Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060126A
Lambden, J.
A jury in defendant’s first trial found defendant guilty on count 2 of conspiracy to commit forcible rape (Pen. Code, §§ 182, subd. (a)(1); 261, subd. (a)(2)), on count 3 of kidnapping for purposes of forcible rape (§ 209, subd. (b)(1)), on count 4 of kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), on count 5 of attempting to dissuade a witness or victim (§ 136.1, subd. (b)(1)), and on count 6 of false imprisonment (§ 236). As to counts 2, 3, and 4, the jury found true the allegation that defendant had furnished a firearm to aid and abet another person in the commission of the offense (§ 12022.4), that a principal was armed in connection with the commission of the offense (§ 12022, subd. (a)(1)), and that the offense was a serious felony (§ 1192.7, subd. (c)(7)). The jury also found true allegations that the offenses in counts 5 and 6 were serious felonies and that defendant used a firearm when committing the offense in count 6.
All unspecified code sections refer to the Penal Code.
The jury was unable to reach a verdict regarding the first count, conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)), and the court declared a mistrial on this count. Following a retrial on count 1, a jury convicted defendant of conspiracy to commit murder and found true the allegations that defendant had furnished a firearm to aid and abet another person in the commission of the offense (§ 12022.4), that a principal was armed in connection with the commission of the offense (§ 12022, subd. (a)(1)), and that the offense was a serious felony (§ 1102.7, subd. (c)(7)).
Defendant appeals and challenges the lower court’s ruling in his first trial that out-of-court statements of Alfonso Cuevas Gonzalez against defendant were admissible under Evidence Code section 1223. With regard to his second trial, defendant argues he should have been able to admit Gonzalez’s testimony given in Gonzalez’s own trial. He claims that such testimony was relevant to show that Gonzalez acted under duress and therefore did not possess the requisite intent to establish he conspired with defendant to commit murder. In his supplemental brief in this court, defendant maintains that, even if he waived raising this latter issue on appeal, the judgment in his second trial should be reversed based on ineffective assistance of counsel. We are not persuaded by any of defendant’s arguments and affirm the judgment.
Gonzalez, defendant’s coconspirator, had a separate trial and a jury convicted him of conspiracy to commit murder, conspiracy to commit rape, kidnapping during the commission of a carjacking, kidnapping, and making a criminal threat. We affirmed in our nonpublished decision. (People v. Gonzalez (Aug. 21, 2008, A118417).)
BACKGROUND
The Charges
An amended information filed March 20, 2007, charged defendant on count 1, with conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)); on count 2, with conspiracy to commit forcible rape (§§ 182, subd. (a)(1); 261, subd. (a)(2)); on count 3, with kidnapping with the intent to commit forcible rape (§ 209, subd. (b)(1)); on count 4, with kidnapping during the commission of a carjacking (§ 209.5, subd. (a)); on count 5, with attempting to dissuade a witness from making a report to law enforcement (§ 136.1, subd. (b)(1)); and, on count 6, with false imprisonment (§ 236). The information alleged as to the first four counts, that defendant had furnished a firearm to aid and abet another person in the commission of the offense (§ 12022.4), that the principal was armed in connection with the commission of the offense (§ 12022, subd. (a)(1)), and that the offense was a serious felony (§ 1192.7, subd. (c)(7)). With regard to count 5, the information also alleged that this offense was a serious felony. The information alleged that, as to count 6, this offense was a serious felony and defendant personally used a firearm when violating the personal liberty of Jane Doe (§ 12022.5, subd. (a)).
The matter proceeded to a jury trial.
The Prosecution in the First Trial Motion in Limine
The prosecution’s theory at trial was that defendant had hired Gonzalez to kidnap Jane Doe and their plan was that they both would rape and kill her. The prosecutor moved in limine to allow the jury to hear statements made by Gonzalez to Jane Doe during the kidnapping. Specifically, the prosecution sought to admit statements where Gonzalez “confirm[ed] the existence of a conspiracy with [defendant], describe[d] the actions and planning activity that ha[d] taken place in furtherance of the conspiracy, and... describe[d] the objectives of the conspiracy to Jane Doe.” The prosecution argued that these statements were admissible under a variety of theories, including that they were statements of a coconspirator, satisfying Evidence Code section 1223, and that they showed state of mind under Evidence Code section 1250. The defense objected to the admission of Gonzalez’s statements to the victim, but the trial court ruled the statements admissible under Evidence Code sections 1223 and 1250.
The Events Prior to the Kidnapping
Jane Doe, who used the name Nancy, moved to San Mateo County from Mexico in January 2004. She began working at Mi Rancho Market in February 2004, and then also worked at a jewelry store located within the market but separately owned by defendant. Defendant also owned a second jewelry store in a town near Fresno. Defendant lived in an apartment in Fresno with a woman named Noelia and their two children.
Defendant wished to have a dating relationship with Nancy, but Nancy told him that she did not want to have a romantic relationship with him. At the end of March or the beginning of April 2005, defendant offered Nancy a ride home when her car did not start. Defendant drove to a parking lot in East Palo Alto; he parked the car, locked the doors, and insisted that Nancy agree to be with him. She told him that she was not interested in him and that she wanted to go home. Defendant removed a gun from his car’s glove compartment and told her that she would be sorry for not going out with him. Defendant then took Nancy to her home.
About one month later, defendant asked Nancy to meet him at a beach. Nancy agreed to see him, but insisted that they meet at a public place. They met at a Denny’s restaurant; defendant again asked Nancy to date him. She refused, and defendant threatened that she would be sorry.
In November 2004, defendant spoke to his friend, Guadalupe Torres Perez, about Nancy. With Perez’s help, defendant rented a second apartment in Fresno.
In May 2005, defendant called Nancy and told her that he had been in a serious car accident in Fresno. Perez got on the phone and pretended to be defendant’s mother; she declared that defendant had been seriously hurt in the accident. Nancy agreed to visit defendant in Fresno but, when she came, she brought her relatives with her. When Nancy and her relatives arrived at the home in Fresno, Nancy noticed that defendant was not injured. As Nancy was leaving, defendant grabbed her arm and said, “You don’t know this, but you belong to me, and what is mine is no one else [sic].”
According to Perez, defendant told her that he was angry Nancy had not come alone. He said he was going to “have” Nancy in either a “good way” or a “bad way.” Defendant mentioned to Perez that he had given Gonzalez $800 and a gun to use to kidnap Nancy. Defendant advised Perez that he wanted to use the basement of her residence to carry out his plan.
Perez recounted defendant’s plan to her daughter, Teresa Armas. Armas also overheard defendant telling Perez about his plan to have someone kidnap and bring Nancy to Fresno where he would rape and kill her. On June 10, 2005, at 6:37 a.m., Armas called the police in Menlo Park and told the dispatcher about the plan to kidnap Nancy from the front of the jewelry store, and the plan to rape and kill her. The police unsuccessfully attempted to investigate the call.
The Kidnapping
In the early morning of June 10, 2005, Nancy worked at the Mi Rancho Market until 4:30 p.m. As she was leaving and approaching her car, Gonzalez followed her. He had a gun and threatened to kill her if she did not get into her car. Nancy recognized the gun as belonging to defendant. Gonzalez took Nancy’s keys, purse, and telephone and then pushed her into the car on the passenger’s side. Gonzalez got into the car on the driver’s side. When Nancy attempted to escape, Gonzalez stopped her.
Gonzalez told Nancy that he was going to take her to meet someone who had a van, but he could not find that person. Eventually, Gonzalez drove across a bridge and towards Fresno. Gonzalez told Nancy that the current plan was that, once she was taken to Fresno, defendant, Gonzalez, and the person in the van were going to rape her and they were going to kill her and bury her inside a very deep well.
After about 11 hours, Gonzalez arrived in Fresno with Nancy. He drove to the residence of Linda Matus. Gonzalez spoke to Matus and then returned to the car. Gonzalez then drove to Perez’s residence, but returned to the car when no one answered the door.
On this same day of the kidnapping, defendant stayed at Perez’s house from approximately 2:00 to 5:00 or 5:30 p.m. Defendant received calls on his cell phone. Prior to leaving Perez’s home, he told Perez that the job had been done. About 7:00 p.m., defendant telephoned Perez and reported that the kidnapping had been interrupted. Defendant wanted Perez to pick him up and she agreed to pick him up at a fruit stand. Perez took her daughter, Armas, with her.
Defendant was driving a pickup truck when he met Perez. He told her to follow him to another location where he was going to hide his pickup truck. He said that Martinez had called him and told him that everything had become “messed up.” Perez followed as defendant parked his pickup in a shack. Perez drove her daughter home and then took defendant to his apartment. Perez returned to her home about 10:30 p.m.
Later that night, after 10:30 p.m., Gonzalez came to Perez’s house, driving a small red car. A woman was sitting in the back seat, and Perez later learned she was Nancy. Gonzalez sounded the horn and knocked at the door of Perez’s home, but Perez did not let him inside. Instead, she called her daughter and had her call the police. Gonzalez returned to his car; Perez saw him strike Nancy.
Gonzalez drove Nancy to another residence. A woman identified at the second trial as Ana Martinez came outside. Martinez informed Gonzalez that defendant had been looking for him for hours and that she knew what they were doing. Martinez advised Nancy that she was going to help her. Martinez took Nancy inside the house and into a bedroom that had a door that locked. While in the room, Nancy heard Gonzalez tell Martinez to let Nancy go because he had not yet been paid.
The prosecution summoned Martinez as a witness, but she did not appear at the first trial. She testified at the second trial.
Martinez asked Nancy for a telephone number for someone who could come and get her. Nancy gave her a number and Martinez called Nancy’s aunt. Martinez opened the bedroom door and Gonzalez entered; he asked Nancy to forgive him, kissed her hand, and left.
Martinez drove Nancy to a gas station where Nancy’s relative arrived. Nancy and her relative went to the sheriff’s department.
Defendant Retrieves his Gun from Gonzalez
On June 11, 2005, the day after the kidnapping, defendant went to Perez’s residence and asked her to follow him in a separate car. Perez agreed and Armas accompanied her. Perez followed defendant as he drove to Gonzalez’s apartment. Perez and defendant went to the door and a young boy answered; he disclosed that Gonzalez was inside a blue van. Defendant approached the van and spoke to Gonzalez. Perez returned to her car and told Armas to call the police and provide the officers with Gonzalez’s address. Armas called the Menlo Park police and gave the officers information about Gonzalez’s whereabouts. She also gave this information to the Fresno police.
A few days later, defendant again came to see Perez and told her that he was able to get the gun from Gonzalez. He wanted Perez and Armas to pretend to be social workers and to kidnap Nancy’s relatives. Perez verbally agreed, but testified that she had no intention of complying.
Defendant’s Arrests
On July 11, 2005, defendant went to Perez’s residence; he had his gun. Perez asked her daughter to call the police and she did so. When the police arrived, defendant tried to give Perez the gun, but she refused to take it. Defendant then hid the gun. Perez gave the police permission to enter her home and, outside defendant’s presence, she disclosed to the officers where defendant had hidden the gun. She also revealed to them that defendant had been involved in a kidnapping. The police found the gun and arrested defendant.
On July 12, 2005, Fresno Police Detective Stephen Viveros interviewed defendant. Defendant claimed that he was holding the gun found at Perez’s house for a friend in Mexico and that it was not his gun. He admitted that Nancy was a former employee, but denied any involvement with her kidnapping. Subsequently, defendant was released.
On July 19, 2005, the police interviewed Perez. She told the police about the kidnapping and confirmed the involvement of Gonzalez and defendant.
On July 22, 2005, the police asked Nancy to make a pretext phone call to defendant. During this conversation, defendant denied any involvement in the kidnapping and indicated that he knew Nancy was with detectives. However, during the call, defendant revealed that the name of the woman who had rescued Nancy was Ana Martinez. At the time of the call, even Nancy did not know her rescuer’s name. Defendant told Nancy that he was going to Martinez’s home to talk to her about her accusations that he was behind Nancy’s kidnapping. Several Fresno police officers were dispatched to Martinez’s residence. They found and arrested defendant approximately one block away from Martinez’s home.
Defendant’s Attempts to Influence Perez
In August 2005, while in custody, defendant telephoned Perez. The phone call was recorded. Defendant told Perez not to say anything to the police and to deny knowing any of the people involved.
The Defense
Defendant testified at the first trial. He denied being involved in any plan to kill or rape Nancy. He admitted to renting an apartment in Fresno and hoping to lure Nancy there, but denied wanting to do anything with force. Defendant claimed that he believed Perez and Martinez planned the kidnapping, and disavowed any relationship with Gonzalez.
Defendant admitted hiding the gun at Perez’s house, but insisted it did not belong to him. He claimed that he was keeping the gun for a friend while the friend traveled to Mexico. He alleged that he did not know about the kidnapping until after he had been arrested and released from jail. At that point, he questioned Perez and Martinez and found out about the kidnapping.
The Verdict in the First Trial
On April 13, 2007, the jury found defendant guilty on count 2 of conspiracy to commit forcible rape (§§ 182, subd. (a)(1); 261, subd. (a)(2)), on count 3 of kidnapping for purposes of forcible rape (§ 209, subd. (b)(1)), on count 4 of kidnapping during the commission of a carjacking (§ 209.5, subd. (a)), on count 5 of attempting to dissuade a witness or victim (§ 136.1, subd. (b)(1)), and on count 6 of false imprisonment (§ 236). As to counts 2, 3, and 4, the jury found true the allegation that defendant had furnished a firearm to aid and abet another person in the commission of the offense (§ 12022.4), that a principal was armed in connection with the commission of the offense (§ 12022, subd. (a)(1)), and that the offense was a serious felony (§ 1192.7, subd. (c)(7)). The jury also found true allegations that the offenses in counts 5 and 6 were serious felonies and that defendant used a firearm when committing the offense in count 6.
The jury was unable to reach a verdict on count 1, conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)). The court declared a mistrial on this count.
The Second Trial and Verdict
At the second trial on the charge of conspiracy to commit murder, defendant sought to call Gonzalez as a witness. Gonzalez, however, claimed the Fifth Amendment privilege against self-incrimination. On November 5, 2007, the trial court found Gonzalez unavailable to testify. The court also stated that all its pretrial rulings from the first trial would stand for the second trial.
Nancy and Perez testified at the second trial. Their testimony was essentially the same as that provided in the first trial. Detective Viveros testified about his interview of defendant on July 12, 2005. He added details about the interview in the second trial. In particular, he stated that, prior to his giving defendant any information that Nancy’s car was used for the kidnapping, the detective asked defendant whether his fingerprints would be found on the car. Defendant’s response indicated that he knew Nancy’s car had been used for the kidnapping.
The following exchange occurred between the detective and defendant:
Martinez also testified at the second trial. Defendant moved to have an attorney appointed for Martinez, arguing that she was part of the conspiracy. In support of this argument, defendant cited Gonzalez’s testimony during his own trial where he claimed that Martinez pressured him to participate in the conspiracy and told him that defendant was going to pay him to commit the crimes. The prosecution opposed the request to appoint counsel for Martinez and argued that Gonzalez’s testimony at his own trial was not trustworthy and was not admissible under any hearsay exception. The court denied without prejudice defendant’s request to have counsel appointed for Martinez.
Immediately after the trial court’s ruling on his motion to appoint an attorney for Martinez, counsel for defendant argued that the court should admit Gonzalez’s trial testimony under Evidence Code section 1291. The prosecution responded that this statute did not apply because defendant was not a party in Gonzalez’s trial. Defense counsel cited a case, which he admitted that he had not yet read, but that he believed supported his position that Gonzalez’s trial testimony was admissible. The trial court responded that he could read the case that evening and then bring it to the court’s attention. Thereafter, defense counsel never again cited the case or raised the issue of admitting Gonzalez’s trial testimony.
At the second trial, Martinez acknowledged a prior felony conviction for the sale of cocaine. She stated that she met defendant about four years earlier. She mentioned that she was known in her community as a witch and defendant had asked her to bless some jewelry stores he was opening. About one month prior to the kidnapping, defendant had asked her for help in getting Nancy to fall in love with him.
On November 16, 2007, the jury found defendant guilty of conspiracy to commit murder (§§ 182, subd. (a)(1); 187, subd. (a)). The jury also found true that defendant had furnished a firearm to aid and abet another person in the commission of the offenses (§ 12022.4), that a principal was armed in connection with the commission of the offense (§ 12022, subd. (a)(1)), and that the offense was a serious felony (§ 1192.7, subd. (c)(7)).
The Sentence and Appeal
On January 30, 2008, the court sentenced defendant to an indeterminate term of 25 years to life on count 1, consecutive to a 12-year term. The consecutive sentence was comprised of two years for false imprisonment as charged in count 6, and 10 years for an enhancement for use of a gun in the commission of the crime. The court stayed the sentences on the remaining counts and enhancements.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Court’s Admission in the First Trial of Gonzalez’s Extrajudicial Statements
Defendant maintains that the court in the first trial violated his rights under the Confrontation Clause when it admitted Gonzalez’s out-of-court statements to Nancy under Evidence Code sections 1223 and 1250. Specifically, defendant objects to the admission of Gonzalez’s extrajudicial statements that defendant furnished him with the gun and paid him to kill Nancy, that defendant sent him to take Nancy to Fresno where she would be raped and killed, and that he was afraid defendant would kill his son if he did not comply with defendant’s requests.
The People assert that defendant has waived any objection to the admission of Gonzalez’s extrajudicial statements because defendant did not expressly object to the admission of these statements at trial. (See Evid. Code, § 353, subd. (a); People v. Zapien (1993) 4 Cal.4th 929, 979-980, superseded by statute on another issue.) The People acknowledge that defendant objected to the prosecution’s in limine motion seeking to introduce some of Gonzalez’s statements, but during the trial defendant did not object to the admission of the statements specifically covered by the motion or to the admission of any other statements by Gonzalez. Further, the People assert that defendant never objected at trial on the basis that Gonzalez’s statements violated defendant’s rights under the Confrontation Clause.
The People argue that the motion in limine referred only to Gonzalez’s statements that he had secretly been watching and following Nancy and that defendant and he planned to rape and kill Nancy in Fresno.
Defendant responds that he did not waive his objection to any of Gonzalez’s statements as the trial court understood that the prosecution’s motion referred to all of Gonzalez’s statements. When ruling on the prosecution’s motion in limine, the court stated the following: “The District Attorney urges [the statements made by Gonzalez be admitted] as evidence of a conspiracy, and also,... [under] section [1223] of the Evidence Code and you, of course, object. I am going to allow them to be admitted.” Defendant claims that his objection to the motion in limine preserved this issue for appeal since he satisfied the basic requirements of Evidence Code section 353. (See People v. Rowland (1992) 4 Cal.4th 238, 264, fn. 3.)
We agree that defendant sufficiently preserved for appeal any objection to the admission of Gonzalez’s out-of-court statements. We therefore consider the merits of his challenge.
We review a trial court’s evidentiary rulings for an abuse of discretion. (See People v. Griffin (2004) 33 Cal.4th 536, 577.) Defendant maintains that we must review the ruling de novo because the alleged error involves his constitutional rights. We disagree that his rights under the Confrontation Clause are implicated because, as we discuss below, the court properly admitted the statements under Evidence Code section 1223. Our Supreme Court has held in People v. Brawley (1969) 1 Cal.3d 277, 291 that hearsay statements of a coconspirator falling within Evidence Code section 1223 do not violate the Sixth Amendment right of confrontation. (See also Crawford v. Washington (2004) 541 U.S. 36; United States v. Reyes (8th Cir. 2004) 362 F.3d 536, 540-541 & fn. 4.) In any event, even if we review the lower court’s ruling de novo, we conclude that the lower court did not err.
One of the trial court’s grounds for admitting Gonzalez’s statements to Nancy was that it found Evidence Code section 1223 applied to the statements. Evidence Code section 1223 provides the following: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.”
Hearsay statements by coconspirators may be admitted against a party if the offering party presents independent evidence to establish prima facie the existence of the conspiracy. Once independent proof of conspiracy has been shown, three preliminary facts need to be established: (1) the declarant was participating in a conspiracy at the time of the declaration, (2) the declaration was in furtherance of the objectives of the conspiracy, and (3) at the time of the declaration, the party against whom evidence is offered was participating or would later participate in the conspiracy. (In re Hardy (2007) 41 Cal.4th 977, 995-996.)
Defendant does not mount any challenge to the lower court’s finding that there was independent evidence of a conspiracy or to its findings that Gonzalez and defendant were participating in a conspiracy at the time of the declaration. Indeed, such a challenge would be futile as the record is replete with evidence supporting these findings. With regard to independent evidence of a conspiracy, Perez testified that defendant told her that he hired Gonzalez to kidnap Nancy and that defendant and Gonzalez planned to rape and kill her. The record also indicated that Gonzalez’s statements were made while both defendant and Gonzalez were participating in the conspiracy: Gonzalez made these statements during the kidnapping of Nancy and while threatening her with defendant’s gun.
Defendant’s sole argument that Evidence Code section 1223 does not apply is that the record does not support a finding that Gonzalez’s statements to Nancy were in furtherance of the objectives of the conspiracy. For the reasons discussed below, we conclude that his argument lacks merit.
“[W]hether statements made are in furtherance of a conspiracy depends on an analysis of the totality of the facts and circumstances in the case.” (People v. Hardy (1992) 2 Cal.4th 86, 146.) Here, Nancy testified that Gonzalez told her the gun he was using belonged to defendant after she remarked that she recognized the gun as belonging to defendant. While Gonzalez was pointing the gun towards her, Nancy inquired: “Why is [defendant] sending you to do this?” Gonzalez then asked how she knew the gun belonged to defendant and Nancy replied that defendant always carried that gun with him. Subsequently, Gonzalez stated that defendant had asked him to kidnap, rape, and kill her. Gonzalez told Nancy that he did not want to kill her, but was acting out of fear that defendant would hurt his son if he did not comply with defendant’s demands.
Defendant maintains that Gonzalez was attempting to shift the blame for his actions to defendant and his statements did not further the conspiracy. He asserts that these comments to Nancy were simply a confession or narration rather than in furtherance of the conspiracy. (See Fiswick v. United States (1946) 329 U.S. 211, 217 [confession or admission by one coconspirator after being apprehended is not in any sense a furtherance of the criminal enterprise]; United States v. Fielding (9th Cir. 1981) 645 F.2d 719, 726 [“ ‘mere conversation between conspirators’ or ‘merely narrative declarations’ ” are not statements in furtherance of a conspiracy] United States v. Moore (9th Cir. 1975) 522 F.2d 1068, 1077 [statement to a tool dealer at swap meet known to coconspirator was nothing more than casual admission of culpability to someone he had individually decided to trust].)
We conclude, however, that the totality of the circumstances supports the lower court’s finding that Gonzalez’s statements to Nancy were made in furtherance of the conspiracy. In the cases cited by defendant, none of the statements at issue was made to advance the conspiracy as the statement was a confession after being apprehended (Fiswick v. United States, supra, 329 U.S. 211), a general statement between coconspirators about their business relationship and made to impress the listener (United States v. Fielding, supra, 645 F.2d at pp. 726-727), or a causal admission of culpability to a person the declarant decided to trust (United States v. Moore, supra, 522 F.2d at p. 1077). None of the cases cited by defendant involved a statement by a coconspirator made to the victim while committing the crime against the victim, as was the situation in the present case. These factual differences are critical.
An examination of all of Gonzalez’s comments to Nancy indicates that the purpose of his statements was to further the objectives of the conspiracy and his statements were not “mere narratives” of past events (see United States v. Moore, supra, 522 F.2d at p. 1077). Gonzalez boasted to Nancy that he was a professional killer and that he had killed many men in the past. He also disclosed that he was going to get $5,000 for kidnapping her. Nancy testified that Gonzalez’s statements made her believe “that everything was lost already.” Accordingly, Gonzalez’s statements assisted the conspirators in achieving their objectives by instilling fear in Nancy and inducing her to feel like she could not escape.
We need not address the People’s argument that Gonzalez’s statements were also admissible under Evidence Code section 1250.
Moreover, even if we were to presume that Evidence Code section 1223 does not apply to Gonzalez’s statements, defendant cannot prevail because we conclude that any alleged error was harmless. Defendant maintains that we need to find the error harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18), since the admission of this evidence violated his Sixth Amendment right to confront witnesses against him. As discussed above, we disagree that defendant’s constitutional rights were implicated. However, even if we apply the beyond a reasonable doubt standard, we conclude that the alleged error was harmless.
In support of his argument that the error was prejudicial, defendant merely declares in a conclusory fashion that Gonzalez’s statements “constituted ‘crucial’ evidence” against defendant. Gonzalez’s statements about the plan to rape and kill Nancy, however, were not the only or most persuasive evidence against defendant. Perez testified that defendant repeatedly told her about his plans to have Nancy kidnapped, raped, and killed. He also told her that he had given Gonzalez the gun and money to bring Nancy to Fresno. Additionally, Armas testified that she overheard defendant talking to her mother about his plans to have Nancy kidnapped, raped, and murdered and this testimony was corroborated by evidence of her calls to the police.
In addition to the foregoing evidence, Nancy testified about her interactions with defendant and his desires to be romantically involved with her. She also described his increasingly elevated threats to her once she refused his advances.
Finally, defendant revealed that he knew details about the incidents that would be known only to a coconspirator. After the crimes had occurred, defendant revealed to Nancy in a phone conversation the name of the person who had rescued her. He knew this information even though Nancy, at that time, did not know the woman’s name.
Accordingly, we conclude that the evidence in the record amply supported a finding that defendant was involved in the conspiracy to kidnap, rape, and murder Nancy and any alleged error regarding the admission of Gonzalez’s extrajudicial statements to Nancy was harmless beyond a reasonable doubt.
II. Evidence that Gonzalez Acted Under Duress
Defendant claims the jury should have heard testimony that Gonzalez was under duress while committing the crimes because this evidence of duress would have shown there was no meeting of the minds sufficient to support the charge of conspiracy to kill Nancy. Defendant maintains that this was a factual issue that should have gone to the jury. The People respond that defendant did not raise this argument in the trial court.
In his reply brief, defendant conceded that trial counsel did not “articulate this argument with sufficient clarity in the trial court” and requested this court’s permission to file a supplemental brief to assert an ineffective assistance of counsel claim. This court granted him permission to file a supplemental brief.
In his supplemental brief, defendant asserts that he raised this issue in the trial court with sufficient clarity to permit the prosecutor to respond effectively and for the judge to rule. We disagree. At trial, defendant argued that counsel should be appointed for Martinez because Gonzalez’s testimony at his own trial indicated that she called him and pressured him to participate in the kidnapping and therefore she could be part of the conspiracy. The court denied without prejudice defendant’s request to appoint counsel for Martinez. Defendant did not raise this issue again.
Immediately after the court’s ruling on defendant’s request for counsel for Martinez, defendant’s attorney asked the court the following: “Do you want to talk about the admissibility of Mr. Gonzalez’s testimony, because it may make some sense to do that, cause I have to, if it’s allowed in, I need to redact parts of it.” Defense argued that Gonzalez’s trial testimony was admissible under Evidence Code section 1291. The prosecution countered that this statute did not apply because defendant was not a party in Gonzalez’s trial. Defense counsel cited People v. Perez (1989) 207 Cal.App.3d 431, and stated that he believed this opinion supported his position. He noted, however, that he had read only a blurb about the case and had not actually read the decision. The court responded: “Well, you’ll have a chance to read it this evening. And you can bring it back.” Defense counsel did not cite this case or raise this issue again.
People v. Perez, supra, 207 Cal.App.3d 431 is not relevant. The appellate court in Perez affirmed the lower court’s admission of testimony in a prior trial by an unavailable witness because the reviewing court held the prosecution had showed reasonable diligence. (Id. at p. 437.)
Defense did not argue in the lower court that Gonzalez’s testimony in his own trial was relevant to establish that there was no meeting of the minds regarding conspiracy and defendant never presented the trial court with any legal support for admitting Gonzalez’s testimony. Accordingly, we conclude that defendant forfeited this issue on appeal.
As discussed in our portion on ineffective assistance of counsel, defendant’s argument also fails on its merits.
III. Ineffective Assistance of Counsel
In his supplemental brief, defendant asserts that his trial attorney provided ineffective assistance of counsel for failing to argue in the second trial that Gonzalez’s testimony in his own trial should have been admitted to show that Gonzalez was under duress when committing the crimes and there never was any meeting of the minds to support the charge of conspiracy to kill Nancy. Defendant’s defense in the second trial was that Gonzalez may have agreed with defendant to kidnap Nancy, but there was no agreement to kill her and thus no conspiracy to commit murder. Defendant contends that the jury should have heard Gonzalez’s testimony that he did not agree to kill Nancy or that he was only feigning agreement. If there was no intent to agree, defendant argues there was no conspiracy. (See, e.g., United States v. Rose (7th Cir. 1978) 590 F.2d 232, 235.)
To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-prong test set forth in Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland). Defendant must first show that “ ‘counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland, supra, at p. 688.) “Second, defendant must show that the inadequacy was prejudicial, that is, ‘ “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ (People v. Ledesma, supra, at pp. 217-218, quoting Strickland ..., supra, at p. 694....)” (People v. Diaz (1992) 3 Cal.4th 495, 557.)
“If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘ “in the perilous process of second-guessing.” ’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]” (People v. Diaz, supra, 3 Cal.4th at pp. 557-558.)
Here, defendant essentially ignores the first requirement under Strickland. Rather than provide any information on the reasons for trial counsel’s decision not to pursue the admission of Gonzalez’s testimony in his own trial, defendant simply argues that Gonzalez’s testimony that he did not want to kill Nancy, but only complied because he was afraid for his son’s welfare, could have shown that there was no meeting of the minds and “may have represented [defendant’s] only realistic hope for acquittal of conspiracy to murder.”
The abovementioned argument by defendant does not satisfy the first prong of the Strickland test. Moreover, the record indicates that not seeking to have the court admit Gonzalez’s testimony from Gonzalez’s trial was a reasonable tactical decision. Defense counsel may have reasonably decided that no hearsay exception applied and therefore Gonzalez’s testimony was inadmissible. Additionally, defendant may have appreciated the problems with Gonzalez’s testimony. Gonzalez may have testified that he did not want to kill Nancy, but he also testified that he was using defendant’s gun while threatening Nancy that he was going to kill her. (See People v. Gonzalez, supra, A118417 [at p. 7].) Furthermore, Gonzalez’s testimony that he was participating in the crimes because he feared defendant would harm his son if he did not comply with defendant’s wishes was not credible. After the crimes had occurred and Gonzalez had not delivered Nancy to defendant as planned, Gonzalez met with defendant, returned defendant’s gun to defendant, and kept Nancy’s automobile. Such evidence indicated that Gonzalez was not afraid that defendant would harm his son if he did not commit the crimes, but was a willing participant in the crimes. (Id. [at p. 5].)
Additionally, defendant also has failed to establish prejudice. Nancy testified that Gonzalez told her that defendant would kill his son if he did not go through with the plan. Defendant has pointed to nothing in Gonzalez’s testimony that was not disclosed to the jury when Nancy testified. Gonzalez’s testimony was weaker than Nancy’s testimony since Gonzalez’s testimony was self-serving and, as already stressed, contradicted by other evidence. Indeed, the jury at the conclusion of Gonzalez’s trial rejected his testimony that he did not agree to kill Nancy and convicted Gonzalez of conspiracy to commit murder. (See People v. Gonzalez, supra, A118417.) Thus, even if the trial court had admitted Gonzalez’s testimony that he agreed to kidnap––but not kill––Nancy and that he feared defendant would harm his son if he did not pretend to comply with defendant’s demands, there is no reasonable probability that the jury’s verdict on the charge against defendant for conspiracy to kill would have been different.
Accordingly, we conclude that defendant has failed to satisfy either prong of the Strickland test and has not established ineffective assistance of trial counsel.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.
“Detective Viveros: Let me ask you a––another thing. Ah––the car that they used to bring her here, are we going to find your prints on this car?
“[Defendant]: I’ve never moved that car.
“Detective Viveros: Which car was it?
“[Defendant]: The car that I had––the car that she had.
“Detective Viveros: No.
“[Defendant]: Well what?
“Detective Viveros: How did you know that it was the car that was parked there?
“[Defendant]: Aren’t you saying to me––aren’t you mentioning to me that it was the car she had that was the one? Aren’t you telling me?
“Detective Viveros: No. I said to you the car that they used to bring her here.
“[Defendant]: I don’t know what car they’re talking about. I thought that you were talking about her car. Well I have never driven that car, the one that she had, the one that she used. The car that they brought her in, I don’t know it.”