Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseno, Judge. Affirmed in part, reversed in part, and modified. (Super. Ct. No. 09CF2225)
The opinion of the court was delivered by: Bedsworth, Acting P. J.
CERTIFIED FOR PUBLICATION
Appellant Juan Roldan was sentenced to life in prison without parole for carrying out a pair of shootings against rival gang members. He contends he was denied a fair trial because the victim of one of the shootings was deported after the preliminary hearing and he did not have the opportunity to confront him at trial. We agree this amounted to a violation of Roldan's rights. Accordingly, we reverse the convictions stemming from that particular shooting. We also modify the judgment to properly reflect the trial court's sentencing decision and to award Roldan one additional day of presentence custody credit. In all other respects, we affirm.
On December 28, 2006, Sabas Barrera was shot during an encounter that occurred in an area of Santa Ana claimed by the Lyon Street gang. By the time of trial, Barrera had been deported to Mexico, but the trial court allowed the prosecution to introduce his preliminary hearing testimony into evidence.
At that hearing, Barrera testified he was a member of Lyon Street at the time of the shooting. He said he and a friend were walking in the heart of territory his gang claimed when a white car pulled up to them. His friend walked toward the car and began speaking with the driver, while Barrera stayed on the sidewalk. Then the front passenger stepped out of the car and came toward Barrera. Barrera recognized the man as appellant Juan Roldan because he had done time with him at a youth correctional camp. At the camp, Barrera did not get along with Roldan because Roldan belonged to the Walnut Street gang, a rival of Lyon Street.
Upon alighting from the car, Roldan asked Barrera "where he was from," which forced Barrera to either admit or deny his gang membership. Barrera chose the former option, telling Roldan he belonged to Lyon Street. In response, Roldan pulled out a gun and shot him three times. Barrera blacked out and did not regain consciousness until three weeks later. His injuries required multiple surgeries, and he was not released from the hospital until the spring of 2007.
In July 2008, Barrera was arrested on a probation violation for associating with members of Lyon Street. He was only expected to serve five months in jail for the violation. However, when his sentence ended in December 2008, he was kept in the Orange County jail on a federal immigration hold for nine months, until after the preliminary hearing in this case, in September 2009. Following his testimony at the preliminary hearing, Barrera was turned over to federal authorities and deported to Mexico.
The second shooting at issue here occurred on December 17, 2006, 11 days before Barrera was shot. That day, Fernando Garcia, Angel Secundino, Gabriel Perez and Vanessa Diaz were walking in an alley claimed by their gang, the Lopers. As they exited the alley, a car with five or six people inside pulled up to them. The people in the car yelled out, "Fucking Lops," and Garcia's group responded by making the letter "L" with their hands. Then the front passenger and at least one of the rear passengers got out of the car and walked toward Garcia's group. Garcia asked them where they were from, and they said "Walnut." Garcia responded, "This is Lopers," thinking there was going to be a fight. Instead, someone in the car bellowed, "Shoot them already," and several shots rang out in rapid succession.
Secundino and Perez were shot in the head and died on the scene, but Garcia survived a gunshot to the stomach. While he was lying on the ground after the shooting, police officers asked him if he knew who shot him. Although Garcia was badly wounded, he responded, "Juan Roldan." When asked if he knew where Roldan was from, he made a "W" with his fingers and said "Walnut."
The police investigation revealed a semiautomatic pistol and a .38 caliber revolver were both fired at the scene. The revolver was found during a search of Roldan's house, and the pistol was found on Walnut Street member Norberto Hernandez when he was arrested.
Garcia was hospitalized for months following the shooting. Following his release, investigators interviewed him at his home on March 1, 2007. They showed him a series of photographic lineups, and Garcia identified co-defendant Oiram Ayala as the person who shot him and Roldan as someone who was in or near the car at the time of the shooting. Garcia also said Walnut Street members Norberto Hernandez and Angel Garcia were present during in the shooting.
Gang detective and expert witness Matthew McLeod testified Roldan is a "shot caller" in Walnut Street, and higher up in the gang than Ayala. McLeod said that could explain why Garcia changed his story and implicated Ayala as the shooter after initially identifying Roldan at the scene. McLeod said that in his experience, it is not uncommon for witnesses to gang crimes to change their stories out of fear of retaliation.
Speaking to the culture of criminal street gangs, McLeod testified "respect is the be all and end all of their existence." He said gangs and their individual members earn respect by committing violent acts and instilling fear in others. Gang members are also expected to back each other up when committing crimes. In the case of Walnut Street, its crimes range from vandalism and car theft all the way up to murder. In fact, from 2005 to 2010, the gang was involved in no fewer than four murders McLeod was aware of. McLeod also said guns are often passed around freely in gangs and as high-ranking members of Walnut Street, Roldan and Hernandez would be expected to be armed on most occasions. As for the shootings at issue in this case, McLeod opined they would benefit Walnut Street, both by demonstrating how ruthless the gang is and by diminishing the ranks of its rivals.
The defense presented evidence from Vanessa Diaz, who, as noted above, was with the victims at the time of the Lopers shooting. According to Diaz, two bandana-wearing gunmen got out of the car when it approached her group. She recognized Angel Garcia, aka Mono, as one of the men. No words were exchanged, but Secundino did lift up his shirt, revealing a Lopers tattoo to the gunmen. After that, Mono shot both Secundino and Perez.
Roldan and Ayala were jointly charged with murdering Secundino and Perez in the first degree and attempting to murder Garcia. Gang, firearm and special circumstances allegations were also alleged against them. In addition, Roldan was separately charged with attempted murder, aggravated assault and street terrorism in connection with the Barrera shooting. Following a joint trial, Roldan was convicted of the counts involving Barrera, but the jury deadlocked on the counts arising from the Lopers shooting.*fn1 Roldan and Ayala were then retried on the deadlocked counts, and the jury found them guilty as charged. Thereupon, the court sentenced them to multiple life sentences. Roldan not only received 40 years to life for attempting to murder Barrera with a firearm, he also received life without parole on each of the murder counts. Having already affirmed the judgment as to Ayala (People v. Ayala (Jan. 30, 2012, G044395) [nonpub. opn.]), we now turn our attention to Roldan's appeal.
Roldan's primary argument relates to the court's decision to admit Barrera's preliminary hearing testimony into evidence. He contends this violated his confrontation rights because the prosecution failed to show Barrera was unavailable at the time of trial, and he did not have an adequate opportunity to cross-examine Barrera at the preliminary hearing. We agree the prosecution did not meet its burden of showing Barrera was unavailable to testify at trial. Therefore, we must reverse the counts pertaining to Barrera on that basis.
As set forth above, Barrera was shot on December 28, 2006. In July 2008, he was arrested on a probation violation and served a five-month sentence for that transgression. However, when his sentence ended in December 2008, he was not released. Instead, he remained in the Orange County jail on a federal immigration hold for nine more months, until the preliminary hearing, which was held on September 17, 2009. After the hearing, Barrera was promptly released to federal authorities and deported to Mexico.
Roldan's trial began on February 4, 2010. At that time, the prosecution sought to admit Barrera's preliminary hearing testimony into evidence on the basis he had been deported and could not be located to testify at trial. The prosecutor stated, "We were holding [Barrera] at the preliminary hearing because we knew he was subject to deportation. The People would be requesting to read his testimony from the preliminary hearing when we get to that part of the case."
Defense counsel objected to the request. He argued, "The issue here [is that the] People had control of this witness, and I think he was subject to a 1332 hold, if I'm not mistaken, for nine or ten months pending his testimony at the preliminary hearing. The government had control over him and let him go. So, in a sense, they created their own unavailability."*fn2 Defense counsel also alleged he was not made aware of Barrera's deportation until the prosecutor ...