Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE243463, Alan J. Preckel, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Ruben Gomez appeals from a judgment of conviction for first degree murder and carrying a loaded firearm in a vehicle. It is undisputed that another man shot the victim, Daniel Menchaca; Gomez was prosecuted as an aider and abettor. Gomez contends that (1) the trial court erred when it instructed the jury that if the jury were to find the shooter guilty of first degree murder, then it must also find the aider and abettor guilty of first degree murder, under the natural and probable consequences doctrine; (2) the court erred in excluding a portion of a hearsay statement made by the shooter to the effect that in shooting the victim, the shooter had acted "before anybody could do anything;" (3) the court erred in admitting evidence of two prior uncharged bad acts; (4) the court erred in denying Gomez's motion to suppress evidence that police seized from his truck during a warrantless search; and (5) these errors constitute cumulative error.
We conclude that the trial court erred in instructing the jury that if it were to find the shooter guilty of first degree murder, it would have to find an aider and abettor guilty of first degree murder as well, under the natural and probable consequences doctrine. We therefore reverse Gomez's conviction for first degree murder. If the People choose not to retry Gomez on that charge, then his conviction shall be modified to second degree murder. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1596 (Woods).) We conclude that Gomez's other arguments are without merit, and reject his claim of cumulative error.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Gomez was charged in the death of Daniel Menchaca. Menchaca was shot 10 times just before midnight on March 6, 2004.
1. The prosecution's case
Yolanda Castro was walking with Menchaca on the night he was shot. Castro testified that Menchaca had become a member of the Varrios Unidos street gang approximately three or four months before the shooting. His gang name was "Wino." At about 11:30 p.m. on March 6, Menchaca went to Castro's home looking for his younger brother, Juan. Juan was not at Castro's house, but Castro knew that Juan was visiting someone on Millar Street, and she offered to walk there with Menchaca.
After Castro and Menchaca turned onto Millar Street, Castro saw someone on a bicycle talking to a man and a woman. Castro and Menchaca crossed the street. Just after they crossed, Castro heard someone say, "This is Dukes" or "This is Dukes' Street." When Castro heard "Dukes," she thought there was going to be a fight because Menchaca was a member of a rival gang. Castro turned and saw a man standing on the street side of one of two trucks that were parked across the street from where she and Menchaca were walking. Menchaca said, "That's cool." Six or seven guys then "popped up" from the far side of the trucks.
Menchaca dropped a bottle of beer he had been holding and started to run away from the men. Castro thought the men were going to beat her and Menchaca. One of the men emerged from between a van and one of the two trucks and started shooting at Menchaca. Menchaca was hit and fell down. The shooter ran toward Menchaca and continued to shoot him repeatedly in the back until the gun was empty. The gun appeared to be a semi-automatic weapon.
Castro heard someone say, "'Let's get out of here. We got to go.'" The shooter and the other men then got into the two trucks and drove off. Castro ran and hid behind a wall.
Castro said that one of the trucks looked like a dark Toyota Tacoma and the other looked like a white Ford Ranger. The shooter had been wearing dark pants, a dark sweater, and a black baseball cap. Castro saw the faces of the man who said something about the "Dukes" and the shooter, but not the others. Castro believed the shooter was about 22 years old; the others who were with the shooter appeared to be teenagers. Castro did not hear anyone say anything other than the statement about the "Dukes" and the comment about leaving the scene.
After the men drove off in the trucks, Castro went to check on Menchaca. A man and woman arrived at the scene shortly thereafter, and the woman called for an ambulance. At 11:50 p.m., the El Cajon Police Department received a report of shots fired on Millar Street. Officer Frank Lahaye responded to the scene, where paramedics pronounced Menchaca dead at 12:08 a.m. on March 7. Officers found 11 expended .22 caliber shells and a broken beer bottle near Menchaca's body, and an expended bullet under his body. Pathologists concluded after an autopsy that Menchaca died from gunshot wounds to the torso.
El Cajon Police Detective Richard Wissemann was in charge of investigating Menchaca's murder. He collected evidence from the scene on Millar Street in the early morning hours of March 7, 2004, and he spoke with Castro. Castro described the two trucks she had seen. A DMV records check revealed that Gomez, a documented Dukes gang member, owned a Toyota Tacoma truck. Wissemann went to Gomez's house in Santee that morning and saw a silver Toyota Tacoma parked in front of the house. Wissemann spoke with Gomez, and eventually searched the Tacoma. Wissemann found a loaded Rugar .45-caliber revolver wrapped in a ski mask under the rear seat of the truck's cab.
By July 2004, police had still not solved the Menchaca murder. Police were also attempting to solve another gang-related murder, the murder of Andres Lopez, that had occurred approximately a month after Menchaca's murder. Police had been told that a black Jetta might have been involved in the Lopez murder, and that the black Jetta might be connected to a Dukes gang member. Police learned that a Dukes member, William Marquez, was connected to a black Jetta. After seeing Marquez driving the Jetta away from his residence while his driver's license was suspended, officers detained him. Officers told Marquez that they believed he was involved in the Lopez murder. Marquez denied knowledge of the incident.
On July 29, 2004, Marquez called the detectives who had questioned him earlier that month and arranged a meeting. Marquez requested immunity for his role in Lopez's murder. A detective told Marquez that he could not promise immunity, but said that he would talk with the district attorney about it. Marquez eventually admitted that he had been driving the Jetta on the night another Dukes member shot and killed Lopez. Marquez explained that his group intended to go "gang banging" that night, so it was not a surprise to him that Lopez was shot.
Marquez was not present when Menchaca was killed, but said that he had seen Gomez, Marco Moedano, Jesus Carrasco, and Ben Norton at Daniel Alvarez's home immediately after the shooting. Marquez identified Moedano as the shooter, and said that Moedano had been wearing dark clothes and a black baseball cap that night.
Detectives met with Marquez two more times in August 2004, and Marquez ultimately signed a cooperation agreement with the San Diego County District Attorney. Pursuant to the terms of the agreement, in return for his truthful testimony, Marquez was promised immunity for the Lopez murder, dismissal of the traffic ticket he received for driving on a suspended license, placement in the witness protection program, moving expenses, money to pay for daily expenses and back child support he owed to Norton's sister, who was the mother of Marquez's child. After he signed the cooperation agreement, Marquez agreed to make telephone calls to other Dukes gang members and to allow Detective Wissemann to record the calls. Marquez also agreed to tape record face-to-face meetings with gang members.
On September 2, 2004, Marquez met with Gomez. The two went to Carrasco's home and then to Moedano's home. Marquez was wearing a concealed tape recorder to record the conversations. Marquez and Gomez discussed the fact that law enforcement officers were watching them, and that Moedano had killed three people with one gun. Gomez identified Moedano's victims as "[t]hat black fool, the fuckin' fool from Juniors, and the fool from VU." The "fool from VU" referred to Menchaca. Marquez asked Gomez who it was who had said, "Dukes" on the night Menchaca was killed. Gomez discussed the fact that a witness had identified the trucks, and had told officers that she heard someone say "Dukes," and said that "that was enough to [cause officers to] go to my pad."
That day, Marquez tried to set up a meeting with Gomez, Carrasco, and Norton for the following day. At Moedano's house, Gomez asked Moedano if he had thrown the gun he used in the Lopez murder into the water. Gomez later asked Moedano how many people he had killed with that gun. Moedano counted three, not including Menchaca; Moedano had used a .22-caliber gun to kill Menchaca. After he described having shot rival gang members at a school, Moedano and Gomez started talking about Menchaca's murder. Gomez said, "[W]e were lookin' to blast some Locos and Orphans so we–It was me and Rascal and it was him and Boxer. And this fool says, 'man, let's call it a night and let's meet up in the street. . . .' [¶] . . . And we were looking for . . . we were looking for that fool from V.U. Like man, and we're like – and the next thing you know, hey, isn't that the fool from V.U.? An' he walking by us . . . ." The conversation proceeded as follows:
"[Moedano]: Yeah, it was fucked up, dog. But – but it was like unexpected, homey. Like . . .
"[Gomez]: Yeah, we were not expecting that shit.
"[Moedano]: That was a . . . I don't know, dog . . [BELCHING
SOUND] . . . I saw that fool, dog, and I fucking . . . I just wanted to . . .
"[Marquez]: But you blazed that fool, though, huh?
"[Moedano]: Yeah, ahhh . . . all of 'em hit. I think like ten shots hit 'em, dog.
"[Marquez]: Shit. Ten shots hit that fool?
"[Moedano]: Probably eleven, dog.
"[Marquez]: That fool isn't gonna be livin'.
"[Moedano]: I fuckin' chased that fool down, homey. Buckin' him, homey . . .
"[Marquez]: Oh, you chased 'em?
"[Moedano]: Yeah. He started. . . .
"[Marquez]: So he ran?
"[Moedano]: . . . he started running . . . no, no, when I started go towards 'em, I bust 'em first, pow, pow, pow, he's like 'oh' and he started running, fool, and I chased 'em down, kept buckin' him homey, till he dropped. When he dropped right there, an' I started buckin'–I still was buckin' him, homey."
(Punctuation, grammatical errors and brackets in original.)
Officers arrested Gomez, Carrasco, Norton and Moedano on September 14, 2004.
At trial, Marquez testified that he became a member of the El Cajon Dukes at age 16, after having joined the Tiny Dukes at age 13. Marquez had known Gomez and Carrasco from the time he was approximately 15 or 16 years old. Marquez testified that Gomez is a member of the Dukes, and that rivals of the Dukes include the Varrios Unidos, Orphans, and Locos gangs.
Marquez admitted that he had stabbed people, shot at people, and robbed people as part of his gang activity. Marquez explained some gang terminology, testifying that "gang banging means when you put in work for the hood, to be out jumping people, shooting people, stabbing people." Marquez explained that "'Calling out your hood'" is when an individual yells out his or her gang's name. He added that when this is done in the presence of a rival gang member, it is meant as a challenge.
A gang expert testified that the El Cajon Dukes had been established in El Cajon since the late 1980's or early 1990's. He explained the criteria by which he determined that the Dukes were a criminal street gang, and stated that as of March 6, 2004, Gomez, Moedano, and Norton were documented members of the El Cajon Dukes. Carrasco was not a documented member of the gang at the time Menchaca was killed, but became a documented member prior to trial, based on his admissions that were recorded on the undercover tapes. The gang expert testified that the El Cajon Dukes considered other gangs, like Varrios Unidos, the El Cajon Locos, and the El Cajon Orphans, to be rivals, and that there had been a history of violence between the Dukes and rival gangs before March 6, 2004. Dukes members had been convicted of numerous crimes, including felony assault with a deadly weapon, voluntary manslaughter, murder, attempted murder, and conspiracy to commit assault.
2. The defense case
Menchaca's brother, Juan, testified that Gomez used to live on Millar Street and that Gomez had attended El Cajon Valley Junior High School with Menchaca. Juan testified that Gomez and Menchaca would hang out together and that they were not enemies. Juan said that Menchaca also knew Carrasco, and that they had no animosity toward each other. Juan denied knowing that Gomez and Carrasco were members of the El Cajon Dukes.
Gomez's uncle testified that he was at a party at Gomez's home in Santee at around 7:00 p.m. on March 6, 2004. Gomez was at the party when his uncle left at around 11:00 p.m. The uncle testified that Gomez worked for him in his landscaping business and that Gomez was attending Grossmont College. Defense counsel introduced paperwork showing that Gomez was enrolled in classes at Grossmont College during the fall of 2003 and the spring of 2004.
Nicole Paraiso testified that she dated Marquez for three months. Paraiso testified that Marquez had threatened her, and that after they broke up, he used her cellular phone and found the phone numbers of other men. Marquez told Paraiso that he thought she had been cheating on him, and threw the phone against a window, breaking the blinds and the phone. Marquez slapped her, lifted her off the ground by her neck, and choked her. He said that if Paraiso did not tell him the names of the men, he would knock her teeth out. Paraiso testified that Marquez repeatedly choked her for 30 seconds at a time for the next four hours. He also hit her on the arms, chest, stomach, and face. Paraiso told Marquez that she was going to call the police. He told her that if she did, he would have someone kill her.
B. Procedural background
On February 22, 2005, the People filed a 25-count information against Gomez and three codefendants. Gomez was charged in the first two counts. Count 1 charged Gomez, Carrasco, Moedano, and Norton with murdering Menchaca (Pen. Code, § 187, subd. (a)). With respect to the murder charge in count 1, the information alleged that Moedano was personally armed, used a firearm, and proximately caused Menchaca's death, and that Gomez was vicariously armed, within the meaning of section 12022.53, subds. (d) and (e)(1). It was further alleged that Gomez participated in the murder for the benefit of a criminal street gang within the meaning of section 186.22, subd. (b)(5).
All further statutory references are to the Penal Code unless otherwise specified.
Count 2 charged Gomez, alone, with carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)). With respect to count 2, the information alleged that Gomez was an active participant in a criminal street gang, within the meaning of section 12031, subdivision (a)(2)(C).
Gomez and Carrasco were tried in a joint trial, before separate juries. Trial began on April 26, 2006. The jury convicted Gomez of both counts on May 31, 2006. The jury found true the allegations that Gomez was an active participant in a criminal street gang at the time of the commission of count 2, and that Gomez committed count 1 for the benefit of a street gang. The jury did not find true the allegation as to count 1 that Gomez was vicariously armed.
Two separate trials were held for the four defendants who were involved in the Menchaca murder. Moedano and Norton, against whom the death penalty was sought, were tried together. Gomez and Carrasco were tried in a separate proceeding.
Gomez moved for a new trial and/or for a modification of the verdict to second degree murder. The trial court denied both motions and sentenced Gomez to 25 years-to-life on count 1, plus the midterm of two years on count 2 to be served concurrently.
Gomez filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court committed reversible error in instructing the jury regarding the natural and probable consequences doctrine
Gomez contends that the trial court erred in responding to a juror's question regarding aider and abettor liability. The court informed the jury that if it were to determine that the shooter was guilty of first degree murder and determine that Gomez was guilty of aiding and abetting the crime of assault with a deadly weapon, then it would have to find Gomez guilty of first degree murder if it also determined that murder was a natural and probable consequence of the commission of the assault. The trial court's response to the jury's question was not an accurate statement of the law. Because there is a reasonable probability that the erroneous instruction affected the outcome, we reverse Gomez's first degree murder conviction.
1. Additional background
The trial court instructed the jury on aiding and abetting, including the natural and probable consequences doctrine, using a number of CALCRIM instructions. For example, the court instructed the jury with CALCRIM No. 400:
"A person may be guilty of a crime in two ways. First, he may have directly committed the crime, or, second, he may have aided and abetted another person who committed the crime. In these instructions I will call that other person the perpetrator.
"A person is equally guilty of the crime whether he committed it personally or whether he aided and abetted the perpetrator who committed it. Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime."
The court also instructed the jury with CALCRIM No. 401, which provides:
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that, first, the perpetrator committed the crime; second, the defendant knew that the perpetrator intended to commit the crime; third, before or during the commission of the crime the defendant intended to aid and abet the perpetrator in committing the crime; and, fourth, the defendant's words or conduct did, in fact, aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider or abettor."
The court further instructed the jury specifically on the natural and probable consequence doctrine of aider and abettor liability, as modified for this case from CALCRIM 403:
"To prove that the defendant is guilty of murder, the People must prove that, first, the defendant aided and abetted the commission of an assault with a deadly weapon or by means of force likely to produce great bodily injury; second, during the commission of the assault with a deadly weapon or by means of force likely to produce great bodily injury, the crime of murder was committed; and third, under all the circumstances, a reasonable person in the defendant's position would have known that the commission of murder was a natural and probable consequence of the commission of assault with a deadly weapon or by means of force likely to produce great bodily injury.
"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.
"In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the assault, then the commission of murder was not a natural and probable consequence of assault. To decide whether the crime of murder was committed, please refer to the separate instructions that I will give you on that crime. Also, please refer to the separate instructions defining assault with a deadly weapon or by means of force likely to produce great bodily injury, PC 245."
Thus, as the instructions informed the jury, even though Gomez was not tried with Moedano, the shooter, and the jury was therefore not deciding Moedano's guilt, the jury would have to decide whether Moedano committed a murder before it could determine whether Gomez was vicariously liable for that crime.
The court also defined the offenses of assault with a deadly weapon and murder, and instructed the jury as to the meaning of malice, first degree murder, and second degree murder. The court further instructed the jury that if it was convinced that Gomez committed murder, then it would have to determine whether the murder was in the first or second degree.
The trial court orally instructed the jury with these and the other instructions on May 25, 2006, after which the jury was excused until May 30. On May 30, the jury began deliberating at 8:50 a.m. and continued through the end of the day. On May 31, the jury began deliberating again at approximately 9:00 a.m., and sent a note to the court less than 15 minutes later. The note, from one juror, read as follows:
"This is a question for me personally - #1 Can you clarify a point of law for me. If it is found that the "shooter" is deemed guilty of 1st degree murder and that someone else is deemed guilty of aiding and abetting in that crime, can that aider & abettor be found guilty of a lesser charge of murder or does that person have to be found guilty of the same charge as the "shooter"?
The trial court drafted a proposed response to the juror's note and gave counsel copies of both the note and the court's proposed response. After a brief recess during which the attorneys reviewed the note and the proposed response, the prosecutor stated that the response "appears to be an accurate statement of [the] law" and agreed that it be given. Defense counsel concurred, stating, "I would agree that this is an accurate statement of the law." The court then provided the following instruction to the jury:
"If it is proven beyond a reasonable doubt that:
1. a person aided and abetted the commission of an assault with a deadly weapon or by means of force likely to produce great bodily injury; AND
2. the commission of murder was a natural and probable consequence of the commission of assault with a deadly weapon or by means of force likely to produce great bodily injury; AND
3. the 'perpetrator' (shooter) committed murder in the first degree; THEN, the aider and abettor is guilty of murder in the first degree. If ALL of the above is proven beyond a reasonable doubt, then as a matter of law the aider and abettor shares the criminal liability of the perpetrator and stands in the shoes of the perpetrator. ALL JURORS ARE TO BE PROVIDED ACCESS TO JURY NOTE No. 1 (Court Exh. #197) and this RESPONSE."
The language of the juror's question suggests that the juror may have been asking about the implications for Gomez under a straight aiding and abating theory. If that was the case, then the answer the court gave—absent any reference to natural and probable consequences—would have been correct in the abstract because one who has aided and abetted a first degree murder is also guilty of first degree murder. However, it appears that the trial court understood the question to refer to aider and abettor liability under a natural and probable consequences theory, since the court responded to the question in terms of the natural and probable consequences doctrine.
The court directed the bailiff to provide the jurors with copies of both the juror's note and the court's response. The time was 10:37 a.m. At approximately 11:00 a.m., the jury notified the court that it had reached a verdict.
2. Analysis
a. The error
Gomez claims that the trial court erred in instructing the jury that if the jury found that the perpetrator committed a first degree murder, then it would have to find Gomez guilty of first degree murder as a matter of law under the natural and probable consequences doctrine, if it found that Gomez aided and abetted the crime of assault with a deadly weapon, and that murder (with no degree specified) was a natural and probable consequence of the assault with a deadly weapon. We agree that the court's response to the juror's question was erroneous.
The People contend that Gomez has forfeited this issue by agreeing to, and failing to object to, the trial court's proposed additional instruction to the jury. However, as the People concede, the test for evaluating whether alleged instructional error affected a defendant's substantial rights is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. (See People v. Andrade (2000) 85 Cal.App.4th 579, 585.) Although there is a presumption that jurors are capable of understanding all jury instructions given (People v. Guerra (2006) 37 Cal.4th 1067, 1148), in this instance the instruction constituted an incorrect statement of the law. It is thus more than likely that the jury understood the erroneous instruction in a manner that violated Gomez's rights. We therefore consider the question on its merits because the claimed error affected the defendant's substantial rights. (See § 1259; People v. Coffman & Marlow (2004) 34 Cal.4th 1, 103, fn. 34.)
In order to find a defendant guilty of a crime under the natural and probable consequence theory, the jury must conclude: (1) that the defendant acted with knowledge of the unlawful purpose of the perpetrator; (2) that the defendant acted with the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) that the defendant, by act or advice, aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. (People v. Prettyman (1996) 14 Cal.4th 248, 262, 267.)
Whether an offense is a natural and probable consequence of a target offense is to be determined "'in light of all of the circumstances surrounding the incident.'" (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) "The issue 'is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.]" (People v. Vasco (2005) 131 Cal.App.4th 137, 161.) In other words, the relevant question is "whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted." (Woods, supra, 8 Cal.App.4th at p. 1587.)
In Woods, supra, 8 Cal.App.4th at page 1586, the court explained that because the natural and probable consequence analysis "requires separate factual determinations for (1) what crimes have been committed, and (2) what crimes are the reasonably foreseeable consequences of the offense originally contemplated, it is self-evident that the aider and abettor does not stand in the same position as the perpetrator." (Ibid.) Woods involved a factual situation similar to the one presented here. In that case, the shooter, Woods, was convicted of first degree murder, and Windham was convicted of first degree murder as an aider and abettor, on a natural and probable consequence theory. (Id. at p. 1579.) The trial court had instructed the jury that "the aider and abettor is regarded as a principal in the crime 'thus committed' by the person who directly perpetrated the crime and is 'equally guilty thereof' provided the crime is a natural and probable consequence of the offense originally contemplated. [Citation.]" (Ibid.) During deliberations, the jury sent the court a note asking, "Can a defendant be found guilty of aiding and abetting a murder in the second degree if the actual perpetrator of the same murder is determined to be guilty of murder in the first degree?" (Ibid.) The court responded, "No." (Ibid.)
On appeal, Windham claimed that the trial court's response was incorrect, and that an aider and abettor could be "convicted 'of a different degree or lesser crime than the [perpetrator]' who commits a criminal act beyond that contemplated by the aider and abettor." (Woods, supra, 8 Cal.App.4th at p. 1580.) In analyzing Windham's argument, the appellate court concluded that the trial court had misinstructed the jury because the trial court failed to consider the fact that an aider and abettor may have a different level of guilt than a perpetrator. The court explained:
"[A]n aider and abettor may be found guilty of crimes committed by the perpetrator which are less serious than the gravest offense the perpetrator commits, i.e., the aider and abettor and the perpetrator may have differing degrees of guilt based on the same conduct depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not. [Citation.]" (Woods, supra, 8 Cal.App.4th at pp. 1586-1587, italics in original.)
Because a perpetrator and an aider and abettor need not be found guilty of the same crimes, the Woods court concluded that "in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence."(Woods, supra, 8 Cal.App.4th at p. 1588.)
Here, as in Woods, the trial court essentially instructed the jury that it did not have the option of considering the uncharged, necessarily included offense of second degree murder as to Gomez, even though the facts could have supported a determination that second degree murder was a reasonably foreseeable consequence of the assault with a deadly weapon that Gomez aided and abetted, but that first degree murder was not. The jury was thus given an improper "all-or-nothing choice for aider and abettor liability. [Citation.]" (Woods, supra, 8 Cal.App.4th at p. 1588.)
We conclude that the trial court erred in instructing the jury that if it found (a) that Gomez aided and abetted in the commission of the assault with a deadly weapon and/or force likely to produce great bodily injury, (b) that murder was a natural and probable consequence of the intended assault, and (c) that Moedano was guilty of first degree murder, the jury would have to find Gomez guilty of first degree murder, as well. As in Woods, the jury should not have been precluded from finding Gomez guilty of second degree murder.
b. Prejudice and the remedy
Because we conclude that the trial court erred in failing to instruct the jury that it could find Gomez guilty of second degree murder as an aider and abettor even if it concluded that Moedano was guilty of first degree murder, we must determine whether the error was prejudicial and, if so, how to appropriately rectify the error. Gomez asserts that the error is of federal constitutional dimension and should therefore be analyzed under the standard of prejudiced announced in Chapman v. California (1967) 386 U.S. 18, 24. Under that standard, an error requires reversal unless the People can establish that the error was harmless beyond a reasonable doubt. (People v. Scheller (2006) 136 Cal.App.4th 1143, 1152.) In our view, the error here is comparable to a court's failure to instruct sua sponte on a lesser included offense in a noncapital case, which is an error of state law alone and "is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (People v. Breverman (1998) 19 Cal.4th 123, 165, citing People v. Watson (1956) 46 Cal.2d 818, 836.) The People do not advocate in favor of any particular standard to apply to the claimed error in this case. However, they assert that any error was harmless "because the evidence showed that first degree murder was eminently foreseeable, and second degree murder was not." We need not determine the proper standard for assessing prejudice in this case because we conclude that under either standard, Gomez has demonstrated prejudice.
The court in Woods, supra, 8 Cal.App.4th 1570, does not address the proper standard of prejudice to apply.
There is a reasonable probability that the supplemental instruction the court provided affected the outcome. At least one juror was clearly contemplating the possibility of convicting Gomez of a lesser degree of murder, on an aiding and abetting theory. If that juror was considering whether Gomez could be found guilty of a lesser degree of murder on a direct aiding and abetting theory, then it is likely that the juror would have similarly questioned whether Gomez could be found guilty of a lesser included offense to first degree murder under a natural and probable consequence theory. Further, the jury returned with a first degree murder conviction within less than a half hour of receiving the inaccurate instruction, suggesting that the jury felt compelled to find Gomez guilty of first degree murder rather than acquit him once it received the erroneous instruction. Because it is likely that the trial court's instructional error affected the outcome as to the murder charge, we conclude that Gomez's conviction on count 1 must be reversed.
However, because instructional error that affects only the degree of the crime for which a defendant is convicted may be remedied by reducing the conviction to a lesser degree and modifying the judgment accordingly, we next consider whether such a remedy is appropriate in this instance. Because the parties did not address this issue in their initial briefing, we requested supplemental briefing as to the proper disposition in this case, if "this court were to conclude that the trial court erred in instructing the jury that it would have to find the defendant guilty of first degree murder if it found that the '"perpetrator" (shooter) committed murder in the first degree.'" We asked the parties to consider this question in light of the disposition in Woods, supra, 8 Cal.App.4th at page 1596. In Woods, the court determined that the trial court's instructional error "affected only the degree of the crime of which Windham was convicted," because, the court concluded, Windham was guilty "of at least second degree murder." (Ibid.) The appellate court issued a conditional modification of Windham's conviction as follows:
"Defendant Windham's conviction of first degree murder is reversed unless the People accept a reduction of the conviction to second degree murder. If, after the filing of the remittitur in the trial court, the People do not bring Windham to retrial on the murder count within the time limit set forth in section 1382, subdivision (a)(2)─60 days unless waived by the defendant─the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of second degree murder and shall resentence Windham accordingly." (Woods, supra, 8 Cal.App.4th at p. 1596.)
The People contend in their supplemental brief that the disposition in Woods would be appropriate in this case. The People request that we permit the prosecutor to either retry Gomez for first degree murder or accept a reduction of Gomez's conviction to second degree murder if this court reverses Gomez's conviction on count 1 based on instructional error. Gomez contends that this court should reverse his first degree murder conviction and modify his conviction to involuntary manslaughter. We conclude that the appropriate remedy in this case is to give the prosecutor the option of retrying Gomez for first degree murder or accepting a reduction of Gomez's conviction to second degree murder.
"When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 528.)
Gomez notes that the Woods court determined that in that case, "the least culpable homicide offense the evidence would support was second degree murder – an intentional killing without premeditation and deliberation or a killing resulting from an intentional act inherently dangerous to life – and did not support verdicts of voluntary or involuntary manslaughter." (See Woods, supra, 8 Cal.App.4th at pp. 1592-1593.) According to Gomez, unlike Woods, there are no facts in this case from which one could conclude that second degree murder is the least culpable offense the evidence would support. Gomez contends that "the least culpable offense that the evidence would support" in this case is involuntary manslaughter. However, Gomez fails to adequately demonstrate why this is so based on the evidence.
In his opening brief, Gomez never suggested that the evidence was such that the jury could have found him guilty only of involuntary manslaughter. Rather, he focused on the question whether the evidence supported a finding of second degree murder:
Gomez states, "Because the defendants in Woods had already assaulted three people, and had actually shot one of them, it was clear that others might be shot before the episode ended and that any death occurring because of such a shooting would involve either express or implied malice." Gomez contends that in this case, in contrast, "there is no evidence showing the commission of assaultive acts before the commission of the homicide, let alone the shooting of another person as in Woods. There was thus nothing establishing that someone would in fact be shot or even injured."
We disagree with Gomez's suggestion that there is "nothing" in this case that establishes that a shooting death was a reasonably foreseeable consequence of the offense Gomez aided and abetted. There is ample evidence to support either a conviction for second degree murder, or a conviction for first degree murder. Under the facts, it is difficult to imagine how a jury might have found that a reasonable person could have foreseen only the possibility of a homicide resulting from a misdemeanor or criminally negligent conduct, which would be necessary for an involuntary manslaughter conviction. Gomez has offered no interpretation of the evidence―evidence that includes Gomez's own tape-recorded statement that he and his fellow gang members went out that evening "looking to blast or shoot some Locos and Orphans"―that could support a finding that Gomez was guilty of involuntary manslaughter, but not second degree murder. Gomez has thus failed to meet his burden to show why the error of which he complains cannot be sufficiently remedied by modifying his first degree murder conviction to a second degree murder conviction.
There is another reason why a modification to involuntary manslaughter would not be appropriate. The jury was instructed as to first and second degree murder only, not involuntary manslaughter. Thus, the jury had to decide between finding Gomez guilty of first degree murder, guilty of second degree murder, or not culpable at all with regard to the shooting death of Menchaca. Gomez did not challenge the instructions or request additional instructions in the trial court, nor has he raised a claim that the trial court erred in failing to instruct the jury on the offense of involuntary manslaughter. Rather, throughout the process, Gomez has accepted second degree murder as the least culpable offense for which he could be convicted. In fact, in Gomez's posttrial motion to modify the verdict, he requested only that the trial court modify his first degree murder conviction to second degree murder.
In view of the fact that the jury did not have the option of finding Gomez guilty of involuntary manslaughter, that Gomez made no request in the trial court for instructions on involuntary manslaughter, and that he has not challenged any other jury instructions on appeal, there is no basis for this court to modify Gomez's conviction to involuntary manslaughter. We therefore conclude that if the People do not retry Gomez on first degree murder within 60 days after the filing of the remittitur in the trial court, the remittitur shall constitute a modification of the judgment to reflect a conviction of second degree murder, and the trial court shall resentence Gomez accordingly. (See Woods, supra, 8 Cal.App.4th at p. 1596.)
Although we have concluded that the judgment must be reversed and/or modified with respect to the murder count due to the court's instructional error, because the prosecution has the option of retrying Gomez on the first degree murder charge, we consider Gomez's additional arguments on appeal to the extent that the alleged errors could recur on retrial.
B. The trial court did not err in excluding a portion of the shooter's statement that he acted "before anybody could do anything"
Gomez contends that the trial court erred in excluding testimony regarding Moedano's statement to Marquez to the effect that he had shot Menchaca "before anybody could do anything." According to Gomez, that portion of Moedano's statement was a statement against Moedano's penal interest, and thus falls within an exception to the hearsay rule. He asserts that the trial court erred under state law, and violated his federal due process rights, by excluding this portion of Moedano's statement. We conclude that the trial court acted within its discretion under state law in excluding that portion of Moedano's statement, and we further conclude that the application of the state law rule in this case does not implicate Gomez's right to due process.
1. Additional background
Prior to Marquez's testimony, Gomez indicated his intention to question Marquez about a statement Marquez made to Detective Wissemann concerning the shooting of Menchaca to the effect that Moedano had told Marquez that, "basically, before anybody could do anything [Moedano] rushed [Menchaca] and shot him up." Defense counsel wanted to ask Marquez about the statement and intended to impeach Marquez if he denied having made the statement. At a sidebar conference, counsel argued about the admissibility of the full statement. The prosecutor agreed that the portion of Marquez's statement in which Moedano admitted that he was the one who shot Menchaca was admissible. However, the prosecutor challenged the admissibility of the portion of the statement in which Moedano said that he shot Menchaca "before anybody could do anything," asserting that this part of the statement was inadmissible hearsay. The trial court ultimately concluded that the portion of Moedano's statement in which he confessed to the shooting was admissible, but excluded the portion of the statement in which Moedano said he had acted "before anybody could do anything."
Later, during Detective Wissemann's testimony, defense counsel tried to ask Wissemann about the statement Moedano made to Marquez. The prosecutor objected again, noting that he had not opened the door for questions regarding the statement during his direct examination of Wissemann. The trial court sustained the prosecutor's objection.
2. Analysis
a. State law claim
Gomez first contends that the trial court's ruling on this matter violated state law because the "before anybody could do anything" portion of the statement falls within the hearsay exception for declarations against interest, found in Evidence Code section 1230. That section provides:
"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if 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 him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
"A court may not, applying this hearsay exception, find a declarant's statement sufficiently reliable for admission '"solely because it incorporates an admission of criminal culpability."' [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).) "[T]his court 'long ago determined that "the hearsay exception should not apply to collateral assertions within declarations against penal interest." [Citation.] . . . [W]e have declared [Evidence Code] section 1230's exception to the hearsay rule "inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant."' [Citation.]" (Lawley, supra, 27 Cal.4th at p. 153, citing People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte); see also People v. Shipe (1975) 49 Cal.App.3d 343, 354 ["a declaration against penal interest must be 'distinctly' against the declarant's penal interest"].) Thus, any portion of a statement that is not itself "specifically disserving" to the declarant's penal interest must be excised. (Duarte, supra, 24 Cal.4th 603, 612 [trial court "should have excised 'any statement or portion of a statement'" not "specifically disserving" to defendant].)
"We review a trial court's decision as to whether a statement is against a [declarant's] penal interest for abuse of discretion. [Citation.]" (Lawley, supra, 27 Cal.4th at pp. 153-154.) In this case, the trial court found that the "before anybody could do anything" aspect of Moedano's statement to Marquez was not specifically disserving to Moedano's penal interest, and was thus not admissible as a statement against Moedano's interest. The trial court did not abuse its discretion in making this determination. The only portion of the statement that is clearly inculpatory is Moedano's confession that he is the person who shot Menchaca.
Gomez argues that the portion of the statement "indicating [Moedano] alone was responsible for Menchaca's death" was also "against Moedano's penal interests because it made Moedano more blameworthy." Gomez maintains that this, in turn, "made Moedano more likely to receive the death penalty because it showed his participation was not relatively minor and in fact he was entirely responsible for the death since he acted in a manner that precluded anyone from trying to stop him." Gomez cites no legal authority to support this contention other than the fact that "'[w]hether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor'" is a circumstance in mitigation in a capital case. (§ 190.3, subd. (j).) However, regardless of whether Moedano, in shooting Menchaca, acted before the individuals who were with him were aware of what he was doing, Moedano was clearly not simply an accomplice to the offense, and his participation cannot be considered minor. Thus, even if Moedano shot Menchaca after his friends encouraged him to do so, he still could not claim that he was simply an accomplice to the offense or that his participation was relatively minor. Rather, Moedano was the principal perpetrator of the offense under either scenario. Whether Moedano's friends could have done anything before he shot the victim does not change the fact that Moedano was the principal offender, and thus, that his participation was the most serious relative to that of any of the others who were present.
In addition, the significant weight of authority requires that the presence of the circumstance identified in factor (j) is to be used solely to mitigate, and that the absence of the factor is not to be considered aggravating. (See, e.g., People v. Morrison (2004) 34 Cal.4th 698, 728, People v. Proctor (1992) 4 Cal.4th 499, 553, People v. Hamilton (1989) 48 Cal.3d 1142, 1184; but see People v. Howard (1992) 1 Cal.4th 1132, 1195 [approving of trial court's consideration of evidence of defendant's role as the "motivating force behind the crimes" and the actual killer under factor (j)].) As a result, the trial court was well within its discretion in concluding that the portion of Moedano's statement to the effect that he shot Menchaca "before anybody could do anything" was not specifically disserving to Moedano, and that it was thus not admissible as a statement against penal interest.
b. Federal constitutional claim
Gomez further argues that the trial court's ruling violated his federal due process right. Gomez cites Wallace v. Price (W.D. Pa. 2003) 265 F.Supp.2d 545 (Wallace) and Chia v. Cambra (9th Cir. 2004) 360 F.3d 997 (Chia) to support his claim that the court's exclusion of the "before anybody could do anything" portion of Moedano's statement denied him a fair trial. Both cases rely on the analysis set forth in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303 (Chambers) concerning whether the exclusion of evidence under state law violates the guarantee of fundamental fairness under the due process clause. In Chambers, the excluded testimony included three statements a third party made to friends in which the third party admitted that he, not the defendant, had committed the crime for which the defendant was being prosecuted. (Id. at p. 292-293.) The Chambers court stated,
"Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Id. at p. 302.)
The United States Supreme Court reversed the defendant's conviction on the ground that the third party's self-incriminatory statements exculpated the defendant and should have been admitted.
Unlike in Chambers, the excluded evidence at issue in this case is not clearly exculpatory. Even Gomez acknowledges that the statement at issue "did not expressly exculpate" him. In addition, as discussed above, the excluded portion of the statement did not fall "within the basic rationale of the exception for declarations against interest." (Chambers, supra, 410 U.S. at p. 302.)
The statements at issue in the other cases on which Gomez relies were also more clearly inculpatory as to the declarant and exculpatory as to the defendant. In Wallace, the statement in question was an accomplice's statement to his girlfriend that "'he shot the girl.'" (Wallace, supra, 265 F.Supp.2d at p. 556.) The district court noted that the excluded statement was self-incriminatory and "unquestionably against [penal] interest." (Ibid.) In Chia, the trial court excluded statements made by Wang, a participant in the crime, to the effect that Chia had told him not to go through with the planned robbery and other statements in which Wang "freely describe[d] the planning and execution of the crime," but never mentioned Chia as participating in the planning. (Chia, supra, 360 F.3d at pp. 1005-1006.) The Chia court concluded that statements to the effect "'he told me don't do it'" were inherently self-inculpatory as to Wang and simultaneously exculpatory as to Chia. (Id. at p. 1005 ["the very words, 'he told me don't do it,' at once inculpate Wang and exculpate Chia"].) Additionally, other statements Wang made about his planning of the crime did not "directly exculpate Chia" but nevertheless inculpated Wang, which indicated "their inherent reliability." (Id. at p. 1006.)
Notably, the Chia court distinguished the statements at issue in that case from a statement that was held to have been properly excluded in LaGrand v. Stewart (9th Cir. 1998) 133 F.3d 1253 (LaGrand). The statement in LaGrand more closely resembles the excluded portion of the statement at issue here. In that case, Karl LaGrand, one of two bank robbers, made statements to police in which he claimed sole responsibility for stabbing and killing one of the victims, and said that Walter LaGrand had not stabbed anyone. (LaGrand, supra, 133 F.3d at p. 1265.) The trial court excluded Karl's confession from Walter LaGrand's trial on the ground that it was unreliable. (Id. at pp. 1265-1266.) In denying Walter's petition for habeas corpus, the Ninth Circuit Court of Appeals determined that Karl's confession involved two separate statements: "[F]irst, that he, Karl LaGrand, stabbed Ken Hartsock, and second, that Walter LaGrand did not stab anyone." (Id. at p. 1267.) Identifying the federal rule regarding the declaration against interest exception to the hearsay rule, the LaGrand court stated:
"Because the 'statements against penal interest' exception to the hearsay rule is premised upon the inherent reliability of statements that tend to incriminate the declarant, federal courts have concluded that a statement that includes both incriminating declarations and corollary declarations that, taken alone, are not inculpatory of the declarant, must be separated and only that portion that is actually incriminating of the declarant admitted under the exception. See Williamson v. United States, 512 U.S. 594, 599-600, 129 L.Ed.2d 476, 114 S.Ct. 2431 (1994) (noting that judges in federal cases must separate the incriminatory portions of statements from other portions for purposes of Rule 804(b)(3) because "the fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts"); Carson v. Peters, 42 F.3d 384, 386 (7th Cir. 1994) ("Portions of inculpatory statements that pose no risk to the declarants are not particularly reliable; they are just garden variety hearsay."); United States v. Porter, 881 F.2d 878, 882-83 (10th Cir.) (if a statement exculpatory to the accused is severable from the statement inculpatory to the declarant, each statement must be separately analyzed under Rule 804(b)(3)), cert. denied, 493 U.S. 944, 107 L.Ed.2d 336, 110 S.Ct. 348 (1989); United States v. Lilley, 581 F.2d 182, 188 (8th Cir. 1978) ("To the extent that a statement is not against the declarant's interest, the guaranty of trustworthiness does not exist and that portion of the statement should be excluded." (LaGrand, supra, 133 F.3d at pp. 1267-1268.)
The LaGrand court further concluded, "In stating that Walter did not stab anyone, Karl was not further incriminating himself. The reliability that attends the inculpatory part of his confession does not afford any reliability to that part of the statement that merely exculpates Walter." (LaGrand, supra, 133 F.3d at p. 1268.) Similarly, in stating that he acted "before anybody could do anything," Moedano did not further incriminate himself. The trial court properly admitted the portion of his statement in which Moedano did inculpate himself. We conclude that there was no deprivation of due process resulting from the trial court's decision to exclude that portion of Moedano's statement that neither expressly exculpated Gomez nor specifically inculpated Moedano.
C. The trial court did not err in admitting Marquez's testimony regarding Gomez's prior bad acts
1. Additional background
Before trial, Gomez moved to exclude evidence of his prior bad acts. Specifically, Gomez challenged the admissibility of Marquez's testimony about prior shooting incidents during which Marquez claimed Gomez had been present but did not do the shootings. Gomez argued that this evidence was both irrelevant and more prejudicial than probative.
At a hearing, the trial court considered the admissibility of Marquez's testimony regarding four incidents, which included two shootings in 2003, a large gang fight in 2000 or 2001, and an incident in 2003 in which Gomez was a shooting victim. Gomez argued that Marquez was not believable for a number of reasons. According to Gomez, Marquez's testimony could not be trusted because (1) Marquez had never come forward with evidence of any of these incidents until December 2005, which was some time after Marquez testified at Gomez's preliminary hearing; (2) Marquez had testified that he did not know what was going on with Gomez after Gomez moved to Santee in 2002; and (3) there had been no police reports filed regarding the alleged shooting incidents.
After hearing arguments from both sides, the trial court granted Gomez's motion in part and denied it in part. The trial court excluded Marquez's testimony about the large gang fight and the incident in which Gomez was shot. The trial court denied Gomez's motion with regard to Marquez's testimony that Gomez was with Marquez on two occasions when Marquez shot at rival gang members. The court concluded that this evidence was both relevant and probative, and that the incidents were sufficiently similar to the charged offense so as to be admissible to prove intent. The trial court acknowledged that it was not "placing anything akin to a judicial imprimatur on Mr. Marquez's credibility," but that "for purposes of [Gomez's] motion and the attendant legal analysis, those two shooting incidents as described would show that defendant Gomez is personally aware of the lethal force that will be used when he partakes in gang-banging activity, those incidents being directly [sic] to his knowledge and motive in accompanying his fellow gang members on a mission."
At trial Marquez testified as to the two prior shooting incidents. He explained that he had not mentioned these gang banging incidents to Detective Wissemann until November 2005, even though the preliminary hearing had taken place in February 2005, because he had finally gotten over some, though not all, of his mistrust of the police. Marquez stated that he was testifying truthfully at trial. During cross-examination, defense counsel questioned both the veracity and the timing of Marquez's disclosures. Detective Wissemann testified that although he was able to find a police report regarding an assault and shooting at the time and location of one of the incidents Marquez described, he was unable to find any report pertaining to the other incident. Wissemann testified that the lack of a police report did not mean that a crime had not occurred, but acknowledged that he had found no other evidence to support Marquez's claim that Gomez was present during these incidents.
2. Analysis
We generally review a trial court's decision to admit evidence of prior offenses for an abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 991 (Smithey).) The People note that although Gomez suggests that his argument does not implicate the typical abuse of discretion standard because he is raising a legal question, Gomez nevertheless appears to be asking this court to determine that Marquez was not a credible witness and to conclude that the trial court should have excluded his testimony based on a lack of credibility. Gomez responds that his challenge to Marquez's testimony does not implicate a factual question that turns on Marquez's credibility, but rather, is a "legal point that turn[s] on matters appearing in the record that ma[k]e this case distinguishable from People v. Rosoto (1962) 58 Cal.2d 304." We agree with the People that regardless of how Gomez attempts to characterize his claim, the heart of his argument is that the court should not have admitted Marquez's testimony because Marquez is not sufficiently credible. We conclude that Gomez has not established that the trial court abused its discretion in allowing the jury to make a determination as to Marquez's credibility once the court determined that Marquez's testimony was relevant and that it was more probative than prejudicial.
Specifically, Gomez asserts that the "issue of law" in this case is whether evidence of the uncharged acts was admissible where (1) the witness testifying regarding the acts was "the more blameworthy participant in those prior acts," (2) the witness received immunity for the acts and was thus free to exaggerate the extent of the acts, (3) the witness gave earlier inconsistent testimony about the defendant's participation, (4) no other evidence was offered to substantiate the witness's claims, and (5) the witness testified at the preliminary examination that he had told officers about his prior crimes but he failed to mention the crimes involving the defendant. Gomez argues that "[a]lthough Rosoto indicates that an accomplice's uncorroborated testimony can satisfy the foundational requirement of substantial proof that uncharged acts involving the defendant took place, it does not support the conclusion that the foundational requirement of substantial proof is met when so many undisputed facts undermine an accomplice's unsubstantiated claim that the defendant was involved in uncharged acts."
Despite Gomez's attempt to frame the issue as one concerning the sufficiency of the prosecution's "foundation" for Marquez's testimony, all of the issues Gomez raises relate to questions concerning Marquez's credibility. Gomez acknowledges that the Supreme Court has permitted the use of testimony like Marquez's (i.e., accomplice testimony) to prove an uncharged offense. (See People v. Rosoto (1962) 58 Cal.2d 304 (Rosoto), questioned on other grounds in People v. Haston (1968) 69 Cal.2d 233, 250, fn. 22.) The Rosoto court clarified that the People need offer only substantial evidence related to the uncharged acts, and that the testimony of even a single accomplice is sufficient to meet this burden. (Id. at p. 331.) The Rosoto court stated, "Assuming that such testimony would have been insufficient to establish [the defendant's] guilt had he been charged with the other offenses, such evidence nevertheless constituted substantial proof, for had he been so charged it would have required only slight corroboration to sustain a conviction." (Ibid.)
Gomez attempts to avoid the effect of Rosoto by asserting that this case "contains additional facts that make [t]his case distinguishable from Rosoto." The purportedly distinguishing facts are ones that, as Gomez describes them, "so severely undermine the reliability of Marquez's claim that appellant was involved in the two gang banging incidents as to make evidence of those two incidents inadmissible." The "facts" Gomez raises include Marquez's relative "blameworthiness" compared to Gomez's, Marquez having received immunity for his testimony, Marquez having given prior inconsistent testimony and failing to tell authorities about these events earlier in the process, and the lack of other evidence to substantiate Marquez's claims. These matters go to Marquez's credibility, not to admissibility. When testimony regarding whether a defendant's participation in a "prior criminal act is equivocal, that circumstance affects the credibility of the witness, not the admissibility of his or her testimony." (Smithey, supra, 20 Cal.4th at p. 991.)
"The trial court does not abuse its discretion if, '[v]iewing the totality of the evidence presented, a rational jury could conclude that defendant was the one' who committed the act. [Citation.]" (Smithey, supra, 20 Cal.4th at p. 991.) The trial court did not abuse its discretion in deciding that a rational jury could conclude that Gomez was with Marquez during the two shooting incidents about which Marquez testified.
D. The trial court did not err in denying Gomez's motion to suppress evidence seized from his truck
Gomez asserts that the trial court committed reversible error in denying his motion to suppress a gun and a ski mask that police found in a truck that belongs to Gomez and his father. Gomez's conviction in count 2 for violating section 12031, subdivision (a)(1), which makes it illegal to carry a loaded firearm in a vehicle, is based on the gun that police found in the truck.
According to Gomez, section 12031, subdivision (e), which authorizes law enforcement officers to "examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street" for the purpose of enforcing section 12031, is unconstitutional because it "permits a search of a vehicle without probable cause to believe the gun inside the vehicle is loaded." Gomez argues that detectives did not have probable cause to believe that the gun in the vehicle was loaded and, therefore, the search of the truck violated his Fourth Amendment rights.
Subdivision (e) of section 12031 provides: "In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section."
We need not reach Gomez's constitutionality argument, because under the facts presented here, the court properly admitted the evidence. Detective Wissemann attempted to get Gomez to consent to a search of the truck. Gomez acknowledged that there was a gun in the truck, but repeatedly told Wissemann that the truck belonged to his father and said that he would not give consent to search the truck until Wissemann got Gomez's father's approval. Detective Wissemann eventually left Gomez in his room, which was in a separate building behind the main residence, to speak with Gomez's mother, who was in the main house. After he received approval to search the truck from Gomez's mother, Detective Wissemann went to ask Gomez for the keys to the truck. Gomez told Wissemann that the keys were in the main house, so Wissemann returned to the house, retrieved the keys to the Tacoma truck and two other vehicles that were parked at the home, and began to search for the gun.
The truck was registered in both Gomez's name and his father's name.
Because Gomez ultimately gave consent for the search, we need not consider whether his mother's consent was independently sufficient to permit detectives to lawfully search the vehicle.
After Wissemann left to go back to the main house to retrieve the keys, Lieutenant Setzer continued speaking with Gomez. Setzer inquired as to why Gomez had permitted officers to search his room, but would not consent to a search of the truck. Gomez finally agreed to allow officers to search the truck. When Setzer reached Wissemann to inform him that Gomez had given consent to search the truck, Wissemann had already begun searching the truck. Wissemann found a loaded .45-caliber gun, wrapped in a ski mask, in the truck. There is nothing in the record to suggest that Gomez, who was in the backyard between the main house and the door to his room, knew that the truck was already being searched when he gave consent to Setzer. Setzer's testimony suggests that neither he nor Gomez was aware that a search had begun at the time Gomez gave his consent, because Setzer and Gomez had gone looking for Wissemann in the front yard. It was only when they found Wissemann that they learned that Wissemann believed he had already received adequate consent from Gomez's mother.
Even assuming that Detective Wissemann had not obtained lawful consent to search the vehicle when he began the search, the gun and other evidence found in the truck would have been inevitably discovered. "Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.' [Citation.]" (People v. Robles (2000) 23 Cal.4th 789, 800, italics omitted.)
Officers would have been able to lawfully search the truck shortly after the presumed unlawful search began, since Gomez gave consent to search the truck within minutes of the commencement of the search, before he knew that Detective Wissemann was already searching the truck. Police would thus have undoubtedly found the gun through means independent of the presumed unlawful search. The trial court's ruling that the gun and ski mask were admissible at trial was therefore correct.
In spite of the clear applicability of the inevitable discovery doctrine, Gomez asserts that any consent he gave was not voluntary, and thus cannot form the basis of a lawful search. Gomez argues that because Wissemann unsuccessfully asked Gomez to give consent a number of times, Gomez's eventual decision to consent to the search was involuntary. Gomez asserts that "[I]t was obvious that the only way to cause the police to stop pestering appellant for consent was to give consent." The record does not support Gomez's claim that his consent was involuntary.
All of Gomez 's complaints refer to Wissemann's conduct in repeatedly asking Gomez for consent and not being willing to give up. However, Gomez ultimately gave consent to Detective Setzer after Wissemann had left to go to the main house. Setzer and Gomez talked "about all kinds of things," including Gomez's "current employment doing landscaping with his dad" and "gang issues, his prior contact with gangs." Gomez never told Setzer that he did not want to talk to Setzer, and neither Gomez nor anyone else at the residence ever told officers to leave.
Gomez initially told Setzer that although he sometimes drove the truck, he "didn't want [detectives] to look into it because . . . it belonged to his father." During their conversation, Setzer "came back to that topic [regarding consent]" and asked Gomez why he wouldn't let detectives search the truck if he had "nothing to hide." Gomez said, "'Yeah, I didn't do anything wrong. Go ahead and look. I don't care.'" Setzer did not threaten Gomez with arrest, nor did he hear anyone else threaten Gomez if he did not cooperate. No one promised Gomez anything, either, although Setzer told Gomez that the intention of the law enforcement officers was not to get evidence of drug use or anything other than evidence related to the murder investigation. The record thus discloses that Gomez's consent was not coerced or otherwise involuntary. The fact that officers repeatedly requested that Gomez consent to a search of the truck does not establish that the consent ultimately obtained was not voluntarily given.
D. There is no basis for reversal based on cumulative error
Gomez contends that even if any particular error he asserts does not require reversal on its own, the errors require reversal when considered cumulatively. Although we agree with Gomez that at least one of the errors of which he complains requires reversal, we find his other assertions of error to be without merit. There is thus no cumulative error on which to base a full reversal of the judgment against Gomez.
IV.
DISPOSITION
Gomez's conviction for first degree murder is reversed. If the People do not bring Gomez to retrial on the first degree murder count within the time limit set forth in Penal Code, section 1382, subdivision (a)(2) (i.e., 60 days unless waived by defendant), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction for second degree murder, and the trial court shall resentence Gomez accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.
"In appellant's case, as in Woods, the evidence supported a finding that second degree murder was a natural and probable consequence of the assault on either of two theories – an intentional killing without premeditation or deliberation or a killing as a result of an intentional act dangerous to life performed with knowledge of the danger and with conscious disregard for life. . . . An assault with a deadly weapon such as a gun can result in a death if the gun is actually fired and strikes the victim in a vital area. But even this act is not necessarily first degree murder. It can be second degree murder based on express malice and lack of premeditation or based on implied malice."
Gomez also stated, "Under Woods, the jury must independently determine, as a factual matter, the degree of the murder that is the natural and probable consequence of the assault" (non-citation italics added), thereby acknowledging that the question for the jury was the degree of murder for which Gomez could be found culpable, not whether Gomez was culpable of a different crime altogether (i.e., involuntary manslaughter), as he suggests in his supplemental brief.