APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M. Earl, Judge. (Super. Ct. No. 08F10271)
The opinion of the court was delivered by: Murray , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendants (and sisters) Maritza Grisel Ramos and Nereida Karina Ramos, along with co-defendant Santino Chavez, were convicted after jury trial of five counts of assault with a deadly weapon (Pen. Code, § 245(a)(1)),*fn2 one count of assault by means of force likely to produce great bodily injury, and one count of simple assault (§ 240), a lesser included offense. The jury found the weapons use allegations not true as to Maritza and Karina. The jury found true allegations that Chavez personally used a deadly weapon as to counts one, two, five and six.*fn3
As to both Maritza and Karina, the trial court found unusual circumstances, suspended imposition of sentence, and placed them on five years' formal probation on the six felony counts and three years' informal probation on the misdemeanor count under specified terms and conditions, including county jail time.
Maritza contends there was insufficient evidence to support her convictions. Maritza also makes related arguments concerning two evidentiary rulings. She contends that the trial court erred prejudicially in admitting evidence of her lack of cooperation with the police, i.e., that she failed to keep at least one appointment or otherwise talk to the police about the charged offenses prior to her arrest. She further contends that the trial court erred in admitting evidence concerning the date of her arrest.
Karina contends there was insufficient evidence to support her convictions on all but count three, the count in which she was found guilty of a lesser included misdemeanor simple assault.
In the published portion of this opinion, we conclude that Maritza has forfeited the argument that she invoked her right to remain silent by failing to object on that specific ground in the trial court. We further conclude that any error related to the admissibility of defendant's precustody/pre-Miranda silence reflected by her failure to keep interview appointments with a police investigator was harmless.
In the unpublished portion of this opinion, we conclude there was sufficient evidence to support defendants' convictions on the theory of aiding and abetting, and that any error concerning her arrest was harmless.
FACTUAL AND PROCEDURAL BACKGROUND
The three defendants and others participated in the assault of six people when the victims returned to Sacramento after a birthday bus trip to a club in San Francisco. Although it was alleged that defendants personally used a deadly weapon in counts one through six, the prosecution did not seek to prove that Maritza or Karina personally used weapons. Except as to count three, where Karina was the actual perpetrator, the prosecution asserted that defendants were criminally liable on theories of aiding and abetting and natural and probable consequences.
Defendants were charged by amended information with six counts of
section 245, subdivision (a)(1), assault with a deadly weapon.*fn4
The seventh count alleged assault by means of force likely to
produce great bodily injury.*fn5
Together with her friends Anita Meneses and Vanessa Uclaray, Maritza organized a party bus trip to San Francisco, which took place on the night of November 15, 2008. The occasion was a birthday celebration for Meneses and Maritza. The bus left Sacramento from Uclaray's house sometime after 8:00 p.m. with 22 to 28 passengers. Some were strangers to Maritza, who had been invited by Meneses because they needed more passengers to make the trip affordable. However, Maritza did know Castillo. Maritza and Castillo had had prior verbal disputes. Neither Karina nor Chavez accompanied the partygoers on the bus.
According to Meneses, during the trip to San Francisco, Maritza was upset because there were too many people on the bus, she did not get to sit where she wanted, and things were not going as she had planned. At one point Meneses and Maritza had a "little heated talk" about the situation. Meneses went to the back of the bus to avoid Maritza. Maritza sat toward the front with her friends, including her boyfriend and Uclaray. There was a dancing pole in the back of the bus where Meneses and her group sat. On the way to San Francisco, the passengers drank, danced, and socialized.
The partiers planned to go to a nightclub that allowed free admission for those who entered before 11:00 p.m., but they arrived too late. This upset Maritza. Instead, they went to a nearby bar suggested by Meneses, the Holy Cow. The groups separated inside the bar. According to Meneses, Maritza still looked upset while they were in the bar.
Sometime around 1:15 a.m., the group emerged from the Holy Cow. Because some of them lingered outside instead of boarding the bus, Maritza, who did not want to pay overtime charges for the bus, yelled at them to board the bus. In doing so, Maritza called some of the women "hoes." One of the women took exception and exchanged words with Maritza. Others joined in the argument. They called Maritza a "bitch" and told her, "fuck you." Castillo was one of the women arguing with Maritza. The verbal argument quickly became physical. After Castillo and others pushed Maritza, Maritza's boyfriend grabbed Castillo by the neck and slammed her on a bus seat, while Maritza's friend Jasmine Edwards threw a bottle at another woman. A second fight, including shoving and hair pulling, then erupted between Maritza and Castillo.
Maritza demanded that some people be kept off the bus, but Meneses, who rented the bus on her credit card, thought it was her decision to make. Meneses testified that Maritza, Uclaray, their boyfriends, and Edwards then refused to get on, even after Meneses told them to do so.
Vaughn, the bus driver, had decided independently not to let Maritza back on because she appeared an "out-of-control type of mad." He thought if she got on the bus, there would probably be another fight. In a phone conversation, his boss told him that the decision on who could ride was up to the cardholder. According to Vaughn, Meneses picked out several people, including Maritza, who should not get back on.
Thus, whether on their own volition or because they had been banished from the bus, Maritza, Uclaray, their boyfriends, and Edwards remained behind when the bus started back to Sacramento around 2:15 a.m. Maritza looked "pissed off." As the bus pulled away, she was using her cell phone.
Uclaray testified for the defense that she called a cousin in San Francisco. The cousin and her boyfriend drove separate cars to the scene, leaving one for the stranded group. They drove it to Sacramento, getting back before the bus. Maritza made calls before and after the group left San Francisco, but Uclaray claimed she did not know who Maritza called. Sacramento Police Officer David Putman interviewed Uclaray shortly after the crimes occurred. He testified Uclaray told him that while they were traveling back to Sacramento, Maritza told someone over the phone how unhappy and mad she was about the way the night had unfolded.
On the way back to Sacramento, Cynthia Ballesteros and two of Maritza's other friends stayed together in the front of the bus. Ballesteros testified that Maritza called her from Sacramento and asked her to search the bus for Maritza's purse, which Ballesteros could not find.*fn6
The bus pulled up in front of Uclaray's house in Sacramento around
4:20 a.m. As the bus arrived, Meneses saw people coming from
Uclaray's house, including Maritza, Karina, Karina's boyfriend Chavez,
Edwards, and at least two Hispanic men Meneses did not recognize.*fn7
All were wearing sweatshirts and sweatpants, and Maritza and
Karina had their hair pulled up in ponytails. Castillo believed that
Maritza and Karina had come to "jump" the passengers and had put up
their hair to keep it from being pulled. Some of the men were
carrying small bats; one had what appeared to be a pipe. According to
Meneses, the group was walking behind Maritza, who was smiling for the
first time that night. Meneses had known Maritza a long time and she
construed Maritza's smile as vindictive -- "like she was going to show
Ballesteros and Maritza's other friends got off the bus, hugged Maritza, and left. Edwards hit the side of the bus and challenged people to come out and fight, while the men in the group confronted male passengers getting off. According to Amanda Moore, one of the partygoers on the bus, the woman who was hitting the side of the bus pointed at Castillo and yelled "that bitch" and "get off."
Meneses saw four men, including Mendoza, Bernhard, Merical, and Adam Tellier, being attacked. Meneses identified co-defendant Chavez as one of the ...