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People v. Mendoza

California Court of Appeals, Sixth District

March 30, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
MARCOS MENDOZA et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         Santa Clara County Superior Court, Case Nos.: 212506, C1114503 Trial Judge: Hon. Andrea Y. Bryan

          Attorneys for Plaintiff/Respondent: The People Xavier Becerra Gerald A. Engler Jeffrey M. Laurence Catherine A. Rivlin Moona Nandi

          Attorneys for Defendant/Appellant: Marcos Mendoza James S. Thomson

          Attorneys for Defendant/Appellant: Juan Ramirez Kyle Gee

          Attorneys for Defendant/Appellant: David Martell David D. Martin

          Grover, J.

         Maurillo Garcia died in August 2011 after receiving multiple stab wounds. Defendants Marcos Mendoza, David Martell, and Juan Javier Ramirez (collectively, defendants) appeal their convictions, following a joint trial, for second degree murder (Pen. Code, §§ 187, 189)[1] with gang enhancements (§ 186.22, subd. (b)) for killing Garcia.

         On appeal, defendants briefed the case separately but many of their arguments overlap. All defendants argue the trial court erred by: (1) excluding statements of Javier Barragan, a co-perpetrator; (2) allowing the prosecutor to commit misconduct during the opening statement; (3) admitting unduly prejudicial evidence of gang-related intimidation; and (4) failing to properly instruct the jury regarding (a) voluntary intoxication, (b) the required mental state for guilt as an aider and abettor, and (c) the evidence necessary to prove the gang enhancement. All defendants argue that the prosecution presented insufficient evidence to support their gang enhancements.

         Mendoza and Ramirez argue that the trial court erred by: (1) allowing the prosecution to commit misconduct during its examination of John Deleone, a witness for the prosecution; (2) admitting unduly prejudicial out-of-court statements by Mendoza and Ramirez; (3) admitting unduly prejudicial evidence of prior convictions to prove a “ ‘pattern of criminal gang activity' ” (§ 186.22, subd. (e)); and (4) allowing the gang expert to show unduly prejudicial slides in the slideshow that accompanied his expert testimony.

         Mendoza argues that the prosecution provided insufficient evidence to corroborate accomplice Tommy Gonzalez's testimony about Mendoza's involvement in the homicide.

         Martell argues that the prosecution presented insufficient evidence to support his guilt and contends that his trial counsel provided ineffective assistance by failing to present a plausible theory of Martell's innocence and by failing to properly cross-examine a witness.

         All defendants argue the foregoing errors were cumulatively prejudicial.

         In our original unpublished opinion, we found no prejudicial error, modified the judgments to specify a 15-year minimum parole eligibility (§ 186.22, subd. (b)(5)), and affirmed the judgments as modified.[2]

         All defendants petitioned for rehearing. Ramirez argues, among other things, that Proposition 57, the Public Safety and Rehabilitation Act of 2016, should be applied retroactively to his case because he was 16 years old at the time of the offense and his judgment was not final when voters approved Proposition 57 at the November 2016 general election. We granted rehearing to determine whether Ramirez was entitled to relief under Proposition 57.

         In the published portion of this opinion, we conclude that Proposition 57 does not apply retroactively to Ramirez's case. In the unpublished portion (part II), we adhere to our original analysis and again find no prejudicial error, however we will direct that a new abstract of judgment be prepared for each defendant to note a 15-year minimum parole eligibility date based on Penal Code section 186.22, subdivision (b)(5).

         I. Trial Court Proceedings

         A. The Homicide

         The jury heard two accounts of Maurillo Garcia's death. Tommy Gonzalez, an accomplice, provided one account. Tommy testified that he was drinking with fellow Norteño gang members in the front yard of his house when a suspected Sureño gang member started spray-painting on the street by the house, leading Tommy and several others to chase down and assault the Sureño.[3] Salvador Rivas, an eyewitness, provided a second account. He testified that he was at a party at his father's house when he saw a group of five to seven men run toward and assault a man who was spray-painting in the street.

         1. Co-Perpetrator Tommy Gonzalez's Account

         Tommy Gonzalez testified for the prosecution as part of a plea agreement whereby the prosecutor agreed to reduce his murder charge related to Maurillo Garcia's death to voluntary manslaughter in return for his truthful testimony at defendants' trial. Tommy lived at 436 Ezie St. with his mother, his brother Raymond Gonzalez, Jr. (Raymond Jr.), his nephew Raymond Gonzalez III (Raymond III), and others. Tommy had been a Norteño gang member since he was nine years old. His nickname was Beast because he fought frequently when he was incarcerated for a juvenile offense.

         Tommy's friend Javier Barragan called him in the afternoon on August 27, 2011 and asked if he could come “kick back” at Tommy's house. Barragan arrived around 6:00 or 7:00 p.m. with defendants Mendoza and Ramirez. Tommy knew Mendoza by the nickname Travieso and Ramirez by the nickname Smiley. Tommy testified that Barragan, Mendoza, and Ramirez were all part of a Norteño subset called San Jose Unidos. They all drank beers in the front yard and were eventually joined around 8:00 p.m. by defendant Martell, known to Tommy as Guerro. Tommy had not met Martell before, but Barragan assured him that Martell was “ ‘good people.' ” At trial, Tommy identified all three defendants as the people who came to his house on August 27.

         Around 10:00 p.m., Tommy saw a person (later identified as Maurillo Garcia) who looked like a Sureño gang member walk past the house twice within two minutes. Garcia walked to a stop sign where Richdale Avenue dead-ends into Ezie Street and spray-painted something on the ground while saying “Sur Trece Putos Calle.” Tommy perceived Garcia's actions as a challenge. Tommy ran toward Garcia, followed closely by Martell and then more distantly by Mendoza, Ramirez, and Barragan. Tommy swung at Garcia but missed; Garcia cut Tommy's stomach with a screwdriver. Tommy backed up and “everybody jump[ed] on” Garcia. Mendoza and Ramirez were punching Garcia. Tommy did not see Martell or Barragan do any punching or kicking. Tommy and the others ran back to his mother's Cadillac that was parked in front of 436 Ezie St. and drove away.

         2. Witness Salvador Rivas's Account

         Salvador Rivas testified that on the night of the homicide he was attending a party at his father's house on Ezie Street, which faces the intersection of Richdale Avenue and Ezie Street. Rivas was in the garage and the garage door facing the street was open. Jose Garcia (Maurillo Garcia's brother, whom we refer to as Jose for clarity) walked by the house and Rivas's father invited Jose to have a beer. Rivas noticed Maurillo Garcia spray-painting on the street near a stop sign. Five to seven men came from the direction of 436 Ezie St. and chased Garcia.[4] Rivas heard someone yell “ ‘Get him' ” and “ ‘Norte.' ”

         Rivas testified that Garcia ran but was tripped and fell, at which point all of the men who chased him started beating him. Rivas stated that everyone participated in the assault. Garcia managed to get up for a moment but the men knocked him down again and continued to beat him. Rivas testified that the men mostly kicked Garcia but some punches were also thrown. He could not clearly see any weapons. He saw something shiny but acknowledged it could have been a belt buckle. Rivas also could not see any of the attackers well enough to identify them in court. The attack lasted about 30 seconds. The men went back toward 436 Ezie St. and left in a Cadillac. One of the men might have left separately in a van.

         Rivas described the assailants as Hispanic males between 20 and 30 years old. He acknowledged that it was not very light outside the night of the homicide, that there were no streetlights in the area of Richdale where the homicide took place, and that there were some cars and trucks parked in the driveway of his father's house. He estimated his vantage point in the garage was 60 yards from the victim.

         B. Defendants Charged with Murder

         Defendants were each charged in a single felony information with murder (§ 187), with a special allegation that each committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).[5] Ramirez, who was 16 on August 27, 2011, was charged as an adult. (Former Welf. & Inst. Code, § 707, subds. (b), (d)(1); Stats. 2008, ch. 179, § 236, pp. 653-656.) The information alleged that Martell had a prior juvenile adjudication that qualified as a strike. (§ 667, subds. (b)-(i); Former Welf. & Inst. Code, § 707, subd. (b); Stats. 2008, ch. 179, § 236, pp. 653-656.)

         C. Trial

         Trial commenced in February 2013. Defendants moved for a mistrial after the prosecutor's opening statement, alleging that he argued facts that would not be introduced into evidence, vouched for prosecution witnesses, denigrated defendants, and committed Griffin error through improper reference to Ramirez's silence when interrogated after his arrest. (Griffin v. California (1965) 380 U.S. 609 (Griffin).) The court denied the motion.

         1. Additional Testimony About the Homicide

         Raymond Gonzalez, Jr. testified that Barragan, Martell, and Ramirez were drinking with Tommy in the front yard of 436 Ezie St. on the evening of the homicide. When the prosecutor pointed to Mendoza in the courtroom and asked if he was also there, Raymond Jr. responded, “I think so.” Tommy dropped Raymond Jr. off at a clubhouse in San Jose around 7:00 or 8:00 p.m. on August 27 and Raymond Jr. did not return home until after 2:00 a.m. On cross-examination, Raymond Jr. acknowledged that he was a Norteño when he was younger but said he “grew up out of it.” He also acknowledged that the district attorney's office had paid to relocate his family in return for his cooperation and that he had never told the police that Tommy was at the house on the night of the homicide.

         Raymond Jr.'s son, Raymond III, also testified. Raymond III testified that he stayed inside the house at 436 Ezie St. the whole night on August 27. Raymond III was on juvenile probation when the homicide occurred. He did not want to testify. He denied that any of the defendants were at 436 Ezie St. the night of the homicide. He claimed that he lied to the police over the course of several interviews, telling them multiple versions of what happened that night and providing fictitious descriptions of suspects. He acknowledged testifying at Martell and Ramirez's preliminary hearing that five men came over to the house the night of the homicide, that he had seen those men before, and that they eventually left in his grandmother's Cadillac. He denied that his uncle Tommy was at the house the night of the homicide, and said his father Raymond Jr. had been there but had left at some point.

         San Jose Police Detective Merlin Newton testified about Raymond III's statements to him in the early morning the night of the homicide and during subsequent interviews. The night of the homicide, Raymond III described three suspects to Newton: a man with the nickname Big Tone; a man with “S.J.” tattooed on his chest; and a 16-year-old. Newton testified that Raymond III made different statements at different interviews but that at some point he told Newton that he had been in the front yard of the house the night of the homicide and saw five Norteño men run after a person who was spray-painting on Richdale Avenue. Raymond III reportedly told Newton that the men ran out of Raymond III's view and eventually returned to the house before driving away in his grandmother's Cadillac.

         Newton testified that, over the course of four interviews, Newton showed Raymond III pictures of individuals (including the defendants) and asked Raymond III if any of them were at the house the night of the homicide. Raymond III was inconsistent regarding whether Martell had been there the night of the homicide but at some point he identified a picture of Martell as a suspect during one of the interviews. Raymond III identified a picture of Ramirez as the 16-year-old he had described as being present the night of the homicide. He also identified pictures of three people who were never charged. Raymond III never identified pictures of Tommy or Mendoza.

         2. Defendants' Flight the Night of the Homicide

         a. Tommy's Testimony

         Tommy testified that he drove the Cadillac away from 436 Ezie St. with Mendoza, Ramirez, Martell, and Barragan. While they were driving, Mendoza reportedly stated, “ ‘I got that nigga, ' ” and also stated that he “ ‘booked him' ” 14 or 15 times. Ramirez said “I was carving that fool's face, ” and then complained to Mendoza that “you fucking cut me, bitch.” Mendoza responded that Ramirez “shouldn't be getting in my way when I'm handling my business.” Ramirez had a deep cut on his hand.

         Tommy testified that Barragan told him to drive to Peckerwood's (later identified as John Deleone's) apartment in the Thornbridge Apartments, which were near Ezie Street. Barragan asked for the weapons and Tommy reportedly saw a kitchen knife that had been used by Mendoza as well as a screwdriver.[6] At some point, Martell said that he had dropped his phone somewhere. Tommy parked, they wiped down the car, and he and Barragan went upstairs to Deleone's apartment. Tommy or Barragan handed the weapons to Deleone, Deleone's girlfriend took them into the bathroom, and then “you hear the water running.”

         Tommy testified that Barragan's brother Junior picked the group up from Deleone's apartment about ten minutes after they arrived and drove them to Barragan's mother's house near the Oakridge Mall. The group stayed at Barragan's mother's house for a short time. Martell left separately before the others. Tommy, Barragan, Mendoza, and Ramirez were picked up by someone with the nickname Creeper and driven to Milpitas. When they arrived in Milpitas, a “cop car pulled in right behind us, and we got off and took off running.”

         b. John Deleone's Testimony

         John Deleone testified in return for use immunity and an agreement that the prosecutor would resolve pending drug charges against Deleone with drug rehabilitation and a county jail sentence. Deleone testified that in August 2011 he was a heavy methamphetamine user, using up to one-eighth ounce per day. His girlfriend was also a heavy methamphetamine user. He acknowledged at trial that he had a poor memory due to his prior drug use. He knew Barragan and also knew Mendoza, but only by the nickname Travi. He knew Ramirez by the nickname Smiley and claimed to be like a big brother to him. Based on refreshed recollection from Deleone's testimony at Mendoza's grand jury proceedings, Deleone testified that Barragan was a Norteño who was affiliated with San Jose Unidos. Deleone acknowledged that he identified Ramirez at the grand jury hearing as a member of San Jose Unidos but testified at trial that “I might have misspoke when you asked me that question.”

         Deleone testified that Barragan and Smiley came to his apartment on August 27 around 11:00 p.m. with a third person whose identity Deleone could not remember. The prosecutor purported to refresh Deleone's recollection by reading the following out loud from the grand jury transcript: “ ‘What happens on this occasion? Who came over on this occasion?' [¶] Your answer was: [¶] ‘I remember Javi, Javier, Juan, and somebody else. I don't remember who the other person -- I think it was Travi, but I couldn't be certain.' ”[7] Deleone acknowledged at trial that he had also told investigating officers that the third person could have been Beast (Tommy's nickname). Deleone did not see Martell that night.

         Deleone testified that the people who came to his apartment that night were agitated. Ramirez reportedly told Deleone that he hit a guy with a Phillips-head screwdriver five to ten times and demonstrated by making stabbing motions on a couch or a pillow. When asked whether the people who came to his house brought weapons, Deleone stated that they brought a knife, a box cutter, and a Phillips-head screwdriver. The court later struck that testimony when Deleone clarified that he never saw weapons that night and instead only saw a black sweatshirt wrapped around certain items that Barragan brought to the apartment. Deleone's girlfriend took the black sweatshirt to a sink and turned on the water, at which point Deleone “could hear all the stuff rattling around in the sink.”[8] Deleone testified that it seemed like the others were trying to shift the blame for the stabbing to Ramirez.

         3. Tommy Flees, Is Arrested in Texas, and Cooperates with Police

         Tommy testified that he moved to Texas after the homicide, where he was arrested in March 2012 for resisting arrest. San Jose police detectives came to Texas and interrogated Tommy regarding the Garcia homicide. Tommy testified that the officers played a short portion of a videotaped interview between Barragan and the police, during which Barragan appeared to be trying to blame everything on Tommy.[9] Faced with that interview, Tommy decided to cooperate with the police and tell them his version of the homicide.

         On cross-examination, Tommy acknowledged that he had an extensive criminal history and that he cooperated with the police to avoid a possible life sentence. He also acknowledged that he might not have positively identified Martell during the initial Texas interview and might have stated more generally that a picture of Martell looked familiar.[10]

         4. Cell Phone, DNA, and Fingerprint Evidence

         A San Jose police officer testified that police found a cellular phone on Richdale Avenue near the intersection of Richdale and Ezie Street the night of the homicide. The phone was registered to Martell's mother and contained a photograph of Martell that looked like it was taken by Martell “holding out his cell phone and taking a photo of himself.” The clip on the phone's case that would secure it to a pocket was loose.

         The prosecution introduced information about the general locations of various cellular phones based on call activity on the night of the killing. San Jose Police Detective Juan Vallejo testified that cellular phone calls generally connect through the nearest cellular tower to the phone's location. The San Jose Police Department employee who created a trial exhibit mapping cellular phone activity testified that a phone's location cannot be precisely identified based on its connection with a cellular tower and that if a tower is busy a phone can connect through a different tower.

         Detective Vallejo testified that on August 27, calls from Martell's phone connected through a cellular tower in the San Francisco area before 8:00 p.m. and through towers in San Jose between 8:20 p.m. and 8:23 p.m. No further calls were made from that phone after 8:23 p.m. that night. Data for a phone number associated with Tommy showed that the phone connected with a tower near the crime scene from 6:22 p.m. until 10:02 p.m., through a tower south of the crime scene and closer to Deleone's apartment at 10:41 p.m., through a tower southwest of the crime scene near Barragan's mother's house at 10:58 p.m., and through a tower in Milpitas between 2:51 and 4:03 a.m. on August 28. Data for a phone number associated with Mendoza were generally consistent with Tommy's in both time and location on August 27 and the early morning of August 28. A phone number associated with Ramirez showed phone calls made through a tower in Milpitas around the same time as some of Tommy's calls.

         The jury also heard testimony regarding fingerprint and DNA evidence. A fingerprint on a beer can found in the back yard at 436 Ezie St. matched Martell. Martell's DNA was found on a cigarette located in the front yard of 436 Ezie St. A fingerprint on a different beer can found in the back yard of 436 Ezie St. matched Mendoza. One of Mendoza's fingerprints matched a fingerprint found on a beer can in the front driveway of 436 Ezie St. Mendoza's DNA was found on a swab collected from that same beer can. Ramirez's DNA was present in dried blood taken from the exterior rear passenger side door of a gray Cadillac the police found on August 31 at the Thornbridge Apartments.

         5. Victim Information and Autopsy Results

         A crime scene investigator testified that Garcia had “S.U.R.” tattooed in capital letters on his left arm as well as a tattoo of a man's head wearing a bandana with “V.S.T.” and “13” written on it. He also had a star to the left of his left eye and three dots to the right of his right eye.

         Dr. Joseph O'Hara testified as an expert in pathology and cause of death about the autopsy he performed in the case. Garcia suffered 15 stab wounds to his face, chest, abdomen, thighs, arms, right foot, and lower back. Among the most severe stab wounds were a four- and one-half-inch deep wound to the chest; a four-inch deep wound to the abdomen that perforated his liver; a three-inch deep wound to the chest that collapsed a lung; and a five-inch deep wound to the armpit. Each of those four stab wounds could have been independently fatal without medical treatment. Though he could not be certain, Dr. O'Hara testified that the structure of the stab wounds indicated the possibility that two weapons were used: one with a single-edged blade and another with a double-edged blade. There were no round puncture wounds, as would be expected if a Phillips-head screwdriver was used as a weapon. Garcia suffered three incised wounds (wounds that are longer than they are deep) and multiple blunt-force injuries, including contusions, abrasions, and lacerations. Dr. O'Hara opined that the cause of death was multiple stab wounds of the head, trunk, and extremities.

         6. Statements by Defendants

         Detective Vallejo testified about interrogating Martell on August 31 with Detective Newton.[11] Martell was read his Miranda [12]rights and asked about the night of the homicide. Martell claimed he had been in San Francisco watching a football game that day and returned to the San Jose area around 7:30 or 8:00 p.m. Martell claimed he was dropped off at a grocery store near Ezie Street, walked to the house of his cousin (who was not home), and then walked to his aunt's house where he stayed the rest of the night. Martell said he lost his phone that day and thought he dropped it while walking from the grocery store to his cousin's house. The prosecutor asked Vallejo whether Martell admitted being a Norteño when he was younger, and Vallejo testified that Martell “said back when he was a juvenile, he was involved with gangs.” Martell repeatedly denied being on Ezie Street on August 27 and told the police he did not know anything about the homicide. Detective Vallejo testified that at the time of the interview Martell had scratches and abrasions on his hands and a large “S.J.” tattooed on his stomach.

         Detective Newton testified about interrogating Ramirez in September 2011 after arresting him and reading him his Miranda rights. Ramirez had what Newton described as a healing wound on his right ring finger. Ramirez said he was familiar with Ezie Street and had been there on one afternoon about two months earlier. He identified a picture of Barragan as a friend but claimed not to know his name. Ramirez denied being a Norteño, stating “No, I just hang out with, ” before trailing off. He steadfastly denied being on Ezie Street on August 27 and also denied participating in any sort of assault that might have occurred there.

         The jury heard statements made by Mendoza from three sources: a non-custodial interview; a booking interview; and text messages from Mendoza's cellular phone. Detective Newton conducted a non-custodial interview with Mendoza at Mendoza's workplace in March 2012.[13] At the non-custodial interview, Mendoza stated that he had heard of Ezie Street but had never been there. He denied being in a gang. When asked if he “claimed Northern, ” Mendoza responded “[j]ust Northern, yeah.” Newton showed Mendoza pictures of Martell, Barragan, and possibly other suspects; Mendoza denied knowing any of them. Mendoza had a large “U” tattoo that extended from the top of his chest down to his belly button. He also had “Unidos” tattooed across his stomach. Newton testified that Mendoza told him those tattoos were in support of a college team he liked, the Utah Utes.

         When Mendoza was booked into the county jail after his arrest, correctional officer Gilbert Rios conducted a classification interview with Mendoza. Rios testified that all inmates are asked if they associate with a gang when they are booked into the county jail. Inmates were told that the gang association question was for their safety and that their response would remain confidential. Rios testified that if an individual indicated they would rather be housed with members of a certain gang, that would be treated as an admission. Rios's notes indicated that Mendoza “admitted Northerner.”

         The trial court also admitted text messages from Mendoza's phone relating to drug sales.

         7. Gang Expert

         San Jose Police Detective Chris Gridley testified as an expert regarding gang crimes. Gridley testified about Norteños generally, described prior convictions offered to prove a pattern of criminal gang activity, offered opinions about defendants' gang affiliations, and opined that the murder was gang-related. As Gridley's testimony is relevant to several issues on appeal, we will discuss it in greater detail in Part II.D.1.

         8. Evidence of Intimidation

         Evidence suggesting intimidation of witnesses was admitted over defendants' objections. Deleone testified that he was punched in the mouth by an inmate while in custody in the Santa Clara County Jail in May 2012. Deleone was told that the attack had been ordered by “the Nortenos” because Deleone had made statements to the police related to defendants' case.[14] He was “[s]omewhat” fearful for his life afterward and was moved into protective custody. Deleone asked the district attorney's office to relocate him and also asked for an escort to and from testifying at defendants' trial because he feared for his life.

         Tommy testified that at some point between the homicide and his arrest in Texas, Barragan's brother Junior told Tommy that his nephew and his brother (presumably meaning Raymond Jr. and Raymond III) “are snitching on me and on everybody” and asked Tommy if he knew where they were.[15] Tommy withheld the information because he feared for both his and his family's safety.

         Salvador Rivas testified that his home was vandalized in October 2011 when someone spray-painted graffiti on his garage and his car. Among the graffiti was “XIV.” Rivas feared for his family's safety and believed the graffiti was related to him talking to the police because the graffiti occurred within two hours after he received a subpoena to testify in defendants' case. He remained fearful at trial.

         9. Defense Case

         Though technically called by the prosecution, Martell's attorney sought favorable testimony from Randy Carrasco, whose grandmother was Martell's grandmother's partner. Carrasco worked with Martell as a furniture mover and testified that it was common for employees to get scratches while at work.

         Defense investigator James O'Keefe testified based on a site visit that the approximate distance between where Garcia was stabbed and the garage at 452 Ezie Street was 198 feet, or 66 yards. He also testified, based on an Internet search, that there would have been almost no light from the moon on the night of the homicide.

         D. Jury Instructions, Verdict, and Sentencing

         Among other instructions, the court read versions of CALCRIM Nos. 252 (general v. specific intent), 400 (aiding/abetting generally), 401 (aiding/abetting intent), 403 (natural and probable consequences), 520 (murder), 875 (assault with a deadly weapon), 915 (simple assault), 1401 (gang enhancement) and 3426 (voluntary intoxication).

         The jury deliberated for several days, and ultimately found all defendants guilty of the lesser included offense of second degree murder and found the gang allegations true. Martell waived jury on the strike allegation, which the court found true after a hearing.

         The trial court sentenced each defendant to an indeterminate term of 15 years to life for murder. The court purported to stay the sentence for the gang enhancements. (See § 186.22, subd. (b)(1)(C).)[16] The court granted Martell's Romero[17]motion to strike the true finding on the strike allegation.

         II. Issues Raised in the Original Appeals

         [The portion of this opinion that follows (part II) is deleted from publication.]

         In this unpublished portion of the opinion, we address defendants' appellate arguments in the following order: (1) exclusion of Barragan's statements; (2) claimed prosecutorial misconduct in the opening statement; (3) claimed prosecutorial misconduct during Deleone's testimony; (4) sufficiency of the evidence to support the gang enhancement; (5) admission of predicate offenses; (6) admission of certain slides in Gridley's PowerPoint presentation; (7) admission of defendants' statements; (8) sufficiency of the evidence corroborating Tommy's testimony about Mendoza; (9) admission of intimidation evidence; (10) claimed instructional error; (11) sufficiency of the evidence to convict Martell; (12) effectiveness of Martell's trial counsel; (13) the purported stay of the gang enhancements; and (14) cumulative error.

         A. Exclusion of Barragan's Statements

         Defendants argue that the trial court erred by excluding statements Barragan had made to the police under a use immunity agreement, arguing they were admissible as declarations against interest. (Evid. Code, § 1230.) We review a trial court's evidentiary decisions for abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).)

         1. Background

         During trial, outside the jury's presence, defendants moved to introduce statements Javier Barragan had made to the police while under a grant of use immunity. The district attorney's office had apparently agreed to consider entering into a plea agreement with Barragan in exchange for his complete and truthful answers to police officers' questions. The agreement stated: “Should the prosecution decide not to extend such [plea] offer to Javier Barragan, the prosecution agrees: [¶] (1) not to use any statement... against Javier Barragan in the prosecution's case-in-chief in... any criminal matter... regarding which he has provided information.” (Capitalization omitted.)

         After signing the immunity agreement, Barragan (accompanied by an attorney) spoke at length with Detectives Newton and Vallejo about the homicide. As relevant here, Barragan admitted actively participating in killing Garcia. Barragan stated that Mendoza came to 436 Ezie Street only briefly to buy “bud” and “dope” and that Mendoza left before the homicide occurred. Barragan appeared to suggest that Martell was minimally involved in the killing, stating that after assaulting Garcia, Barragan “looked back, like ‘... where's Martell, ' you know, what the fuck? And I look, and he's in there, like, looking around, and I'm like, ‘What the fuck's he looking for?' ” Barragan also stated that Martell was “nowhere near there” after the assault and that Martell did not leave the scene of the homicide with the others.

         Barragan's statements were inconsistent regarding Ramirez. He stated that Ramirez was one of the first people to run after Garcia and that “Ramirez pulled out his knife and used it against” Garcia. But later in the interview Barragan stated that Tommy and an unidentified teenager were the only two people who stabbed Garcia and that Ramirez was merely kicking Garcia.

         Defendants argued the statements were admissible as statements against penal interest (Evid. Code, § 1230). The court denied defendants' motion.

         2. Analysis

         Out-of-court statements like Barragan's statements to the police are generally inadmissible to prove the truth of the matters asserted therein. (Evid. Code, § 1200.) A statement that would otherwise be hearsay is admissible if: the declarant had “sufficient knowledge of the subject”; the declarant is unavailable as a witness; and “the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by [the declarant] against another, or created such a risk of making [the declarant] an object of hatred, ridicule, or social disgrace in the community, that a reasonable [person] in [the declarant's] position would not have made the statement unless [the declarant] believed it to be true.” (Evid. Code, § 1230.) The “ ‘heart of this exception... is... the basic trustworthiness of the declaration.' ” (People v. Gordon (1990) 50 Cal.3d 1223, 1251 (Gordon), disapproved on another ground by People v. Edwards (1991) 54 Cal.3d 787, 835.) Whether “trustworthiness is present requires the [trial] court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” (Gordon, at p. 1251.)

         The Supreme Court recently clarified that trial courts need not “sever and excise any and all portions of an otherwise inculpatory statement that do not ‘further incriminate' the declarant.” (Grimes, supra, 1 Cal.5th at p. 716.) Instead, “courts must consider each statement in context” to determine whether the “statement, even if not independently inculpatory of the declarant, is nevertheless against the declarant's interest, such that ‘a reasonable man in [the declarant's] position would not have made the statement unless he believed it to be true.' ” (Ibid.) The Supreme Court noted that a statement is more likely to satisfy the against-interest exception when the declarant inculpates himself or herself while also exculpating someone else. However, “not all such statements are admissible; sometimes a declarant who makes an inculpatory statement may have a substantial incentive to exculpate others.” For example, a “member of a criminal street gang... may choose to take the fall for fellow gang members by making a confession that exculpates them.” (Ibid.)

         The trial court could reasonably find that Barragan's statements were insufficiently trustworthy for two reasons: (1) the statements were made in return for a promise of immunity; and (2) the statements were made about fellow gang members. Barragan's written agreement to be interviewed informed him that after the interview “the prosecution may offer to enter into a negotiated plea....” The agreement also included a broad immunity clause under which the prosecution agreed not to use any statements made during the interview against Barragan “in the prosecution's case-in-chief in... any criminal matter[, or] in the prosecution's case-in-chief in any matter in which he is criminally charged....” The trial court could reasonably conclude that Barragan's statements-made with the hope of a negotiated plea and with the knowledge that the statements could not be used in the prosecution's case-in-chief in any criminal matter against Barragan-were not made under circumstances that were so far contrary to Barragan's interests that a reasonable person in his position would not have made them unless he believed them to be true. (Evid. Code, § 1230.) Even if the agreement did not immunize Barragan from every conceivable penal consequence, the trial court could nonetheless find that the agreement made Barragan's statements insufficiently trustworthy.

         Defendants attack the trial court's justification for excluding the statements, which was based on Justice Kennard's concurrence in Gordon, where she stated “it is well established that a statement made under a grant of immunity is not admissible as a declaration against penal interest.” (Gordon, supra, 50 Cal.3d at p. 1281 (conc. opn. of Kennard, J.).) Though the trial court was not legally bound by that statement, Justice Kennard's discussion is persuasive authority that identifies a relevant factor to consider when evaluating the trustworthiness of a declarant's statements.

         In addition to being made under an immunity agreement, Barragan's exculpatory statements about defendants were made about fellow gang members. The Supreme Court in Grimes cautioned that statements by a gang member exculpating fellow gang members might not meet the against-interest exception because a gang member “may choose to take the fall for fellow gang members by making a confession that exculpates them.” (Grimes, supra, 1 Cal.5th at p. 716.) The gang expert testified that Barragan, Mendoza, and Martell were Norteño gang members, and that Ramirez was a Norteño gang associate. The trial court could reasonably conclude that Barragan had an incentive to inculpate himself to protect fellow his gang members (i.e., defendants), which would vitiate the statements' trustworthiness. The trustworthiness of Barragan's exculpatory statements was particularly suspect here because Barragan knew, based on the immunity agreement, that he would suffer no penal consequences for incriminating himself to protect defendants.

         Defendants' due process argument is without merit. The cases cited by defendants finding federal constitutional error all involved objectively trustworthy evidence that was excluded by mechanistic or erroneous application of evidentiary rules. (Chambers v. Mississippi (1973) 410 U.S. 284');">410 U.S. 284 [federal constitutional error where trial court excluded evidence that another person “had admitted responsibility for the murder on four separate occasions”]; Green v. Georgia (1979) 442 U.S. 95, 96-97 [federal constitutional error where Supreme Court found “substantial reasons” to assume the excluded statements' reliability]; Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752, 763 [federal constitutional error where “trustworthy and material exculpatory evidence was erroneously excluded”].) Because the trial court properly applied the hearsay exception and Barragan's statements lack the level of reliability that would support a showing of federal constitutional error, there was no due process violation in the trial court's decision to exclude Barragan's statements. (See Miller v. Stagner (9th Cir. 1985) 757 F.2d 988, 995 [reviewing courts “must give due weight to the substantial state interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or prejudicial evidence.”].)

         B. Misconduct in Opening Statement

         1. Statements About Rivas's Veracity

         Defendants argue the prosecutor improperly vouched for the credibility of Salvador Rivas. A prosecutor may not vouch for the credibility of witnesses by referring to evidence outside the record but may mention the “ ‘apparent honesty or reliability' ” of witnesses so long as that statement is based on facts in the record as well as reasonable inferences drawn from those facts. (People v. Romero and Self (2015) 62 Cal.4th 1, 39.)

         The prosecutor described Rivas's expected testimony, stating: “And he can't see any stabbing, but can... see that everyone in this group is participating. He says five to seven people. This is what he -- he was cooperative with the police and told them that much. And I believe that he will be a cooperative and an honest witness here in court.”

         There was no suggestion by the prosecutor that he was relying on personal knowledge outside of what he intended to present as evidence to vouch for Rivas. He merely expressed a belief that he thought Rivas would testify honestly and implied that he based that belief on Rivas's cooperation with the police. The prosecutor's comments did not amount to improper vouching.

         2. Stating that Defendants Lied to Police

         Defendants argue that the prosecutor improperly denigrated them by stating that they lied to police. “Prosecutors ‘are allowed a wide range of descriptive comment and the use of epithets which are reasonably warranted by the evidence, ' ” and they may make fair comments on what they anticipate the evidence may show. (People v. Farnam (2002) 28 Cal.4th 107, 168 [finding no misconduct where prosecutor referred to the defendant during opening statement as monstrous, cold-blooded, and a predator].)

         The prosecutor here told the jury that officers would testify about their interviews with the defendants. The prosecutor argued that when confronted with evidence that his cellular phone was at the scene, Martell “gives them a lie. He does not give any explanation, that he just watched, or that he was acting in self-defense. [¶] He says: ‘No. No. I wasn't there.' And then gives this phony alibi....” The prosecutor continued: “The police... arrest Juan Ramirez. ‘Look, we know you were there. Just tell us what happened.' Give them an opportunity to tell their evidence.... [¶] Juan Ramirez lies. He doesn't say: ‘I just watched. I didn't participate.' He says: ‘No. Wasn't there. I may have been drunk one time two months ago, but I wasn't at no murder scene on Ezie Street.' ” As for Mendoza, the prosecutor stated Mendoza denied he was at Ezie Street the night of the murder and “[l]ies to the police.” The prosecutor concluded: “The evidence will show you that all these defendants lied because they knew they were guilty of first degree murder.”

         Rather than labeling them generally as liars, as defendants suggest on appeal, the prosecutor stated that each defendant lied in a specific context (i.e., when asked by police whether he was present at the scene of the homicide). The prosecutor could reasonably expect the evidence to show that the defendants were indeed present on Ezie Street on the night of the homicide based on the anticipated testimony of Tommy and Raymond Jr., as well as physical evidence including DNA and fingerprints. The prosecutor's statements were not improper.

         3. Claimed Griffin Error

         Defendants argue that the prosecutor improperly commented on the defendants' failure to explain when given “an opportunity to tell their evidence” when questioned by the police. A prosecutor's comment on a defendant's silence violates the Fifth Amendment to the United States Constitution. (Griffin, supra, 380 U.S. 609, 615 [“[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.”].)

         The prosecutor stated during his opening statement that the police gave defendants “an opportunity to tell their evidence” and that “all these defendants lied” when given that opportunity. Counsel for Ramirez (joined by the other defendants) asserted Griffin error during his mistrial motion, arguing that “it was very subtle, but it's [Griffin] error, because my client asked for an attorney, and [the prosecutor] should not be allowed to say my client wouldn't cooperate.”

         Defendants argue that after the jury heard that defendants lied to the police when given an opportunity to explain themselves, the jury was “improperly encouraged... to consider [defendants'] assumed decision not to testify at trial when considering” defendants' statements to police. They continue that because the prosecutor called attention to defendants' failure to testify, the jury necessarily took the prosecutor's statements as a comment on their failure to testify.

         The prosecutor did not focus on defendants' silence, but rather on their assertions that they were not involved in the homicide. The prosecutor characterized defendants' assertions as lies, based on the evidence he intended to present. As discussed in the preceding section, the prosecutor stated that defendants lied in a specific context. Contrary to defendants' argument, taking the stand at trial was not “the only means to redeem [defendants'] credibility....” Defendants could have supported their pretrial assertions of non-involvement by attacking the prosecutor's circumstantial evidence of defendants' presence or by presenting evidence of their own. Thus, we do not find that the prosecutor's statement could reasonably be construed by the jury as a comment on defendants' failure to testify at trial.

         4. Reference to Deleone's Girlfriend's Motive to Dispose of Weapons

         Mendoza and Ramirez argue that the prosecutor committed misconduct by referencing facts that the prosecutor knew could not be introduced into evidence. “The purpose of the opening statement is to inform the jury of the evidence the prosecution intends to present, and the manner in which the evidence and reasonable inferences relate to the prosecution's theory of the case.” (People v. Millwee (1998) 18 Cal.4th 96, 137.) Remarks made during an opening statement are not impermissible misconduct “unless the evidence referred to by the prosecutor ‘was “so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.” ' ” (People v. Wrest (1992) 3 Cal.4th 1088, 1108 (Wrest).)

         a. Background

         Deleone testified during Mendoza's grand jury proceedings that Barragan and others came to his apartment with “bloody weapons and a bloody sweatshirt.” The people who came over wanted the weapons washed and Deleone's girlfriend “told everybody that she was going to wash them and dispose of them.” Deleone stated that the weapons were “wrapped up in a dark sweatshirt” and that while he did not see the weapons, he knew what they were because his girlfriend told him what they were. He answered in the affirmative when the prosecutor asked him if he used to buy methamphetamine “from the Barragans....”

         The prosecutor told the jury in his opening statement that he expected Deleone to testify that Barragan, Ramirez, and another person came to his apartment with “weapons, which Javi, Mr. Barragan, had wrapped up in a black sweatshirt, that [Deleone's] girlfriend took these weapons and disposed of them for these guys. She was also a meth user, wanted to continue to participate in getting meth.” There was no contemporaneous objection but counsel for Ramirez included argument on this point in the mistrial motion he made after the opening statement.

         The prosecutor asked Deleone at trial about his drug source. Deleone testified that he did not get his drugs from Javier Barragan, stated that he knew Barragan's brother, and responded “Yeah” when the prosecutor asked: “Did you get drugs from either of them?” The trial court sustained a relevance objection to the prosecutor's next question (“Who?”).

         b. Analysis

         Mendoza and Ramirez argue that the prosecutor's opening statement informed the jury that defendants brought weapons to Deleone's apartment and that Deleone's girlfriend disposed of those weapons to support her methamphetamine habit even though the prosecutor knew he could not provide evidence to support those facts. Regardless of Deleone's personal knowledge (or lack thereof), the prosecutor's statement about the presence of weapons is supported by Tommy's trial testimony that he and Barragan brought weapons to the house and handed them to Deleone's girlfriend.

         As for Deleone's girlfriend's motive to dispose of the weapons, the prosecutor did not produce direct evidence at trial regarding a motive. However, when he made his opening statement the prosecutor knew that Deleone had testified to the grand jury that at the time of the homicide Deleone's girlfriend obtained her methamphetamine from Deleone, who purchased it from the Barragans. Based on that grand jury testimony, the prosecutor could reasonably expect Deleone to give the same testimony at trial and it is a reasonable inference that Deleone's girlfriend would help a drug dealer dispose of evidence due to a desire to continue receiving methamphetamine. Further, while the jury never heard which of Barragan's family members was Deleone's drug supplier because the trial court sustained a relevance objection to the prosecutor's question, the prosecutor did not know when he made his opening statement that the court would later sustain that objection. And that evidence was not so patently inadmissible that the prosecutor should have known the trial court would sustain an objection. (See Wrest, supra, 3 Cal.4th at p. 1108.)

         5. Reference to Ramirez Dealing Drugs

         Ramirez argues the prosecutor committed misconduct by stating that Ramirez dealt drugs even though “the prosecutor had never identified drug dealing as a bad act on which he intended to rely.” Ramirez appears to argue that the prosecutor's reference to drug dealing violated a pretrial order, which would constitute misconduct. (People v. Silva (2001) 25 Cal.4th 345, 373 [“[I]t is misconduct to elicit or attempt to elicit inadmissible evidence in violation of a court ruling....”].)

         a. Background

         Ramirez filed a pretrial motion in limine, entitled “Alleged Juvenile Bad Acts and/or Acts of Moral Turpitude, ” that specifically referenced two bad acts: Ramirez's arrest in the early morning of August 28, 2011 for being drunk in public, and Ramirez's arrest in September 2011 for a “beer run” where he stole a case of beer from a convenience store. (Emphasis omitted.) The motion stated that Ramirez believed the prosecution would seek to admit evidence of “these bad acts” and sought to exclude “any mention of this evidence” under Evidence Code section 352. The trial court granted the motion.

         During his opening statement, the prosecutor said: “Barragan and Juan Ramirez, they are tight. I believe Mr. Deleone will tell you that when Javier Barragan was arrested for his attempted murder as a juvenile, he went away, also, to C.Y.A. And during that time, it was Juan Ramirez who took his cell phone and conducted the drug-dealing that he'd been doing on his behalf during that time period.” There was no contemporaneous objection but counsel for Ramirez argued in his oral mistrial motion after the prosecutor's opening statement that he had previously moved to exclude “all, not just convictions, but all bad acts of my client.... And the court ruled in my favor.”

         b. Analysis

         On appeal, Ramirez argues that “[a]t no time, in any brief or argument, did the prosecutor reveal an intention to suggest that Mr. Ramirez was a drug dealer.” But Ramirez does not identify any legal duty requiring the prosecutor to have done so. Ramirez suggests that his pretrial motion sought to exclude “any prior bad acts, ” but his motion was not so broad. Apparently based on information received from the prosecution, the motion specified two bad acts, neither of which was drug dealing. Ramirez's motion did not mention, much less seek to exclude, evidence that Ramirez dealt drugs, nor did he raise that bad act at the pretrial hearings ...


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