APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. BA311657).
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The jury found defendant Joseph Sisneros guilty of the first degree murder of Luis Charles (Pen. Code, § 187, subd. (a))*fn2 by intentionally and personally discharging a firearm (§ 12022.53, subds. (b)-(d)). He was also convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and actively participating in felonious criminal conduct to benefit a criminal street gang (§ 186.22, subd. (a)).*fn3 Defendant admitted the truth of recidivist enhancement allegations, which included two "strikes." The trial court imposed a 10-year determinate term for the two section 667 recidivism enhancements, plus indeterminate terms of 75 years to life pursuant to the three strikes law, and 25 years to life for the firearm enhancement. Upper terms of three years were imposed for the felon in possession and the gang participation convictions; both were stayed pursuant to section 654.
In his timely appeal, defendant raises various contentions of error arising out of the trial court's decision to permit the prosecution to call Gloria Luna as a witness with the knowledge that she would refuse to be sworn and submit to questioning: (1) In violation of Evidence Code section 600, there was no admissible, nonspeculative inference that could be drawn from Luna's refusal; (2) the jury's consideration of her refusal violated defendant's right to confront adverse witnesses under the Sixth Amendment; (3) the jury's consideration of Luna's silent conduct also violated Evidence Code section 710 and defendant's right to due process under the state and federal Constitutions because convictions cannot be based on unsworn testimony; and (4) the court abused its discretion under Evidence Code section 352 in permitting Luna to be called as a witness. Defendant also raises two interrelated arguments arising out of Agent Daniel Evanilla's expert testimony*fn4 as to defendant's status as a Mexican Mafia associate, contending first, the gang expert's reliance on hearsay reports resulted in the expert's passing off the opinions of non-testifying experts as his own in violation of Evidence Code section 801, and second, the hearsay materials on which Agent Evanilla relied were improperly admitted for their truth, in violation of his constitutional rights to confront adverse witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Additionally, defendant contends (1) his trial counsel rendered constitutionally ineffective assistance by effectively alerting the prosecution of the availability of recidivist enhancements against defendant; (2) the court improperly admitted unduly suggestive and unreliable identification evidence through the testimony of prosecution witness Victor Davila, thereby violating his constitutional due process rights; and (3) the above issues, if not prejudicial singly, amounted to a miscarriage of justice when considered cumulatively. Finally, defendant contends the imposition of a state court construction penalty was improper under Government Code section 70372. We agree with the final contention, but otherwise affirm.
It was stipulated for purposes of the felon in possession count that defendant had suffered a prior felony conviction.
On January 25, 2005, Paul "Pelon" Morales was staying with his friend Alfie, who lived on Buelah Avenue in the territory claimed by the Geraghty Loma gang. Morales is a member of that gang. At approximately 4:00 p.m., Morales was working on Alfie's car, which was parked on Buelah. He saw a familiar black Mitsubishi Gallant drive past him with defendant in the front passenger seat. Gloria Luna was driving. Morales often saw the Gallant parked in front of Luna's house, nearby on Buelah Circle, and he had seen Luna driving the car many times in the neighborhood, sometimes with defendant as her passenger. Morales knew defendant as "Joe-Joe." Morales waived at Luna and defendant as they drove past him slowly, travelling from the direction of Luna's house toward Geraghty Avenue. It was a narrow street with room only for one car to pass when, as at that time, there were cars parked on both sides.
Morales's friend "Pirate" stopped his van next to Morales with the engine running. Within a few minutes after the Gallant passed by, Morales heard two or three gunshots from the direction of Geraghty. Morales turned and saw defendant shooting Luis "Stranger" Charles, a Geraghty Loma gang member, who was lying on his back at the corner of Buelah and Geraghty.*fn5 Defendant fired another two shots at Charles before running to the Gallant. He got into the passenger seat and the car drove away.
Morales asked Pirate to drive him to the corner where the shooting took place. Pirate dropped him off at the intersection. Charles's girlfriend, "Sola," was on the front porch of Paul "Spider" Ortega's house. Morales approached Charles and asked if he was "all right." Charles was bleeding from his arm and calling to the people in Ortega's house to alert 9-1-1. Morales told him, "Hold on. Help is on the way." Charles did not answer when Morales asked who shot him.
Firefighter Victor Davila lived on Geraghty near the shooting location. He was at home at the time and heard five gunshots fired in quick succession. After waiting to make sure the shooting had stopped, Davila walked to his front gate and saw Luna's Gallant driving slowly northbound on Geraghty. From a distance of 10 feet, Davila saw the driver was a woman with dark, "wavy mousey hair"; the passenger was a bald male with a dark "chopped style moustache." They appeared to be "[o]lder type gangsters." There were no other cars driving on the street. Davila turned his attention to Charles, who was lying on his back and screaming in pain. Davila went back to his house for his medical bag, returning to give first aid to Charles. Charles told Davila he was having trouble breathing. There were four or five visible gunshot wounds, some of which had entered Charles's chest. Charles was taken away in an ambulance.
Morales got along with Charles and considered him a "home boy." Morales got along with defendant too; they were "cool" with each other. Morales was aware of the prison gang called the Mexican Mafia or the "Eme." At the time of the shooting, Morales assumed defendant was a member of that gang. If anyone testified against such a gang member, he or she was likely to suffer violent retribution. Snitching on a Mexican Mafia associate would be extremely dangerous. Morales would not go back to the neighborhood of the shooting because he would risk being shot or beaten.*fn6 Morales received no deal in return for his testimony. He was on parole at the time of the trial. Even with defendant in custody, Morales was in danger of retribution for being a snitch.
Ortega lived on Geraghty for approximately 10 years, but moved away several months after the shooting incident. Ortega was a member of the Cantaranas gang, based in Santa Fe Springs. By the time of the shooting, however, Ortega had become friends with all his neighbors, including those from Geraghty Loma. His home had become a hangout for Geraghty Loma members. He was friends with Charles. Ortega was also acquainted with defendant, whom he knew as "Joe-Joe." On the day of the shooting, Charles and his girlfriend Marlene (whose gang moniker was "Sola") were visiting Ortega's house. Ortega was cooking. At approximately 4:00 p.m., Ortega heard four or five gunshots in front of his house. A few minutes later, he left the house alone and approached Charles, who was standing in front of his house; Charles had suffered bullet wounds to his stomach and left arm.
Charles eventually died from complications arising out of the multiple gunshot wounds he received.
Agent Evanilla, a gang expert, had monitored the activities of the Mexican Mafia since 1995. The prison gang was comprised of approximately 165 members and 1,200 "validated associates." The gang's primary activities are committing murders, robberies, extortion, and other crimes to raise money for the gang.*fn7 As part of the Mexican Mafia's creed, members and associates neither admit their affiliation with the prison gang nor cooperate with the police by informing on other members and associates.
Agent Evanilla's knowledge of the Mexican Mafia came from various sources, including his interviews with gang members and associates either when they are arrested, after being released, or when they attempt to leave the gang. The latter instance involves a lengthy process of debriefing, including the inmate's written confession to all criminal activities committed, a detailed interview, and exhaustive investigation. Agent Evanilla had arrested more than 1,000 Hispanic street gang members, nearly 100 Mexican Mafia members, and approximately 300 gang associates. He also conducted four debriefings, including one of a Mexican Mafia associate.
The Department relies on a "validation system" to classify an inmate as a member or associate of the Mexican Mafia. An associate is an aspiring member who commits criminal activities on behalf of the gang as a necessary prerequisite for membership. A Mexican Mafia member will sponsor a person identified as "a good earner" for the gang-someone who obtains money for the gang by "taxation" of drug dealers on the street and drug sellers in prison. The aspiring member must also accept gang assignments to assault other inmates in the interest of the Eme. If the aspirant does well in these matters and receives the necessary sponsorship, his membership will be put up to a vote by the existing members. In addition, full-fledged membership requires the commission of a stabbing or killing on behalf of the gang. Leaving the gang will subject a member to being targeted for killing by the gang. Prison investigators monitor the prison activities, mail, and telephone calls of all Hispanic inmates from Southern California gangs to determine their status vis-a-vis the Mexican Mafia. If three independent investigators uncover a direct link between an inmate and a previously validated member or associate, the inmate will be deemed a validated member or associate. The Department reviews and updates its validations every six years.
While on the streets, members of Hispanic gangs in Southern California will attack members of rival Hispanic gangs. However, once in prison, all such gang members must eschew such rivalries in favor of allegiance to the Mexican Mafia and its rivals. At the same time, the Mexican Mafia exercises a supervisory role over Hispanic street gangs in Southern California by designating a representative in each street gang who is responsible for remitting a portion of the gang's criminal proceeds to the Mexican Mafia. Failure to cooperate with the Mexican Mafia in that regard or in refusing assignments will result in being put on a "green light" list, whereby they are targeted for killing by Mexican Mafia members and associates.
The expert believed defendant was an Eme associate based on his being validated by the Department in the early 1990's when he was incarcerated at Folsom Prison. In connection with his six-year review in 2000, defendant did not dispute his Eme affiliation. The agent's opinion was bolstered by two recent incidents in county jail that showed defendant being treated as an Mexican Mafia associate. According to Agent Evanilla, victim Charles was a Geraghty Loma gang member. At the time he was released from Pelican Bay prison in 2000, however, he was also a validated associate of the Mexican Mafia.
Based on a hypothetical set of facts that recapitulated the prosecution case for murder, Agent Evanilla opined the killing of Charles would have been committed to benefit the Mexican Mafia. The expert explained that the manner of the killing was not typical of a street gang drive-by shooting in which the shooters would remain in the car and try to avoid being seen and identified. Here, the shooter got out of the car in broad daylight and committed the shooting with no regard to witness identification. This was consistent with the Mexican Mafia's reputation for witness intimidation. The manner of shooting ...