Opinion
F050896
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. JULIAN GARZA, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Following a jury trial, Julian Garza was found guilty of one count of premeditated murder (Pen. Code, § 187, subd. (a)) and one count of kidnapping (§ 207, subd. (a)). The jury found true the allegations that the offenses were committed for the benefit of a street gang (§ 186.22, subd (b)(1)), that Garza was a principal in the offense and at least one principal intentionally and personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), and that the murder was committed in the commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(B)). The trial court sentenced Garza to an indeterminate term of life without the possibility of parole and a term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Garza contends the trial court erred: (1) when it denied his Batson/Wheeler motion; (2) when it denied the defenses request to impeach a prosecution witness with a crime of moral turpitude; (3) when it allowed the admission of a witnesss videotaped statement; and (4) when it instructed the jury with CALCRIM No. 318. We reject his claims and affirm.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
FACTS
Jorge Francisco Fregoso, Jesus Valenzuela, Stephen Romero, and Garza were all involved in the murder of Raul Ruiz. All four had Northern gang connections in Delano. Valenzuela, also known as "Noisy" or "Tavio," and Romero, also known as "Stevo," were both previously affiliated with the North Side Delano gang. Garza, who was also known as "Sleepy," was a member of the West Side Delano gang. Fregoso, also known as "Lil Casper," was a member of the Varrio Delano Locos gang.
Fregoso was Garzas codefendant at trial. He has filed a separate appeal.
Valenzuela entered a plea to felony false imprisonment with a gang enhancement, and felony accessory to kidnapping, for a maximum term of up to seven years, on the condition that he testify truthfully in the instant trial. Romero pled guilty to two felony counts, with a gang enhancement, for a total term of seven years, on the condition that he testify truthfully in the instant case.
Valenzuela first saw Ruiz on the morning of August 28, 2005, when Ruiz drove by and Valenzuela asked him who he was looking for. Ruiz said he was looking for someone named Adrianna. Valenzuela and Ruiz "hung out" together and, while in Ruizs car, Valenzuela smoked marijuana and Ruiz smoked methamphetamine until Ruiz, a Southern gang member, discovered that Valenzuela was a former Northern gang member. Both men got out of the car, and Ruiz hit Valenzuela with a chain attached to his keys.
Valenzuela ran into the backyard of Vincent "Vinnie" Martinezs house on Quincy Street. He caught hold of Ruizs chain and used it to pull Ruiz in. Martinez showed up and asked what was going on. When Ruiz saw Martinez, he stopped fighting and obeyed Valenzuelas demand that he sit down. Fifteen to 20 minutes later, Valenzuela asked Martinez if he could leave Ruiz where he was, and Valenzuela left.
At approximately 11:30 a.m. on August 28, 2005, police officer Rommel Bautista responded to a report of an assault with a weapon, a chain. On 13th Avenue, just north of Quincy Street, Bautista found a chain and some keys in the middle of the road. On Quincy Street, near Martinezs house, Bautista found a sleeveless white undershirt with bloodstains on it. In Martinezs backyard, Bautista saw a weight bench on top of some plywood on the ground.
Sometime that evening, Romero picked up Fregoso and took him to Martinezs house. Romero thought he was going to meet Valenzuela at the house to settle a dispute between the two of them. Fregoso ordered Romero to park his car in reverse in the driveway.
At approximately 10:00 p.m., Valenzuela returned to Martinezs house and found Ruiz in a six-foot-deep pit in the backyard. Valenzuela saw Garza, who had arrived at some point, pull Ruiz out of the pit, hit him, and tie him up. Fregoso stood nearby.
Romero saw Valenzuela in an alley near the house. Fregoso said something about "having a little scrap pinned up in a hole," but Romero was more concerned about resolving his dispute with Valenzuela. Valenzuela then spoke to Romero in a friendly manner and asked for a ride home. Realizing that there was no dispute between the two of them, Romero agreed.
Romero got out of the car and looked between the cracks of the fence. He saw seven to nine people in the yard, and he saw Garza take a person out of the pit and drop him on the ground. The mans arms and legs were tied behind his back and he had a red shirt over his head. Fregoso and Garza kicked and beat the man all over his body and called him a "scrap," a derogatory term for a Southerner. The two told the man to say, "Fuck the South Side," and "Its all about the North," but the victim just moaned and mumbled a bit.
Either Garza or Fregoso took Ruiz to Romeros car. Garza ordered Romero to open the trunk. When Romero was reluctant, Garza pointed a gun at his back and told him to open the trunk. Ruiz was put into the trunk and, after Fregoso got into the car, someone brought him a shovel and a pick.
Valenzuela asked Fregoso what he was going to do with Ruiz, and Fregoso said they were going to drop him off. Valenzuela saw a gun and "gardening tools" in the car.
Romero always kept a .22-caliber pistol "inside" the stereo of his car for protection. He thought about using it to get away from Fregoso and Garza, but decided it was too risky.
Fregoso told Romero to drive to a place on County Line Road. Garza suggested they leave the victim there, but Fregoso said they had to kill him to prevent him from "`tell[ing] the cops where Vinny lives."
Once they got to County Line Road, Fregoso directed Romero to a cornfield. There, Fregoso dragged Ruiz into the field. Garza and Valenzuela followed.
Romero stayed in the car and heard a gunshot, followed by screaming. Fregoso came out of the field. Romero heard a second gunshot, and the screaming stopped. Garza and Valenzuela then came out of the field. Garza handed the gun to Valenzuela and told him to go back and shoot Ruiz, but Valenzuela said, "No," and handed the gun back to Garza.
According to Valenzuela, Fregoso shot the gun into the air and then shot Ruiz, who "just laid there." Fregoso handed the gun to Garza who shot Ruiz. When they returned from the cornfield, Garza gave the gun to Valenzuela, but he handed it back.
In the car Garza looked at Valenzuela, pointed the gun at him, and said, "`Well, I know you aint gonna say nothing." Valenzuela promised not to, and Garza said, "`Cause if you do, you know whats going to happen, right?" When Garza yelled at Valenzuela for not shooting Ruiz, Fregoso said, "`Well, it doesnt matter. Did you see how much blood he was losing? He is going to die anyways."
According to Romero, Garza said he shot Ruiz in the neck after Fregoso shot him. Fregoso was happy, bragging, and stated "`we earned our stripes," which meant either killing or beating a Southern gang member. Valenzuela did not think anyone had said anything about earning stripes.
At approximately 1:10 a.m. on August 29, 2005, police officers Chris Adkins and Jesus Navarrete observed Romeros car at an intersection and thought it might be stolen or that the driver might be under the influence. Adkins turned on his overhead lights just as the vehicle pulled into a driveway on Oxford. Romero, in the drivers seat, Fregoso, in the front passenger seat, and Valenzuela, in the right rear passenger seat, got out of the car and fled. Adkins did not see anyone get out of the left rear seat.
Officer Adkins chased Romero but did not catch him. Adkins returned to his patrol car and noticed that all four doors of the suspect car were now open. Officer Navarrete chased and apprehended Fregoso.
A shovel, a pickax, a red tarp, and gloves were found in the back seat of the vehicle, as was a knife wedged behind the rear seat. A .22-caliber pistol was found beneath a compartment in the center of the dash. A shotgun, which contained one spent casing, was found partially underneath the passenger seat along with a box of shotgun shells.
After jumping some fences and staying in a yard for awhile, Romero decided to turn himself in because he knew the car would be traced back to him. He went to a convenience store and asked an employee to call the police.
Officer Robert Geivet and Officer Madrigal contacted Romero at the store and determined that he was the driver of the vehicle. They transported him to a hospital for medical clearance. At the hospital, Romero waived his Miranda rights and told Officer Navarrete that he was forced at gunpoint to drive Fregoso, the victim, and another unnamed person out to a cornfield where Fregoso and the other person shot and killed the victim. According to Romero, Fregoso and another person took the victim, who had his hands tied, and put him in the trunk of Romeros car. When Romero expressed concern, the other person pointed a gun at him and ordered him to drive to a particular location. Once there, Fregoso and the other person decided he should drive to a cornfield, where they eventually shot the victim.
Miranda v. Arizona (1966) 384 U.S. 436.
At approximately 4:15 a.m. on August 29, 2005, Romero led Officers Adkins, Geivet, Madrigal, and Navarrete to the cornfield where Ruiz was found, still tied, with a gunshot wound to the shoulder. The blood on the ground was still wet, but Ruizs body was cold and he had no pulse.
Criminalist Petra Imhof testified that two fired and two unfired shotgun shells were found at the scene. Later analysis determined that the marks left on the expended shells indicated that they were fired by the shotgun recovered in the vehicle. The spent shotgun shells matched the type, brand, and model of shells found in the box in the vehicle. Wadding found at the scene was consistent with the gauge of ammunition found in the box. The pellets taken from Ruizs body were No. 6 shot, the same size shot as in the shells in the car.
Imhof also testified that photographs were taken at the scene of the crime, including photographs of the tire prints left in the area. Criminalist Gregory Laskowski later compared the photographs with impressions taken of Romeros vehicles tires and determined that the vehicle could not be excluded as the source of the tire marks.
Later on August 29, 2005, officers went to Martinezs house and found a pit in the ground. The pit, previously hidden by the weight bench and plywood seen earlier by Officer Bautista, contained partially burnt clothing and wood. Officers excavated the pit and found it to be approximately nine feet deep. Some cord or rope and a white box with gang graffiti was found in back of the house. The cord was consistent with the type found on Ruiz. Ruizs DNA was found on the bloody undershirt found earlier near Martinezs house.
A videotaped interview of Romero, taken on August 29, 2005, was played for the jury. In it, Romero, who described himself as a member of the "MSD" gang, explained that Fregoso had called and asked that he take him to Martinezs house. Once there, Romero realized that Fregoso wanted him there for his car.
Romero described how he looked through the cracks in the fence and saw people around a small "guy ... a Southerner," who was hog-tied with white cord. According to Romero, "[T]hey had that guy in a freaking hole. I mean, they were talking about the cops went there and didnt find him."
Romero described how Fregoso and a bald person put Ruiz in the trunk and brought along a shovel. Romero drove to a particular spot and then to another location. There, Fregoso and the other person argued about whether they should kill Ruiz because "hes going to say something about Vincents and everything." Romero heard two shots. The others ran back to the car and told Romero that Fregoso took the first shot, and then handed the gun to the other person who shot the victim in the neck.
Later in the interview, Romero mentioned that someone named Octavio was present, but that he did not "pull the trigger." Romero stated that he knew where Octavio lived and that he was known as "Noisy." Romero claimed not to know the bald persons name, but later identified him as "Sleepy" and was able to identify him in a photographic lineup.
Valenzuela was arrested on August 31, 2005. Before his arrest, Garza had been to his house and told him Fregoso and Romero had been apprehended. Garza suggested that he and Valenzuela go back to the field for the body. Valenzuela refused.
Francisco Magana, Jr., described himself as a Northern gang member. Magana testified that he had known Garza, whom he called "Sleepy," for a couple of years. Magana had heard about the murder of a Southern gang member late in August of 2005 when he spoke to Garza in a cemetery. Garza told him that he had killed someone with a shotgun and that he had earned his stripes.
A day or two later, Magana was at Garzas girlfriends house with Garza when he realized the police had arrived. He followed Garza out a window but was stopped by the police. Magana told the officers that Garza had told him about the killing; Magana repeated this information, which was tape-recorded, at the police station.
Magana expressed reluctance to testify, stating that he was afraid because other gang members are "going to kill me." He acknowledged that he had been interviewed by an investigator for the defense, and that he had told the investigator he didnt know why he had said the things he had and that he had not been in his right mind. Magana testified that he had said those things to the investigator because he didnt want to testify.
On cross-examination, Magana acknowledged using "coke" and "crank." He claimed that he asked the detectives if he could have a lawyer, but they told him he didnt need one. Magana also testified that, on the day he spoke to Garza at the cemetery, he was also stopped by the police. At that point, he told the officer he was talking to Garza about girls. Magana claimed he was under the influence of drugs at the time.
Maganas August 31, 2005, videotaped interview was played for the jury. In it, Magana related how Garza had told him he "took somebody out" with a shotgun and made his stripes. In the interview, the police officer told Magana he had no choice but to speak to them, and when they were through, he would let him go. Magana was told he didnt need a lawyer because he wasnt being charged with a crime.
Detective Gerald Lewis testified that he went to a house on August 31, 2005, to search for Garza and stopped Magana, who came out a window. Magana said he knew Garza, who had just left. Magana stated that he had spoken to Garza at the cemetery where Garza told him he had killed somebody with a shotgun to make his stripes. Detective Lewis detained Magana and transported him to his office in order to record Maganas statements. Several times Magana told the detective that Garza had not told him anything. Detective Lewis informed Magana that he did not have a right to a free attorney.
Garza was apprehended on September 15, 2005. When arrested, Garza was wearing tennis shoes with red laces, a red belt, and a red folded bandanna with the initials WSD, for West Side Delano, a subset of the Delano Nortenos.
A gang expert opined that Fregoso, Garza, Romero, and Valenzuela were members of the Delano Nortenos, and that the killing of Ruiz was done for the benefit of that gang.
An autopsy performed on Ruiz found bruising around his left eye, on both temples, and on the back of his head, which occurred within three days of his death. Accumulation of fluid on Ruizs brain indicated that he had suffered a concussion within two days of his death. Ruiz had two gunshot wounds on his left side: one in his shoulder next to his neck and one in his back. Both shots caused fatal hemorrhaging. Ruiz was five feet five inches tall and weighed 102 pounds. He had methamphetamine in his system when he died.
DISCUSSION
1. Batson/Wheeler Claim
Garza challenges the trial courts denial of his Batson/Wheeler motions, which were aimed at the prosecutors peremptory excusals of four prospective jurors who were African-American. African-Americans are a cognizable group for purposes of Batson/Wheeler analysis. (People v. Young (2005) 34 Cal.4th 1149, 1171-1172.) It appears from the probation officers report that Garza is Hispanic, but a defendant and prospective jurors alleged to have been wrongly excused need not be members of the same race in order for the defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)
"The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]" (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, "`[a] prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 596; see also Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, at pp. 276-277.)
"The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." [Citation.] [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
The California Supreme Court has "endorsed the same three-part structure of proof for state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 596; see Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the facts of the case before us.
A. Factual Background—Prospective Jurors E.B. and D.B.
Prospective juror E.B. was one of the first 18 prospective jurors questioned during voir dire. The trial court began with some general questions. When the court asked E.B. whether he knew the difference between a criminal and a civil case, he stated that he did not. When the court asked what "we are looking for in jurors," he stated a "[c]lear and level head," in order to know the difference "between right and wrong." And when the court asked what crimes the defendants were charged with, E.B. stated that he had no idea and he did not want to guess.
When the court introduced the prosecutor and defense counsel, E.B. stated that he lived in the same apartment complex as defense counsel and had spoken to him once but that it would not cause him to favor one side over the other.
After some discussion about the burden of proof, the court asked E.B. "what do the defendants have to prove to you?" E.B. replied, "That they are not guilty." The court continued, stating, "Because in America, if you are charged with a crime, you have to prove you didnt do it, right?" E.B. nodded his head affirmatively. After some discussion with other jurors, the court asked E.B. if he wanted to change his answer. He stated, "No," and when the court asked what the Peoples burden of proof beyond a reasonable doubt meant, he stated, "You have to prove that you didnt do the crime that you are charged with." When the court asked later how he would vote "right now," E.B. did state that he would vote "Not guilty."
When the court asked E.B. "[w]ho decides what the facts are in this case," he stated that it was the jury. The trial court then asked, "What are these attorneys going to be doing?" to which E.B. stated, "Proving that their clients are innocent."
At one point, the trial court asked E.B. whether he would automatically think the defendants were guilty because guns were involved. E.B. replied that he would not, and when the court asked whether he did not "own guns for a particular reason," he stated, "Im scared of them."
As for personal information, E.B. stated that he worked for the railroad "on-board service." He stated that he had a "significant other" who was in the penitentiary in Philadelphia for having "shot somebody." E.B. thought his significant other had been unfairly convicted and did not think he had been treated fairly, although he stated that he would not hold that against law enforcement in the current case. E.B. also stated that he had been the victim of a crime at the age of eight.
After the trial court informed the jurors that "this is a criminal case," and that "[s]omebody in the courtroom is charged with a crime," the court asked prospective juror D.B. who he thought the defendant or defendants were. D.B. stated that he did not know. D.B. stated that he had cousins involved in gangs, "tattoos and drugs and all that stuff," but that he thought he could be fair.
At one point, in explaining that a defendant has the right to remain silent, the court asked D.B. "is that okay with you?" and he replied affirmatively. When the court asked further if he would hold it against the defendant if he did not take the stand, D.B. said no. When the court asked how long the trial would take, D.B. stated, "I dont know. I have no clue," but then guessed "[a] few months." When the court asked how long the jury would take to deliberate if they heard five or six days of testimony, D.B. stated, "[p]robably about a week." D.B. did not think he would believe a police officer simply because of his occupation.
D.B. described himself as single and a student in child development. He worked for the local school district. He had never served on a jury before, and he had a neighbor who is a police officer. He also stated that he had a cousin who had been arrested for burglary. D.B. did not think that his young age would interfere with his ability to make a decision.
In a peremptory challenge, the prosecution first excused D.B. After the defense jointly exercised a peremptory challenge, the prosecution then excused E.B. Defense counsel objected on Batson/Wheeler grounds, which the trial court stated it would take up later. Both sides made additional peremptory challenges.
At the break, the trial court took up the Batson/Wheeler objection. Defense counsel argued that both E.B. and D.B. were African-Americans, that there appeared to be a total of four African-Americans in the venire, and there did not appear to be an objective justification for peremptorily challenging either D.B. or E.B. The trial court found that a prima facie case had been made and asked the prosecutor to justify the dismissals of E.B. and D.B.
In explaining the challenges, the prosecutor described D.B. as "clueless about the whole process, which caused me some concern." He also expressed concern that D.B. had family members and cousins involved in gangs "given the nature that this is a gang case." As to E.B., the prosecutor cited the fact that he had a significant other in prison on a murder charge, and that he thought he had been wrongly convicted.
The court then solicited comments from the defense. Defense counsel questioned the prosecutors analysis of D.B. as "clueless" and did not think him having some relatives in a gang was necessarily different from several other jurors on the panel. As to E.B., defense counsel stated that, although E.B. had a significant other who was convicted of murder, it occurred "some time ago" and "in a different jurisdiction," and that there was no indication that E.B. was still in contact with the particular individual.
The prosecutor then clarified that his concern with D.B. stemmed from his unwillingness or inability, when asked, to "look at the five of us" and to identify the attorneys in the courtroom. The prosecutor also explained that, although D.B. was not the only one who stated he had family members involved in gangs, he was the only one on which the prosecutor had exercised a peremptory challenge because the defense "kicked off" the other people who mentioned that they had gang members in their families.
The court ruled as follows:
"As to [E.B.], thats an easy one. He clearly indicated his significant other was wrongly convicted of murder. It would be incompetence on the prosecutor not to excuse that individual. [¶] As to [D.B.], while I hesitate to use the word clueless, that has a lot of meanings, it is clear that he was quiet. He did not appear to understand some of the concepts. He did relate that some family members were involved in gangs. I dont believe he was excused based on his race. Believe he was excused for race neutral reasons, as articulated by the prosecutor. Therefore, I believe the prosecutors challenges are legally sufficient. So the motion is denied."
B. Factual Background—Prospective Jurors A.S. and J.B.
The following day, during continued jury selection, A.S. at first stated that she could be fair to both sides. Later, when asked if there was any reason why she could not be fair, she replied "not really," which the court then asked her to explain. A.S. wondered whether a gun was used in the instant case, because she lost an 18-year-old great-nephew "by a gun" the previous summer. When asked whether she would be uncomfortable sitting on a jury in which the defendants were alleged to have shot and killed someone, A.S. said "Well, the fact that they took upon their—I dont know whether or not they did it. Its still the word alleged attached. But now the fact that theyve taken someones life, you know." A.S. stated that she did not have a problem hearing evidence that the victim was a gang member.
A.S. described herself as single, a care provider who ran errands for relatives "from here to Chicago to San Francisco." A.S. had no significant other and no children. She knew people in law enforcement in New York and Baltimore. She had been the victim of a crime six months earlier when someone stole the tailgate to her truck. When asked if she had any relatives arrested, she stated that she had, but "not anything serious," which she described as "[t]ickets, light-weight, physical assault."
Both sides then exercised a number of peremptory challenges. The prosecution excused A.S., and defense counsel raised a second Batson/Wheeler challenge, which the trial court stated it would take up later.
Jury selection continued. J.B. described himself as an assistant press operator. He stated he had a significant other who was a secretary for a dentist. He did not have any children, had not served on a jury before, and did not know anyone in law enforcement. He stated he had been the victim of a crime, a robbery, but that no one was arrested and "[t]hey didnt even come out." He wasnt sure if the crime was gang related, due to the neighborhood.
J.B. stated he had been arrested, as had his father and cousins. He described the reason for his own arrest, 12 years earlier, for "[b]eing stupid, messing with credit cards, ATMs, things like that." He stated that his father had been arrested for driving under the influence and his cousin for "drugs, guns, gangs." He thought his cousin was now out of the gang life "for the most part." J.B. stated that he grew up around gangs "pretty much all my life" and he knew active gang members where he lived now, but he thought he could be fair in the current trial.
Later, the prosecutor questioned J.B. J.B. explained that his cousin was arrested for guns, narcotics and gangs in Nevada. He didnt know if his cousin had been fairly treated. He stated that he had friends with whom he socialized who were gang members.
Following a sidebar requested by the prosecutor, the trial court excused J.B. Prior to the conclusion at the end of the day, defense counsel stated he "[j]ust wanted to preserve the Wheeler/Batson motion on [J.B.] and [A.S.]." The trial court stated it would take it up the following day.
The following morning, the trial court took up the Wheeler/Batson motion. The trial court noted that both J.B. and A.S. were African-Americans. As explained by defense counsel, out of the "entire venire of seventy-five, for African American, the prosecution challenged each and every one." Defense counsel described this as "systematic exclusion of African Americans on this jury panel ...." Again the court stated that it found a prima facie showing and asked the prosecutor to explain his reasons.
The prosecutor explained that J.B. had been arrested 12 years earlier on credit card fraud, which "goes to a moral turpitude issue." He was also concerned that J.B. had family members who were arrested for guns and gang charges and friends who were gang members. The prosecutor argued there was reasonable justification for his excusal, given the nature of the charges in the present case. As to A.S., the prosecutor noted that she came to court for two days wearing dark sunglasses, which signified to him that "she did not want to be here." The prosecutor stated that A.S. was hesitant when asked if she could be fair, and she didnt like people who carried guns, which was an issue not only for the defense, but the prosecutions star witness had a prior offense for carrying a pistol. The prosecutor found A.S.s explanation of her job tenuous. He also stated that he was not so sure she could "get along" with the other jurors, as she was seated four feet from him during jury selection and talked to herself "during the entire time."
Defense counsel argued that J.B. was gainfully employed, as was his significant other, and that he lived in an area where gangs were prevalent, "not by choice but apparently by economic circumstances." Defense counsel did not think his past criminal conduct was critical, as he was not convicted of a felony, "at least not disqualif[ied] for jury service." As to A.S., defense counsel stated that she was gainfully employed as a care provider, and he understood what it was that she did. And while she did not like guns, no one did. Defense counsel acknowledged that she was "difficult to get through to," but she answered the questions. Defense counsel did not hear A.S. talking to herself.
The trial court then denied the motion, stating:
"Well, on its face, seems that there were four African American jurors and four were excused by the prosecutor. That seems like theres some type of discrimination, but I think—I think there are reasons to excuse three of them, maybe not [D.B.], the other three were so obvious I dont know if I question myself making a finding there is a prima facie case. I think it was so obvious they had to be excused. [¶] [J.B.] with his background, gang contacts, his family contacts, and real reluctance to tell us about his prior conviction. [¶] I know its embarrassing. Most jurors just come out and say it to get it over with. He was quite reluctant. I think it was absolutely race neutral and appropriate to excuse [J.B.] from this jury given all those factors that are articulated by [the prosecutor]. [¶] As to [A.S.], one of those rare jurors, as soon as you stood up, walking into the side of the bar to sit down, obvious to this court she wasnt going to be on the jury. [¶] It was that obvious from her demeanor, her dress, her attitude. Whenever we sat her down before we closed on Monday afternoon, we didnt talk to her yesterday morning, Tuesday morning, clearly obvious to me she could not be on a jury of twelve in that one minute of seeing her. [¶] And given her responses, as [the prosecutor] said, I didnt hear her speak to herself, but I trust [the prosecutor]. I dont think hes making that up by any means. Ill accept the fact nobody else did hear it. Doesnt mean it didnt happen. Even if you dont consider that obvious reasons to exclude her, that has nothing whatsoever to do with race, therefore, Im going to deny the motion."
C. Analysis
The trial court ruled for the defense in step one of the Batson/Wheeler analysis by finding a prima facie case of improper discrimination. We assume substantial evidence supports that determination. (See People v. Silva (2001) 25 Cal.4th 345, 384; People v. Alvarez (1996) 14 Cal.4th 155, 197.) Accordingly, we move to step two.
At step two, the prosecutor must come forward with a race-neutral explanation as to each challenge. (People v. Silva, supra, 24 Cal.4th at p. 384.)
"In evaluating the race neutrality of an attorneys explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.... [¶] A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutors explanation. Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral." (Hernandez v. New York (1991) 500 U.S. 352, 359-360 (plur. opn. of Kennedy, J.).)
At this step, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)
The prosecutor stated race-neutral reasons with respect to each of the excused jurors: E.B. (significant other in prison for murder); D.B. ("clueless" and had family gang members); A.S. (demeanor); and J.B. (prior arrest and family and friends in gangs).
At step three of the Batson/Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elam, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson, supra, 545 U.S. at p. 171), as implausible or fantastic justification will often be found to be pretext for purposeful discrimination. (Purkett v. Elam, supra, at p. 768.)
But a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez, supra, 14 Cal.4th at p. 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal "need not support a challenge for cause, and even a `trivial reason, if genuine and neutral, will suffice. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 136.) "What is required are reasonably specific and neutral explanations that are related to the particular case being tried." (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
"All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. `[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.] [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elam, supra, 514 U.S. at p. 769.)
Once the prosecutor "come[s] forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried" (People v. Johnson, supra, 47 Cal.3d at p. 1216), the trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 168.) "In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutors exercise of the particular peremptory challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720.)
"This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for `we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination. [Citation.]" (People v. Hall, supra, 35 Cal.3d at pp. 167-168.)
"When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, "imply abandonment or abdication of judicial review." (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
We find that substantial evidence supports the trial courts rulings with respect to E.B., D.B., A.S., and J.B. E.B.s significant other was in prison for shooting someone. This alone could serve as a valid race-neutral reason to excuse him. (See People v. Cummings (1993) 4 Cal.4th 1233, 1282 [prospective jurors relatives conviction of a crime was a proper consideration justifying peremptory challenge]; People v. Dunn (1995) 40 Cal.App.4th 1039, 1049 [prosecution properly challenged juror whose uncle had been convicted of murder].) In addition, E.B. believed his significant other had been wrongly convicted. A peremptory challenge based on a negative experience with law enforcement is a proper race-neutral reason. (People v. Turner (1994) 8 Cal.4th 137, 171, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
D.B. had cousins involved with gangs. Given the gang allegations in this case, this reason was inherently plausible and supported by the record. In addition, the prosecutor described D.B. as "clueless." The trial court, while not willing to label D.B. as "clueless," nonetheless agreed that D.B. was "quiet" and his response to questions appeared to indicate that he did not understand some concepts. The record shows that, when asked to do so, D.B. was either unwilling or unable to identify the defendants from a group of five people present in the courtroom. When a prosecutors concern for a jurors ability to understand is supported by the record, it is a proper basis for challenge. (People v. Turner, supra, 8 Cal.4th at p. 169.)
A.S.s demeanor was properly the subject of a peremptory challenge. Her manner of dress, wearing dark glasses to court both days, caused the prosecutor to believe that she did not want to serve on the jury. The prosecutor found her tendency to talk to herself "annoying" and he did not think she would cooperate with the other jurors. The trial court agreed with the prosecutor that A.S. was "one of those rare jurors, as soon as you stood up, walking into the side of the bar to sit down, obvious to this court she wasnt going to be on the jury. [¶] It was that obvious from her demeanor, her dress, her attitude." Prospective jurors "`may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias." (People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6; see People v. Turner, supra, 8 Cal.4th at p. 165.) Such credibility determinations are solely the province of the trial court. Ultimately, we must affirm if the record suggests grounds on which the prosecutor might reasonably have peremptorily challenged the jurors in question. (People v. Turner, supra, at p. 165; People v. Howard (1992) 1 Cal.4th 1132, 1155.)
And finally J.B. not only had family and friends who were gang members, but he also had a prior conviction, which the prosecutor described as a crime of "moral turpitude." Both of these race-neutral reasons are supported by the record and justified the peremptory challenge.
Each of these reasons, individually or in the aggregate, suggest legitimate, race-neutral grounds upon which the prosecutor reasonably might have challenged the prospective jurors. We must give "great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citations.]" (People v. Turner, supra, 8 Cal.4th at p. 165.) The Wheeler court recognized that appellate courts can "rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." (Wheeler, supra, 22 Cal.3d at p. 282; see also People v. Johnson, supra, 47 Cal.3d at p. 1216.)
Given the substantial evidence standard of review, the burden on the opponent of the challenge, and the appropriate deference we must extend to the trial court, we conclude the peremptory challenges were proper and there is no Batson/Wheeler error.
2. Impeachment of Prosecution Witness
Defense counsel sought to impeach the prosecution witness Stephen Romero with his 2004 prior conviction for carrying an unlicensed firearm, of which he was not the owner, in a public place (§ 12031, subd. (a)(2)(F)). The trial court denied the request, stating that the felony was not a crime of moral turpitude. Garza now contends that this was prejudicial error. We conclude that any error was not prejudicial.
A. The Record
Prior to trial, defense counsel stated that he wanted to impeach the witness Romero with a 2004 felony conviction for possession of an unregistered firearm in violation of section 12031, subdivision (a)(2)(F). The trial court, however, denied use of the conviction for impeachment because the offense was not a crime of moral turpitude. In doing so, the court distinguished People v. Garrett (1987) 195 Cal.App.3d 795, a case cited by the defense and discussed in this opinion, post.
B. Relevant Authority and Analysis
A witness in a criminal trial may be impeached with a prior felony conviction if the least adjudicated elements of that felony necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317; People v. Bautista (1990) 217 Cal.App.3d 1, 5 [crime of moral turpitude is crime that reveals a persons dishonesty, general readiness to do evil, bad character, or moral depravity].) Moral turpitude involves a "`readiness to do evil" which will support an inference of a witness readiness to lie. (People v. Castro, supra, at p. 314, italics omitted.) "Whether a conviction involves such turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions." (People v. Collins (1986) 42 Cal.3d 378, 390.)
A violation of section 12031, subdivision (a) may occur in a variety of circumstances, most of which lead to felony status. Common to all violations is the element of carrying a loaded firearm on the person or in a vehicle in any public place or upon any public street. Absent additional statutory factors, the carrying element alone constitutes a misdemeanor. (§ 12031, subd. (a)(2)(G).) A felony conviction resulted here where the gun was concealable and the defendant was not listed with the Department of Justice as its registered owner. (§ 12031, subd. (a)(2)(F).)
In People v. Garrett, the defendant argued that the trial court erred when it ruled it would permit him to be impeached with his prior felony conviction, as he claimed it did not constitute a crime of moral turpitude. The defendants prior felony conviction was for conspiracy to possess an illegal weapon, a sawed-off shotgun, in violation of 18 United States Code section 371 and 26 United States Code section 5861(d). Conviction under these statutes required proof that the defendant and another agreed to possess unregistered firearms and that one of the two did an overt act in furtherance of the agreement. (People v. Garrett, supra, 195 Cal.App.3d at pp. 798-799.)
The Garrett court disagreed with the defendant. It found that possession of an unregistered firearm in violation of 26 United States Code section 5861(d) was a crime of moral turpitude because "firearm," as defined in 26 United States Code section 5845 included various modified or altered guns, such as a shotgun, a modified shotgun, a rifle, a modified rifle, a machinegun, a silencer, and a destructive device such as a grenade, and "Their mere possession in violation of the statute is indicative of a `readiness to do evil." (People v. Garrett, supra, 195 Cal.App.3d at pp. 799, fn. 2, 800.)
Similarly, in People v. Littrel (1986) 185 Cal.App.3d 699, the court held that possession of a firearm by a felon (§ 12021) was a crime of moral turpitude because "a convicted felon has, by his prior conduct, demonstrated that if he comes into possession of a concealable firearm, he will use it to do evil." (Littrel, at pp. 702-703.)
Here, Romero was convicted of a felony violation of section 12031, subdivision (a)(2)(F). The least adjudicated elements of this offense consist of carrying a concealable, unregistered loaded gun on a person or in a vehicle in a public place. It did not involve possession of a specified firearm, such as a modified shotgun or rifle, as in Garrett. Neither did it involve possession of a firearm by a felon as in Littrel.
We need not, and thus do not, decide, however, whether these distinctions make a difference. Even assuming, arguendo, that the trial court erred in its ruling, we discern no prejudice. Applying the reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836 (People v. Ayala (2000) 23 Cal.4th 225, 271), we find no such probability that had Romero been impeached with his prior conviction, the outcome would have been different. The weapon possession charge was relatively insignificant when compared to the facts that the jury did know about Romero. The jury was well aware that Romero pled guilty to two felonies and received a sentence of seven years in exchange for his testimony. It was also aware that he was a gang member; that he decided to turn himself in only when he realized that the vehicle used in the murder could be traced back to him; and that he kept a .22-caliber pistol concealed in his car for protection.
Garza contends this case was close since the jurors were, at one point, deadlocked in their deliberations as to him. While this is true, the record shows that the jurys concern involved clarification on the issue of "corroboration" of an accomplice. After discussion with counsel, the trial court addressed the jury, stating:
"Let me, ladies and gentlemen, instruct you a little further on the law involving corroboration, see if this helps you out one way or the other. By your questions and comments, its clear to me that you understand that Mr. Valenzuela and Mr. Romeros testimony has to be corroborated. Thats clear to me.... [¶] ... [¶] One way to look at this in determining whether their testimony has been corroborated, you can assume that they did not testify. Assume that whatever Romero and Valenzuela testified to is removed from the evidence. Then look at what evidence there is...."
Thus, while the jury was deadlocked at one point, it did not involve the credibility of Romero, and does not affect the issue here.
The evidence against Garza was substantial. Both Romero and Valenzuelas testimony indicated that it was Fregoso and Garza who shot Ruiz. Magana testified that, shortly after the murder, Garza bragged about killing someone with a shotgun in order to "earn his stripes."
In addition, the jury was instructed to "consider anything that reasonably tends to prove or disprove the truth or accuracy" of a witnesss testimony, including whether the testimony was influenced by a personal interest in how the case is decided; whether the witness had been convicted of a felony; whether the witness had made a statement in the past that is consistent or inconsistent with the testimony; whether the witness had engaged in other conduct that reflects on the witnesss believability; and whether the witness was promised leniency in exchange for the testimony.
Any error in excluding the impeachment evidence was harmless, and we reject Garzas claim to the contrary.
3. Maganas Videotaped Testimony
Garza contends the trial court erred when it allowed Maganas videotaped pretrial statements to be played for the jury. As argued by Garza, the videotape deprived him of due process under the Fifth and Fourteenth Amendments of the federal Constitution because, in playing it, the prosecution relied on an involuntary statement from a third party. We disagree.
A. Procedural Background
Prior to trial, defense counsel moved to exclude Maganas videotaped statements on grounds that they were obtained by coercion and thus were unreliable. An evidentiary hearing was held in which Magana, then 18 years of age, testified that he was interviewed by the police on August 31, 2005, after being arrested. The police first questioned him inside the apartment. They told him he was going to be charged with murder. They did not advise him of his rights, did not tell him he didnt have to answer their questions, and did not tell him he was entitled to have a lawyer present before he answered any questions. He estimated that he spoke to the officers for 10 minutes before they took him to the police station.
On the way to the station, an officer questioned him in the car. He did recall the officer stating that he didnt have to answer his questions if he didnt want to and that he was entitled to an attorney if he wanted one.
At the police station, Magana was taken, still in handcuffs, to the "detectives building" where he was interviewed. Magana recalled asking for an attorney but was told he didnt need one. Magana did not feel that he was free to leave. Magana had not used any drugs on the day of the interview but had the day before.
On cross-examination at the pretrial hearing, Magana testified that he did not want to talk to the officers because he did not want to get involved in the case. He felt forced to talk, which he did not want to do because Garza was a friend.
Magana estimated that the interview took an hour. He felt as if he had to talk about Garza before he would be allowed to leave.
The prosecution called Detective Gerald Lewis at the hearing. Lewis had questioned Magana outside the apartment before taking him to the police station for further questioning. He did not threaten him, nor did he tell him he was going to take him to jail. Magana answered some questions about Garza at the apartment, but Lewis took him to the police station in order to get the statements on tape.
Lewis claimed he put Magana in handcuffs but did not arrest him, although he was not free to leave at that point. Lewis did not give him Miranda warnings. Lewis testified that he never said anything to Magana about charging him with murder. He did not recall telling Magana that he could be facing some legal action if he did not talk to him. While they were at the apartment, Magana made statements to Lewis which he attributed to Garza; he repeated those statements at the police station.
After watching the videotape, the trial court denied the motion to exclude, stating:
"It does not appear to this Court that the witness was coerced in any way.... [¶] There were a few things the officers told him, ... something along the lines of `You can leave after you tell us what happened, something along those lines. But when you look at the videotape, he clearly wasnt coerced. It was, as [the prosecutor] indicated, a situation where he was reluctant, and they used their own techniques to get him to repeat on tape what he had told them at the scene. But I dont believe it rises to the level that the witness should be precluded from being called as a witness."
Defense counsel clarified that he did not think the issue was whether Magana could be called as a witness, but whether the prosecution could use the tape as evidence. The trial court stated that, if Magana was called to testify, the defense could use the tape "to show his whole demeanor because even though Im ruling that the motion is denied, certainly the defense could still argue that the witness is conforming his testimony to what the police officers want him to say." The prosecutor stated that he might wish to play the tape if Magana was impeached at trial. The trial court ruled that the tape would only be allowed in if Magana was impeached.
Subsequently, at trial, Magana expressed a reluctance to testify, stating that he was afraid because gang members were "going to kill" him. Magana nonetheless testified that he had known Garza for a couple of years. Magana described himself as a Northern gang member. Late in August of 2005, Magana heard about the murder of a Southern gang member when he spoke to Garza in a cemetery. Garza told him that he had killed someone with a shotgun and that he had "earn[ed] his stripes."
Magana was at Garzas girlfriends house with Garza when he realized the police had arrived. He followed Garza out a window but was stopped by the officers. Magana told the officers that Garza had told him about the killing; Magana repeated this information at the police station, which was tape-recorded.
Magana acknowledged in his testimony that he had been interviewed by an investigator for the defense and had told the investigator he didnt know why he had said the things he had about Garza and that he was not in his right mind. Magana testified that he said those things to the investigator because he didnt want to testify.
On cross-examination, Magana acknowledged using "coke" and "crank." Magana claimed that he asked the detectives if he could have a lawyer, but they told him he didnt need one. He testified that, on the day he spoke to Garza in the cemetery, he was stopped by the police. At that point, he told the officer he had been talking to Garza about girls. Magana claimed he was under the influence of drugs at the time.
Magana testified that, in his interview with the defense investigator, he told the investigator that the officers put words in his mouth, pointed guns at him, threatened to put him in jail, and said he was just as guilty as the other people in the case. Magana told the investigator that he made the statements to the police because he had heard rumors and he just wanted to get out of the station. In his testimony, however, Magana said that everything he told the investigator was a lie.
On redirect examination, Magana stated that when Lewis and another detective spoke to him "last week," they did not put words in his mouth. He also testified that Detective Lewis did not put "words in [his] mouth" when he spoke to him in August, either. He just did not want to be at the interview.
Maganas August 31, 2005, videotaped interview was subsequently played as a prior consistent statement for the jury, with the accompanying transcripts. At the time, the trial court asked defense counsel if he had any objections, to which defense counsel replied, "No objection."
B. Relevant Authority and Analysis
Garza contends that police coercion employed against Magana made his statements implicating Garza inherently unreliable. In People v. Badgett (1995) 10 Cal.4th 330, our Supreme Court stated the exclusion of coerced testimony of a third party "`is based on the idea that coerced testimony is inherently unreliable, and that its admission therefore violates a defendants right to a fair trial ...." (Id. at p. 347.) "[T]he primary purpose of excluding coerced testimony of third parties is to assure the reliability of the trial proceedings." (Ibid.) Here, Garza does not claim that Maganas actual testimony at trial, in which he also implicated Garza, was coerced. Rather, he contends the evidence concerning Maganas pretrial statements to the investigators identifying Garza as the killer was the product of coercion. On appeal, we examine the entire record, including the videotape, and make an independent determination whether the videotaped statement by Magana was coerced in violation of Garzas right to a fair trial. (Id. at p. 352.)
Garza relies on People v. Lee (2002) 95 Cal.App.4th 772, in which a conviction was reversed because the appellate court found a statement, admitted as a prior inconsistent statement, was coerced and inherently unreliable. In Lee, the witness identified the defendant as the killer after a police interrogator told the witness that a polygraph test indicated that the witness himself was 97 percent likely to be the killer and, if the interrogator turned in the results of the test, the witness would be charged with first degree murder. The interrogator, and not the witness, had first brought up the defendants name as the killer and suggested the defendant had a motive for the killing. The witness recanted his identification the following day and testified at trial that his statements to the interrogator were not true and were made under duress. In reviewing the evidence, the appellate court concluded, "the police crossed the line between legitimate interrogation and the use of threats to establish a predetermined set of facts." (Id. at p. 786.)
As the court in Lee stated, "California courts have long recognized it is sometimes necessary to use deception to get at the truth. Thus, the courts have held, a `deception which produces a confession does not preclude admissibility of the confession unless the deception is of such a nature to produce an untrue statement. [People v. Watkins (1970) 6 Cal.App.3d 119, 125.]" (People v. Lee, supra, 95 Cal.App.4th at p. 785, fns. omitted.)
We have reviewed the videotape and the transcript of the interview with Detectives Lewis and Boake Slape. Toward the beginning of the interview, Lewis told Magana that he was not trying to "pin anything" on him, "Im just trying to make it straight." Magana replied that was "not worried about it because I didnt do nothing." Magana proceeded to tell Lewis and Slape that Garza had told him he "had to kill somebody." Finally, Magana asked, "I cant call a lawyer?" Slape responded, "Well thats up to you if you want one." Magana said, "Because I dont know ... why Im being questioned." Slape left the room for a few minutes, and when he returned, the conversation resumed.
Detective Slape then explained that he knew Magana was feeling bad because his friends would think he was "being a rat," but that "[r]ight now you just need to talk to us." Magana asked, "But what happens if I have the right not to talk?" Slape said, "You can do anything you want to do. You can have the right not to talk to me but you ... if you want to talk to me ... Ill listen to you." Detective Lewis explained, "Heres the deal. If we dont charge you with a crime it doesnt matter your rights, your rights dont apply. Were not trying to get you to commit yourself being incriminating yourself. Do you understand?" Magana replied, "Yeah." Lewis continued, "We arent trying to get you to say things that would say that you committed a crime. Have we asked anything about committing a crime?" Magana acknowledged that they had not done so.
The detectives then addressed the issue of Garza. When Magana was reluctant to answer questions, Detective Lewis again stated that he knew Magana did not want to be known as a "rat." Again Lewis explained, "We are not interested in putting you in jail" and "Im not going to trump up any charges on you." Detective Slape explained that they were interested in him because "you ... have information. Youre not being charged with anything."
The three then again discussed Garza. At one point, Magana said, "I dont want to talk about it," to which Detective Lewis replied, "You dont have any choice.... I told you that Im not trying to incriminate you I dont care about incriminating you." Later, Magana expressed a desire to no longer talk, stating "I already told you the details, sir. Why do I have to repeat myself?" Lewis stated that he needed details "to verify." Magana asked whether they were trying to get him to testify against Garza or find out where he was. Lewis replied that he was trying to find out "exactly what happened." Lewis assured Magana that he did not think he was "involved in this," to which Magana replied, "Im not." Magana then asked, "So why are you guys holding me?" Lewis replied that he was asking questions, and "when were through with the questions youre free to go." Magana protested that he had already told them everything, but Lewis explained that he still needed details. Magana then asked what type of details, and further discussion about Garza took place.
Following more questioning, Magana finally stated, "Why do I have to keep repeating myself? Youre making me mad." He then stated that he wanted a lawyer. Detective Lewis replied, "Youre not being charged with a crime. If you want a lawyer youll have to pay for one." Magana replied, "I know."
Detective Lewis again began asking questions about Garza, and Magana, obviously frustrated, began to cry. Magana implied that being a snitch is not something he would do, but again acknowledged that he knew he was not being charged with anything. Magana was again questioned about Garza. Finally, Lewis told Magana he was not going to charge him with a crime and he was going to let him go. Following the verification of some personal information, the interview ended.
We cannot say that the investigators here went beyond mere exhortations to tell the truth and vigorously encouraged Magana to come forward with evidence of what he knew about the shooting. The investigators repeatedly told Magana that they wanted to question him because he had information. Magana protested, stating that he had already told them what he knew. It was obvious from the interview that Magana did not want to be known as a snitch. In the interview, Magana appears to struggle between his loyalty to Garza and telling the investigators what he knew.
Unlike the interrogator in Lee, at no time do the detectives threaten to charge Magana in the murder if he does not reveal what he knows about the killing. The circumstances of his questioning were not so coercive as to produce an untrue statement, and the admission of Maganas pretrial statements does not offend due process.
Assuming arguendo that Maganas pretrial statement was coerced, "a witnesss trial testimony is not necessarily unreliable simply because the witness was subject to improper pressures in making an earlier, out-of-court statement. [Citation.]" (People v. Badgett, supra, 10 Cal.4th at p. 348.) Garza did not seek to exclude Maganas trial testimony, and has thereby failed to meet the requirement of alleging "that the pretrial coercion was such that it would actually affect the reliability of the evidence to be presented at trial." (Ibid.)
In United States v. Merkt (5th Cir. 1985) 764 F.2d 266, the defendant was convicted of conspiring to transport two illegal aliens. After the defendant was stopped with two illegal aliens in her vehicle, the aliens were denied attorneys and interrogated by border patrol agents. (Id. at p. 269.) On appeal, the defendant claimed, inter alia, that the trial court erred when it found unlawfully obtained statements of witnesses were admissible.
During its case-in-chief, the government called the two aliens to the stand, but both refused to testify against the defendant. The government then sought to introduce statements taken from the aliens during their postarrest interrogation. The defense opposed the admission of the statements on the ground that they had been illegally obtained. (United States v. Merkt, supra, 764 F.2d at p. 273.) The trial court found that the defendant had established that the statements were taken illegally, but since the government had granted the aliens immunity, the court ruled that the border patrol agents could relate the information received during the interrogation. After the prosecution rested, the defense called the two aliens to the stand and both then testified fully on direct and cross-examination. (Ibid.)
The court in United States v. Merkt found that the defendant had not necessarily established how the border patrol agents testimony deprived her of a fair trial, since the testimony of the aliens out-of-court statements, as reported by the border patrol agents, and the aliens subsequent in-court testimony contained no substantial contradictions.
"Given that the aliens admittedly unlawfully-obtained statements merely recited, in large part, what the aliens themselves later testified to, and that [the defendant] can point to no fundamental unfairness to her that resulted from the use of the statements, we affirm the district courts decision to admit this evidence." (United States v. Merkt, supra, 764 F.2d at p. 274.)
Here, too, we find any error in admitting Maganas pretrial statements was harmless by any standard. Maganas trial testimony concerning Garzas involvement in the killing was consistent with what he told the officers in the videotaped interview. In addition, Magana explained his reluctance to testify as well as his reasons for making inconsistent statements to the defense investigator. Defense counsel had the opportunity, and did, thoroughly cross-examine Magana. Maganas allegedly unlawfully obtained statement merely recited, in large part, what Magana himself testified to earlier at trial, and Garza does not point to any fundamental unfairness to him that resulted from the use of Maganas statements.
We find no prejudicial error.
4. Giving of Jury Instruction
Finally, Garza contends that the trial court erred prejudicially when it gave the "unqualified" CALCRIM No. 318 instruction because there was "undisputed evidence that Maganas videotaped statements were coerced." As argued by Garza, the instruction "should have been qualified to suggest that the question of voluntariness could affect the consideration of [Maganas] statements and to disregard coerced extrajudicial statements." We disagree.
A. The Record
In a written motion, defense counsel specifically requested that the trial court give CALCRIM No. 318. No modification of that instruction was requested.
At trial, the court instructed the jury with CALCRIM No. 318 as follows:
"You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: To evaluate whether the witnesss testimony in court is believable and as evidence that the information in those earlier statements is true."
After the jury retired to deliberate, the court told counsel "We had a few things we just need to clean up for the record." After some discussion on various issues, the trial court asked "was there any jury instruction that I did give ... that you did object to?" Defense counsel stated that, other than the instruction on "the uncharged conspiracy ... [o]ther than that, no."
B. Relevant Authority and Analysis
Even when not requested to do so, the trial court must instruct on the general principles of law raised by the evidence. (People v. Hood (1969) 1 Cal.3d 444, 449.) But absent a request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. (See Evid. Code, § 355; People v. Cantrell (1973) 8 Cal.3d 672, 683, overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) No such request was made here.
Garza relies on People v. Underwood (1964) 61 Cal.2d 113, in which a witness made statements to the police which were subsequently used to impeach his testimony. (Id. at pp. 117-118.) There was uncontradicted evidence that the statements were involuntarily made as the result of pressures by the police. (Id. at p. 118.) The court in Underwood held that, under the circumstances, the trial court erred when it instructed the jury "without qualification that it was permissible to consider prior inconsistent statements of a witness for purposes of testing his credibility." (Id. at p. 125.) "Although this instruction is, of course, correct in the usual case [citation], it should not have been given here without qualification in view of the evidence that [the witnesss] prior statements were involuntary." (Ibid.)
But, as noted in People v. Haydel (1974) 12 Cal.3d 190, there is no merit to a defendants contention that a court erred in failing to instruct the jury to determine for itself the voluntariness of a statement and, if found involuntary, to disregard it. (Id. at p. 203, fn. 7.) Evidence Code sections 400, 402, subdivision (b), and 405 give the trial court, not the jury, the final responsibility for determining the admissibility of evidence. (People v. Culver (1973) 10 Cal.3d 542, 548, fn. 8.) Here, the trial court determined that the pretrial statement was not involuntary.
Moreover, "`"The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a `conscious and deliberate tactical choice to `request the instruction."" (People v. Thornton (2007) 41 Cal.4th 391, 436.) As relevant to defense counsels action in this case,
"[T]he record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. If counsel was ignorant of the choice, or mistakenly believed the court was not giving it to counsel, invited error will not be found. If, however, the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (People v. Cooper (1991) 53 Cal.3d 771, 831.)
The reason for the foregoing rule is not hard to discern.
"[T]he invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law. The legal theory for complaining about counsels misunderstanding of the law is ineffectiveness of counsel, not invited error. To hold otherwise puts a trial court in the position of being a guarantor of counsels tactics: if the tactical decision ... turns out to have been unknowledgeable, the error should be charged to counsel, not the trial court." (People v. Duncan (1991) 53 Cal.3d 955, 970.)
Here, defense counsel specifically requested the instruction in a written motion. Furthermore, when asked by the trial court if he objected to any of the instructions which had been already given, he complained of one instruction, but not the one at issue here. Defense counsel therefore invited any error and Garza may not complain on direct appeal that the trial court did the very thing his counsel consciously chose to ask it to do.
DISPOSITION
The judgment is affirmed.
We Concur:
HARRIS, Acting P.J.
HILL, J.