APPEAL from the judgments of the Superior Court of Los Angeles County. Burt Pines, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. PA054142) .
The opinion of the court was delivered by: Boren, P. J.
CERTIFIED FOR PUBLICATION
Ivan Samaniego (Samaniego), Carlos Perdomo (Perdomo) and Clifton Christopher Sawyer (Sawyer) appeal from the judgments entered upon their convictions of two counts each of first degree murder (Pen. Code, § 187, subd. (a)).*fn1 The jury found that each appellant committed multiple murders within the meaning of the multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and committed the murders for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found with respect to both murders and each appellant that a principal personally used a firearm (§ 12022.53, subds. (b), (c), (d) & (e)(1)). The trial court sentenced each appellant to two consecutive life terms without the possibility of parole plus two consecutive terms of 25 years to life.
Samaniego and Perdomo contend that (1) the trial court erred in excluding third party culpability evidence, thereby violating their rights to present a defense, to due process and to a fair trial. Samaniego contends that (2) CALCRIM No. 400 erroneously instructed the jury that one who aids and abets is as equally guilty of the crime as the direct perpetrator, (3) CALCRIM No. 1403 erroneously encouraged the jury‟s impermissible use of gang evidence, and his attorney‟s agreement to that instruction constituted ineffective assistance of counsel, and (4) his conviction of the Palada murder must be reversed because it is based solely on the uncorroborated testimony of an accomplice. Perdomo contends that (5) the trial court erroneously instructed the jury on the use of circumstantial evidence in accordance with CALCRIM No. 224 instead of CALCRIM No. 225. Sawyer contends that (6) his convictions must be reversed because the trial court erred in refusing to allow the defense gang expert to testify that when one gang member commits a crime his companion gang members do not always possess the same knowledge and criminal intent, (7) the trial court erred in refusing to permit him to introduce evidence that he does not speak or understand Spanish, (8) his abstract of judgment must be amended to reflect that his liability for the direct victim restitution fine imposed is joint and several, and (9) it was improper to impose a parole revocation fine because he was sentenced to life without the possibility of parole. Sawyer and Perdomo each join in the contentions of every other appellant to the extent applicable to them. (Cal. Rules of Court, rule 8.200; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)
The Prosecution's Evidence
Appellants were members of the primarily Hispanic Toonerville gang in Tujunga, and they regularly associated with each other. Samaniego was known as "Gangster," Sawyer as "Stranger," and Perdomo as "Silly." Aaron Stapleton, known as "Huero" (Huero), and Gildardo Pena, known as "Shaggy" (Pena), were also Toonerville gang members.
At the corner of Silverton and Valmont in Tujunga was a residence known as the "tweaker house" (tweaker house) because it was frequented by many Caucasian methamphetamine users, called tweakers. Michele Pace (Pace), Luis Vasquez (Luis) and Earl Heim (Heim) resided there. Terri Weitzman (Weitzman), Donald Nelson (Nelson), Josh Green (Green) and Josh Krippner (Krippner) were regular visitors, with Krippner selling drugs there. Shawn Kidd (Kidd), a methamphetamine addict and neighborhood drug dealer, also sold and used drugs at the tweaker house.
At one time Green was a good friend of Sawyer, but they had drifted apart when Green began doing methamphetamines and associating with the tweakers, and when Sawyer began associating with the Toonerville gang. Krippner knew members of the Toonerville gang, including Sawyer and Huero. Kidd was unaffiliated with the Toonerville gang or the tweakers, but was "hanging out" at a house and trailer on Glory Avenue (collectively "the Glory Avenue residence") frequented by appellants and Huero.
The "Paperwork" "Paperwork" is a document, such as a police report, that reveals that a person is a "snitch." Before November 6, 2005, people at the tweaker house and everyone in the neighborhood were discussing paperwork that contained the names of Huero and Bonji and that was understood to mean that Huero was "telling on Bonji." Bonji‟s residence had just been raided by the police. Green had a copy of the paperwork and talked about it to "anyone that would listen." He gave Heim a copy.
Sawyer warned Green that Toonerville gang members were upset with the tweakers for spreading rumors about Huero, and that Green should stay away from them and not mention the paperwork to them.
The Donald Nelson (Nelson) Murder
Kidd testified that on November 6, 2005, he first saw the paperwork at the tweaker house, as Green was showing it to someone.*fn2 Kidd and Green then went in Green‟s car to buy marijuana from Huero at his residence on Mountair. Huero exited his house aggressively, his hand in his shirt, as if reaching for a gun. He had never before acted this way toward Kidd.*fn3 Green then took Kidd back to the tweaker house.
Later that day, Green telephoned Kidd and asked Kidd to meet him at the Glory Avenue residence. When Kidd arrived, Green, Perdomo and "Dreamer," a female, were there. Perdomo greeted Kidd with "What‟s up." Perdomo lifted his shirt and flashed an old "cowboy revolver" in his waistband. Perdomo then aggressively demanded the paperwork from Green, which Green reluctantly gave to him.
Perdomo said that they should go see Huero at Huero‟s apartment on Mountair. When they arrived, Perdomo spoke briefly to Huero. A few minutes later, a white minivan arrived, from which Samaniego and Sawyer exited with Ashley Harvey (Harvey) and Pena. Pena walked aggressively and threateningly towards Kidd and asked the others, "Is this the guy?" Samaniego responded, "No, he‟s cool." Samaniego brought up the subject of the paperwork and asked extensively about it and whether Kidd had seen it. Kidd said that he had.
The four Toonerville gang members (appellants and Huero) huddled near the entryway, where neither Kidd nor Harvey could overhear them. The four men and Harvey entered the van and drove off. Kidd, who had already left on his bicycle, saw the van pass him and saw it again five minutes later parked near the tweaker house.
Kidd stopped his bicycle near the driveway of the tweaker house and heard four shots. He initially testified that he saw Samaniego and Perdomo come from Valmont and enter the van after the shots. He only saw silhouettes, but had a pretty good idea who they were from what he observed them wearing earlier, their height, and their body shape.*fn4 Kidd entered the driveway and saw several people helping Nelson. Not wanting to be at the tweaker house when the police arrived, Kidd left.
In Harvey‟s version of the Nelson murder, Harvey testified that she became Sawyer‟s girlfriend in July 2005 and began staying at his Glory Avenue residence.*fn5 They used methamphetamines together. She met Samaniego at Sawyer‟s residence. Sometime in August 2005, she slept with Perdomo. They all began "hanging out" and doing drugs together. Because appellants had no car, Harvey used her parents‟ white minivan to drive them around Tujunga. On November 6, 2005, at 10:00 p.m., she drove to the Glory Avenue residence and picked up Sawyer and Samaniego. She then picked up Pena and drove to Huero‟s apartment where she saw Perdomo and Kidd together on one bicycle. Appellants and Pena had a private meeting and then entered the van and told Harvey to drive to the tweaker house. They wanted to see who was there.
At the tweaker house, Harvey parked a block away. Appellants and Pena told her to wait, exited, and went towards the tweaker house. Harvey heard gunshots in the vicinity of the house within 10 seconds.*fn6
Seconds after the gunshots, appellants and Pena ran back to the van and told Harvey to drive to Glory Avenue. They seemed paranoid and apprehensive. At Glory Avenue, they went inside the house, turned off all the lights and locked the doors. Harvey assumed they had shot someone because Sawyer was "freaking out." She did not see any weapons that night, but the next day she saw Perdomo waving a "cowboy gun, revolver." She told detectives she did not recall which appellant had the gun. Harvey did not talk to detectives about the Nelson shooting because Sawyer told her to keep her mouth shut or they would both be dead.
Weitzman, Luis, Heim, and Pace gave similar testimony. They were at the tweaker house on the night of the shooting. Weitzman, Luis, and Heim were inside the house and Pace was sleeping in her station wagon in the driveway. Approximately 10 minutes after Nelson left the tweaker house, Weitzman went outside to try to persuade Pace to come inside, but Weitzman was unable to do so. Moments later Weitzman noticed five young men, dressed like gang members, standing in the driveway. One of them, wearing a beanie and with a pierced left eyebrow containing a barbell,*fn7 asked her if Green was there and if they could go inside to check. He was articulate and did not sound like a "cholo." Weitzman said she would check.
Inside, Weitzman told Heim that there were "five angry people" in the driveway asking for Green. As she spoke, she heard four or five gunshots from the driveway. Heim pushed her to the ground and ran outside where he saw Nelson lying in the driveway. Weitzman went outside and saw Heim and Pace standing over Nelson‟s body. The five young men were gone.
Green was a reluctant witness.*fn8 He claimed not to recognize the paperwork or remember much about it. He denied ever possessing it, speaking with Sawyer about it, going to Mountair, speaking with Huero on the day of the shooting, showing Kidd the paperwork, and being warned by Sawyer that the Toonerville gang was angry about his spreading rumors. He did tell the prosecutor that Sawyer said he should stay away from Toonerville gang members because the gang was not happy with "white guys" because of the paperwork.
The Nelson Murder Investigation
On November 6, 2005, Detective Martinez was called to the tweaker house and found Nelson‟s bullet-riddled body lying in the driveway. There were no weapons on Nelson or in the vicinity. A green baggie containing a white powdery substance resembling methamphetamine was removed from his mouth.
The coroner determined that Nelson died of multiple gunshot wounds, having sustained five likely-fatal wounds. Four projectiles were recovered from his body. There was no sooting or stippling to indicate that Nelson was shot from less than a few feet away.
No shell casings were found at the crime scene. This led Detective Martinez to believe that the murder weapon was a revolver because automatic and semiautomatic handguns expel casings as they are fired. A firearm examiner examined the four projectiles removed from Nelson‟s body and determined that they were .22-caliber, long-rifle rounds. This type of ammunition could be fired from rifles or handguns, including revolvers and semiautomatics. While all of the bullet fragments bore similar characteristics, they were too badly damaged to allow the examiner to confirm whether they were from the same gun.
Detectives interviewed Joe Freeman (Freeman), an elderly man, and his daughter, Julie Malcomb (Malcomb), with whom Freeman had lived in Tujunga. Sawyer lived with them for a year and often had friends over, including Perdomo, although Freeman claimed not to know Samaniego or Perdomo. Freeman owned a nine-shot, long-barrel .22-caliber pistol, which he kept in plain view on his nightstand. During the interview, Freeman first realized that his handgun and holster were missing. Detectives searched the house and did not find them.
The day before the police interview, Freeman heard something going on in the backyard. The detectives dug up a holster from the yard at Malcomb‟s house. At trial, the prosecutor showed Freeman that holster. He denied it was his, though before trial he positively identified it to detectives.
Malcomb recalled a day near the time of Nelson‟s murder that she was outside of Freeman‟s room and heard him tell Sawyer and others, including Perdomo, "You better hide it good." When Malcomb asked what was happening, Freeman told her, "Mind your own damn business." Freeman denied making that statement. A day before trial, Malcomb identified Perdomo in a photographic lineup, but misidentified Samaniego as Perdomo at trial.
The Michael Palada (Palada) Murder
Martin Herrera (Herrera) was a Mexican national, who had been deported but was brought back to the United States for the limited purpose of testifying.*fn9 He had lived in Tujunga for approximately three years and was a methamphetamine user. He was not a gang member but knew appellants and other members of the Toonerville gang on a casual basis.
On November 30, 2005, Herrera ran into Sawyer and Perdomo in an alley in Tujunga. Herrera noted that Perdomo was wearing blue jeans with a blue bomber jacket and a blue baseball cap, while Sawyer was wearing gray cutoff shorts with high white socks, white Nike shoes and a gray sweatshirt.
Herrera was a friend of Palada, who lived on Pinewood Street and made a living selling methamphetamine from his apartment. Herrera assisted Palada by meeting people in the street and taking their money and drug orders to Palada, who would deliver the drugs to the buyer in the street.
Between midnight and 2:00 a.m., on December 1, 2005, Herrera went to Palada‟s apartment to obtain drugs for his personal use. Palada often gave him small amounts of drugs for his help, but did not then have any. When Herrera began walking home and was 100 yards from Palada‟s apartment, he turned around and saw three men huddled in the middle of the street near Palada‟s apartment, talking to each other. Then, one walked toward the mouth of the alley, another towards the apartment and the third remained in the middle of the street.
Based on their body type and clothing Herrera had seen them wearing earlier, he testified that Sawyer was the person who walked towards Palada‟s apartment, and Perdomo was the one who remained in the middle of the street. He testified that he believed Samaniego was the third person, by the way he stood, his stature and his form; the third person was heavier and taller than the other two. He had not seen Samaniego that day to know what he was wearing.
Herrera saw Palada come out on his balcony. A loud argument between Palada and Perdomo ensued, but Herrera could not hear what was said. After a few minutes he heard Perdomo yell, "Tirale, tirale," Spanish for "Shoot, shoot." Moments later Herrera heard three gunshots and saw the men run from the area.
After Palada‟s murder, Herrera first spoke to Detective Brownell and told her that he was too far away to see anything and had no idea who the three people were. He later told Detective Santana that Sawyer and Perdomo were involved in Palada‟s murder, as he recognized their clothes from earlier in the day, but that Samaniego was not. But he told someone else that it was Samaniego. He did not identify Samaniego initially because Samaniego was in custody with him. In another interview by Detective Santana, Herrera mentioned Samaniego‟s name. He recalled telling one of the detectives that he thought one of the three men was Samaniego, which meant to him that he was not sure.
Herrera also told Detective Santana that Palada was threatened with a crossbow the day before the shooting. Herrera never heard Sawyer speak Spanish.
Harvey also testified to events relating to Palada‟s murder. After work on November 30, 2005, she went to the Glory Avenue residence and borrowed a Lincoln Navigator belonging to Wendy Sonn, the owner of the house. Harvey drove appellants to Palada‟s house because they wanted to tax him for selling drugs. They told her to stop and park on Day Street, a block away from Pinewood. Appellants exited, telling Harvey to remain with the car. They walked down the alley and out of her sight.
After approximately 10 minutes Harvey heard gunshots. Shortly thereafter, appellants came running back to the Navigator. One of them said, "Way to go." They seemed happy and exuberant. When appellants returned to the Glory Avenue residence, they went into the dark house and sat quietly. No one said anything about what just happened. During this incident, Harvey did not see any of appellants with a gun.
The next evening, Harvey saw Samaniego holding a gun. Pena was standing nearby. Harvey drove them and Dreamer to a campground in the mountains. Samaniego told Harvey where to stop, and he and Pena left the car and walked out of sight. When they returned, Harvey dropped them off at their homes.
Abigail Alvaran (Alvaran), Palada‟s girlfriend at the time of his murder, was frequently at his apartment. She was there the night of the shooting. Herrera came by, and Palada went outside to speak with him. Palada came back inside, and 10 minutes later, there was a knock on the door. He walked onto the balcony to see who was there.
Alvaran was sitting in the living room and could hear two voices besides Palada. One unfamiliar voice asked if Palada was "slanging." He said he was not. Palada told them to be quiet or his roommate would come down. A voice asked, "Are you paying rent." Palada answered "no" and repeated that his roommate would be disturbed by the noise. The voices replied with laughter, "Maybe she should go downstairs." A voice said he should be paying rent, to which Palada said, "No." Moments later, shots rang out. Alvaran went to the balcony and saw Palada‟s body. She did not see anyone else.
The Palada Murder Investigation
Palada died of a single gunshot wound to the head. A projectile lodged in the soft tissue of his neck was recovered. A firearm examiner examined the projectile and a number of bullet fragments recovered by police at the scene. The examiner concluded with certainty that the projectile was a .44-caliber. She was also able to conclude that there had been at least three shots fired. She could not confirm whether any of them had been fired from the same gun, though the fragments and projectile were consistent with having been fired from a single weapon.
Detective Santana recovered a white Nike tennis shoe at the scene of the shooting. The parties stipulated that the shoe was tested for genetic material ...