Opinion
B218699
08-01-2011
THE PEOPLE, Plaintiff and Respondent, v. KELVIN ANTHONY PEREZ, Defendant and Appellant.
Cannon & Harris and Donna L. Harris for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA 066728)
APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed with modifications.
Cannon & Harris and Donna L. Harris for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Kelvin Anthony Perez of four counts of premeditated attempted murder, one count of second degree robbery, one count of shooting at an inhabited dwelling, three counts of shooting from a motor vehicle, and one count of shooting at an occupied motor vehicle. Appellant's convictions relate to a robbery and two separate driveby shootings. He appeals from the judgment of conviction, asserting (1) the evidence was insufficient to support his robbery conviction; (2) the trial court erroneously failed to instruct the jury on the lesser included offenses in robbery; (3) the evidence was insufficient to support his conviction for shooting at an inhabited dwelling; (4) the trial court erroneously excluded a purportedly exculpatory hearsay statement; (5) the trial court erroneously admitted certain photographs of appellant; and (6) the assessment of a $30 per count court security fee must be reduced to $20 per count.
We disagree with appellant on all but his last challenge to the court security fee. Accordingly, we modify the judgment to reduce the court security fee and affirm it in all other respects.
STATEMENT OF FACTS
1. October 18, 2007 Robbery
The facts relating to appellant's robbery conviction occurred at a warehouse shoe store on Hawthorne Boulevard in Los Angeles. On October 18, 2007, Simon Haro, assistant manager of the store, and Erick Chin, a loss prevention officer at the store, were working.
Haro testified at trial to the following facts. At approximately 7:30 p.m. on October 18, a group of three individuals attempted to enter the shoe store. Haro identified appellant as one of the individuals in the group. He knew appellant from high school and had seen him shopping at the store several times without incident. He did not know the names of the two others. Chin was posted at the door and told a man in the group that he was not welcome in the store. The group walked away and appeared angry, but then came back. When they returned, the man who was told he was not welcome entered the store and punched Chin in the head multiple times. Appellant pulled one or both of the other men in the group out of the store after the punching. The three left and returned one more time. This time, a person was left standing at the door while another man entered the store and took two boxes of shoes from the store. The boxes were supposed to contain Jordan brand shoes. One man said something like, "Ain't nobody doing shit." A comment was made to the store cashiers also, along the lines of, "You better not press the panic button." Haro could not recall if the same person who said, "Ain't nobody doing shit," was also the person who took the shoes or the person who punched the guard. The individuals then left together.
Chin testified at trial that he did not recall the events described by Haro. However, the investigating officer, Detective Christopher Port, testified at trial to an interview with him in which he described the events. Detective Port interviewed Chin on January 29, 2008. Chin appeared scared and nervous during the interview and reluctant to get involved. He seemed as though he did not want to say too much, and he did not want his name on anything.
Chin described a robbery that had taken place at the shoe store in October 2007. He said three male Hispanics attempted to enter the store. He identified appellant and a man named Robert Alverado as two of the three men. Chin referred to appellant as "Curly" and Alverado as "Felon." He knew them from having grown up in the same area and believed they were members of the Lennox 13 gang. Chin himself once affiliated with Lennox 13, but no longer did. As appellant, Alverado, and the third man attempted to enter the store, Chin said he told appellant and Alverado they were not welcome and had to leave. They left the store but returned seconds later and actually entered the store, and a melee ensued in which Alverado punched Chin in the face and took two boxes of Jordan basketball shoes. Alverado punched Chin three to four times. The punches rendered Chin unable to prevent Alverado from stealing the shoes. Chin said appellant stood at the door and watched and told Chin something like, "You're not going to say shit," or, "You ain't doing shit. Don't do nothing." Appellant and Alverado left the store together.
Detective Port also testified about the contents of the surveillance video and police report of the October 18, 2007 incident at the shoe store. He could not see appellant speaking on the video, which did not have sound, and the October 18 police report did not attribute any statements to appellant. The police report stated that Chin said he was hit 20 or more times.
Video from the store that day was also played during the trial. The video showed appellant and Alverado coming to the store, Chin confronting Alverado, and appellant and Alverado leaving. Within a few seconds, the two returned with a third individual. Appellant and the third individual stayed outside the store while Alverado punched Chin one time. Alverado and Chin then went off camera for a few seconds and reappeared. Appellant, Alverado and the third man left and returned again, and Alverado took another swing at Chin. The third man with appellant and Alverado tried to break up the fight by separating Alverado and Chin, and appellant stood by the doorway of the store. Appellant then grabbed either Alverado or the third man or both and pulled them out of the store. The three come back to the store a fourth time. Alverado disappeared out of the camera's view, and appellant and the third man stayed at the door and appeared to be talking to Chin, Haro, and another employee. Alverado reappeared with two shoe boxes, exited the store, and appellant followed after.
2. November 9, 2007 Shooting
On November 9, 2007, at approximately 5:30 or 6:00 p.m., Edgar Moreno and Harrison Merrick were standing in the driveway of the home of Armando Perez (Armando) on South Gale Avenue. Moreno saw a gray Honda Civic drive past them heading northbound. A few moments later the same Honda Civic drove by heading southbound and stopped in front of the driveway. A Hispanic male exited the right front passenger seat of the vehicle holding a handgun in his left hand. Moreno pulled his phone out of his pocket and used it to simulate a handgun as he backed up the driveway and hid behind an RV. Merrick also hid behind the RV. The man with the handgun hid behind a van parked in the street, and from there he fired at Moreno five to six times. Armando's mother screamed from inside the house and opened the door to the house, and Moreno and Merrick ran inside the house.
Moreno identified appellant, whom he called "Curly," as a passenger in the backseat of the Honda Civic. He identified appellant's brother, Jose Perez (Jose), whom he knew as "Taz," as the shooter. Moreno knew appellant and his brother from school, when they belonged to rival gangs. When in school, Moreno belonged to Hawthorne Dynasty. Moreno believed appellant and his brother were members of the Lennox 13 gang.
Jose is a codefendant in this case. He is not a party to this appeal.
On November 10, 2007, Armando's mother, Silvia Perez (Silvia), called the police and reported the shooting after discovering bullet holes in her car. The responding officer found two bullet holes in the trunk of Silvia's car. He also recovered a shell casing in the street in front of her house.
3. November 12, 2007 Shooting
On November 12, 2007, at approximately 11:00 or 11:30 p.m., Glen Dombrowski, Byron Cos, Raul Motino, and Anarachelle Lontok were outside Armando's home on Gale Avenue, the same place at which the November 9 shooting occurred. The group was gathered next to Cos's vehicle talking, and the vehicle was parked in the street in front of Armando's house. Lontok was sitting in the driver's seat of the car with the door open. The three men were standing on the driver's side of the car.
Dombrowski testified that Motino noticed a car driving by very slow and pointed it out to the others. He told the others that the people in the car were from the Lennox 13 gang. The car disappeared for three to five minutes, and the group continued to talk. The car then pulled up next to the group approximately 10 to 15 feet from Cos's car. Dombrowski heard gunshots and ran around the back of the car toward the house. He fell at the back of the car and realized he had been shot in the foot. He was also shot in the arm. The headlights from the car were shining in his face, and he did not see the shooter or the handgun. Dombrowski believed the car was either a Honda or Toyota and was either white or gray. Dombrowski believed that Lennox 13 was behind the shooting based on his knowledge that Armando's house was a "hang out" for rivals of Lennox 13, such as the Hawthorne Dynasty tagging crew and EU-Mob Crips.
When Lontok heard the gunshots, she ducked into the passenger's seat of Cos's car. She was not hit, and after the shooting, she drove away. She did not see what type of car the shots came from.
Cos tried to run toward the back of his car also but was shot five times in his legs, hand, and shoulder. Cos saw the shooter's car; it was an older model silver Honda Civic. He caught a quick glimpse of the handgun out of the driver's window and thought the driver of the car was holding the handgun.
Motino testified that he was a member of Hawthorne Dynasty, a rival of Lennox 13. Before the shooting, Motino had seen the car drive by slowly, and he said to the others that the car might be "kleenex," a derogatory term for Lennox 13 gang members. Motino was not hit by the gunshots. He saw the car drive up, and when the shooting started, he dove to the ground. He saw the shots come from the driver's side of the car.
Police recovered five bullets, a bullet fragment, and five expended cartridge casings from the street in front of Armando's house. In addition, bullet holes were found in vehicles parked on the street around the house.
On the night of the shooting, at approximately 11:00 p.m., James Convertino was outside watering his grandmother's lawn on 118th Street between Gale Avenue and Eucalyptus Avenue. Convertino heard some popping noises like firecrackers and then saw three or four cars drive by his grandmother's house at a high rate of speed. One of the cars was a 1990's model Honda Civic. On November 14, 2007, at approximately 12:15 a.m., Convertino spoke with Officer Bradley Jackson. Convertino said he had seen a 1990's gray Honda Civic or Honda Accord at a gas station on Ramona and Imperial Highway. It was the same car he had seen the night of November 12 driving past his grandmother's house. He believed the persons he saw in the car at the gas station were the same persons in the car on the night of the shooting. They appeared to be wearing the same clothing they were wearing on the night of the shooting.
On November 15, 2007, at approximately 2:15 a.m., Deputy Casey Cheshier pulled over a gray Honda Civic in Lawndale. Deputy Cheshier's attention was drawn to that car because he had heard a crime broadcast with a description matching the car and its license plate number. As he exited his car and approached the Honda, he could see there were four people inside, and all were moving around. The driver and the front passenger were looking over their shoulders to the center of the vehicle, and everyone was talking. Appellant and a minor, David V., were in the backseat of the car. Jose was in the driver's seat, and an individual named Milton Fileteo was in the front passenger seat. As the deputy came to the left rear window of the car, David V. was placing clothes onto the center of the seat between himself and appellant. The deputy ordered all passengers to show their hands. He then saw the front portion of a semiautomatic handgun sticking out from under the clothes in the backseat.
Deputy Cheshier requested additional units to assist, and the four persons in the vehicle were detained while the officers conducted a search of the car. The officers recovered the handgun from the backseat of the car underneath the clothes. The handgun found in the car matched the bullets, fragments, and cartridge cases recovered at the Gale Avenue house during the investigation of the November 12, 2007 shooting. The handgun also matched the casing recovered at the Gale Avenue house during the investigation of the November 9, 2007 shooting. All four persons in the vehicle, including appellant, admitted to Deputy Cheshier that they were members of the Lennox 13 gang. Later, when they were booked by a different officer, appellant and Jose again admitted to being members of Lennox 13.
On January 8, 2008, Detective Port spoke to Convertino and showed him a six-pack line up. Convertino circled appellant's photo and said that he looked like the driver of the Honda on the night of the shooting. He also identified a photo of David V. as a backseat passenger of the vehicle.
4. Gang Evidence
The People called Detective Port as their gang expert. He testified that Lennox 13 is a gang with ties to the Mexican Mafia that claims the City of Lennox as its territory, as well as some of Hawthorne and Lawndale. One of Lennox 13's primary rivals is 118 Eucalyptus Gangster Crips, also known as EU-Mob Crips. Among the primary activities of Lennox 13 are assaults, driveby shootings, murder, and shooting from vehicles.
The detective testified about the role of respect in gang life. Respect is prized by gangs and is the motivation for gang life. Gangs want respect from the community and want to constantly show disrespect for rival gangs. Gangs obtain respect from the community through fear and intimidation. Gang members commit crimes like shootings and assaults to establish the gang's propensity for violence and earn respect from the community and rival gangs. This also earns members recognition within the gang.
Detective Port opined that appellant was a member of Lennox 13, who went by the moniker "Curly." His opinion was based, among other things, on several admissions appellant had made to officers and photographs that he had seen of appellant displaying the hand sign for Lennox 13. Detective Port also identified several field identification cards that noted appellant was in the company of known Lennox 13 members. He opined that Jose, who went by the moniker "Taz," David V., and Fileteo were members of Lennox 13, based on the same grounds. He also testified about a field identification card noting that Alverado was a member of Lennox 13.
Field identification cards are used by officers in the field to record contacts with individuals and document certain information about them, such as tattoos, others they are with, and their gang membership.
Detective Port testified that Armando, at whose house the shootings had occurred, and Motino were affiliates of 118 Eucalyptus Gangster Crips, based on numerous prior contacts with them in the presence of known members of the gang. In addition, the detective had seen members of the gang gathered outside Armando's home when driving by the house. Armando's address was a common place for 118 Eucalyptus Gangster Crips to congregate.
Detective Port executed a search warrant at the residence of appellant and Jose Perez and searched the room that appellant and Jose shared. A shoe box was recovered from their room that had Lennox 13 graffiti on it, including the gang's name and the words "Taz" and "Curly." Photographs were also recovered from the bedroom depicting Lennox 13 gang members displaying the gang's hand sign.
PROCEDURAL HISTORY
Appellant was charged in a second amended information with (1) six counts of attempted willful, deliberate, premeditated murder (counts 1, 2, 3, 4, 6 & 7); (2) one count of second degree robbery (count 5); (3) one count of shooting at an inhabited dwelling (count 9); (4) three counts of shooting from a motor vehicle (counts 11, 12 & 13); and (5) one count of shooting at an occupied motor vehicle (count 14). The information contained allegations that appellant's offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang. (Pen. Code, §§ 186.22, subd. (b)(1)(C) & (4).) The information contained further allegations as to various counts that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), or section 12022.55, and that a principal personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1).
All further statutory references are to the Penal Code unless stated otherwise.
The jury trial commenced in March 2009. On April 13, 2009, appellant was found guilty as charged on four counts of attempted murder (counts 3, 4, 6 & 7), the single count of second degree robbery (count 5), the single count of shooting at an inhabited dwelling (count 9), the three counts of shooting from a motor vehicle (counts 11, 12 & 13); and the single count of shooting at an occupied motor vehicle (count 14).
On August 27, 2009, the trial court sentenced appellant to a total of 178 years to life in state prison. Appellant filed a timely notice of appeal on August 27, 2009.
DISCUSSION
1. Appellant's Robbery Conviction Was Proper
A. Sufficient Evidence Supported Appellant's Conviction for Robbery
Appellant contends that we must reverse his robbery conviction because there was insufficient evidence (1) that the intent to steal was formed before or during the act of force, and (2) that he aided and abetted in the theft. In evaluating this contention, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.) Applying these standards, we reject appellant's challenge to the sufficiency of the evidence.
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." "It is the use of force or fear which distinguishes robbery from grand theft from the person." (People v. Mungia (1991) 234 Cal.App.3d 1703, 1707.) "Fear" may be either "fear of an unlawful injury to the person or property of the person robbed," or, "fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." (§ 212.)
To support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force or fear. (People v. Marshall (1997) 15 Cal.4th 1, 34.) "The wrongful intent and the act of force or fear 'must concur in the sense that the act must be motivated by the intent.'" (Ibid., quoting People v. Green (1980) 27 Cal.3d 1, 53.)
Here, there was sufficient evidence of concurrence between the intent to steal the shoes and an act of force or fear. Appellant urges that there was no such concurrence because Alverado struck Chin during prior entries into the store but not during the fourth entry into the store, which was when Alverado actually took the shoes. But robbery may be accomplished through either force or fear, and there was ample evidence of the concurrent use of fear in the taking of the shoes. First, by the fourth time that Alverado and appellant approached the store, Alverado had just struck Chin multiple times. There can be little doubt that Alverado's recent violence against Chin would have inspired fear of "unlawful injury" in Chin. (§ 212.) Second, the evidence showed that appellant said, "You're not going to say shit," or, "You ain't doing shit," to Chin. Third, appellant and the unidentified third man effected a show of intimidation by standing guard around Chin while Alverado went into the store. Especially in combination with the recent violence against Chin, these acts would have inspired fear.
There was also sufficient evidence that appellant aided and abetted the robbery. "In order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (People v. Villa (1957) 156 Cal.App.2d 128, 134.) The aider and abettor "must share the criminal intent with which the crime was committed." (Ibid.)"Evidentiary considerations which are probative of whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime." (People v. Jones (1980) 108 Cal.App.3d 9, 15.)
Appellant contends his mere presence at the scene of the crime or his mere failure to prevent the crime is insufficient to establish aiding and abetting. Appellant did more than this, however, as discussed above. He acted as a lookout or guard and used threatening language to prevent Chin from doing anything. After Alverado came out with the shoes, appellant fled the scene with him. The combination of these acts constituted aiding and abetting. (People v. Jones, supra, 108 Cal.App.3d at p. 15 [defendant's "standing there in a 'menacing' and 'threatening' manner during the robbery persuading the victim not to resist" was evidence of aiding and abetting]; People v. Silva (1956) 143 Cal.App.2d 162, 169 ["It has been consistently held that one who was present for the purpose of diverting suspicion, or to serve as a lookout, or to give warning of approach of anyone seeking to interfere . . . is a principal in the crime committed"].)
B. The Trial Court Did Not Err in Refusing to Instruct on the Lesser Included Offenses
Appellant argues that the trial court should have instructed the jury on the lesser included offenses of grand theft and petty theft. Appellant requested that the court give a petty theft instruction below, and the court refused this request, stating: "It's clear that the force was used, obviously, by the same person who came in and took the shoes, who returned and took the shoes. [¶] . . . [¶] . . . It was within seconds according to what I watched on the video. [¶] . . . [¶] . . . It's force or fear. And the fact is that there was an intimidation that went on for a period of seconds, maybe 30 seconds to a minute, and a show of force by several people and an immediate taking within seconds after the force was used with everybody else from the same group standing around to intimidate and cause the fear to be continuous."
"An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense." (People v. Waidla (2000) 22 Cal.4th 690, 733.) Applying this standard of review, we hold that the trial court did not err in failing to instruct on theft.
A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 645.) "To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (Ibid.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction." (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162.) Evidence is substantial for this purpose if it would cause a jury composed of reasonable persons to conclude that the defendant committed the lesser but not the greater offense. (Ibid.)
Theft is a lesser included offense of robbery because all of its elements are included in robbery. (People v. Bradford (1997) 14 Cal.4th 1005, 1055; People v. Burns (2009) 172 Cal.App.4th 1251, 1256.) The difference between the two is that robbery includes the added element of force or fear. (People v. Bradford, supra, at p. 1055.)
Here, there was not substantial evidence to support a theft instruction. Appellant claims that there was conflicting evidence regarding whether Alverado struck Chin because of a personal grudge or in order to further a plan to steal the shoes. Even if we were to accept appellant's position that the use of force was prior to and independent of the theft, we have already concluded that the evidence amply demonstrated fear was used in the taking of the shoes. There was not substantial evidence otherwise.
2. Appellant's Conviction for Shooting at an Inhabited Dwelling House on November 12, 2007, Was Proper
Appellant contends that his conviction for shooting at an inhabited dwelling house on November 12, 2007, must be reversed because the evidence was insufficient to support a finding that shots were fired at a house. Appellant's argument is unavailing.
As discussed above, an insufficiency of the evidence claim is reviewed under the substantial evidence standard. We "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, supra, 26 Cal.3d at p. 578.)
Section 246 makes it a felony to maliciously and willfully discharge a firearm at an inhabited dwelling house. Shooting at an inhabited dwelling house is a general intent crime. (People v. Overman (2005) 126 Cal.App.4th 1344, 1356.) As with all general intent crimes, the question is whether the defendant intended to do the proscribed act, not whether the defendant had the "specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure)." (Id. at p. 1357.) Thus, "section 246 is not limited to shooting directly at an inhabited or occupied target. Rather, it proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." (Id. at pp. 1355-1356.) Moreover, the statute does not require that the house actually be hit by gunshot. (Id. at pp. 1353, 1362 [substantial evidence supported the § 246 instruction even when no evidence that the building was hit].)
We find instructive People v. Chavira (1970) 3 Cal.App.3d 988 (Chavira). In Chavira, the defendant and his associates fired several shots at persons "congregated in front of, and on the driveway leading to" an inhabited dwelling. (Id. at p. 993.) The defendant argued that the evidence was insufficient to support his section 246 conviction because he did not fire directly at the dwelling, but only at the persons gathered outside of it. (Chavira, at p. 992.) The court held that when the shooters fired a "fusillade of shots directed primarily at persons standing close to a dwelling," the jury was "entitled to conclude that [the defendants] were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result," and thus they had an intent sufficient to satisfy section 246. (Chavira, at p. 993, fn. omitted.)
Appellant urges us distinguish Chavira because the evidence showed that the shots were directed at the victims and the car around which they were gathered, and the victims were not close to the Gale Avenue house. We decline this invitation. Here, the victims were in the street directly in front of the Gale Avenue house, gathered around a vehicle parked in the street. At least one victim, Dombrowski, said that he was running around the vehicle toward the house when he was felled by bullets at the back of the vehicle. Police found bullet holes in cars parked around the house and bullets, bullet fragments, and casings in the street in front of the house. There may have been a sidewalk and a lawn separating the victims from the house, but even so, the victims were in close proximity to the house. These circumstances were sufficient to support a finding that appellant was aware of and had a conscious disregard for the probability that bullets would strike the house. (Chavira, supra, 3 Cal.App.3d at p. 993.)
3. The Trial Court Did Not Err in Excluding Hearsay Statements from David V.
Appellant contends that we must reverse his convictions for attempted murder, shooting at an inhabited dwelling, and shooting at an occupied vehicle relating to the November 12, 2007 and November 9, 2007 shootings. He contends that he was denied his due process right to present a defense and cross-examine witnesses when the trial court excluded certain statements by David V., who was found in the same car and arrested with appellant on November 15, 2007. We disagree.
A. Background
At trial, appellant subpoenaed David V. Appellant anticipated that David V. would testify he was sitting in the backseat of the Honda Civic when Deputy Cheshier pulled it over on November 15, 2007, and when the deputy approached, he attempted to cover up the handgun. Appellant further anticipated that David V. would testify that the handgun -- the same gun later linked to the November 9 and November 12, 2007 shootings -- belonged to him, that he had it for protection against rival gang members, and that he had written a statement to Deputy Cheshier apologizing for trying to cover up the handgun. David V.'s written statement actually read: "I am sorry for being their while the gun was their. And I coverd it cause I diddnt want the Sheriff to shoot me. I touched it while I coverd it." (Sic.)
David V. asserted his Fifth Amendment privilege against self-incrimination and refused to answer any questions. The trial court found that he was properly exercising his Fifth Amendment privilege because the handgun was linked to at least two other shootings. It further found that David V. was unavailable as a witness.
Appellant then moved to introduce David V.'s hearsay statement, through Deputy Cheshier's testimony, that he had the handgun for protection against rival gang members. Appellant argued that the statement was a declaration against penal interest under Evidence Code section 1230. The trial court denied appellant's request, finding that David V.'s statement was "completely untrustworthy" because he had been inconsistent in claiming possession of the handgun. First, during the traffic stop, David V. denied possessing the handgun. Then, after he was arrested and read his Miranda rights, David V. stated that he possessed the handgun for protection from rival gang members. He then gave the written statement described above, which the court found was again inconsistent because he did not claim possession of the handgun, but merely said that he was sorry for being in the vehicle while the handgun was there. Finally, David V. later told the defense investigator in the case that the handgun was not his.
Miranda v. Arizona (1966) 384 U.S. 436.
Earlier at trial, Detective Port had testified about the role of juveniles in a gang. He testified that it is not uncommon for juveniles to either hold a handgun or take responsibility for the handgun when they are with a group that has a handgun. Gang members know that a juvenile caught with a handgun is not going to be punished as harshly as adult gang members caught with a handgun, especially adult gang members who have a prior record.
In denying appellant's request to admit David V.'s statement, the court reasoned: "He's still a juvenile. This is 2009, so he was -- if he's under 18 now, he must have been 15 at the time that he made the statement. He looked at the situation that he and his fellow gang members who were older were in. He thought to himself, well, maybe I should protect them by taking responsibility for admitting that this is my gun, this is my way of showing respect to the older gang members who are in the car. [¶] He had a motive to protect them. In some ways one could say that a reasonable person in his position would have made the statement believing it was false because he was in this situation of wanting to help his fellow gang members."
The trial court did permit appellant to elicit evidence that David V. was charged in juvenile court with possession of the handgun found in vehicle and that the juvenile court petition was sustained against him. Appellant also elicited that no other person was charged with possession of that handgun.
B. Analysis
The trial court did not deny appellant due process in excluding David V.'s hearsay statement. The United States Supreme Court has acknowledged its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts. In any given criminal case the trial judge is called upon to make dozens, sometimes hundreds, of decisions concerning the admissibility of evidence. . . . [Citation.] [W]e have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability -- even if the defendant would prefer to see that evidence admitted." (Crane v. Kentucky (1986) 476 U.S. 683, 689690.) Our own Supreme Court has observed, "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." (People v. Hall (1986) 41 Cal.3d 826, 834.) We do not discern any fundamental unfairness or denial of due process in the particular operation of the rules of evidence here.
Generally, evidence of a statement that was made other than by a witness while testifying at a hearing and that is offered to prove the truth of the matter stated is inadmissible hearsay. (Evid. Code, § 1200.) However, "Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant's penal interest." (People v. Lucas (1995) 12 Cal.4th 415, 454.) This exception is founded on the notion that a reasonable person would not make self-inculpatory statements unless that person believed them to be true. (Williamson v. U.S. (1994) 512 U.S. 594, 599.)
"A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Cudjo (1993) 6 Cal.4th 585, 607.) It is this third requirement -- that the declaration be sufficiently reliable -- that the trial court found lacking here.
The basic trustworthiness of the declaration is the focus of this exception to the hearsay rule. (People v. Frierson (1991) 53 Cal.3d 730, 745.) In determining whether a statement is sufficiently trustworthy to be admissible, the court may take into account not just the words but "the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." (Ibid.)We may overturn the trial court's finding regarding trustworthiness only if there is an abuse of discretion. (Ibid.)
The court did not abuse its discretion in finding that David V.'s statement was untrustworthy here. First, David V.'s changing positions regarding the handgun weigh against the trustworthiness of his statement. He initially told Deputy Cheshier the handgun was not his, then he told the deputy that it was his and he had it for protection, and then he told the defense investigator that it was not his. Second, David V.'s possible motivation and his relationship to appellant weigh against the trustworthiness of his statement. David V. is an admitted member of Lennox 13, as is appellant. As a juvenile member, gang culture would have dictated that he claim the handgun found between him and appellant in order to protect appellant, an adult member of Lennox 13.
Appellant contends that the trial court impliedly found David V.'s statement trustworthy by allowing David V. to assert his Fifth Amendment privilege against self-incrimination. Appellant's argument lacks merit. The reliability of an incriminating statement is not a requirement to finding that a person has validly exercised his Fifth Amendment privilege. Indeed, it was immaterial for purposes of the Fifth Amendment privilege against self-incrimination whether David V.'s statement was true, as "[i]nnocent persons, as well as the guilty, are entitled to invoke the privilege." (People v. Lucas, supra, 12 Cal.4th at p. 454.) In sum, David V.'s hearsay statement was properly excluded.
4. The Trial Court's Admission of Photographs from Myspace Does Not Require Reversal of Appellant's Convictions
Appellant contends that the trial court committed reversible error in admitting photographs of appellant that Detective Port downloaded from the Myspace website. At trial, the People introduced through Detective Port approximately 16 photographs of appellant and others making the Lennox 13 gang sign. Detective Port testified that he retrieved these photographs from Myspace when he executed a warrant on the Myspace pages of appellant, David V., and Alverado. Appellant contends that the People did not properly authenticate the photographs. He further urges that without the photographs, the evidence of appellant's gang affiliation was weak, and the photographs therefore "tilt[ed] the balance in favor of the prosecution." We need not determine whether the trial court erred in admitting the photographs. Even if it did, that error was harmless and did not require reversal.
"The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (People v. Avitia (2005) 127 Cal.App.4th 185, 194.) Contrary to appellant's assertion, the other evidence of his gang membership was not weak. It was, in fact, substantial. Appellant admitted to Deputy Cheshier that he was a member of Lennox 13 when he was arrested on November 15, 2007, and he admitted it to another officer when he was booked. The evidence showed that appellant had a gang moniker of "Curly." A shoe box found in his room had Lennox 13 graffiti on it, including his moniker. Photographs recovered in appellant's room depicted known Lennox 13 members making the gang's sign. Detective Port opined that appellant was a member of Lennox 13 based on his admissions to officers and field identification cards noting that appellant was contacted with known Lennox 13 members. Detective Port further opined that several individuals with whom appellant associated were Lennox 13 members, including his brother Jose, David V., Fileteo, and Alverado. In addition, the shootings for which appellant was convicted targeted members of Hawthorne Dynasty or EU-Mob Crips -- known rivals of Lennox 13. In short, even without the photographs from Myspace, the jury had substantial evidence before it of appellant's gang membership. It is not reasonably probable that appellant would have obtained a more favorable result, had the trial court excluded the photographs.
5. The $30 Court Security Fee Per Count Should Be Reduced to $20 Per Count
At the sentencing hearing on August 27, 2009, the trial court ordered appellant to pay a $30 per count court security fee pursuant to section 1465.8, subdivision (a)(1). Appellant urges that the fee must be reduced to $20 per count because at the time of his conviction, the statute provided for a $20 fee. We agree.
The jury returned the guilty verdict against appellant on April 13, 2009. On that date, section 1465.8, former subdivision (a)(1) provided in relevant part, "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." (Stats. 2007, ch. 302, § 18 [italics added].) Effective July 28, 2009, the Legislature amended section 1465.8 to increase the court security fee from $20 to $30. (Stats. 2009, 4th Ex. Sess. 2009, ch. 22, § 29.)
Because appellant was convicted before the increase in the security fee became effective, he is not subject the increase. People v. Davis (2010) 185 Cal.App.4th 998, authored by Presiding Justice Epstein of this district, is on point. That case involved a substantially similar fee, the court facilities fee imposed by Government Code section 70373, subdivision (a)(1), which states, "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . ." The Davis court held that the court facilities fee did not apply to a defendant convicted before the effective date of the statute and reversed the trial court's assessment of the fee. (Davis, at p. 1000.) In so doing, the court reasoned that "the question was 'on what event does this statute operate.'" (Ibid.)The answer provided by the clear language of the statute was "a conviction," and "[i]t has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (Id. at pp. 1000-1001.)
The same analysis applies here because the statute unambiguously ties the assessment of the fee to a defendant's conviction. We are not persuaded by the Attorney General's reliance on People v. Alford (2007) 42 Cal.4th 749 (Alford). In Alford, a jury convicted the defendant of robbery after the security fee became effective, though he committed the offense prior to the fee's effective date. (Id. at p. 752.) At the sentencing hearing, the court imposed the section 1465.8 security fee. (Alford, at p. 752.) The California Supreme Court held that section 1465.8, as originally enacted in 2003, applied to all convictions after its operative date regardless of the date of the offense. (Alford, at pp. 754-755.) Therefore, it was proper to assess the fee against the defendant, who was convicted after the statute became effective. (Ibid.)
The Attorney General contends that Alford validates applying the increased fee to appellant, even though the increase took place between appellant's conviction and sentencing. We disagree. Alford said nothing about assessing a section 1465.8 fee that became effective after the date of conviction. Our holding that appellant should be assessed the fee in effect on the date of his conviction is consistent with Alford. Accordingly, the judgment should be modified to reflect the proper court security fee of $20 per count.
DISPOSITION
The judgment is modified to reduce the section 1465.8 court security fee to $20 per count, and in all other respects, the judgment is affirmed. The trial court is directed to modify the abstract of judgment accordingly and forward a copy of the revised abstract to the Department of Corrections and Rehabilitation.
FLIER, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.