(Super. Ct. No. 2008048465) Kevin J. DeNoce, Judge Superior Court County of Ventura
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Where, as here, an accomplice inculpates himself and his co-defendant to a fellow inmate/informant, his statements, if trustworthy, are admissible in the co-defendant's trial. Such statements are declarations against penal interest, are not "testimonial," and their admission does not violate the confrontation clause as explained in Crawford v. Washington (2006) 541 U.S. 36, [158 L.Ed.2d 177] (Crawford.)
Brandon Ray Arauz and Ulises Kline appeal their convictions by jury
for criminal street gang activity (Pen. Code, § 186.22, subd. (a))*fn1
and two counts of attempted premeditated murder (§
664/187, subd. (a)) with gang, firearm, and great bodily injury
enhancements (§§ 186.22, subd. (b)(1)(C); 12022.53, subd. (e)(1));
12022.7). The trial court sentenced Arauz to 64 years to life in
state prison and Kline to 32 years to life in state prison.
Appellants contend that the trial court erred in admitting an accomplice's jailhouse statements to an informant and gang telephone wiretap recordings. We modify the sentence to: (1) stay the concurrent two-year sentences on the criminal street gang counts (§ 654; People v. Mesa (2012) 54 Cal.4th 191, 197-198) and (2) strike the 10-year gang enhancements (§ 186.22, subd. (b)(1)(C) and impose in their place 15-year minimum parole eligibility terms pursuant to section 186.22, subdivision (b)(5). (See People v. Lopez (2005) 34 Cal.4th 1002, 1004.) The judgments, as modified, are affirmed.
The Stroube Street Shootings
On the evening of February 15, 2008, Aaron A. and Andrew R. were walking home on Stroube Street in El Rio. When they approached Alvarado Street, R. saw a grey-primered Blazer pass by. Then they saw two male Hispanics. The shorter Hispanic man "whipped out" a handgun like "a cowboy" and shot at them. R. was shot in the wrist. The other Hispanic man fired multiple shots. A. was shot in the nose.
Lydia P., who lived at the corner of Stroube and Alvarado Streets, heard the screech of car brakes and saw the Blazer stop. Two males exited the Blazer and ran towards Alvarado Street shooting semiautomatic weapons.
Glenda M., who lived on Stroube Street, heard six or seven gunshots fired in rapid succession. She found a .45 caliber bullet next to her driveway fence. Other bullets were found near the intersection. Officers responding to the 911 call recovered a live nine-millimeter round, three .45 caliber shell casings, and four live .45 caliber rounds. Forensic investigators found shoeprints and made cast impressions.
The police believed the Stroube Street shootings were gang related. Two days later, the police lawfully intercepted a telephone conversation in which Kline and other Colonia Chiques gang members said they were getting guns and a car to do another shooting in El Rio. Thereafter, Deputy Sheriff Dean Worthy observed a black Honda occupied by two male Hispanics on Stroube Street. As the Honda drove by, two heads popped up in the back seat, looked in his direction, and ducked back down out of view.
Deputy Worthy stopped the Honda. Kline was one of the occupants in the car. Deputy Worthy found a .45 caliber semiautomatic handgun, a sawed-off 12 gauge shotgun, and a nine-millimeter semiautomatic handgun. All the weapons were loaded. The nine-millimeter handgun was on the rear floorboard next to Kline who was wearing Nike shoes. A forensics expert determined that the shell casings and live rounds at the Stroube Street shootings were either fired or chambered/extracted from the handguns found in the Honda.
Officers executed a warrant to search appellant Arauz's bedroom and found a pair of size 11 K-Swiss shoes that closely resembled a shoeprint at the Stroube Street shootings. The sole of the Nike shoes that Kline was wearing at the February 17, 2008 traffic stop resembled a shoeprint at the shooting scene. But ...