Opinion
H041782
03-21-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MAX VALADEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1478582)
A jury convicted defendant Michael Max Valadez of attempted murder (count one; Pen. Code §§187, 664) and shooting at an inhabited dwelling (count two; Pen. Code § 246), and found true allegations that he personally discharged a firearm causing great bodily injury (Pen. Code § 12022.53, subd. (d)) and committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code § 186.22, subds. (b)(1)(C) and (b)(4)). The trial court sentenced defendant to a total prison term of 30 years to life (five years for the attempted murder charge, a concurrent five-year term for shooting at an inhabited building, a consecutive term of 25 years to life for the firearm enhancement on count one, and a concurrent 25 years to life for the firearm enhancement on count two).
Defendant contends the trial court erred by (1) finding a witness was unavailable, which allowed for the admission of the witness's preliminary hearing testimony and prior statements to police; and (2) because there was insufficient evidence presented at trial to support the gang enhancements. Finding no error, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
A. Evidence Regarding the Shooting
Defendant is a gang member affiliated with El Hoyo Palmas, a subset of the Norteño criminal street gang. The victim, also affiliated with the Norteño gang, had recently publicly expressed his intention to drop out of or at least step back from the gang lifestyle.
The victim and his girlfriend were returning home a little before 9:00 p.m. when a man approached from the passenger side of their car as they pulled into the driveway. The man verbally confronted the victim, who saw the man had a gun and punched him in the face. The man fell backward, then recovered and pulled the gun from his waistband.
He fired five to seven shots in the direction of the victim and the house. Two or three of the shots hit the victim in the leg, shattering the bone and causing him to fall to the ground. The victim's girlfriend and several neighbors helped him into the house and called 911. Multiple bullet holes could be seen penetrating the structure of the house.
When police arrived, they asked the victim what happened and he said he had been shot by a fellow gang member named Michael who was around 18 years old. After the victim was taken to the hospital, police interviewed his girlfriend who told them the shooter was a person named Michael whom she knew because he is the younger brother of a girl she had known since elementary school. She showed the police officers pictures of the shooter by accessing his Facebook page on her phone.
A person driving by around the time of the shooting saw a man wearing a baseball cap and light colored shirt shooting at another man in a driveway. The shooter got into the passenger side of a car and the car drove away. The witness wrote down the car's license plate number and reported it to police, who discovered the vehicle was registered to defendant.
Police interviewed the victim after he arrived at the hospital and he related essentially the same details about the incident as before, but this time refused to identify the shooter by name. An investigator with the District Attorney's office interviewed the victim several months later and he again refused to identify the shooter, expressing that he did not want to be "a rat."
Less than 24 hours after the shooting, defendant was arrested. Samples taken from his hands at the time of the arrest tested positive for gunshot residue, a result consistent with having recently fired a gun or being close to someone who did.
At the preliminary hearing, the victim appeared under subpoena from the District Attorney. He testified that he did not know the identity of the shooter and denied telling the police that it was Michael.
The victim did not appear at trial. The court held a hearing outside the presence of the jury on the issue of whether the prosecution had been reasonably diligent in attempting to secure the victim's presence at trial, and found that the prosecution acted with reasonable diligence. As a result, the victim was deemed unavailable and the prosecution was allowed to read into the record his preliminary hearing testimony denying he knew the shooter, and then to impeach that testimony by introducing the victim's previous statements to police, including the statement identifying the shooter by name.
The victim's girlfriend testified at trial and denied knowing the shooter and ever telling the police the identity of the shooter. The prosecution then impeached that testimony by introducing her earlier statements to police identifying the shooter as "Michael."
The defense presented testimony from defendant's friend, who said that she was with defendant all night on the night of the shooting and did not see him shoot anyone.
B. Gang Evidence
A law enforcement officer qualified as an expert in the area of criminal street gangs testified that defendant is a member of El Hoyo Palmas, a subset of the Norteño criminal street gang. The primary activities of El Hoyo Palmas include drug sales, gun sales, burglary, assaults with deadly weapons, and murder. Two examples of the pattern of crimes committed by the gang's members are a 2009 assault with a deadly weapon that led to a conviction with a gang enhancement, and a 2011 assault with a deadly weapon also resulting in a conviction with a gang enhancement.
The expert opined that the shooting in this case was committed for the benefit of the gang because it was done in retaliation for the victim's stated intention to step away from the gang, and it furthered the gang's reputation for intimidation and violence.
II. DISCUSSION
A. Admission of the Victim's Preliminary Hearing Testimony and Statements to Police
Defendant contends that the trial court erred by admitting into evidence the victim's preliminary hearing testimony after finding that the victim was unavailable to testify at trial (which in turn allowed for the introduction of statements he made to police, for impeachment purposes). Defendant argues the prosecution failed to exercise reasonable diligence in attempting to secure the attendance of the witness at trial and therefore admitting the preliminary hearing testimony violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.
Respondent urges us to find that defendant waived this issue on appeal by failing to object to the admission of the preliminary hearing testimony at trial. But "fairness is at the heart of a waiver claim. Appellate courts are loathe to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider." (JRS Products, Inc. v. Matsushita Electric Corp of America (2004) 115 Cal.App.4th 168, 178.) Here, the trial court held a hearing for the sole purpose of considering the issue of whether the prosecution exercised reasonable diligence, took testimony and heard argument on the matter, and stated its ruling and reasoning on the record. The issue was preserved for our review. --------
The Sixth Amendment gives criminal defendants the right to confront and cross-examine the witnesses against him or her. (People v. Carter (2005) 36 Cal.4th 1114, 1172, citing Pointer v. Texas (1965) 380 U.S. 400, 403-405.) But this right is subject to certain exceptions, including the one at issue here: the unavailability at trial of a witness who has given testimony at a previous judicial proceeding. "An exception to the confrontation requirement exists where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant." (People v. Carter, supra, at p. 1172.)
In order for the unavailability exception to apply, a court must make a threshold finding that the witness in question is truly unavailable. Under federal constitutional standards, a witness is deemed unavailable for purposes of complying with the Sixth Amendment confrontation right where the prosecution shows it made a "good faith effort" to obtain the presence of the witness at trial. (Barber v. Page (1968) 390 U.S. 719, 725.) Introduction of prior testimony from a witness who does not appear at trial is allowed under the Sixth Amendment and under California law so long as the prosecution has used " 'reasonable diligence' " in its unsuccessful efforts to locate the missing witness. (People v. Cromer (2001) 24 Cal.4th 889, 898.)
We review de novo the trial court's determination that a witness was unavailable. (Cromer, supra, 24 Cal.4th at p. 894.) We would be required to defer to the trial court's factual findings to the extent that any of the facts relating to the unavailability determination were in dispute (Id. at p. 900), but there are no such factual disputes here as defendant did not challenge any of the facts presented by the prosecution at the hearing on the unavailability issue or present any affirmative evidence.
Using our independent judgment to review the undisputed facts in the record, we conclude the trial court did not err when it determined the prosecution exercised reasonable diligence in attempting to secure the victim's attendance at trial. " 'The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.' " (People v. Herrera (2010) 49 Cal.4th 613, 622.) Absent knowledge of a "substantial risk" that the witness will flee, the prosecution is not required to take protective measures to prevent the witness' disappearance. (People v. Wilson (2005) 36 Cal.4th 309, 342.) "[W]hen a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness' presence ... but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising." (Hardy v. Cross (2011) 565 U.S. 65, 71.)
In this case, the victim was a resident of the community and had children living in the community. He voluntarily appeared at the District Attorney's office for at least one interview while the case was pending, was located without difficulty for service of a subpoena in connection with the preliminary hearing, and appeared pursuant to that subpoena. The prosecutor's investigator testified at the hearing on unavailability that the victim's precise whereabouts were known until two weeks before trial because he was in custody at the county jail in an unrelated matter, and the investigator believed that he would remain in custody through the time of trial. When the investigator learned that the victim had been released from custody after posting bail, he called the victim's phone number multiple times; went to the victim's home address; spoke to the victim's girlfriend and learned of a possible alternate address; went to the alternate address to look for the victim; and enlisted the assistance of two different law enforcement agencies to locate him.
The cases relied upon by defendant where a lack of diligence was found are distinguishable. In People v. Blackwood (1983) 138 Cal.App.3d 939, 947, the prosecution knew where the witness was located but simply decided not to engage in the out-of-state subpoena process that would have been required to subpoena him. In People v. Cromer, supra, 24 Cal.4th at pp. 903-904, the Supreme Court noted that whether a search for the witness was timely begun is an important factor and even with an original trial date of September, the prosecution did not begin to search until December and then failed to follow up on promising leads. In People v. Sanders (1995) 11 Cal.4th 475, 524, the prosecution did not make any effort to locate the witness until well into the trial, despite knowing the witness had been unreliable in the past.
As the trial court here noted, the prosecution could have served the victim with a trial subpoena while he was in custody. That hindsight notwithstanding, we cannot say on this record that the prosecution failed to exercise reasonable diligence in attempting to produce the victim to testify at trial.
Three prior statements the victim made to police (one immediately after the shooting, one about forty-five minutes later at the hospital, and one at an interview over a month later) were admitted to impeach his preliminary hearing testimony that he could not identify the shooter. Defendant argues that the statements to police were testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and therefore inadmissible.
Under the rule established by Crawford, "testimonial" out-of-court statements are inadmissible unless the witness is unavailable and the defendant had a previous opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.) To determine whether statements made to law enforcement are testimonial, courts must assess whether the primary purpose of the questions eliciting the statements is to respond to an ongoing emergency (suggesting the statements are not testimonial), or to elicit information as part of an investigation into past criminal conduct (suggesting the statements are testimonial). (Davis v. Washington (2006) 547 U.S. 813, 821-822.) In People v. Chism (2014) 58 Cal.4th 1266, the California Supreme Court described six factors to be considered in making this assessment: (1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the relative formality of the statement and the circumstances under which it was obtained. (Id. at p 1289.) " 'In the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "create an out-of-court substitute for trial testimony." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1214-1215.)
Here, the first statement the victim made to police identifying the shooter as fellow gang member Michael is clearly nontestimonial. The officer who spoke to the victim was responding to a 911 call reporting a shooting, and the conversation took place just minutes after the shooting occurred. The responding officers approached the scene not knowing whether an armed suspect was still present. When the officer began questioning the victim, he was in his kitchen, bleeding from gunshot wounds and "trying to compose himself." Statements made to the officer by the victim under these circumstances are not testimonial. See People v. Chism, supra, 58 Cal.4th at p 1289 [finding statements non-testimonial when they were made to an officer just after a shooting, the declarant was " 'nervous' and 'shaken up,' " and the officer was unsure whether an armed suspect was still nearby.])
We will assume, as the Attorney General does in the Respondent's Brief, that the two later statements given by the victim (at the hospital forty-five minutes after the incident and at the District Attorney's office over a month later) are testimonial because they were made at a time when the focus had shifted from dealing with an ongoing emergency to investigating a crime. But even with this assumption, there was no Sixth Amendment violation under Crawford because the witness was properly determined to be unavailable and defendant had previously cross-examined him at the preliminary hearing. (See Crawford, supra, 541 U.S. at p. 68 [testimonial statements are admissible if the declarant is unavailable and there was a prior opportunity for cross-examination.])
Regardless, once the victim's preliminary hearing testimony was admitted, in which he denied knowing who the shooter was and denied ever identifying the shooter to police, his three contrary statements to police were properly admitted as impeachment evidence, something defendant readily concedes in his opening brief.
Given the admissibility of the statements for impeachment purposes, the testimonial analysis under Crawford is relevant only to determining if the jury should have been instructed to consider the statements solely for impeachment of the victim's credibility. But because defendant never requested a limiting instruction, he has forfeited any challenge based on the court's failure to give one. (People v. Simms (1970) 10 Cal.App.3d 299, 311 ["there is no duty, in the absence of a request, to give an instruction limiting the purpose for which evidence may be considered."].)
We find no error in admitting the victim's preliminary hearing testimony because the trial court properly determined the prosecution was reasonably diligent in attempting to secure the witness's attendance at trial and he was therefore unavailable. We also find no sua sponte duty for the trial court to give an instruction limiting use of the victim's prior testimony and statements for impeachment purposes only.
Even assuming error in admitting the preliminary hearing testimony and other statements of the victim, the error would be harmless beyond a reasonable doubt, the standard we would apply to evaluate prejudice here. (See Chapman v. California (1967) 386 U.S. 18, 23-24.) Putting aside the victim's prior testimony and statements to police, the evidence against defendant was overwhelming: the victim's girlfriend identified defendant as the shooter by name and showed police photographs of him; a neighbor reported defendant's car as the vehicle used during the shooting; and defendant's hands tested positive for gunshot residue with no innocent explanation provided.
B. Sufficiency of the Evidence to Support the Gang Enhancements
Defendant contends that the evidence presented at trial was insufficient to prove the charged gang enhancements. (Pen. Code § 186.22, subd. (b)(1)(C) and (b)(4).) He argues that there is insufficient evidence indicating a primary activity of defendant's gang, El Hoyo Palmas, is one of the criminal offenses enumerated in Penal Code section 186.22, subdivision (e)(1) through (33). He also asserts there is insufficient evidence that the shooting was done with the specific intent to promote, further, or assist the gang as required by Penal Code section 186.22, subdivision (b)(1)(C) and (b)(4).
In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not reweigh the evidence or judge the credibility of witnesses, and we must affirm if any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (Ibid.)
In order to prove the sentencing enhancement provided for by Penal Code section 186.22, the prosecution must show that committing certain crimes is a primary activity of the gang in question, meaning that gang members have "consistently and repeatedly" committed criminal activity listed in the statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 (italics omitted).) The specified offenses are listed in Penal Code section 186.22, subdivision (e)(1) through (33), and include assault with a deadly weapon; robbery; homicide; sale of controlled substances; shooting at an inhabited dwelling; and intimidation of victims.
The evidence presented at trial was sufficient to support the primary activity element. The prosecution presented the testimony of a gang expert who testified that El Hoyo Palmas is a subset of the Norteño gang that has existed since the 1970s and its members commit acts of violence and criminal activity regularly. He also testified the primary activities of El Hoyo Palmas include drug sales, gun sales, assaults with deadly weapons, and murder. Evidence was presented of specific crimes that occurred in 2009 and 2011 which qualify as offenses enumerated by Penal Code section 186.22(e).
Defendant reminds us, citing In re Daniel C. (2011) 195 Cal.App.4th 1350, 1364, that " 'an expert's opinion is no better than the fact on which it is based,' " but in this case the expert's opinion was based on the witness's personal observations from twenty years as a law enforcement officer, including nearly one thousand contacts with gang members, a few hundred arrests of gang members, and the investigation of numerous gang related crimes involving subsets of the Norteño gang. This is plainly not the situation that was presented in In re Alexander L. (2007) 149 Cal.App.4th 605, 614, another case cited by defendant, where the gang expert's testimony regarding the pattern of criminal offenses was nothing more than the witness saying he knew members of the gang had been involved in certain crimes, without providing any foundation for how he obtained that knowledge. The evidence here was sufficient to allow the jury to conclude that the commission of one or more of the specified offenses was a primary activity of El Hoyo Palmas.
The evidence was also sufficient to prove the shooting was committed with the specific intent to promote, further, or assist in criminal conduct by gang members. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a [ ] criminal street gang' within the meaning of section 186.22(b)(1)." (People v. Albillar (2010) 51 Cal.4th 47, 63.) The prosecution's expert witness in this case opined, with an adequate factual foundation, that the shooting was committed for the benefit of the gang because it was done in retaliation for the victim's stated intention to step away from the gang, and it furthered the gang's reputation for intimidation and violence. Even without the expert's conclusion about the motivation for the act of violence, the jury could have reasonably inferred from the available evidence that the victim was shot in retaliation for his recent public expressions that he wanted to step back from the gang.
People v. Ramirez (2016) 244 Cal.App.4th 800, cited by defendant in his reply brief, is distinguishable. In that case the court concluded that evidence of one gang member shooting another, without more, was not an adequate basis for an expert's opinion that the shooting was for the benefit of the gang. (Id. at p. 819.) In contrast, the expert's opinion here was that the shooting benefited the gang by serving as punishment for attempting to leave the gang and as a warning to others not to try to do the same. This would serve to increase gang leaders' control over members. The jury here was presented with sufficient evidence from which to find an intent to benefit the gang, even though other evidence may have pointed to the contrary conclusion that the shooting was motivated by a personal dispute between the victim and the shooter. Our task in reviewing the sufficiency of the evidence is not to reweigh the evidence. We must presume that the jury rejected the theory of a purely personal dispute in favor of the gang-related theory that supports the judgment. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1313 [" ' " 'If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.' " ' "].) On this record a rational trier of fact could conclude that the necessary elements for the charged gang enhancements were proven beyond a reasonable doubt.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Rushing, P. J. /s/_________
Premo, J.