IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin
February 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELICEO NUNEZ, DEFENDANT AND APPELLANT.
Super. Ct. No. SF101713A
The opinion of the court was delivered by: Raye, P.J.
P. v. Nunez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After David Rangel asked defendant Eliceo Arrellano Nunez for directions to an apartment, defendant pulled out a gun. As Rangel drove away, gunshots rang out, shattering the vehicle's back window and injuring Rangel's companion.
A month previously, when Romeo Laminero stopped his car at a red light, another car bumped him from behind. When Laminero got out to investigate, defendant confronted him with a gun. As Laminero drove away, the car was bumped again, pushed to the curb, and stopped. Defendant put the gun to Laminero's head and demanded the car. Laminero fled on foot, leaving defendant the car.
An information charged defendant with two counts of attempted murder, shooting at an occupied vehicle, mayhem, three counts of possession of a firearm by a convicted felon, three counts of street terrorism, carjacking, three counts of assault with a firearm, and possession of ammunition. Two jury trials followed. Both juries found defendant guilty as charged. The court sentenced defendant to a determinate term of 96 years 8 months and an indeterminate term of 135 years to life, for a total of 231 years 8 months to life.
Defendant appeals, contending the trial court erred in finding no Batson/Wheeler violation (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); insufficient evidence supports the jury's finding that defendant committed the attempted murders and carjacking for the benefit of a criminal street gang; insufficient evidence supports the primary activities or pattern of conduct required by section 186.22; the court erred in admitting defendant's rap sheets; the court erred in finding a witness unavailable; and sentencing error. We find merit in defendant's final contention and shall direct the trial court to modify defendant's sentence. In all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND September 2006 Incident
In the fall of 2006 Anthony Handy drove his cousin David Rangel to an apartment building to visit Rangel's fianceee. After searching for the apartment to no avail, Rangel got out of the car to ask for directions.
Rangel approached defendant and Krystal Ellis in front of apartment 107 and asked for directions to apartment 106. As Rangel walked by defendant, defendant pulled out a handgun. Rangel walked away and back to the car. Rangel did not see any indications that defendant was in a rival gang.
Rangel got back into Handy's car and told Handy to drive away. As they drove off, Rangel heard five or six gunshots. The back window of Handy's car shattered, and bullets struck Handy. Handy later identified defendant in a photographic lineup.
Handy suffered three gunshot wounds: back of the neck, left ear, and back. Handy was left with scar tissue in his lung, shrapnel in his body, and a deformed ear.
The following day, an officer saw defendant riding in a vehicle and initiated a traffic stop. The car sped away, with the officer in pursuit. As defendant's vehicle turned in front of them, a couple traveling in another car leaving a parking lot saw defendant throw something out of the car. Traffic stymied defendant, who fled the scene on foot. Eventually, officers apprehended defendant.
The couple in the other car directed officers to the parking lot. Officers located a clear baggie full of bullets and a loaded .357 handgun.
August 26, 2006, Incident
On a summer's evening, Romeo Laminero left a co-worker's party, accompanied by Karengee Pangilinan and Marissa Ruvalcaba and driving his black Honda Accord. When Laminero stopped at a red light, the Honda was bumped by another car from behind. Laminero got out of the car and saw defendant coming toward him with a gun. Laminero got back in the Honda and drove toward the freeway.
As they drove away, Laminero, Pangilinan, and Ruvalcaba heard gunshots. The Honda was bumped again on the passenger side rear door. The vehicle hit the center median and got stuck.
Co-defendant Justin Dale Canon, the driver of the other car, a red Dodge Neon, positioned his vehicle to prevent the Honda from moving. Defendant got out of the Neon and approached Laminero with a gun. Defendant put the gun to Laminero's head and demanded the car. Laminero saw a woman get out of the Neon while Canon remained in the driver's seat. Laminero hesitated, and defendant put the gun to his stomach and again demanded the car.
Defendant also pointed the gun at Pangilinan and ordered her out of the car. Pangilinan believed she saw a gun in Canon's hand but was not sure.
After Laminero got out of the car, he ran down the street. Defendant got into the Accord and drove away.
Stockton Police Officer John Black interviewed Laminero, Pangilinan, and Ruvalcaba at the scene. Black broadcast a description of the suspects and vehicles.
The following day, an officer observed Canon driving the red car. As Canon attempted to flee, he threw a TEC-9 firearm, a black backpack, and several nine-millimeter bullets from the car. Officers arrested Canon.
An investigation revealed the red car had black paint transfer and body damage. A loaded .22-caliber pistol lay on the front passenger seat.
Officers located Laminero's Honda about a mile from where the incident occurred. The Honda had been stripped of some parts and had red paint transfer on one side.
A detective interviewed Laminero a week and a half after the carjacking. From a photo lineup, Laminero identified Canon as the driver of the red car and defendant as the person who aimed a gun at him. Laminero also identified the TEC-9 firearm thrown from the red car as the weapon defendant pointed at him during the carjacking.
An information charged defendant with two counts of attempted murder (Pen. Code, §§ 664/187--counts 001 & 002; all further statutory references are to the Penal Code unless otherwise indicated); shooting at an occupied vehicle (§ 246--count 003); mayhem (§ 203--count 004); three counts of possession of a firearm by a convicted felon (§ 12021, subd. (a)--counts 005, 011 & 014); three counts of street terrorism (§ 186.22, subd. (a)--counts 006, 013 & 016); carjacking (§ 215, subd. (a)--count 007); three counts of assault with a firearm (§ 245, subd. (a)(2)--counts 008-010); and possession of ammunition (§ 12316, subd. (b)(1)--count 015).*fn1
In connection with counts 001, 003, and 004, the information alleged defendant intentionally and personally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) As to count 002, the information alleged defendant personally discharged a firearm. (§ 12022.53, subd. (c).) As to count 007, the information alleged defendant personally used a firearm. (§ 12022.53, subd. (b).) Counts 003, 004, and 007 through 010 further alleged defendant had been previously convicted of a serious felony offense pursuant to section 667, subdivision (a).
As to counts 001 through 004 and 007 through 010, the information alleged defendant had been previously convicted of a serious felony (§§ 1170.12, subd. (b), 667, subd. (d)), and committed the current offenses for the benefit of a gang (§ 186.22, subd. (b)(1)).
Counts 005, 006, 011, and 013 through 016 further alleged that defendant had previously been convicted of a serious felony offense. (§§ 1170.12, subd. (b), 667, subd. (d).)
Defendant entered a plea of not guilty and denied the special allegations. The trial court granted defendant's motion to sever the counts by incident date. Two jury trials followed.
Trial on September 12, 2006, Incident
At the beginning of trial, defendant made a Batson/Wheeler motion. Following oral argument, the trial court denied the motion.
Detective Jim Ridenour testified as an expert on Hispanic gangs. From photographs, Ridenour explained the relation of defendant's tattoos to the Sureno gang. In Ridenour's opinion, defendant had been an active Sureno gang member since at least 2003 and committed the shooting on behalf of the gang.
Krystal Ellis, defendant's girlfriend, was determined to be unavailable at trial. Accordingly, her preliminary hearing testimony was read before the jury.
Ellis lived in the apartment building at the time of the shooting. The month before the shooting, defendant visited her and had a short-barreled handgun. She did not see the gun again.
The day of the shooting, defendant stood with Ellis outside the apartment. Rangel approached them and bumped into defendant twice. Ellis tried to "yank" defendant into the apartment, but defendant resisted. Ellis went inside alone.
Ellis then heard gunshots and went outside to see if defendant had been hurt. However, Ellis could not find defendant. Although Ellis did not hear any gang-related statements, she knew defendant was a Sureno.
The parties stipulated defendant had been previously convicted of a felony.
The jury found defendant guilty as charged and found the special allegations true. Defendant waived a jury trial on the prior convictions. The trial court found the special allegations under counts 001 through 006 and counts 014 through 016 to be true.
Trial on August 26, 2006, Incident
Defendant was tried jointly with Canon. At the beginning of trial, defendant made a Batson/Wheeler motion. Following oral argument, the trial court denied the motion.
Laminero, Pangilinan, and Ruvalcaba testified regarding the events surrounding the carjacking.
Detective Ridenour testified as an expert on Hispanic gangs. Ridenour, an officer for 12 years, had spent two years as a member of the gang unit. He also received training in the area of criminal street gangs. Ridenour personally investigated gang-related incidents, interviewed gang members, and was familiar with gangs and their territories.
Ridenour testified the Surenos are an Hispanic gang with about 500 to 600 members locally. There are different subsets of the Surenos, based on geographic location.
Both defendant and Canon had ties to the Bay Area and tattoos of the number 19. Ridenour contacted the San Francisco Police Department and confirmed the existence of the "19th Street Mission District Surenos," a subset of the Surenos.
According to Ridenour, being in a subset of the Surenos did not diminish an individual's status as a Sureno. The Surenos' primary activities include homicides, attempted homicides, carjackings, burglaries, possession of firearms, vandalism, and drug sales. Ridenour had opinions about defendant that were based in part on reading reports and talking to fellow officers.
Defendant had admitted to being a Sureno during a previous arrest. Ridenour opined that the carjacking was a gang-related activity.
The parties stipulated defendant had a prior felony conviction. The trial court found true the allegations of defendant's prior conviction.
Co-defendant Canon testified that Laminero, the victim, gave him the TEC-9 and the .22-caliber firearm that were in defendant's possession when he was arrested. Canon denied being present at the carjacking, stating he was asleep at the time.
Canon admitted he and defendant belonged to the 19th Street San Francisco Surenos. However, Canon stated he was not a Sureno when outside of San Francisco.
Defendant testified in his own behalf. Defendant admitted having belonged to the 19th Street Surenos for 15 years. He denied any involvement in the carjacking.
Defendant disputed Ridenour's assessment that all of his tattoos, particularly one that said "Mission," were gang related. According to defendant, the gun he threw out of the car when arrested was given to him by friends.
The jury found defendant guilty as charged and found the special allegations true. Defendant waived a jury trial on the prior convictions. The trial court found the special allegations true under counts 007 through 009, 011, and 013.
The trial court sentenced defendant as follows:
On count 001, attempted murder, an upper term of nine years, doubled, or 18 years, plus an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d) and a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C).
On count 002, attempted murder, a consecutive sentence of one-third the middle term, doubled, or four years eight months, plus a 20-year enhancement pursuant to section 12022.53, subdivision (c) and a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C).
On count 003, shooting at an occupied vehicle, a consecutive indeterminate term of 15 years to life, doubled, or 30 years to life, plus 25 years to life pursuant to section 12022.53, subdivision (d) and an additional five years pursuant to section 667, subdivision (a).
On count 004, mayhem, a consecutive sentence of one-third the middle term, doubled, or two years eight months, plus an indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), plus a 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C), which was stayed pursuant to section 654.
On counts 005, 006, 011, and 013 through 016, possession of a firearm by a convicted felon, possession of ammunition, and street terrorism, consecutive sentences of one-third the middle term, doubled, or one year four months each.
On count 007, carjacking, a consecutive indeterminate term of 15 years to life, doubled, or 30 years to life, plus 10 years pursuant to section 12022.53, subdivision (b).
On count 008, assault with a firearm, an upper term, doubled, or eight years, plus five years pursuant to section 186.22, subdivision (b)(1)(B), both of which were stayed pursuant to section 654.
On count 009, assault with a firearm, a consecutive sentence of one-third the middle term, doubled, or two years, plus five years pursuant to section 186.22, subdivision (b)(1)(B).
The court sentenced defendant to a determinate term of 96 years 8 months and an indeterminate term of 135 years to life, for a total of 231 years 8 months to life. Defendant filed a timely notice of appeal.
DISCUSSION I. BATSON/WHEELER
Defendant argues the trial court erred in finding no Batson/Wheeler violation during jury selection in either trial. According to defendant, the prosecution's removal of African-American men from the jury pool was "solely on the basis of group bias," requiring reversal.
Background First Jury
Two African-American men, A.T. and W.R., were in the third panel called.
Defense counsel questioned A.T. about tattoo evidence, noting that defendant had facial tattoos and asking if that fact alone would "make you lean against him?" A.T. replied that it would not, since "a lot of people have tattoos."
A.T. further stated: "That doesn't mean you're a gang member. Doesn't mean you're a bad person either. You just . . . like tattoos. Everybody likes something. Some people like collecting cars, some people like collecting model cars. That doesn't mean you're a bad person just because you got tattoos. You can say that I may be a bad person, but you don't know me. So I mean, you can only really listen to what's said."
W.R. also responded to the question about tattoo evidence, stating: "It seems to me that . . . people have tattoos, and some tattoos are identifiable. And regardless of whether the person's in a gang or they're not in a gang, regardless of whether the person is rich or not rich, I do think that it impacts . . . the justice system when the people look at it that way. But I think that everybody -- they have an opportunity to present themselves. [¶] People should be honest, and if they're being honest, they're going to look at . . . just the evidence that's there. I mean, it doesn't make a difference -- I have relatives that have been in gangs, I have friends that have been in gangs. I have friends in jail, I have friends that are in law enforcement. And some of them are good people, some of them are bad, on both sides. [¶] But the fact of the matter is, any one situation, which is what we are here for, has to be judged on the merits of that situation and that circumstance, not based off of their history or . . . it's not a matter of we're going to get you now."
Defense counsel also questioned W.R. about violent crime. W.R. responded: "I've had a gun pointed in my face. I've been robbed at a store. I've been attempted -- somebody attempted to jump me when -- most of this is when I was younger, a teenager where I lived. I grew'd [sic] up in Southern California, and it wasn't that uncommon. And . . . it's just one of those things."
The prosecution questioned W.R. about the depiction of the criminal justice system on television. W.R. stated: "No, I don't believe it's educational. I believe that it gives you different perspectives, different mindsets. You see some things . . . seem blatantly accurate, and some things . . . are . . . just for the story. A lot of times they'll base stuff off of current type topical events. But it's just interesting."
W.R. and the prosecution also discussed the "one witness rule." The prosecution described the rule: "[I]f there is only one witness to a crime, and that person is believed -- you have to believe that person -- that evidence, that testimony that person provides to you, can prove a fact that you can rely on. Does that make sense?" W.R. stated the prosecution's description made more sense than the written instruction. W.R. later asked for more clarification of the one witness rule.
The prosecution asked A.T. about the credibility and believability of witnesses. The prosecution asked: "Are you willing to change your position if someone gives you reasonable information that makes sense that maybe you missed?" A.T. answered: "Yeah." The questioning continued. Q: "And you indicated that you can tell if someone is lying perhaps if they make it something bigger than what it appears to be or what it was? [¶] [A.T.]: Yeah, usually. [¶] [Prosecutor]: What about if they mitigate, make it less than? [¶] [A.T.]: I didn't consider that. [¶] [Prosecutor]: Can you now? [¶] [A.T.]: Yeah, I consider it now. [¶] [Prosecutor]: Can you understand why someone might be fearful to come in and testify in court? [¶] [A.T.]: Yeah, if -- you know, if they're not comfortable with putting theirself [sic] in a situation like that. [¶] . . . [¶] . . . Fearful they may see a family member later on, or something."
The prosecution used peremptory challenges to excuse both A.T. and W.R. Defense counsel brought an oral Batson/Wheeler motion based on the fact that out of six peremptory challenges exercised by the prosecution, two had been African-American males, A.T. and W.R.
Defense counsel contended it had made a prima facie case and argued: "But if you look at these two jurors, more than just the numbers, you see both of them have served before, they're both family men, they're both married, they're both long-time residents of the county, and both [have] been employed long-term. [¶] So I think I've met my burden, your Honor, and I think the burden falls upon the district attorney to rationalize the preempts of these two individuals because I just don't see it here. They seem to be fine jurors, and I'm mak[ing] a motion for a mistrial."
The court made a prima facie finding and shifted the burden to the prosecution to provide a race-neutral reason for excusing the two jurors.
The prosecution explained that W.R. had "significant rapport" with defense counsel. As defense counsel spoke, W.R. laughed in an exaggerated manner. W.R. bent forward toward defense counsel as he spoke and appeared very interested in the defense side of the table.
According to the prosecutor, she had concerns over W.R.'s understanding of the one witness rule. Although W.R. ultimately stated he could follow the rule, his vacillations made the prosecution uncertain as to whether he would be able to.
The prosecution also observed: "It appeared to me as though [W.R.] has had some personal experiences in his life that . . . I felt could potentially bias him against the process, against the system. He also had been a victim of what he described as a gang battery, which he did not report. [¶] And one of his other comments was in regards to violence becoming commonplace in the place that he is from, and I had concerns that he was not going to understand the severity and the seriousness of this offense, in regards to his prior living environment and how he had described it. [¶] And also, the fact that he had . . . a number of relatives that were involved in the criminal system. [¶] And based on all of his comments . . . which I felt gave him his underlying opinion of the system as a whole, that he would have a bias that . . . I could not trust."
The prosecution proceeded to give her reasons for excusing A.T. She observed that when W.R. spoke, A.T. appeared to be agreeing overwhelmingly with W.R., particularly when W.R. spoke about "the system" and "poor versus rich."
In addition, the prosecution stated: "I had a little bit of concern on [A.T.'s] questionnaire when it talked about hearing about gangs. He referred to them as Bloods and Creeps. To me, that minimizes and makes light of and [a] joke of the gangs. [¶] . . . He felt it necessary to indicate that he's not a gang member, and on that same page under number two, he indicates the Bloods and Creeps comment."
The prosecution further commented that A.T. did not appear to be open-minded about considering different types of evidence. The prosecution also expressed concern that A.T. "referred to people, gang members who may have tattoos, as collectors. And he likened it to collectors of cars, and likened it to collectors of coins, or whatever terminology he used, but . . . it just didn't appear to me as though [he] . . . had the understanding of why we were here and what the purpose of being here was."
Finally, the prosecution pointed out that A.T.'s brother was a defendant. A.T. had no information about his brother's situation, and "if he had any feelings . . . his response was it wasn't me. So it's almost like he has no global interest in what's going on around him . . . that's why I ultimately decided I didn't feel he would be a good group working person, and also understanding to all the complexities and the witnesses that are going to be in this matter, and exercised my challenge."
The trial court considered the prosecution's statements and denied the motion, stating: "I'll be honest. I did not pay as much attention on [A.T.] I don't know whether that was because he wasn't questioned as extensively as [W.R.] or was not as verbal as [W.R.] [W.R.] was very engaged in the process. And the one thing I did notice, when you excused him, he was very upset when he left. That I did note. But I'll be honest, I really was not watching A.T. as carefully as I was [W.R.] [¶] And in looking at their questionnaires, I do see that there are some indications in here that [the prosecution] has alluded to. Obviously, when we use questionnaires, we have more of an abbreviated voir dire, so some of the things you raised are contained in the questionnaires, not necessarily subject of the oral voir dire. [¶] At this point, I'm going to find that [the prosecution] has a proper group-neutral explanation for her exercise of challenges of these two gentlemen, and that based on those explanations and a review of the questionnaires and what I observed on [W.R.] specifically, I'll find that the proper [sic] explanation is genuine and not a sham or pretext for group bias at this point."
During jury selection for the second jury, the prosecution exercised a peremptory challenge excusing D.B., an African-American male. Defense counsel brought a Batson/Wheeler motion, noting his motion in the previous trial had been denied. Defense counsel argued: "But we sit here with a new . . . jury, and the panel that we've been questioning, the eighteen in the box, [D.B.] is the only African-American. And he's been kicked off by the District Attorney . . . . And I just see a pattern here in both of these cases."
Defense counsel reviewed the information in D.B.'s questionnaire, noting he was a family man, well educated, steadily employed, worked as a drug counselor, served in the army, stated he could be fair and impartial, and was willing to serve on a jury. Defense counsel also acknowledged D.B. had been convicted of "some type of crime" but won his release on appeal. In addition, D.B.'s sister had been killed by a drunk driver, and he believed the system was too lenient and should punish more harshly.
Defense counsel concluded that D.B. "has absolutely no animosity toward the system. In fact, works with the system, works with judges, works with the ADAP Program. Basically, a responsible citizen. And I just don't see any rational reason to preempt this individual."
The trial court agreed that D.B. was the only African-American juror seated at the time, noting also that defendant is Hispanic. The court made a prima facie finding and shifted the burden to the prosecution.
The prosecution argued one juror did not constitute a pattern of discrimination. She also objected to defense counsel's attempt to use the prior trial to "bootstrap a Batson-Wheeler."
The prosecution addressed defense counsel's characterization of D.B. She noted D.B. spent four years in state prison for a felony and had prior convictions for moral turpitude, theft, and drug possession. As a recovering addict, D.B. had a prison ministry, specifically indicating he did not work "with the system," but on behalf of individuals with drug or alcohol problems.
In addition, the prosecution stated D.B. "kept staring at me throughout the full extent of the time that he was sitting in that seat. And it was not something -- every time I looked up at the jury he was staring at me . . . and when he observed my glance, he did not exchange, you know, a smile or an acknowledgment or anything to that effect, but he continued to stare at me while he was up in the jury box. [¶] I did not find his . . . response to my questions as comforting or comfortable as he did when he was responding to [defense counsel] in his direct questioning of him."
The trial court offered its observations: "I thought that [the prosecution] was not disproportionate in her questioning of [D.B.] I didn't think there was -- or that she picked on him. Either way, I don't think it was disbursed either towards him or against him. [¶] The thing that really caught my eye was that when [defense counsel] was doing his voir dire, [D.B.] was sitting leaning forward with his hands in his lap. [¶] When [co-defendant's counsel] was doing her voir dire, he was doing the same. [¶] When [the prosecution] was questioning, he was paying attention to her; however, when she would move to other people, he physically turned to the side, put his hand on his -- his chin on his right hand, and did not look at her and physically turned his body away from her. [¶] And I was actually kind of surprised about that because I was watching very carefully during questioning. But when she was done with him, he physically turned himself away from her and was not paying attention. He didn't do that with either of the other attorneys. [¶] So I think there was body language to indicate that, along with his previous felony conviction, even though that was overturned, and the answer to his questions." The court denied the motion.
Excusing prospective jurors based on their race violates both the federal and state Constitutions. (Batson, supra, 476 U.S. at pp. 97-98; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Batson/Wheeler claims are subject to a well established three-step inquiry. "First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 612-613, italics added (Lenix); see also Johnson v. California (2005) 545 U.S. 162, 168, [162 L.Ed.2d 129].)
Here, we are concerned with the third step of the inquiry. "At the third stage of the Wheeler/Batson inquiry, 'the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.' (Miller-El [v. Cockrell (2003)] 537 U.S. [322,] 339 [154 L.Ed.2d 931].) In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)" (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
"We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges '"with great restraint."' [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" (People v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).)
Defendant contends the trial court erred in concluding there was no discriminatory intent in the prosecution's striking of A.T., W.R., and D.B. from the jury. In particular, defendant argues the trial court failed to adequately analyze the proffered explanations but instead merely repeated the prosecution's race-neutral reasons. Our review of the record belies this contention.
The prosecution explained that she excused W.R. based, in part, on his overly-positive demeanor toward defense counsel. In addition, W.R.'s personal experiences, including a number of relatives involved in the criminal justice system, could potentially bias him against the system. W.R. also stated he had relatives and friends who had been in gangs; some were good people and some were bad.
The trial court found these explanations genuine and race neutral, specifically based on its observations of W.R. in the courtroom. On this we defer to the trial court, which is in the best position to evaluate a potential juror's poise and demeanor.
As for A.T., the prosecution noted the potential juror compared having tattoos to collecting cars. In addition, the prosecution stated that in his questionnaire A.T. referred to "Bloods and Creeps," which the prosecution felt made light of the offenses facing defendant. When asked if he could impartially consider evidence, A.T. responded that he usually could tell if someone was lying by considering whether the person exaggerated the situation.
The prosecution observed that A.T. appeared to agree with W.R.'s comments. A.T. did not appear to have an understanding of the jury process or to be very open-minded about considering the evidence. The prosecution doubted A.T. could "understand . . . all the complexities and the witnesses that are going to be in this matter."
The trial court admitted it had not observed A.T. carefully during voir dire. However, the court did observe that A.T. appeared very upset at being excused. Based on the juror questionnaires and the prosecution's explanations, the court found the explanations were not a sham or pretext for group bias.
Contrary to defendant's assertion, the court did consider and evaluate the prosecution's explanation for A.T.'s exclusion. We agree with the trial court's assessment that the explanation was race neutral and not a pretext for group bias.
Finally, the prosecution in the second trial provided an explanation for the exclusion of D.B. The prosecution pointed out D.B. had spent four years in state prison and had prior convictions for moral turpitude. In addition, the prosecution observed D.B. kept staring at her during voir dire.
The trial court stated it had been struck by D.B.'s physical reactions to both defense counsel and the prosecution. The trial court was "watching very carefully during questioning" and observed D.B. reacted very differently to the prosecution than to defense counsel and codefense counsel. D.B.'s body language, his prior felony conviction, and his answers during voir dire convinced the trial court the prosecution's action in excusing him was not a pretext for group bias.
Again, the trial court is in the best position to assess the physical interaction between potential jurors and the prosecution. We cannot and should not substitute our judgment, based on the written record, for the perceptions of the trial court. D.B.'s physical reactions and his prior felony conviction were reasonable race-neutral reasons for excusing him.
The prosecution in both trials provided permissible race-neutral explanations for excusing the three African-American jurors. The trial court here made a "sincere and reasoned" evaluation when it considered the prosecutor's response and reviewed its own recollections about the excused jury panelists. (Burgener, supra, 29 Cal.4th at p. 864.) The court's decision is supported by substantial evidence. (See Lenix, supra, 44 Cal.4th at p. 613 [trial court's Wheeler decision must be affirmed if supported by substantial evidence].)
Supplemental Briefing on Juror Questionnaires
Our views in this regard are not altered by defendant's supplemental briefing, in which he offers the jury questionnaires as an additional basis for challenging the dismissal of the African-American panelists.
The questionnaires revealed that W.R. was 43 years old and married with three children. W.R. worked as a "network team lead" at Compucom Systems, supervising 15 to 20 people. W.R. described himself as a leader with experience in making decisions and the ability to tell if someone is telling the truth.
One of W.R.'s friends was a police officer, and another was a retired police detective. W.R. believed that police officers were as truthful as anyone else. W.R. served as a juror on a driving under the influence case in which the jury reached a verdict.
A "cousin/friend" of W.R.'s had been either arrested or charged with murder, prosecuted, and incarcerated since 1981. W.R. did not know all the details regarding the conviction, but "gang related associations probably did not help his case."
W.R. stated the criminal justice system was not perfect but was "still the best in the free world." W.R.'s house had been burglarized, his cousin had been kidnapped, and he had a car stolen. None of these crimes was prosecuted. However, these incidents did not affect his feelings about the criminal justice system. W.R. had previously witnessed and reported a crime but had not been called to testify.
W.R. had two negative experiences with law enforcement. In 1980, at a Southern California sheriff's office, "racially charged statements" were made. In 1979, at the same sheriff's office, there were threats to "blow [his] head off" while he, his brother, and a friend were being checked because they fit a description of some robbers.
When asked about the criminal justice system, W.R. responded: "Rich have a better chance to evade justice. Penalties for poor are often harsher than for rich and majority (whites v. minorities). Example crack vs cocaine have different penalties." W.R. also believed there were both bad and good judges and lawyers.
W.R. believed in the presumption of innocence and the right of a defendant to choose whether to testify. W.R. did not agree with the one witness rule, stating: "I believe 2 or mor[e] witnesses of evidence are require[d]. I believe that I may weight the varacity [sic] of one witness over another but there must be in my opinion more than one person or point of evidence offered."
W.R. did not like gangs, but this would not prevent him from fairly weighing the evidence. There were gang problems in his neighborhood, and he had known or knew gang members. While a teenager, W.R. had been attacked by gang members, but there was no police involvement.
A.T., age 37, was married with one child and had completed one year of college. A.T. described himself as a leader and had experience making group decisions. A.T. believed police officers were more truthful than people in other occupations. He had previously served on a jury.
A.T.'s brother had been arrested, charged with a crime, and prosecuted, but he did not know what the offense was and did not ask. In describing how the incident affected his view of the justice system, A.T. stated: "It was not me. And if you put yourself in it you must be ready to do the time for it."
A.T., or someone close to him, had a car broken into, but the crime was not prosecuted. In 2004 A.T. received a ticket and noted the officer was nice. As for the trustworthiness of attorneys, A.T. believed they were "doing a job." When asked whether he could follow the law regarding proof of guilt, A.T. responded: "Just here [sic] what is being said and only use that." A.T. also stated that if a defendant testified, that testimony would be weighted the same as any other witness.
A.T. was not a gang member. He was able to name several gangs. A.T. participated in a neighborhood crime watch. He would not feel sympathy for the family members of the defendants who were in the courtroom.
In excusing W.R., the prosecution cited W.R.'s rapport with defense counsel, potential bias against the legal system, not reporting a crime in which he was a victim, not understanding the seriousness of the crime, having a relative involved in the criminal justice system, and concern over whether he would be able to follow the one witness rule. The trial court found the prosecutor had a proper neutral explanation for her challenge to W.R. The court noted some of the concerns raised by the prosecution were contained in the questionnaires. W.R.'s answers on his questionnaire bolster, rather than undercut, the trial court's finding.
Defendant argues the "trial court made no mention of the prosecutor's demeanor reason in upholding the strike" of W.R. Defendant is mistaken. The court stated W.R. "was very engaged in the process" and made its ruling based on what it "observed on [W.R.] specifically."
Regarding W.R.'s potential bias against the legal system, defendant argues another juror's questionnaire statement that "Judges shouldn't be harder on poor people" was very similar and that juror was not excused. However, the other juror made a general statement regarding the justice system. W.R.'s comment was much more specific, citing the disparity between penalties for crack and cocaine.
Defendant also argues the prosecution's reasoning that W.R. had experiences that could bias him against the system was vague. However, W.R.'s questionnaire revealed two negative encounters with a sheriff's department.
Defendant contends the prosecution erred in stating more than one of W.R.'s relatives was involved in the criminal justice system. Only one relative, a cousin, was so involved. However, during voir dire, W.R. stated, "I have friends in jail." In addition, defendant points out that several jurors who had relatives with criminal records were not excused. The jurors defendant cites had relatives convicted of or arrested for various crimes, but not for murder. In contrast, W.R.'s "friend/cousin" had been charged with murder, a crime similar to that in the present case.
Defendant challenges the prosecution's reliance on the fact that W.R. "grew up in a part of southern California where violence 'wasn't that uncommon,'" labeling it a generic factor that would not affect W.R.'s ability to remain unbiased. In his questionnaire, W.R. stated he was aware of gangs from his youth and made assumptions about graffiti "based on accounts and having seen known gang members in years past." W.R. also stated that many of his neighbors when he was young were gang members, and he was attacked by gang members. During voir dire, W.R. stated being attacked was "just one of those things" and was not uncommon where he grew up.
The prosecution also cited defendant's ability to abide by the one witness rule. Defendant disputes that W.R. could not follow the rule and argues that many of the potential jurors did not understand the rule, but the prosecution only questioned W.R. about it. However, W.R. in his questionnaire stated he did not agree with the one witness rule. During voir dire, W.R. stated he could follow the law, but twice stated that one witness's testimony would not be sufficient.
W.R.'s answers on the juror questionnaire provide additional support for the court's finding that he was excused for race-neutral reasons.
In excusing A.T., the prosecution noted A.T.'s demeanor in reacting to W.R.'s statements about the legal system, A.T.'s reference to "Bloods and Creeps," his comment that he was not a gang member, his comments about tattoos, concerns about his understanding of the legal process, his responses about his brother's criminal conviction, his lack of ability to follow and understand the complexities of the case, and his inability to work in a group setting.
A.T.'s questionnaire answers support the prosecution's concerns about his ability to understand and follow the legal process. Several of A.T.'s answers did not address the questions asked. Excusing a juror because of difficulties in applying and following the law is a race-neutral reason. (People v. Muhammad (2003) 108 Cal.App.4th 313, 322.) In addition, although A.T.'s brother had been convicted of a crime, A.T. did not know and did not ask about the nature of the offense; he claimed his brother's situation did not affect his feelings about the criminal justice system "because it was not me." The fact that a juror's relative has been convicted of a crime can serve as a valid race-neutral reason to excuse a juror. (People v. Cummings (1993) 4 Cal.4th 1233, 1282.) We disagree with defendant's assertion that A.T.'s answers undermine the court's conclusion that the prosecution excused him for race-neutral reasons.
In his questionnaire, D.B. stated he was 49 years old, and indicated "separated" and "other" as his marital status. Only one of his three children completed high school. D.B. worked as a counselor working with the homeless. He described himself as a leader and team player who could work with others to achieve a common goal. D.B. believed he could evaluate a witness's truthfulness because he "listen[s] to what people say" and "pay[s] attention to things like eye contact."
D.B. was involved in the 12-step program for Narcotics Anonymous and Alcoholics Anonymous, and was active in his church. His brother worked in corrections, and D.B. believed police officers were as truthful as anyone else.
D.B. had been arrested previously or charged with petty theft and drugs, but although he said he was not prosecuted, he went on to say he was convicted and sentenced to four years in prison. He believed the criminal justice system was not fair in his case and he had been convicted for a crime he did not commit. D.B. was released after an appeal.
D.B. stated the criminal justice system was a "very tedious & time consuming process" that "has its flaws, but on a whole it is a good system." He also believed "in all truth most people are good & our system is all we got, so we should work to keep it honest." D.B. stated the problem with the system is that "the hands of justice are too short" and sometimes the victims are "made to suffer."
In addition, D.B. believed in the presumption of innocence, could follow instructions, and could be objective in evaluating the evidence. He agreed with the one witness rule.
D.B. named several gangs and explained that the names of the gangs were common in California. During his prison ministry, D.B. had "met people from almost every gang in California."
In excusing D.B., the prosecution noted he had three children who had not completed high school, had spent time in prison, was a recovering addict who worked in social services, had stared at the prosecutor during voir dire, and had a nonconformist lifestyle. Nothing in D.B.'s questionnaire answers undermines the court's conclusion that his exclusion was race neutral.*fn2
Defendant argues that other jurors had children who did not finish high school, had unconventional lifestyles, and had been convicted of crimes. While it is true other jurors had several factors similar to those relied on by the prosecution in dismissing D.B., those factors in conjunction with other factors specific to D.B. supported the trial court's finding of a race-neutral basis for excluding the juror. D.B. believed his criminal case had not been fairly handled by the justice system. This viewpoint provided a race-neutral factor for excluding D.B. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.)
In addition, the prosecution expressed concern about D.B.'s involvement with drugs and his social work in prison with substance abusers. A belief that someone involved in such social services would not be sympathetic to a case involving gangs and drugs provides a race-neutral reason for dismissal. (People v. Trevino (1997) 55 Cal.App.4th 396, 411.)
D.B.'s questionnaire provided further, not less, support for the trial court's finding that the juror was dismissed for race-neutral reasons.
ii. SUFFICIENCY OF THE EVIDENCE Carjacking for Benefit of a Gang
Defendant argues that insufficient evidence supports the elements of the gang enhancement. According to defendant, the prosecution's gang expert improperly expressed his opinion that defendant committed various offenses for the benefit of a gang.
Detective Ridenour testified as an expert on Hispanic gangs. Ridenour described the Sureno gang, its territory, and its mode of operation. According to Ridenour, one of the primary activities of the gang was the commission of criminal acts such as homicides, robberies, assaults with deadly weapons, burglaries, car thefts, carjackings, graffiti, possession of firearms, and possession of controlled substances for sale.
Ridenour had been involved in the investigations of a variety of criminal acts involving the Surenos. When Ridenour had previously arrested defendant, he noted defendant's gang tattoos. Defendant admitted his gang membership.
In order to establish a gang enhancement, the prosecution must prove the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1).) In addition, the prosecution must prove the gang: (1) is an ongoing association of three or more persons with a common name, identifying sign, or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated by the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal activity by committing two or more of the enumerated offenses during the statutorily defined period. (§ 186.22, subds. (e) & (f); People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
These requirements may be met via expert testimony explaining gang psychology and customs. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509; Gardeley, supra, 14 Cal.4th at p. 617.) A gang expert may render an opinion in response to a hypothetical question as to gang-related activity so long as the hypothesis is rooted in the facts shown by the evidence. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.)
In reviewing a challenge to the sufficiency of the evidence in support of a gang enhancement, we examine the evidence to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Augborne (2002) 104 Cal.App.4th 362, 371; People v. Johnson (1980) 26 Cal.3d 557, 578.)
September 12, 2006, Incident
In connection with the September 2006 incident, Ridenour testified the attempted murder and related offenses were committed for the benefit of the Sureno gang because: Rangel was a Norteno; Rangel wore gang-related clothing that night, a red shirt and red hat; defendant believed Rangel bumped him as a sign of disrespect from a rival gang member; and defendant pulled a gun in front of Rangel's girlfriend. Ridenour also related an incident in December 2006 in which defendant fought with a Norteno gang member while in a holding cell at the courthouse.
Rangel testified that, although he was once a member of the Nortenos, he was no longer an active member. According to Rangel, he bumped into defendant by accident and did not think defendant belonged to a rival gang. Rangel did not notice defendant's tattoos, because he was not paying attention to him that closely.
Defendant argues Ridenour's testimony that defendant, a Sureno, would retaliate for a Norteno's disrespect "is not borne out by the evidence, as Rangel never even knew that appellant was a Sure[n]o." However, the question is not whether Rangel realized defendant was a rival gang member, but whether defendant recognized Rangel was a Norteno and interpreted his bump as disrespect.
Ridenour testified he had "talked to numerous gang members who have told [him] if a Norte[n]o and Sure[n]o are walking down the street and they start . . . giving dirty looks back and forth to each other, something has to be done," otherwise "they can be punished by their own gang." According to Ridenour, there was an established rivalry between the two gangs, and gangs show disrespect to one another in a variety of ways. Regardless of whether Rangel recognized defendant as a rival gang member, Ridenour provided substantial evidence that defendant shot at Rangel to further benefit the Surenos by retaliating against a perceived show of disrespect.
August 26, 2006, Incident
Regarding the carjacking and related offenses, Ridenour stated that in his opinion they were gang-related activities. Ridenour based his opinion on the fact that both defendant and Canon were active Sureno members who committed the carjacking together. In addition, Ridenour testified gangs commit carjackings and car thefts in order to use the pilfered vehicles to commit other crimes. Further benefit inured to the gang when the greater community became aware of the crimes and associated them with the Surenos. This notoriety enhances the gang's reputation and "facilitate[s] and assist[s] them in continued criminal gang activity."
Defendant argues Ridenour's testimony is insufficient. According to defendant: "The owner and passengers of the car, too, recognized no gang element in the carjacking offense. They never mentioned that they had been victimized by Sure[n]os or that any mention was made by the carjackers of their gang affiliation."
Again, the state of mind of the victim is not controlling. Regardless of whether Laminero knew his assailant was a gang member, defendant and Canon, two Surenos, took his car, a car that could be later used in further Sureno crimes. Ridenour established a link between defendant's activity and the furtherance of the goals of the gang, providing sufficient evidence for the gang enhancement.
Defendant also challenges Ridenour's testimony as improper, since it went to an ultimate issue to be decided by the jury. Defendant argues Ridenour testified that defendant possessed the specific intent to commit the crime.
We disagree. The prosecution asked Ridenour: "In your expert opinion, is the felony conduct in this case, specifically the facts that you know of . . . surrounding the . . . carjacking, gang-related activity?" Ridenour answered: "Yes."
"The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) Here, Ridenour provided expert testimony on the Sureno gang culture and appropriately gave his opinion on why and whether defendant engaged in the criminal activity for which he was charged.
Defendant also challenges the sufficiency of the evidence to prove that one of the primary activities of the Surenos was the commission of one or more of the enumerated crimes. Defendant further argues the evidence was insufficient to show that he had actual knowledge of the pattern of gang activity.
In both trials, Ridenour testified that among the primary activities of the Sureno gang was the commission of criminal acts such as homicides, robberies, assaults with deadly weapons, burglaries, car thefts, carjackings, graffiti, possession of firearms, and possession of controlled substances for sale. Ridenour had been involved in the investigation of such crimes involving Sureno gang members.
The prosecution introduced the rap sheet of Manuel Soto, a Sureno convicted of assault with a deadly weapon and gang enhancements. The prosecution also introduced the rap sheet of Eric Zapata, a Sureno convicted of murder.
To establish a gang enhancement under section 186.22, the prosecution must establish one of the group's primary activities is the commission of one or more specified crimes and the group's members have engaged in a pattern of criminal activity. A pattern of criminal activity is defined as two or more enumerated offenses committed on separate occasions or by two or more persons. (§ 186.2, subd. (e).)
Multiple incidents of criminal activity are not necessary to prove a pattern. A pattern can also be proven by showing that multiple gang members participated in a single incident of criminal activity. (People v. Loeun (1997) 17 Cal.4th 1, 5 (Loeun).)
To establish primary activities under section 186.22, the trier of fact may look to both the past and present criminal activities of the gang. Isolated criminal conduct will not suffice. Sufficient proof of the gang's primary activities may consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. The primary activities element may be established through expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; In re Alexander L. (2007) 149 Cal.App.4th 605, 611 (Alexander L.).)
In reviewing the sufficiency of the evidence in support of the gang enhancement, we determine whether there is credible, reasonable evidence from which a reasonable trier of fact could find the essential elements of the charge or allegation true beyond a reasonable doubt. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Defendant argues Ridenour provided too few instances of criminal activity considering the size and longevity of the Sureno gang. In addition, defendant labels Ridenour's testimony "unreliable" because the expert was not personally involved in investigating the other criminal activities. We find no merit in either contention.
The prosecution can prove a pattern of criminal gang activity through evidence pertaining to the charged offense and one other offense committed on a prior occasion by the defendant's fellow gang member. (Gardeley, supra, 14 Cal.4th at p. 625; Loeun, supra, 17 Cal.4th at pp. 5-10.) Here, Ridenour provided the facts of two prior offenses: Soto's conviction for assault with a deadly weapon on January 9, 2006, and Zapata's conviction for murder on July 17, 2006. No further prior crimes were necessary, nor was Ridenour's personal involvement required in the criminal investigations.
Ridenour's background and expertise provided a backdrop for his testimony as to the primary activities of the Surenos. Such was not the case in Alexander L., supra, 149 Cal.App.4th 605, relied on by defendant. In Alexander L., the defendant was charged with vandalism stemming from his "tagging," or spreading graffiti. (Id. at p. 609.) An expert testified that the creation of graffiti generally benefited a gang. The expert stated he knew the gang had "'committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.'" (Id. at p. 611.) The expert did not testify that the criminal activities comprised the gang's primary activities, nor did he provide details or any information as to how he acquired the information. (Id. at pp. 611-612.) The court found the expert's testimony lacked sufficient foundation. (Id. at p. 612.)
Ridenour's testimony suffers no such infirmity. He testified as to his background in investigating the Surenos and gave his opinion as to their primary activities, providing examples of two prior Sureno convictions for enumerated crimes. The testimony was sufficient to establish the element of primary activities.*fn3
III. Admission of Rap Sheets
During Detective Ridenour's testimony at both trials, Soto's and Zapata's criminal rap sheets were marked for identification and the detective testified without objection, based on the rap sheets, regarding the duo's criminal convictions. The rap sheets were admitted into evidence without objection at the trial on the August 26 offenses. After the rap sheets were offered into evidence at the trial on the September 12 offenses, counsel objected on grounds of hearsay, the Fifth Amendment to the United States Constitution, and also the California Constitution and for lack of proper foundation; the jury would not understand the meaning of the documents without an explanation. The trial court concluded the certified copies were admissible under the Evidence Code.
Defendant argues the admission of the rap sheets denied him his right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). The Attorney General counters that the issue is forfeited because the objection raised now on appeal was not raised in the trial court at the time the rap sheets were offered into evidence. The Attorney General also asserts that principles set forth in Crawford do not apply here, and even assuming they do, any error was harmless beyond a reasonable doubt. We agree that Crawford does not apply, though for reasons not fully developed and articulated by the Attorney General.
In Crawford, the Supreme Court held that under the confrontation clause, "testimonial" hearsay cannot be admitted in a criminal trial unless the defendant has the opportunity to confront and cross-examine witnesses with respect to the evidence. (Crawford, supra, 541 U.S. at p. 61.) The court declined "to spell out a comprehensive definition" of testimonial hearsay (id. at p. 68), but subsequent cases have provided guidance on the question.
In People v. Cage (2007) 40 Cal.4th 965, our Supreme Court, interpreting Crawford and Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224], concluded: "First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants . . . ." (Cage, supra, 40 Cal.4th at p. 984, fn. omitted.)
Two California cases make clear that rap sheets submitted to prove a prior conviction or prison sentence are not testimonial in nature and thus do not fall within the proscriptions of Crawford. (People v. Morris (2008) 166 Cal.App.4th 363, 368-372; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225.) While Morris and Taulton recognized that such records may ultimately be used in a criminal prosecution, that is not the reason for their preparation. As noted in Morris, the primary purpose of rap sheets "is to permit law enforcement to track necessary information regarding the arrest, conviction, and sentencing of individuals and to communicate that information to other law enforcement agencies." (Morris, at pp. 370-371.) They are prepared for the purpose of documenting the acts and events related to the convictions, rather than to prove events relevant to a criminal trial. (Taulton, at p. 1225.)
The trial court did not err in admitting the rap sheets of Zapata and Soto.
IV. UNAVAILABLE WITNESS
Defendant argues the trial court deprived him of his constitutional right to confront witnesses by allowing the prosecution to use Krystal Ellis's preliminary hearing testimony at trial. In effect, defendant contends the trial court erred in finding the prosecution made a showing of due diligence in its efforts to locate Krystal and secure her attendance at trial.*fn4
Background September 12, 2006, Incident
In May 2007, during an evidentiary hearing, a witness coordinator for the district attorney's office, Jena Lane, testified. Lane stated she had attempted to contact Krystal five times beginning on April 24, 2007. Lane spoke with Krystal twice, on May 3, 2007, and May 16, 2007.
On May 3, 2007, Lane told Krystal to contact her again on May 7, 2007. However, Krystal failed to contact Lane on the appointed day. On May 16, 2007, Lane told Krystal to be in court the following day, and Krystal agreed to appear. Krystal, who was under subpoena, failed to appear in court on May 17, 2007.
Lane also established contact with Krystal's sister, Kristine. Lane spoke with Kristine several times, and Kristine agreed to help Lane locate her sister.
Between May 17, 2007, and May 22, 2007, Lane contacted local hospitals and determined Krystal had not been admitted. Lane did not check with the Department of Motor Vehicles (DMV) or welfare records in an effort to track down Krystal. Lane did not have access to those records. Nor did Lane ask Kristine if Krystal had another close relative or significant other in her life. Lane did not go to Kristine's home in search of Krystal. On May 17, 2007, Lane contacted Kristine, who told Lane she had talked to Krystal the previous day and told her sister about the May 17, 2007, court date.
Detective Steven Capps testified that on May 18, 2007, he sent two officers to Kristine's home to find Krystal. Krystal was not there. Krystal did not have a telephone and was only sporadically in touch with her relatives. Capps had not checked the DMV records or any other records for Krystal's address.
The prosecution informed the court that a criminal records check did not show Krystal was in custody at the San Joaquin County Jail.
After hearing the evidence, the court stated: "My only concern is I think that based on what I heard, I think there is reasonable diligence up till the 18th. But I'm concerned, we are on the 22nd, nothing was done yesterday or today to either call the sister to see if she's heard from her or to send a patrol unit by the last known residence to see if she happens to be there."
The prosecution offered to have Lane again contact Kristine, noting Kristine had been very cooperative in trying to get Krystal to appear in court. The court asked the prosecution to try again to contact Kristine and continued the hearing.
Later that day, Lane testified that she attempted to contact Krystal after the earlier hearing but was only able to contact Kristine. Kristine told Lane that neither she nor her father had heard from Krystal. Kristine said she would contact authorities if Krystal contacted her. Lane testified that Kristine told her Krystal had no other relatives in the area, and the only person she used to stay with was "locked up." According to Kristine, Krystal lived on the streets and only came home occasionally.
Detective Capps again testified. Following the hearing, Capps sent a detective to Kristine's house to walk through the residence. The detective checked every room but failed to locate Krystal. Kristine told the detective she last saw her sister on May 16 and did not know where Krystal was currently staying.
Defense counsel argued the prosecution could have done more to locate Krystal, including reviewing DMV records or the "welfare rolls could be checked to see if there's a[n] address there." The prosecution countered that everything possible had been done and argued that Krystal was in hiding to avoid testifying.
The court held: "I think that there is more that could have been done, I agree with [defense counsel], in terms of DMV, welfare records and so forth. [¶] However, you have to look at it in context. There was -- she had voluntary contact up until the 16th. Her sister and father have been cooperative. If this was a situation where it was apparent the family was being uncooperative, then I think further steps may have been necessary. [¶] But in this case, the family was cooperating. There is apparently no other known place to the family. . . . [¶] And so I think that the -- the District Attorney's Office has exercised reasonable diligence. They have followed up with contact. I think the family's been cooperative. They have gone in person and by telephone to corroborate that. So I'm going to find that the reasonable and due diligence has been found, and I will allow her testimony to be read."
August 26, 2006, Incident
Lane also testified at an evidentiary hearing during the second trial regarding the unavailability of Krystal. On June 22, 2007, Lane testified she telephoned both Krystal and Kristine. Lane spoke with Kristine on June 12, 18, 20, and 22. Kristine was unable to provide any contact information for Krystal. Lane checked San Joaquin County Jail records, but Krystal was not in the system.
Lane did not check the jail records of other counties, nor did she canvass soup kitchens or other places a homeless person might go. Lane did not have access to check general relief or Social Security records.
Kristine told Lane that their father did not know where Krystal was. She told Lane that Krystal returned to the house just once prior to June 12, 2007. During that visit Kristine told Krystal that the district attorney was trying to contact her. Krystal did not respond.
Stockton Police Officer Craig Smith testified that he contacted the "impact unit" in the district attorney's investigations unit, but the only address for Krystal was Kristine's address. Smith also checked criminal records between June 16, 2007, and June 22, 2007, but found no record of Krystal as an inmate in San Joaquin County. Smith did not check Sacramento or Stanislaus County jails.
Smith also contacted hospitals in San Joaquin, Sacramento, and Stanislaus counties. San Joaquin County hospital had treated Krystal as an outpatient on June 4, 2007. Because of patient confidentiality, Smith did not request Krystal's personal information from the hospital.
Smith knew Krystal was on informal probation but had not checked whether she had a specific probation officer. The prosecution asked the court to note Krystal's warrant was still outstanding.
The court held Krystal was unavailable and allowed the reading of her preliminary hearing testimony at trial.
A witness's former testimony is admissible if the witness is unavailable and the former testimony is offered against a person who was a party to the proceeding and had the opportunity to cross-examine the declarant. (Evid. Code, § 1291, subd. (a)(2).) A witness is unavailable if absent from the hearing and the proponent of the witness's statement "has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(5).)
Due diligence requires "persevering application, untiring efforts in good earnest, efforts of a substantial character." (People v. Sanders (1995) 11 Cal.4th 475, 523.) In considering whether due diligence exists, we consider the totality of the efforts used to locate a witness. (Ibid.) We consider the character of the prosecution's efforts, the timeliness of the search, the importance of the witness's testimony, whether leads were competently explored, whether the prosecution reasonably believed the witness would appear willingly and therefore did not subpoena the witness when she would have been available, and whether the witness would have been produced if reasonable diligence had been exercised. (People v. Cromer (2001) 24 Cal.4th 889, 904 (Cromer).)
We review a trial court's determination de novo. (Cromer, supra, 24 Cal.4th at p. 901.) We will not reverse the court's determination merely because defendant can conceive of some further step or avenue left unexplored by the prosecution. If the record reveals sustained and substantial good faith efforts by the prosecution, defendant's suggestion of further steps not taken does not automatically render the prosecution's efforts unreasonable. "'The law requires only reasonable efforts, not prescient perfection.' [Citation.]" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
Regarding the first trial, defendant faults the prosecution for relying too much on Krystal's sister and for failing to check jails in surrounding counties, welfare rolls, DMV records, or places where homeless people eat or stay. Although defendant concedes the prosecution's efforts were more strenuous in the second trial, he argues the prosecution should have searched jails outside San Joaquin County and questioned the probation department.
We find the prosecution's efforts to locate Krystal reasonable and supportive of the trial court's finding of reasonable diligence. Krystal voluntarily attended the preliminary hearing, giving the prosecution no reason to anticipate her absence from the first trial. The prosecution subpoenaed Krystal, who had spoken to Lane prior to the start of trial, again supporting the inference that she would appear at trial.
When Krystal failed to appear, Lane contacted Kristine and discovered Krystal was out of contact with her family. Kristine cooperated in Lane's efforts to find her sister. Detective Capps asked other officers to search Kristine's home, to no avail. Kristine informed Lane that her sister was homeless and therefore difficult to contact.
The prosecution served Krystal with a subpoena. When she failed to appear at the first trial, a body attachment was issued to secure her appearance and remained outstanding during trial.
When Krystal remained missing at the second trial, Lane again contacted Kristine, to no avail. Lane also checked jail records. Officer Smith checked out Krystal's contact address, did a criminal records check, and contacted surrounding hospitals.
Despite defendant's insistence that other avenues should have been pursued, the record reflects sustained, substantial good faith efforts by the prosecution to insure Krystal's presence at trial. The trial court did not err in admitting Krystal's preliminary hearing testimony.
V. SENTENCING ERROR
Defendant contends his sentence for shooting at an occupied vehicle and the enhancement must be stayed pursuant to section 654. According to defendant, imposing an unstayed sentence on the count of shooting at an occupied vehicle constituted an invalid multiple punishment because he was also sentenced to two counts of attempted murder arising from the same act. The prosecution agrees.
The trial court sentenced defendant on two counts of attempted murder, counts 001 and 002.*fn5 The court then considered count 003, shooting at an occupied vehicle, and stated: "[T]his count is not barred by 654. In [People v. Gutierrez (1992) 10 Cal.App.4th 1729], the Court held that it was not 654 to sentence for an attempted murder and discharging a weapon at an occupied motor vehicle."
Here, defendant committed the single act of firing at the vehicle Handy and Rangel rode in, making them victims both of attempted murder and the shooting at an occupied motor vehicle. Under section 654, defendant cannot be punished for both shooting at the car and attempting to murder its occupants. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784; but see People v. Centers (1999) 73 Cal.App.4th 84, 101-102.)
People v. Gutierrez (1992) 10 Cal.App.4th 1729, relied on by the trial court, applies the multiple victim exception to section 654. Under this exception, multiple punishment is permitted when there is at least one victim of the section 246 offense who was not also a victim of the attempted murder. The extra victim forms the basis for the separate unstayed sentence for shooting at an occupied vehicle. (Gutierrez, at pp. 1736-1737.) No such multiple victim exists in this case: both Rangel and Handy were victims of both crimes.
We therefore modify the judgment by staying the sentence on count 003, shooting at an occupied vehicle, pursuant to section 654.
The judgment is modified by staying the sentence on count 003 pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.