside the custodial interrogation setting. There can be no “anticipatory invocation” of Miranda for purposes of custodial interrogation that takes place in the future. (People v. Calderon (1997) 54 Cal.App.4th 766, 770 (Calderon).)
Admission of a statement obtained in violation of Miranda is subject to the harmless-beyond-a-reasonable-doubt standard of review set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (People v. Sims (1993) 5 Cal.4th 405, 447.)
Alternatively, Gonzales challenges the voluntariness of some of the statements made to law enforcement on more general due process grounds. A confession is involuntary if obtained by the promise of leniency or other benefit, express or implied. (People v. Carr (1972) 8 Cal.3d 287, 296.) On appeal, we examine the uncontradicted facts surrounding the challenged statements to determine independently whether the prosecution met its burden and proved that “‘the statements were voluntarily given without previous inducement, intimidation or threat.’ [Citations.]” (People v. Cahill (1994) 22 Cal.App.4th 296, 310 (Cahill).)
Gonzales also argues that the court abused its discretion by redacting part of the statement he made to Sergeant Stapp on January 31, 2003, and admitting Detective Hicks’s explanation of the term “burners.”
Having carefully reviewed this record, we conclude that the court did not err in admitting the statements Gonzales made to law enforcement on January 31, 2003, February 27, 2003, and March 12, 2003. We address Gonzales’s statements in chronological order.
A. On January 31, 2003 -- Gonzales Makes Two Statements to Authorities:
Several days before January 31, 2003, while in DVI on a parole violation, Gonzales sent a letter to Sergeant Stapp requesting a private meeting. Pursuant to that request, Stapp met briefly with Gonzales who asked Stapp to contact a detective in Modesto, stating that he had information about the Sund-Palosso murders in Yosemite and a recent murder in the local area. The Modesto detective asked Stapp to get more information about the local murder. Sergeant Stapp met with Gonzales on January 31 as a follow up to the earlier meeting.
1. The Statement To Sergeant Stapp:
On the morning of January 31, 2003, Sergeant Stapp met with Gonzales in a private interview room away from the other inmates. He informed Gonzales that the Modesto detective was unaware of any unsolved murders in that area. When asked by Stapp for more details, Gonzales said that he had information about the murder of Daniel MacDougall in Tracy. Without further prompting, Gonzales stated, “I did not kill him, but I know who did because I was there.” Stapp ended the conversation. Gonzales told Stapp that he wanted an attorney present when he talked to the Tracy Police.
The court ruled the statement admissible. Citing People v. Ray (1996) 13 Cal.4th 313 (Ray), the court found that the statement was voluntary. Gonzales initiated contact to report a crime that Stapp knew nothing about.
Because it was assumed that Gonzales would not testify, the court redacted the first part of Gonzales’s statement and Stapp testified that Gonzales simply said, “I was there.” The court believed that redaction was necessary because the complete statement suggested that others -– including Barragan -- were present. Based on the totality of the circumstances the court found that Gonzales was not prejudiced by the deletion “because in the context in which he made the statement, he was trying to provide information. An inference to be drawn from this circumstance is that he was not the shooter or that he was not indicating he was the shooter.” Later, after Gonzales testified, Sergeant Stapp and Officer Hernandez quoted the entire statement to the jury.
Over defense counsel’s objection, the court read a special instruction to explain why the jury had not heard the full statement earlier. The special instruction stated: “During the prosecution’s rebuttal case, prosecution witnesses were permitted to testify about statements allegedly made by the defendant Gonzales that they were not legally permitted to testify about until Mr. Gonzales testified and was subject to cross-examination by the prosecution and the defense for Mr. Barragan. Do not speculate as to the reason they were not permitted to provide such testimony before. Do not speculate that there is other evidence about which you have not heard. Decide this case based only on the evidence and testimony presented during all portions of the trial and the Court’s instructions. Also, do not draw any inference about the facts because I am giving this instruction. Whether or not Mr. Gonzales made any of the alleged statements is for you to decide.”
Defendant does not challenge the January 31 statement to Sergeant Stapp on Miranda grounds. Instead, Gonzales argues that he was prejudiced by the redaction, correction and special instruction because the court’s rulings misled the jury and reduced the prosecution’s burden of proof. He maintains that the redacted statement was “an unequivocal admission of participation in the criminal acts when its true meaning was the opposite.” Gonzales asserts that by the time he testified that he did not go to the door of the MacDougall house, “it had been ingrained that he was present and his credibility and demeanor would be viewed in that light as he tried to explain.” He also contends that the admonition “not to speculate” why the evidence had been hidden from the jury had the opposite effect.
We conclude that the court did not err in redacting the statement in the first instance. It was assumed at that point in the trial that Gonzales would not testify. Thus, the court properly excluded evidence that might incriminate Barragan. We also reject as exaggerated Gonzales’s claim that the statement “I was there” constituted a confession. As for the special instruction, Gonzales does not argue that it was an incorrect statement of the procedural facts or the law. In any event, Gonzales suffered no prejudice. In the end, the court admitted Gonzales’s statement in its entirety – an alternative that Gonzales sought from the start.
2. The Statement To Hicks, Steinkamp and Turner:
Detective Hicks, Detective Steinkamp, and Deputy District Attorney Todd Turner conducted a videotaped interview with Gonzales at DVI on the afternoon of January 31, 2003. Sergeant Stapp had informed Detective Hicks that Gonzales asked to have an attorney present when he was interviewed by Tracy Police.
The first few pages of the unredacted transcript reveal that Gonzales stated repeatedly that he would provide information, but wanted assurances that he would not be prosecuted for the crimes. The detectives explained that Turner was authorized to make deals but needed more information about what happened and how Gonzales was involved. Gonzales responded repeatedly, “It ain’t gonna work that way.” Turner promised that he would not use any statement Gonzales made that day against him. The interview continued.
The court found Gonzales’s statements admissible up to the point on page seven of the transcript where the detectives offered Gonzales use immunity. It considered Gonzales’s conversation with Hicks, Steinkamp and Turner “nothing more than an extension of conversation [Gonzales] initiated by indicating he had information he wanted to provide,” and not custodial interrogation. The court found that in any event, Gonzales never asked for an attorney the afternoon of January 31, 2003, and his earlier request was ineffective because it was made outside the context of custodial interrogation. (Calderon, supra, 54 Cal.App.4th at p. 770.) Later, the court redacted references to Flores and Phipps, Gonzales’s mother, in the first seven pages of the transcript.
Gonzales acknowledges that the court properly suppressed the bulk of his January 31, 3003, interview with Hicks, Steinkamp and Turner. However, Gonzales cites Edwards v. Arizona, supra, 451 U.S. 477 [68 L.Ed.2d 378], and contends that the court should have suppressed the first seven pages of the transcript. He maintains that his earlier request to have an attorney present when interviewed by the Tracy authorities barred any further questioning absent the presence of an attorney.
We conclude there was no effective invocation of Miranda rights at the close of Gonzales’s meeting with Stapp the morning of January 31, 2003. That meeting was a follow up to Gonzales’s January 27, 2003, meeting with Sergeant Stapp, which Gonzales had initiated for the purpose of giving Stapp information. Because the meeting between Gonzales and Stapp on the morning of January 31, 2003, did not involve custodial interrogation, Gonzales’s request that an attorney be present at his next meeting with law enforcement officials was ineffective as to the meeting with Hicks, Steinkamp and Turner later that afternoon. (Calderon, supra, 54 Cal.App.4th at p. 770.) In any event, Gonzales does not explain how he was prejudiced by admission of the first seven pages of the transcript, which contained no substantive information. Miranda does not bar questions that are not designed to elicit incriminating statements. (Ray, supra, 13 Cal.4th at pp. 336-337.)
B. February 18, 2003 -- Gonzales’s Letter Requesting An Attorney:
Detective Hicks testified that he received a letter from Gonzales on February 18, 2003. In the letter, Gonzales stated, “When they [referring to the Tracy authorities] do come, I want them to bring an attorney that’s appointed to me so he can explain it all to me.” Hicks read the letter before his February 27, 2003, meeting with Gonzales.
The court noted that “no case . . . holds that a person who initiates contact with the police is entitled to have an attorney appointed free of cost.” It found that Gonzales’s request for an attorney in the February 18, 2003, letter was an ineffective, anticipatory invocation of Miranda rights, because it was not made to an interrogating officer during custodial interrogation. (Calderon, supra, 54 Cal.App.4th at p. 770.)
C. February 27, 2003 -- Gonzales’s Statement to Hicks and Steinkamp:
On February 27, 2003, Detective Hicks and Detective Steinkamp met with Gonzales at DVI to tell him there would be no immunity. Gonzales started to cry. Hicks advised Gonzales of his rights and Gonzales said that he understood. However, Gonzales refused to sign the advisement form. Hicks testified that “after that, [Gonzales] said nothing but ‘Take me to trial,’ over and over.”
The court ruled inadmissible “[e]verything after Detective Hicks told [Gonzales] that he wasn’t gonna be receiving immunity and his reaction . . . .” (Italics added.) Specifically, the court excluded Gonzales’s invocation of his Fifth Amendment rights under Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91]. At trial, Hicks testified that after Gonzales stated he understood his rights, he said nothing more than “Take me to trial. Take me to trial. Take me to trial.” There was no mention of Gonzales’s refusal to sign the form.
Gonzales acknowledges that counsel did not specifically object to admission of Hicks’s testimony that Gonzales invoked his rights and that they should take him to trial. However, Gonzales suggests that based on his request for counsel on January 31, 2003, and in his February 18, 2003, letter, the court could conclude that he and the law enforcement officials were engaged in a continuing dialogue. Thus, he argues once again that the court should have suppressed testimony regarding his reaction to news of no immunity because he effectively invoked his right to counsel under Miranda.
Contrary to Gonzales’s characterization of events, the record does not show that there were ongoing immunity discussions or a continuing dialogue between Gonzales and the Tracy authorities which would render Calderon inapplicable. The series of related meetings cited by Gonzales were separated by lengthy periods of no contact. Meanwhile Detectives Hicks and Steinkamp pursued their investigation after their January 31, 2003, interview with Gonzales. On February 27, 2003, Tracy police executed a search warrant at Gonzales’s parents’ residence and found Flores in her bedroom. Flores wanted to cooperate. Flores gave a statement, and Tracy authorities determined that there would be no immunity for Gonzales. The court was correct in concluding that there had been no effective invocation of Miranda.
D. March 12, 2003 -- Gonzales’s Statement To Detectives Hicks and Steinkamp:
On March 12, 2003, Detective Hicks served an arrest warrant for Daniel MacDougall’s murder on Gonzales and drove him from DVI to the Tracy Police Station. Gonzales and Steinkamp talked during the short trip. Steinkamp told Gonzales, “‘Terry, you can still help yourself. You can try, if you still want to cooperate with this investigation. . . . You’re under arrest for the murder of Daniel MacDougall.’”
1. The Statement to Steinkamp:
Prior to booking, Steinkamp conducted a short, videotaped interview of Gonzales. Gonzales again indicated that he wanted immunity in exchange for his cooperation. In response to Steinkamp’s question regarding prior Miranda warnings, Gonzales said that he had been advised of his rights more than 20 times, and recited the Miranda warnings for Steinkamp. Steinkamp read them again, and Gonzales stated that he understood his rights. He did not ask for an attorney and continued to talk with Steinkamp. Returning to the question of immunity later in the interview, Gonzales said, “Let me ask you this, where’s the gun that was here? The gun that he got killed with? What if I can . . . find it for you? What if I can give it to you? . . . [¶] . . . [¶] I’m just asking.” Gonzales continued: “What if I were to say I seen Daniel MacDougall die?” Steinkamp responded that both pieces of information would be “good for the case.” At the close of the interview, Gonzales told Steinkamp, “I won’t be calling you unless I get immunity.”
The court ruled Gonzales’s statements in the March 12, 2003, interview admissible, with the exception of the reference to other murders, which it excluded under Evidence Code section 352. The court found that Gonzales’s invocation of rights on February 27, 2003, did not “cut off in perpetuity all additional interrogation by officers even on the same case.” The court ruled that Steinkamp properly re-admonished Gonzales on March 12, 2003.
Gonzales argues that “although told by this time that the immunity was not going to happen, there was still being held out some promises that it was possible Gonzales would get a break of some sort. His statements [on March 12, 2003,] in which he continued to try to pursue immunity[,] were therefore induced by the slim reed held out to him.” Gonzales maintains that the implied waiver of Miranda rights came only after Steinkamp softened him up with the promise that Gonzales could still help himself. He contends that “[s]uch a waiver following a ‘softening up’ is not freely given.”
Contrary to Gonzales’s argument on appeal, the record supports the conclusion that the prosecution met its burden of proving that Gonzales’s statements in the March 12, 2003, interview with Steinkamp were voluntary. (Cahill, supra, 22 Cal.App.4th at p. 310.) Detective Steinkamp’s comments to Gonzales en route to Tracy did not rise to the level of a promise of immunity. (See People v. Ramos (2004) 121 Cal.App.4th 1194, 1200-1201.)
2. The Statement To Hicks During Booking:
When Hicks was taking Gonzales’s palm prints, Gonzales said, “‘Why are you doing this? I was wearing gloves.’” Hicks asked, “‘What kind of gloves?’” and Gonzales responded, “‘burners.’” Hicks testified to two definitions of that term. He had heard that burners were leather batting gloves which left a burn mark if used to hit someone. Alternatively, the name referred to the fact that the gloves were burned after being used in a crime.
With respect to Gonzales’s comment, “‘Why are you doing this? I was wearing gloves,’” the court found by a preponderance of the evidence that it was “completely spontaneous . . . volunteered and not a response to custodial interrogation.” The court ruled that even if the exchange could be considered custodial interrogation, the statement was admissible because of the prior advisement and implied waiver during the booking interview with Steinkamp. As to Hicks’s question, “‘What kind of gloves?’” the court found it admissible “since it was contemporaneous to the earlier admonition and implied waiver.”
We agree that the circumstances of the exchange between Gonzales and Hicks reflect that Gonzales’s statements were spontaneous. In any event, even if Hicks’s follow-up question “What kind of gloves?” could be viewed as custodial interrogation, Gonzales’s response was properly admitted under Gonzales’s implied waiver of Miranda rights during his earlier interview with Steinkamp. Gonzales’s statements regarding gloves were properly before the jury.
Gonzales also argues that the court erred in overruling his hearsay objection to Hicks’s explanation of the term “burners.” He contends that the statement was not based on personal knowledge and lacked foundation. Gonzales maintains that the evidence was prejudicial because he was “effectively confessing that he had engaged in a criminal act for which he had deliberately worn gloves that were designed for easy destruction after the crime was committed.” Gonzales overstates the impact of Hicks’s testimony; there was no prejudice from the detective’s dual explanation of the gloves.
V.
Admission Of The October 2002 Robberies [Barragan and Gonzales]
The prosecution moved in limine to introduce Flores’s testimony about six robberies that defendants were involved in close to the time of Daniel’s murder. They offered three theories to support admission of the evidence: to rehabilitate Flores, to prove the predicate crimes under the section 186.22 gang enhancement, and to establish intent under Evidence Code section 1101, subdivision (b). The court ruled that four robberies which occurred in October 2002 were admissible for purposes of section 186.22, but postponed its ruling on whether the evidence was admissible under Evidence Code section 1101, subdivision (b). The court subsequently ruled that evidence of the four robberies was not cumulative, since it was already admitted under section 186.22, and was therefore admissible to show intent under Evidence Code section 1101, subdivision (b).
Defendants argue that they are entitled to reversal because the court erred in admitting Flores’s testimony regarding defendants’ participation in the four October 2002 robberies. They contend that: (1) the evidence was inadmissible under Evidence Code section 1101, subdivision (b) to show intent; (2) it was error to admit the evidence under Evidence Code section 352, even if the evidence was relevant to the section 186.22 issues; and (3) the court violated their due process right to a fair trial.
We review the admission of other crimes evidence for abuse of discretion, because it is “essentially a determination of relevance.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) We conclude there was no abuse of discretion in this case. Finding no abuse of discretion, we also reject defendants’ due process claim.
Defendants concede that evidence of the four robberies was relevant to establish the predicate offences under section 186.22, but argue there was too much of it. Specifically, defendants contend that the court abused its discretion under Evidence Code section 352 by admitting four offenses when only “two or more” were required to establish a “pattern of criminal gang activity” under section 186.22. They also maintain that the prejudicial impact of the evidence outweighed its probative value.
We conclude that the court acted within its discretion to select the four of six proffered offenses. It selected the offenses that occurred closest in time to the murder and involved both Barragan and Gonzales. The evidence of defendants’ involvement in four robberies within a week’s time was relevant to establish a “pattern of criminal gang activity” under section 186.22. Nothing in the content or manner of Flores’s brief testimony regarding the robberies evoked “an emotional bias against a party as an individual.” (People v. Crittenden (1994) 9 Cal.4th 83, 134.) And as we explained, defendants concede the probative value of the testimony. (Ibid.)
We also reject defendants’ argument that the court abused its discretion in admitting evidence of the four robberies to show intent under Evidence Code section 1101, subdivision (b). Defendants assert that intent was not in dispute and the proffered evidence did not meet the more stringent conditions for admission to show identity. (See People v. Ewoldt (1994) 7 Cal.4th 380, 403 [the greatest degree of similarity is required for evidence of uncharged misconduct to be admitted to prove identity].) Defendants maintain that the evidence was inadmissible for any purpose under Evidence Code section 1101, subdivision (b), and represented an attempt by the prosecution to show defendants were guilty of the charged crimes because they had a history of violence.
Evidence Code section 1101, subdivision (b) provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
The court did not abuse its discretion in ruling that the evidence was admissible to show intent under Evidence Code section 1101, subdivision (b). Although Flores testified about the planning that took place in advance of the attempted home invasion robbery and murder, we agree with the prosecution that details of the robberies were relevant to the prosecution theory that the home invasion robbery was part of defendants’ fall 2002 crime spree. In each of the four robberies, defendants used masks, gloves, handguns, and, in three, tried to access a safe. Moreover, while the court may have been incorrect in its characterization of the evidence as not being cumulative, it was already properly before the jury for purposes of establishing the predicate offenses under section 186.22. Thus, its admission was not prejudicial.
We, therefore, reject defendants’ argument that admission of evidence of the four robberies was fundamentally unfair and therefore violated their right of due process. Defendants are correct that “[t]he aim of the requirement of due process is . . . to prevent fundamental unfairness in the use of evidence, whether true or false.” (Lisenba v. California (1941) 314 U.S. 219, 236 [86 L.Ed. 166, 180].) Given the relevance of the evidence of the four robberies, neither of the court’s rulings created “impermissible inferences, without foundation in reason or experience” or “‘undermine[d] the factfinder’s responsibility at trial,’” as suggested by defendants.
VI.
Silveria’s Preliminary Hearing Testimony Was Properly Admitted [Barragan and Gonzales]
Barragan’s girlfriend, Melynda Silveria, testified at the preliminary hearing about Barragan’s post-crime flight. She stated that Barragan had telephoned her on a morning sometime in early November 2002 from a telephone near the Carl’s Jr. Restaurant on Hammer Lane in Stockton. He asked her to pick him up and drive him home to Modesto. When Silveria arrived at the restaurant, she saw Barragan, Dominguez, and Gerardo Herrera standing outside together. Silveria’s friend Rosemary Mejia rode with her when she drove the three men to Modesto. Silveria testified that she did not see Gonzales at the restaurant, but recognized his car parked nearby. When the prosecution was unable to serve Silveria with a subpoena to testify at trial, the court conducted an “unavailability hearing” and admitted her preliminary hearing testimony under Evidence Code sections 240 and 1291.
Evidence Code section 1291, subdivision (a) provides:
Defendants contend that the court violated their right to confront Silveria and the statutory bars to the admission of hearsay by allowing the prosecution to use Silveria’s preliminary hearing testimony at trial. Citing People v. Cromer (2001) 24 Cal.4th 889 (Cromer), they argue that the prosecution’s effort to secure Silveria’s presence at trial was “desultory and passive and late.” Defendants assert that the prosecution knew after the preliminary hearing that Silveria did not want to testify, but did nothing to locate her until the trial was well under way. There is no merit in defendants’ contentions.
The Attorney General states in respondent’s brief that “[a]n issue not raised but fairly present is whether the use of prior recorded testimony, as a question of law, violated Confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 [Crawford].” Having set up this straw man, the Attorney General proceeds to knock it down by claiming that defendants waived the Crawford issue by failing to object at trial. However, defendants’ confrontation challenge is focused instead on the question whether the prosecution exercised due diligence in attempting to secure Silveria’s presence at trial. That question was presented at the March 10, 2005, due diligence hearing and is properly before us on appeal.
“A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must ‘have made a good-faith effort to obtain his presence at trial.’ [Citations.] The California Evidence Code contains a similar requirement. As relevant, it provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that the witness is absent from the hearing and either that ‘the court is unable to compel his or her attendance by its process’ (Evid. Code, § 240, subd. (a)(4)) or that the proponent ‘has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process’ (Evid. Code, § 240, subd. (a)(5)). . . . The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).)
The Supreme Court explained in Cromer that “that the term ‘due diligence’ is ‘incapable of a mechanical definition,’ but it ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ [Citations.] Relevant considerations include ‘“whether the search was timely begun”’ [citation], the importance of the witness’s testimony [citation], and whether leads were competently explored [citation].” (Cromer, supra, 24 Cal.4th at p. 904.) At the same time, “[a]n appellate court ‘will not reverse a trial court’s determination [under § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection.’ [Citations.]” (People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz), italics added.) “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1298.)
Whether the prosecution exercised due diligence is a factual question which turns on the circumstances in each case. (People v. Hovey (1988) 44 Cal.3d 543, 563.) On appeal, we decide the question of due diligence independently, not deferentially. (Cromer, supra, 24 Cal.4th at p. 901.)
The record in this case reveals that Silveria had been difficult to serve with a subpoena for the preliminary hearing in 2003. Because of her relationship with Barragan, Silveria “didn’t want to have anything to do with it.” Silveria acknowledged at the preliminary hearing that she knew Flores and it is reasonable to conclude that this fact may have influenced Silveria’s later efforts to evade service of the subpoena for trial.
When investigator Tom Ribota was assigned service of the subpoena, he followed several lines of inquiry between January 19, 2005, and the unavailability hearing on March 10, 2005. Silveria lived with her mother, K. Cooper, at the time of the preliminary hearing. Ribota traced Cooper to a new address and spoke with her in person on two occasions. Cooper indicated that Silveria was “in and out of the house,” but refused to receive the subpoena for her. Ribota left his business card and asked Cooper to have Silveria call him. Cooper told Ribota the following day that she had given the business card to her daughter and told her that the investigator had a subpoena. Ribota returned to Cooper’s house at least three more times, but Cooper said that she had not seen Silveria. Ribota served Cooper with a subpoena for the unavailability hearing. Ribota also attempted to contact Silveria through her sister. He stopped by the sister’s home on three occasions, but no one was home. Ribota made two visits to the fitness center where Silveria had worked. He learned that she left the previous October. A supervisor, who was a friend of Silveria’s, chuckled when Ribota asked if she would tell him if she knew where to find Silveria. Ribota also contacted the local hospitals, checked criminal history, and reviewed motor vehicle records with no success. After learning that Silveria had visited Barragan in jail in January, Ribota asked that he be contacted if Silveria made a return visit. Silveria did return to visit Barragan in jail the night before the unavailability hearing, but no one contacted Ribota.
At the close of the unavailability hearing, the court found that the prosecution had made significant efforts to locate and serve Silveria. It noted that Silveria was aware that trial was underway, knew that the prosecution was looking for her, and was clearly evading court process.
In claiming error on appeal, defendants rely on Cromer, a case that focused almost entirely on the standard of review applicable to a trial court’s due diligence determination. (24 Cal.4th at p. 893.) Applying the independent standard of review, the Cromer court affirmed the appellate court’s conclusion that the prosecution failed to demonstrate due diligence in its efforts to locate the victim of an armed robbery who had identified defendant in a photo lineup. The witness’s testimony was the only evidence presented in support of the single count at issue on appeal. (Id. at pp. 893, 903.) The record in Cromer revealed the following undisputed facts: “Although the prosecution lost contact with [the witness] after the preliminary hearing, and within two weeks had received a report of her disappearance, and although trial was originally scheduled for September 1997, the prosecution made no serious effort to locate her until December 1997. After the case was called for trial on January 20, 1998, the prosecution obtained promising information that [the witness] was living with her mother in San Bernardino, but prosecution investigators waited two days to check out this information. With jury selection under way, an investigator went to [the witness’s] mother’s residence, where he received information that the mother would return the next day, yet the investigator never bothered to return to speak to [the witness’s] mother, the person most likely know where [she] then was. Thus, serious efforts to locate [the witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed.” (Id. at p. 903.)
The court reached a different conclusion in Diaz, where the facts more closely resemble the facts in the case before us. The Diaz court held that the court properly admitted the witness’s preliminary hearing testimony because the prosecution demonstrated due diligence and it was “fairly clear that [the witness] purposely made herself unavailable because she was unwilling to testify.” (Diaz, supra, 95 Cal.App.4th at p. 706.) As in this case, the prosecution in Diaz made more than five attempts to personally serve the witness, contacted the witness’s mother and brother, and checked with local hospitals, the Department of Motor Vehicles, and arrest records. Like Silveria’s mother, the brother of the witness in Diaz told the prosecution that the witness knew the police were looking for her. He also said that she was determined not to testify. (Id. at pp. 706-707.) The detective in Diaz indicated that the witness was fearful because it was a gang case. In his opinion, serving the witness “well in advance of trial would have only ensured her unavailability.” (Id. at p. 707.)
In light of the circumstances of the case before us, including the prosecution’s substantial efforts to serve the subpoena on Silveria, the fact that Silveria knew Flores and must have been aware of Barragan’s gang connections, and the clear evidence that Silveria was purposefully avoiding service of process, we conclude that the prosecution demonstrated due diligence. Accordingly, the court did not err in admitting Silveria’s preliminary hearing testimony.
VII.
Altered Transcript of the February 15, 2003 Conversation [Gonzales]
Phipps, Gonzales’s mother, and Flores, his girlfriend, visited him at DVI in mid February 2003. Sergeant Stapp and Detective Hicks listened to the audio tape of the visit. During trial Detective Hicks played the tape while the jurors followed along on the 43-page transcript provided by the prosecution. Gonzales’s attorney did not object to the use of the transcript. Soon thereafter, it was discovered that the jurors’ copies included handwritten underlining that highlighted the following statement by Gonzales at page 851 of the transcript: “I’m not scared to shoot[,] I’m a down Norteno . . . .” On the next court day, before the jury returned, the court replaced page 851 of the jurors’ copies of the transcript with a clean page. Although no one objected to the court’s actions at the time, the court preserved pages 850 and 851 of the jurors’ copy of the transcript as court exhibit D for “so the record’s preserved on what was underlined in the appeal . . . .” Defense counsel did not object to the admission of the transcript into evidence several weeks later on April 8, 2005.
Gonzales’s response to Phipps in that portion of the transcript read its entirety: “Yeah. So they’re saying I was going, I would go to the baby area to pick up boxes of grenades and that I had an Uzi and that I have access to guns and that I got guns, I have a lot of guns, and I sell crank and all kinds of shit. It . . . I’m not scared to shoot I’m a down Norteno and all kinds of stupid shit man and they’re the ones that told them cuz I have the paperwork of Gypsy, her names Amber. Ask Christina what her first name is. Ask her. Ask her what Gypsy’s name is.”
The Attorney General and Gonzales’s counsel on appeal both assume that People’s exhibit 101, the complete transcript received into evidence on April 8, 2005, was the “corrected” version. However, our review of exhibit 101 shows that the underlining remained on page 851. Thus, the record suggests that the court replaced pages 850 and 851 only in the transcripts given to the jury at the time it listened to the audio tape. Neither Gonzales nor the Attorney General provides record cites to explain what happened to the transcripts after the audio tape was played.
Gonzales argues on appeal that he was prejudiced because the underlining unduly emphasized and changed the meaning of his statement. Specifically, Gonzales contends that “[t]he contextual appearance of this quotation, without the underline, appears to be an attempt to relate inaccurate or misleading information being rumored about him, which is completely the opposite of the impression given by the emphasized portion.” Gonzales points out that although the court took action to preserve the issue for appeal, it did not make the jurors aware of the correction. He maintains that the damage was done.
We agree with Gonzales that, read in context, the underlined portion of the transcript was simply Gonzales’s response to rumors that were circulating about him. However, we disagree that the underlined phrase which the jury briefly possessed in a 43-page transcript changed the meaning of the phrase to his prejudice. In any event, even if the underlined portion of the transcript should not have been given to the jury for the time period when the prosecution played the audio tape, we reject Gonzales’s claim that reversal is required.
Gonzales attempts to characterize the claimed error as one of judicial mistake akin to prosecutorial misconduct. However, in either case, a timely objection is ordinarily required. (People v. Samayoa (1997) 15 Cal.4th 795, 841; Evid. Code, § 353.) Gonzales relies on People v. Stevenson (1978) 79 Cal.App.3d 976 (Stevenson) in support of his argument that a procedure allowing for the use of edited transcripts was improper. We note that in Stevenson, defense counsel preserved the issue by objecting on the specific ground that the procedure employed by the court unduly emphasized the testimony of two dead prosecution witnesses. (Id. at p. 990.) Here, Gonzales failed to object and state the specific legal grounds for the transcript’s exclusion in the trial court.
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
Alternatively, Gonzales contends that defense counsel’s failure to object establishes ineffective assistance of counsel.
The law regarding a defendant’s constitutional right to effective assistance of counsel is well-established. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) “[T]he question whether counsel is constitutionally ineffective comprises two inquiries: (1) Was counsel’s performance deficient? and (2) Was there prejudice? [Citations.] . . . ‘[I]f a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.’” (People v. Weaver (2001) 26 Cal.4th 876, 961, quoting in part People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008.) To establish prejudice, “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, at p. 694 [80 L.Ed.2d at p. 698].) We conclude that Gonzales suffered no prejudice under this standard.
Read or heard in context, the underlined portion of the transcript showed Gonzales recounting what others were saying about him. Other parts of the audio tape and transcript established Gonzales’s threats of violence and knowledge of the gang culture. During this particular visit by Flores and his mother, Gonzales threatened to break the windows of the visiting booth to get at Flores. He demanded that his mother keep Flores hostage at her house to prevent her from talking. Gonzales stated that he would not allow Flores to “put [him] away for the rest of [his] life.” He threatened that Flores and her parents would be marked for death at the hands of others if Flores cooperated with law enforcement. Gonzales urged his mother to buy a shotgun, noting that there was only a 10-day waiting period for that type of weapon. Given that the underlined phrase added little to what the audio tape and transcript revealed about Gonzales, a reasonable attorney would have concluded there were no grounds for objection or that tactically there was absolutely no benefit from repeating any part of the audio tape to the jury. In any event, Gonzales suffered no prejudice and his claim of ineffective assistance fails.
VIII.
The Norteño Roster [Gonzales]
Gonzales mounts a series of claims against the admission of a roster or “bad news list,” or “BNL” that came from his cell at DVI. He maintains that the BNL was inadmissible hearsay, that his statements relating to it were received in violation of Miranda, and the court should have excluded the BNL and related statements as a sanction for late discovery. There is no merit in Gonzales’s arguments and the evidence was properly before the jury.
A. Gonzales’s Notes, The BNL And Gonzales’s Statements To Hernandez:
During Gonzales’s cross-examination and redirect examination of Reyes Hernandez, a correctional investigator at DVI, the court and counsel discovered for the first time that Hernandez had interviewed Gonzales in DVI. Gonzales had provided Hernandez with DVI gang activity information. On the basis of Gonzales’s information to Hernandez, Gonzales’s cell and other cells were searched. The searches failed to reveal anything significant; however, Hernandez and Stapp did recover a roster that Hernandez referred to as a bad news list. The list showed the real names, CDC numbers, monikers and home towns of people who were out of favor with the Norteños. The court noted at the next break that no one, including the district attorney, had a copy of the report written and used by Hernandez. The court announced that the material would be the subject of a Miranda hearing.
Testimony at the Miranda hearing revealed that Hernandez met with Gonzales three times in February, the first two at Gonzales’s request and the last meeting at Gonzales’s request or on Stapp’s initiative. Hernandez arranged the first February meeting after Stapp received a note that Gonzales wanted to talk to him. At that meeting, Gonzales told Hernandez that he would find a rival gang’s contraband, including weapons and drugs, in two cells that he identified. Hernandez testified that he made no promises to induce Gonzales to meet with him. At no time did Gonzales request an attorney. DVI staff searched Gonzales’s cell as well as the cells he named. Gonzales gave them a list. Hernandez acknowledged that it was not necessarily a bad news list. At that point, defense counsel realized that they had not received in discovery the list that Hernandez referred to.
Hernandez met with Gonzales for 20 or 30 minutes a second time in February in response to another note received by Sergeant Stapp in which Gonzales indicated that Hernandez was in danger. Gonzales did not request the presence of an attorney. The meeting took place on the second floor of the administration building. Gonzales was not wearing restraints and Hernandez made no threats or promises in the course of his discussion with Gonzales. During that second interview, Gonzales provided additional gang information. He told Hernandez that Jesse Bejaran and Michael Villes wanted to “put holes in” Hernandez. He said that Bejaran and Villes sponsored him into Nuestra Raza, Northern Structure while Bejaran and Villes were on the streets of Modesto. At that point, Gonzales told Hernandez that he had performed various assignments for Nuestra Raza at the direction of Bejaran and Villes. Gonzales did not want to get into the specifics of those assignments because he did not want to implicate himself in unlawful activity. Gonzales provided the names of two people that Bejaran ordered hits on. Hernandez testified at the Miranda hearing that he did not tell Gonzales that he had the right to an attorney because “[w]e weren’t going to pursue that line of interest.” Hernandez also stated, “He wasn’t implicating himself in anything was my belief at that time.”
The third interview in February 2003, took place on the second floor of the administration building. No promises were made for Gonzales’s cooperation. Gonzales did not request an attorney. On this occasion, Gonzales repeated essentially the same information that he provided to Hernandez on February 20, 2003.
B. The Miranda Issue:
The court ruled first on the Miranda issue. Because no promises were made, no threats were made, and Gonzales never asked for an attorney, Miranda warnings were not required under Ray, supra, 13 Cal.4th at pages 336-338. The court also found that the scope of Gonzales’s requests for an attorney on January 31, 2003, and February 18, 2003, was “very narrow” and did not extend to statements made to officers at DVI regarding events within that institution. Thus, the court ruled there was no constitutional reason why the statements made by Gonzales in February should be suppressed.
Gonzales challenges the court’s ruling on several grounds. He contends that his February 18, 2003, letter requested an attorney the next time authorities came, and he talked to Hernandez in February, two days after the letter. Gonzales attempts to distinguish Ray, noting that he was in the custody of Hernandez, the threatened person. He points out that he was not free to come and go as he pleased, and was under a different kind of compulsion resulting from the following dilemma: “He could, of course, have said nothing and permitted the attack to go forward, or at least done nothing about the grave risk that it would.” As to the third interview in February Gonzales argues that there was no evidence that he requested the meeting.
Contrary to Gonzales’s argument, the court properly concluded that there was no Miranda violation under Ray. Gonzales initiated these and earlier contacts with DVI staff. His note to Sergeant Stapp on January 27, 2003, regarding information for Modesto police detailed how he should be taken from his cell for the meeting in order to avoid the suspicion of other inmates. The Februarymeetings took place on the second floor of the administration building. Gonzales was not handcuffed. There was no custodial interrogation because, as in Ray, his meetings with Hernandez did not involve “‛a measure of compulsion above and beyond that inherent in custody itself.’ [Citation.]” (13 Cal.4th at p. 336.) In addition, the information provided by Gonzales related to gang activities inside DVI, not the murder of Daniel MacDowell. Even if Gonzales did not request the third meeting in February he provided no new information in that meeting. We already explained at length the reasons Gonzales’s earlier requests for counsel were ineffective under Calderon, supra, 54 Cal.App.4th at pages 770-771.
C. Late Discovery Of the BNL:
The issue of late discovery was more complex. The nature of the list was in dispute, the prosecutor arguing that it was simply a roster, and Barragan’s attorney arguing “it [was] absolutely a BNL.”
The court expressed concern that the prosecution had deliberately withheld the list, based on a deputy district attorney’s decision that the people on the BNL needed protection, in violation of well-established statutes and rules pertaining to criminal discovery. The court also noted that the prosecution could have sought a protective order if it had good cause to withhold the list. There was also disagreement on the proper sanction. Initially, the court was inclined to exclude the list based on the discovery violation. However, counsel for Barragan wanted the list admitted in its entirety as relevant to the defense. The court recognized Barragan’s due process right to introduce the evidence. Following an in camera hearing, the court found that the list was relevant and Barragan’s attorney would have introduced it if he had been aware of its existence. Hernandez was permitted to describe exactly what happened -- that Gonzales handed the list to him during a cell search.
Gonzales argues the court abused its discretion in denying his request to exclude the BNL on grounds it was late discovery and extremely prejudicial. He maintains that “the prosecution’s lateness went unpenalized, and Barragan’s counsel was willing to proceed with the evidence sanitized so that the cell in which it was found was not revealed.” Although Gonzales’s counsel did not state the ground for his objection, Gonzales argues on appeal that “it was clearly one grounded in due process and Evidence Code section 352.” Gonzales contends that the BNL was irrelevant because it was found in Gonzales’s cell months after Daniel’s murder and had no probative value on his knowledge of who was out of favor with the Norteños in November 2002. The BNL was introduced by the prosecution “solely due to its value . . . to Barragan’s case.”
The court has discretion to consider a wide range of sanctions in response to the prosecution's violation of a discovery order. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) We also review the court’s ruling under Evidence Code section 352 for abuse of discretion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) Having reviewed the record of the in camera hearing and considered the arguments of all counsel, we conclude there was no abuse of discretion in this case.
The court did not abuse its discretion by declining to exclude the BNL as a discovery sanction. The list was relevant to Barragan’s theory of defense and the court properly admitted it on that basis. After the in camera hearing, Barragan’s counsel clarified that his preference was for Hernandez to state when and where the evidence was found.
As for the question of the admissibility of the BNL under Evidence Code section 352, an issue not specifically raised by Gonzales’s objection, we conclude that the probative value of the evidence was not outweighed by its prejudicial impact to Gonzales. As we explained, Hernandez testified near the end of the prosecution’s case. Any prejudice to Gonzales from the denial of the request to sanitize the testimony was minimal, because the jury had already heard other testimony about Gonzales’s gang connections. At the same time, the list was relevant to Barragan’s defense. The length of time between Daniel’s murder and discovery of the BNL went to the weight of the evidence, not its admissibility.
D. The Hearsay Issue:
During Hernandez’s testimony in front of the jury, Gonzales objected to the question regarding where the list was discovered. The court overruled the objection. Hernandez testified that the list was found in Gonzales’s cell and Gonzales told them that he had it in the cell before the search.
On appeal, Gonzales contends that the court erred in overruling the objection because there was no foundation that Hernandez had personal knowledge of where the list was found. This contention is unsupported by the evidence. At trial, Hernandez testified that Gonzales told him that he had the list.
IX.
Special Instruction Regarding Corroboration [Barragan]
The court instructed the jury that witnesses Flores and Herrera were accomplices as a matter of law. Based on the understanding that accomplice testimony is inherently untrustworthy, section 1111 requires corroboration of accomplice testimony “by such other evidence as shall tend to connect the defendant with the commission of the offense.” (People v. Belton (1979) 23 Cal.3d 516, 520, fn. 3.) However, People v. Maldonado (1999) 72 Cal.App.4th 588, 597-598 (Maldonado) holds that accomplice corroboration was is required to prove a gun use enhancement.
Section 1111 reads in its entirety: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
The court in this case instructed the jury on accomplice corroboration with CALJIC No. 311 (July 2004), then read the following special instruction to the jury: “This [accomplice corroboration] rule does not apply to the Intentional Discharge of a Firearm allegation, the Gang-Related Crime allegation, or the predicate offenses which must be proved in the Gang-Related Crime allegation. [¶] This rule does not apply to crimes . . . that I will instruct you that may be considered as tending to show the existence of an intent which is a necessary element of crimes charged. These crimes include the alleged robberies at the Motel 6 in Modesto, Stop ‘N Sav in Modesto, Denny’s in Lathrop, and the Quik Stop in Ripon.” (Italics added.)
The modified version of CALJIC NO. 311 read: “You cannot find the defendants guilty of the crimes in Counts 1 through 3 or the special circumstances allegations based upon the testimony of an accomplice, unless that evidence is corroborated by other evidence which tends to connect the defendant with the commission of that offense. . . . [¶] Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated out of court was true.”
On appeal, Barragan contends that the court erred in giving the special instruction because “the ‘predicate offenses’ listed in the instructions also constituted evidence on which the defendants’ guilt of the charged offense could be predicated.” Specifically, he argues that “[t]he problems were that the other four robberies of which the jury was to learn were going to be considered to establish Mr. Barragan’s involvement as a robber of the McDougall [sic] household, regardless of any limiting instruction given, and that -- accordingly -- Mr. Barragan’s guilt of the other robberies could not logically be segregated from the issue of his guilt of the McDougall [sic] crimes.” He maintains, in an argument we already rejected, that the jury was allowed to consider evidence of the four robberies to establish the identity of the robbers. Barragan contends that as a practical matter, the error in the special instruction effectively eliminated the corroboration requirement as to all of Flores’s testimony. There is no merit in Barragan’s contention.
See discussion at pages 55-56, ante.
Barragan does not argue that the court erred in relying on Maldonado as an exception to the corroboration requirement. Instead, the gist of Barragan’s argument is that the court’s limiting instruction was ineffective and the jury improperly considered evidence of the uncharged robberies to prove that Barragan robbed the MacDougall household. We conclude that the special instruction was a correct statement of the law and, when read together with the court’s limiting instruction, properly instructed the jury on how it should consider Flores’s testimony regarding the uncharged offenses. The special instruction clearly identified the testimony not subject to the corroboration requirement. Moreover, there is no evidence to suggest that the jury misapplied the instruction. We therefore presume that the jurors understood and followed the instructions as read. (People v. Smith, supra, 40 Cal.4th at pp. 517-518.)
The court read the following limiting instruction regarding evidence of the four uncharged robberies: “Evidence has been introduced for the purpose of showing that the defendants committed crimes other than that for which they are on trial, namely an alleged robbery of a Motel 6 in Modesto, a Stop ‘N Sav in Modesto, a Quik Stop in Ripon, and a Denny’s Restaurant in Lathrop. [¶] Except as you will be otherwise instructed, this evidence, if believed, may not be considered by you to prove that a defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of determining if it tends to show the existence of the intent, which is a necessary element of the crime charged. [¶] For the limited purpose for which you may consider such evidence, you may weigh it in the same manner as you do all other evidence in the case. [¶] You must not consider this evidence against either defendant for the purpose of showing intent, unless you find that by a preponderance of the evidence that such defendant committed the other crimes.”
X.
Prosecutorial Misconduct [Barragan & Gonzales]
Defendants cite four incidents during trial which they contend constituted prosecutorial misconduct: (1) an “argumentative, misleading and ridiculing” question to Gonzales on cross-examination; (2) an improper demonstration during rebuttal argument relating to the Baretta and blood prints next to Daniel’s body; (3) a distorted explanation of CALJIC No. 2.90 during rebuttal which lowered the prosecution’s burden of proof; and (4) violation of an express ruling of the court in rebuttal argument.
“‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (Samayoa, supra, 15 Cal.4th at p. 841.) At the same time, “‛“‛a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’”’” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
We conclude that defendants forfeited three of the arguments by failing to make a timely objection and request an admonition at trial. (People v. Panah (2005) 35 Cal.4th 395, 462.) Moreover, none of the other incidents cited by defendants were “‘“‘so egregious that [they] infect[ed] the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.]” (Samayoa, supra, 15 Cal.4th at p. 841.)
A. The “Argumentative, Misleading and Ridiculing” Question:
Gonzales’s defense was that Herrera was the organizer and shooter and he, Gonzales, participated under duress. Gonzales’s credibility was important to the success of his defense. During cross-examination, the prosecutor asked Gonzales about Flores’s visit to DVI in February 2003. Gonzales acknowledged that he asked to see the scars on her stomach. The prosecutor read part of the transcript which ended with the demand, “Show me your fuckin’ stomach right now.” Gonzales acknowledged that he said those things. The exchange continued:
See Factual and Procedural Background, ante, at pages 14-15.
“[THE PROSECUTOR]: Could you make that voice again when you said, ‘Gerardo Herrera told you to come here,’ and say, ‘Show me your fucking stomach’ instead? Do that voice again. Do you remember the voice you did for us yesterday?
“A. What Gerardo Herrera told me?
“Q. When he said, ‘Come here. Come here.’ Use that voice to say, ‘Show me your fucking stomach’?”
At that point, defense counsel said, “I’m going to object at this point,” and the court overruled the unspecified objection. Gonzales repeated the demand “Show me your fucking stomach” and acknowledged it was the way he talked to Flores that day.
Defendants argue on appeal that the court erred in overruling Gonzales’s objection to the prosecutor’s question. They contend that the prosecutor’s request was an “argumentative trap” which misled or confused the jurors. If Gonzales’s testimony about Herrera’s threat was not credible, Gonzales’s defense was “greatly diminished if not destroyed entirely.” Thus, defendants maintain that it was misconduct to “ridicule and dissipate the force of the threat in this manner, no matter how clever . . . .” Defendants acknowledge that defense counsel did not specify the ground for his objection, but argue that the court “understood the objection and ruled on it without asking for or providing an opportunity for further exposition.”
The Attorney General interprets defendants’ argument as a claim that the prosecutor’s question was “objectionable as irrelevant and under Evidence Code section 352.” Inasmuch as defendants failed to mention Evidence Code section 352 in their opening briefs, but Gonzales raised the issue of prosecutorial misconduct in both his opening and reply briefs, we treat this allegation as an issue of prosecutorial misconduct.
Notwithstanding the Attorney General’s argument that defendants forfeited their claim of prosecutorial misconduct by failing to object on that specific ground at trial and requesting an admonition, we find no error. (Samayoa, supra, 15 Cal.4th at p. 841.) The prosecutor was entitled to impeach the credibility of Gonzales’s defense of duress and attempt to minimize his involvement in Daniel’s murder. Gonzales’s duress defense hinged on Gonzales’s ability to persuade the jury that Herrera intimidated him. The prosecutor asked Gonzales to use a voice or tone that Gonzales had already used in trial when imitating Herrera’s demand of him resulting in his participation in the crime. We fail to see how being asked to repeat a tone of voice Gonzales previously volunteered for the jury, results in misconduct by the prosecutor. We view the prosecutor’s question as an effort to dispel Gonzales’s proclaimed intimidation. By showing the jury how intimidating Gonzales could sound, coupled with the nature of his order to Flores, the prosecutor attempted to show that any alleged intimidation of Gonzales was unlikely. The prosecutor’s deliberate use of the transcript from Flores’s visit to DVI also helped explain why Flores was so afraid. We conclude that the evidence was relevant and, more importantly, the manner in which it was introduced did not constitute misconduct. The prosecutor’s question did not infect the trial with such unfairness such that Gonzales’s conviction was a denial of due process. (Ibid.)
B. The Baretta and Blood Prints:
Detective Hicks and a criminalist testified during trial about People’s exhibit 28, a photograph of blood that appeared to have been transferred from the main pool of blood to the floor near Daniel’s body. They stated that the transfer pattern resembled part of a hand and a straight edge, possibly the top of a handgun barrel. During rebuttal, the prosecutor argued without objection that the handle of Gonzales’s Baretta, which Gonzales had given to Manuel “Wino” Quijas, matched the pattern left in blood found near Daniel’s body. The prosecutor held the gun against an enlargement of exhibit 28.
After the prosecutor completed his rebuttal argument, defense counsel argued that the exhibit was deceptive because it was not to scale. The court recalled that there had been no objection when evidence about the transfer stain was received in evidence. Nor had defense counsel objected that the prosecutor was misstating the evidence during a bench conference immediately before the challenged demonstration, since they had not yet heard the prosecutor’s remarks. The court explained that the jury had heard evidence about the transfer stain and the prosecutor was allowed to make fair comment on that evidence.
Defendants argue that they were prejudiced by the prosecutor’s demonstration, which inaccurately represented the testimony of the criminalist. They assert that the prosecutor “worked the picture as an inflammatory item, but he had no evidence other than his own opinion which had no valid basis in the evidence . . . no basis in terms of the accuracy with which his visualizations and opinions were being presented.” They also maintained that the objection entered several minutes later, after rebuttal ended, was effective to preserve the issue on appeal.
Defendants forfeited the claim of prosecutorial misconduct by failing to make a timely objection and request an admonition. (Samayoa, supra, 15 Cal.4th at p. 841.) On the merits, the court properly found that the prosecutor’s demonstration was fair argument on evidence admitted during trial without objection. (See People v. Bemore (2000) 22 Cal.4th 809, 846 [prosecutor argued accurately that defense assertions were contradicted by evidence adduced at trial].) There was no misconduct.
C. Explanation of CALJIC 2.90:
Defendants contend that the prosecutor committed misconduct by distorting the burden of proof in his explanation of CALJIC No. 2.90 during rebuttal. They take issue with his elaboration on the word “feel” in the last sentence of the instruction’s definition of reasonable doubt. Defendants acknowledge that defense counsel did not object to the prosecutor’s argument or request an admonition, and argue in the alternative that they received ineffective assistance of counsel.
CALJIC No. 2.90 reads in relevant part: “Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Italics added.) Defendant argues that the prosecutor’s explanation to the jury of the terms “feeling” and “abiding” served to diminish the People’s burden of proof and indeed “turn[ed] the burden on its head.”
Even if we were to conclude that the issue is properly before us, there was no distortion and no misconduct. The prosecutor’s rebuttal argument on reasonable doubt parsed the key words of the instruction to show the jury how they applied in assessing the evidence. Read in its entirety, the argument correctly outlined the thought process required to satisfy the beyond-a-reasonable-doubt standard.
D. Violation Of Order Not To Mention Excluded Statements:
In the excluded portion of Gonzales’s January 31, 2003, interview with Detective Hicks, Detective Steinkamp and Deputy District Attorney Turner, Gonzales said that Daniel had been killed with a .357 revolver. Later, Gonzales volunteered during cross-examination by the prosecutor that he had been the one to identify the .357 Rossi as the murder weapon. Cross-examination continued:
“[Prosecutor]: So you saw [Herrera] put the .45 in the back of the seat. Tell me, this other gun that he had, what did that look like?
“[Gonzales]: That was a .357 Rossi revolver, black handle, chrome.
“Q. The gun Juan Herrera described?
“A. Yes.
“Q. The one he described shooting into the tree?
“A. Yes.
“Q. All right. Short-barreled?
“A. Short barrel.
“Q. Five shots? Six shots?
“A. I don’t know how many shots it was.
“Q. No idea?
“A. I have an idea.
“Q. Okay.
“A. I don’t know for a fact how many it was.
“Q. Okay. What’s your idea, about how many shots?
“A. I’d assume it was about five or six shots.
“Q. That’s from hearing the testimony here; from reading the discovery in this case?
“A. No. You guys didn’t even know what kind of gun it was, until I told you guys. I’m the first one who came forward and told you guys about the gun.
“Q. When did you do that?
“A. Gerardo [Herrera] lied to you guys and told you some other gun. When did I do that?
“Q. Yeah. When did you do that?
“A. January 31st, the first time I talked to Detectives Hicks and Steinkamp.
“Q. You said the gun used was a .357?
“A. Yes.
“Q. What else did you say?
“A. About what?
“Q. About anything?
“THE COURT: Approach the bench.”
After an unreported bench conference, the prosecutor continued:
“Q. When did you see the Rossi .357?
“A. At what time?
“Q. When was the first time you saw it on November 5, 2002, say?
“A. The first time I had seen that gun was after me and Gerardo got out of the car the last time.
“Q. Okay. Where did you see it?
“A. As we were -- after we got out of the car, while we were walking on the sidewalk.” (Italics added.)
The following morning, outside the presence of the jury, the court noted that it had suppressed Gonzales’s January 31, 2003, statement about the .357 and observed that the prosecutor had exacerbated the problem by asking Gonzales twice, “‘When did you say that’” or “‘When did you tell the police that?’” The court ruled that Gonzales’s response to cross-examination would stay in the record, and stated: “I don’t want anybody else asking any questions about it. I don’t want any comment about it in argument. We’ll just leave it where it is at this point.”
During rebuttal, however, the prosecutor referred twice to Gonzales’s January 31, 2003, statement about the .357. The defense cited prosecutorial misconduct and requested a mistrial.
The prosecutor argued in the first reference to Gonzales’s earlier statement: “[About the] .357 magnum revolver. He tells the detectives before the reports are released that he, in fact, knows that this is, in fact, the gun. He told him on January 31st, 2003. How does he know this? Well, he wants you to believe that it was the couple times that he saw it in the waistband. But then he realized that that didn’t make any sense, so I kept asking him, ‘What else did you see? What else did you see? [¶] . . . [¶] [H]e knew it was a .357 Rossi, because it was his gun, the gun that he had, in fact, traded Gerardo Herrera for and the gun that he had handed to Victor Barragan. That’s how he knew it was his gun.”
A lengthy discussion ensued, during which the court reviewed the record. Gonzales’s attorney stated that if he had been allowed to challenge the court’s earlier ruling prior to closing argument, he would have attempted to use Gonzales’s January 31, 2003, reference to the .357 “as a shield . . . showing that he was truthful to the authorities.” Strategically, defense counsel declined the court’s offer to allow argument in response to the prosecutor’s rebuttal, stating that “the damage has been done.” Noting defense counsel’s decision not to make an additional argument, the court “let [the argument] stand.”
On appeal, defendants argue that the prosecutor committed outrageous misconduct by arguing that the jury should consider highly prejudicial material which the court had suppressed. They contend that “the damage was done[] [¶] [p]la[cing] Gonzales inside the house and present at the time of the shooting.”
Although the prosecutor violated the court’s specific order not to comment about the suppressed statements in argument there was no prejudice because Juan Herrera had already testified about the existence of the .357 Rossi. There was also evidence that it was the murder weapon. To the extent the statements were used to infer that Gonzales had insider information about the shooting before authorities knew about the weapon -- there was also no prejudice since there was ample evidence before the jury that Gonzales was present at the crime. This evidence included his admission that he was present under duress. Defendant suffered no prejudice from the prosecutor’s misconduct.
XI.
Dismissal of Juror No. 10 [Barragan & Gonzales]
The court discharged Juror No. 10 after a half day of deliberations, replaced her with one of the alternates, and instructed the jury to begin deliberations anew. Defendants argue that the court either had no discretion to discharge the juror in the circumstances of this case or “prejudicially failed to properly exercise its discretion under established law.” We conclude that there is no merit in this argument.
Section 1089 reads in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.” A juror’s inability to perform must appear in the record as a demonstrable reality. (People v. Marshall (1996) 13 Cal.4th 799, 843.) “‛We review for abuse of discretion the trial court’s determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial court’s ruling, we will uphold it. [Citation.]’” (People v. Williams (2001) 25 Cal.4th 441, 448.)
A. Procedural Background:
The trial began with jury selection on January 6, 2005, deliberations began on the afternoon of Thursday, April 21, 2005, and the jury returned its verdicts on Friday afternoon April 22, 2005.
We take judicial notice that April 15, 2005 was a Friday, April 18, 2005, a Monday, April 21, 2005, a Thursday, and April 22, 2005, a Friday. (Evid. Code, § 452, subd. (h).)
In late March, the court discussed scheduling issues with the jury due to its own mid-April meetings. Although the court had told the jury it would get the case by April 15, the court asked the members of the jury to check their calendars for the week of April 18. Juror No. 10 indicated a need to change plane reservations for a vacation scheduled for the evening of April 15 through April 18.
On the afternoon of April 21, 2005, Thursday, when the court was ready to send the jurors out to deliberate, Juror No. 10 raised the issue of his/her vacation again. Juror No. 10 indicated that he/she had plans “set for months now” and would be gone from Friday, April 22 through the following Tuesday, April 26. He/she then volunteered that he/she might be able to come back on Monday “but it’s not definite.” The discussion continued with this brief exchange:
“THE COURT: Don’t rush through your discussions today, okay? And we’ll have to work around that. I didn’t remember that from our earlier discussions.
“THE JUROR: Well, no, because I didn’t anticipate it going this far.
“THE COURT: Yeah, me either.”
The court discussed Juror No. 10 and the scheduling question with counsel while the jury began its deliberations. Gonzales’s attorney asked for a recess until Juror No. 10 was available, stating that he preferred “the composition of the jury as it is.” He suggested that the court check the other jurors’ schedules to see if they could deliberate part of the following week. Gonzales’s attorney acknowledged that the court had discretion to excuse the juror, adding, “I can object, basically, because I feel the juror -- the jury as composed is a favorable jury, and I don’t want to mess with it.” Barragan’s attorney raised the same objection, noting that “the Court’s discretion would have to be greatly influenced by the fact that some jurors said, ‘Well, yes, we can be here next week.’ They might be anyway. . . . The week after that, three of them have travel plans or something. . . . The Court would be in a much different position and your discretion would have to be different at that point.” If the jurors were available, Barragan’s attorney saw no problem waiting. The prosecutor expressed different concerns, citing the potential of a long delay between closing arguments and deliberations. He also stated, “I . . . have a concern right now that we are so far past when we told the jury we’d have the case done that delays are gonna make it more likely that we’re going to keep losing other jurors.” The prosecutor suggested that Juror No. 10 be held to a schedule of returning on Tuesday.
When the court asked the jurors about their schedules for the next two weeks, Juror No. 7 indicated that he/she had job interviews on the following Wednesday and Thursday. Juror No. 4 stated that he/she was starting a new job the week after that. With the exception of Juror No. 10, all the jurors and the alternates were available on Monday.
The court told the jurors that it intended to allow Juror No. 10 to go on his/her vacation, but stated that it would not excuse him/her until Friday morning once the court was sure that it had sufficient jurors and alternates to continue. The court told the remaining jurors and alternates to plan to be in court both Friday and Monday.
On Friday, April 22, 2005, the court substituted Juror No. 14 for Juror No. 10 and instructed the jury to begin deliberations anew. They retired to deliberate at 9:10 a.m.
B. The Court Acted Within Its Discretion:
We dispense first with the Attorney General’s contention that defendants’ objections were of a conditional nature and since those conditions did not occur defendants forfeited their section 1089 challenge.
We disagree. It is clear that the defense attorneys preferred the jury as composed and objected to the release of Juror No. 10, there was no forfeiture. We therefore conclude that the question whether the trial court abused its discretion was preserved for consideration on appeal.
1. Code of Civil Procedure Sections 128 And 187:
Gonzales and the Attorney General appear to agree that this case does not involve a juror’s refusal to deliberate or inability to perform his or her duties -- the typical claim under section 1089. Gonzales states that Juror No. 10 “just wanted not to be disappointed on a matter where [he/she] had planned to take a long weekend.” The Attorney General characterizes it as a “straightforward scheduling matter . . . more like a hardship decision during voir dire than a decision to retain or discharge a juror who might be refusing to deliberate or might be a holdout juror.” We agree.
The facts of this case involve two overlapping aspects of the trial court discretion: (1) the discretion under section 1089 to discharge a juror upon a finding of various types of “good cause”; and (2) more fundamentally, the inherent power to control court proceedings in furtherance of justice under Code of Civil procedure sections 128 and 187. Here, the inability of Juror No. 10 to serve on April 22 and 25 due to vacation plans threatened disruption of court proceedings at a critical stage of trial -- the start of jury deliberations. In these circumstances, Code of Civil Procedures sections 127 and 187 inform our decision whether the court abused its discretion under section 1089.
Code of Civil Procedure section 128 reads in relevant part: “(a) Every court shall have the power to do all of the following: [¶] . . . [¶] (3) To provide for the orderly conduct of proceedings before it, or its officers.” Code of Civil Procedure section 187 provides: “When jurisdiction is, by the constitution or this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given . . . .” These procedural rules apply in criminal as well as civil cases. (See People v. Miller (1960) 185 Cal.App.2d 59, 77.)
The record reveals that the trial had lasted longer than anticipated and jurors other than Juror No. 10 had commitments starting the following Wednesday. The lengthy trial generated a great deal of evidence and no one could anticipate how long it would take for the jury to reach a verdict. The question before the trial court was whether to recess the jury for a period of time until Juror No. 10 returned from vacation or replace Juror No. 10 with an alternate juror and forgo a recess or require Juror No. 10 to forgo her vacation and deliberate. The defendants preferred a recess, understanding that the matter was within the court’s discretion. When faced with the possibility of postponing deliberations until Juror No. 10 returned from vacation, the prosecutor voiced the legitimate concern that a delay between closing argument and jury deliberations increased the likelihood of losing other jurors. The court discussed the issue and alternatives with all counsel, made inquiry into the schedules of the jurors and after consideration of all the circumstances made its decision.
In these circumstances, it was not unreasonable for the court to ensure jury deliberations continued as soon as possible after the submission of the case to the jury. It was also prudent for the court to minimize further juror attrition by discharging Juror No. 10 on Friday morning, when the jury had completed only a half day of deliberations. We conclude the court properly exercised its inherent power to maintain the orderly conduct of proceedings -- here the completion of deliberations -- before the jury evaporated. (Code Civ. Proc., § 128.) The need to proceed with deliberations at a time when sufficient number of jurors were present was further good cause to support the discharge of Juror No. 10 under section 1089. We conclude there was no abuse of discretion.
XII.
Gang Enhancement in Count 1 [Barragan & Gonzales]
The court imposed the section 186.22, subdivision (b) gang enhancement when sentencing defendants in count 1. Pursuant to section 186.22, subdivision (b)(1)(C), Barragan received an additional 10 years and Gonzales received an additional 20 years as a result of his “strike.” Relying on People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), defendants argue that we must modify the judgment to strike the gang enhancement in count 1 because it is inapplicable to a sentence of life without the possibility of parole. We agree.
Section 186.22, subdivision (b)(1) states: “(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.”
Gonzales correctly notes that the information failed to charge defendants with the section 186.22 gang enhancement in count 1. And although there is no amended information in the record, the court pre-instructed the jury that the gang enhancement was included in count 1, the verdict forms included findings for the gang enhancement in count 1, and the jury returned true findings on the gang enhancement in count 1 – all without defense objection. Defendants do not challenge the inclusion of the section 186.22 gang enhancement in count 1 on the ground that it was not charged in the information. Assuming there was adequate notice on this record, we do not address the question.
Convicted of first degree murder, the defendant in Lopez was sentenced to 25 years to life plus an additional 10 years for the criminal street gang enhancement under section 186.22, subdivision (b)(1)(C), along with other enhancements. (Lopez, supra, 34 Cal.4th at p. 1005.) The question in Lopez was “whether a first degree murder committed for the benefit of a gang is subject to the 10-year enhancement in section 186.22(b)(1)(C) or whether such a murder falls within that subdivision’s excepting clause and is governed instead by the 15-year minimum parole eligibility term in section 186.22(b)(5). . . .” (Id. at p. 1006.)
Although defendants in this case received terms of life without the possibility of parole, and the defendant in Lopez received a sentence expressed in years to life, we conclude that the same reasoning applies. The exception set forth in section 186.22, subdivision (b)(5) applies to “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life . . . .” Here, the jury found that defendants violated section 186.22, subdivision (b) while committing first degree murder, a felony which is punishable “by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.” (§ 190, subd. (a).)
The Supreme Court concluded in Lopez that the Legislature intended section 186.22, subdivision (b)(5) to apply to defendants convicted of first degree murder and sentenced to state prison for a term of 25 years to life, even when the minimum parole eligibility term in that subdivision “will have no practical effect” because the minimum parole eligibility term in the murder statute is longer. (Lopez, supra, 34 Cal.4th at pp. 1006, 1008-1009.) There is no reason to infer a different legislative intent where the defendant is punished for first degree murder with imprisonment for life without the possibility of parole. Because first degree murder is “a felony punishable by imprisonment in the state prison for life” under section 186.22, subdivision (b)(5) – be it for a term of 25 years to life or a term of life without the possibility of parole – the determinate term under section 186.22, subdivision (b)(1)(C) does not apply. We therefore strike the section 186.22, subdivision (b)(1)(C) enhancements imposed on each defendant as to the murder convictions in count 1 only.
XIII.
Cumulative Prejudice [Gonzales]
Having found no prejudice in the prosecutorial misconduct and no prejudicial error in the court’s other rulings, we reject defendant’s claim that cumulative prejudice warrants reversal.
DISPOSITION
The judgment is modified to strike the section 186.22, subdivision (b)(1)(C) enhancement imposed on each defendant as to the murder convictions in count 1. The judgment is affirmed as modified. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P.J., MORRISON, J.
“Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:
“(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or
“(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
Evidence Code section 240 reads in relevant part: “(a) Except as otherwise provided in subdivision (b), ‘unavailable as a witness’” means that the declarant is any of the following: [¶] . . . [¶] (4) Absent from the hearing and the court is unable to compel his or her attendance by its process. [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.”
“a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Italics added.)
The second reference came during rebuttal argument on witness credibility: “[W]e have Terry Gonzales trying to cut a deal before everyone knew what the rest of the story was. Who was trying to pull the wool of whose eyes, as we heard yesterday? [¶] Look at the Tracy Police Department investigation, and look at how the evidence, in fact, followed from November 5th, when Daniel MacDougall was murdered, until the 31st, when Gonzales admitted, in fact, being there to Sergeant Stapp, and Officer Hernandez, and also telling on the 31st Detective Hicks that it was a .357 Rossi that, in fact, was the murder weapon, things that have already been corroborated during the autopsy and identified through ballistics.”
Paragraph (5) of section 186.22, subdivision (b) provides: “Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.”