(Super. Ct. No. CRF090945)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Michael Rene Romero of attempted murder, mayhem, attempted robbery, assault by means of force likely to produce great bodily injury, and criminal street gang activity. The jury also found true various enhancement allegations, such as that defendant committed particular offenses for the benefit of a criminal street gang.
Defendant now contends (1) the trial court erred in admitting -- pursuant to the adoptive admission exception to the hearsay rule -- incriminating statements made by defendant's cohort, because there was no evidence that defendant heard and adopted the statements; (2) the trial court violated defendant's Sixth Amendment right to confrontation when it admitted a witness's statement that defendant and his cohort said the "Red Nose Pittz" gang was "about beating people up"; (3) the trial court erred in admitting letters attributed to defendant because the letters were not authenticated; (4) the trial court erred in instructing the jury that a person is "equally guilty" of a crime whether he or she committed it personally or acted as an aider and abettor; and (5) there is insufficient evidence that defendant committed the offenses to benefit a criminal street gang.
We conclude (1) the trial court did not abuse its discretion in admitting the cohort's statements pursuant to the adoptive admission exception, because there was sufficient evidence supporting a reasonable inference that defendant adopted the statements as true; (2) defendant's confrontation clause claim fails because the witness was subjected to cross-examination at trial and the referenced statement was not testimonial; (3) the content of the challenged letters and the manner in which they were obtained provided sufficient authentication; (4) although the trial court instructed the jury with former CALCRIM No. 400, defendant has not established prejudice because the trial court also properly instructed the jury with CALCRIM 401 regarding the required mental state for aiding and abetting, and even if the jury rejected the prosecution's theory that defendant was the direct perpetrator of the attempted murder, substantial evidence supports the prosecution's alternate theory that defendant aided and abetted the commission of the offense; and (5) substantial evidence supports the jury's gang enhancement findings.
We will affirm the judgment.
David Eid was driving on West Capitol Avenue in West Sacramento around 3:00 a.m. on January 21, 2009, when he saw two Hispanic males beating a man. Jacques Harpst was the victim.
At first Harpst was on his feet and the attackers were "swinging on him." But after Eid drove past the group, he looked in his rearview mirror and saw Harpst go down on his back and stop moving. One of the attackers stood at Harpst's head and struck Harpst on the head and chest; the other attacker stood at Harpst's feet and kicked Harpst.
Eid made a U-turn and stopped his vehicle across from the attackers. The attackers paused, one of them looked up, but then both resumed beating Harpst, "wailing on him pretty good again." According to Eid, the attacker standing over Harpst's head hit Harpst a lot harder than the second attacker, delivering rapid blows to Harpst's head and kicking Harpst. The second attacker stood back and kicked and stomped on Harpst hard. It appeared to Eid that the attackers "were having a good time." Eid never saw Harpst fight his attackers or defend himself.
Eid drove and revved his engine but the attackers continued hitting Harpst. Eid then stopped his truck in front of Harpst and the attackers fled. Eid testified he did not see the attackers' faces.
Eid saw Harpst bleeding profusely from the mouth, ear and nose. Harpst was unconscious, his eyes were swollen to the size of golf balls, and he was making gurgling sounds. Harpst's pants pockets were pulled out but he still had a wallet with $14.99 in cash.
A surveillance video at a nearby market showed two individuals, one wearing a white jacket and the other wearing a black sweatshirt and a white hat. The prosecution presented evidence that prior to the attack, co-defendant Antonio Delgado was with defendant near West Capitol Avenue. Delgado wore a white jacket and a red knit cap and defendant wore a dark-colored hoodie sweatshirt or jacket and a white baseball cap. Police subsequently seized a white jacket and a red knit cap from Delgado's residence.
After viewing the surveillance video from the market, police spoke with nearby residents, including Erica Raya, a friend of Delgado's girlfriend Vanessa Ramos. Raya said Ramos, Delgado and defendant had been at Raya's apartment, that Delgado and defendant left to get cigarettes, and when they returned about two hours later, Delgado said he and defendant beat someone up.
Ramos told police that Delgado and defendant left Raya's apartment to bum a cigarette from someone. When Delgado and defendant returned, Ramos saw a tooth stuck in defendant's hand and defendant's hands were bloody. Delgado told Ramos that when he asked someone walking by for cigarettes, the person "flipped out" and threw cigarettes at Delgado. Delgado and defendant hit the person and Delgado checked the person for money.
Defendant told Ramos he punched the person because he thought the person was going to hit Delgado. Defendant said he hit the person in the face and mouth. The prosecution presented evidence that Delgado and defendant were members of the Red Nose Pittz, a subset of the Norteno street gang.
Harpst was hospitalized for about three months. He had bleeding in the brain, brain tissue injury, fractures to most of the bones in his face, and missing teeth. He received reconstructive surgery on his face, head and nose. The attack affected Harpst's senses, balance and ability to communicate. He had no memory of the attack.
Defendant's first trial resulted in a mistrial. In a second jury trial, the jury convicted him of attempted murder (Pen. Code, §§ 21a, 187, subd. (a), 664, subd. (a) -- count 1), mayhem (§ 203 -- count 2),*fn1 attempted robbery (§§ 211, 664, subd. (a) -- a lesser included offense to count 3), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) -- count 4), and criminal street gang activity (§ 186.22, subd. (a) -- count 5). The jury also found true the allegations that the attempted murder was willful, deliberate and premeditated (§ 664, subd. (f)), that defendant willfully and personally inflicted great bodily injury upon the victim and said injury caused the victim to become comatose due to brain injury (§ 12022.7, subd. (b)), and that defendant committed the felonies alleged in all counts except count 5 for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)).
The trial court sentenced defendant to an aggregate term of 28 years eight months to life as follows: 15 years to life, plus five years for the section 12022.7, subdivision (b) enhancement on count 1, the upper term of eight years on count 2, and one-third the middle term (eight months) on count 3. The trial court imposed and stayed sentences on counts four and five, and on the enhancements on counts two through five, pursuant to section 654.
Defendant contends the trial court erred in admitting -- pursuant to the adoptive admission exception to the hearsay rule -- incriminating statements made by Delgado to Ramos and Raya. Defendant argues there was no evidence that he heard and adopted Delgado's statements. Defendant says Ramos and Raya did not establish defendant's exact location in Raya's apartment when Delgado implicated defendant in the attack, and the fact that Raya's apartment was small was insufficient to prove that defendant heard Delgado's statements.
Ramos and Raya testified at Delgado's trial and defendant's trials. The same judge presided at each trial. The testimony by Ramos and Raya at defendant's first trial indicated that Raya had a small one-bedroom apartment with no wall between the kitchen and the living room. While defendant was in the living room or at the kitchen table and Delgado was in the living room, Delgado said defendant hit and kicked the victim, they were trying to get money and cigarettes from the victim, and they got cigarettes from the victim. Defendant did not deny Delgado's statements.
The trial court found, based on statements Ramos and Raya made to police and their testimony at defendant's first trial, that Delgado's statements implicating defendant were admissible as adoptive admissions because the statements were made in defendant's presence, the jury could find that defendant ...