Opinion
B290171
07-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO GONZALEZ, Defendant and Appellant.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA449739 APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed. Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Roberto Gonzalez appeals after he was convicted by jury of attempted murder and two aggravated assaults. In his opening brief, he contends counsel provided ineffective assistance in failing to raise an Aranda/Bruton challenge, the court erred in excluding impeaching evidence, and the prosecutor committed misconduct by arguing facts outside the record. In his reply brief, defendant abandons the first two contentions but presses the third. We affirm.
People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 (collectively, Aranda/Bruton). This doctrine bars the admission of an out-of-court statement of a non-testifying codefendant that directly implicates another defendant at a joint trial.
PROCEDURAL BACKGROUND
Defendant was charged by information with the attempted murder of Artemio Torres (Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm upon Torres (§ 245, subd. (a)(2)), and assault by means likely to produce great bodily injury upon Hector Logroño (§ 245, subd. (a)(4)). The information alleged all three crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A) & (C)). As to the attempted murder and assault with a firearm, the information alleged various firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(e)(1)). The information also alleged defendant personally inflicted great bodily injury in committing the assault with a firearm. (§ 12022.7, subd. (a)). Defendant pled not guilty and denied the allegations.
All undesignated statutory references are to the Penal Code.
A jury convicted defendant of all counts and found all the allegations true. On the attempted murder, the court sentenced defendant to the low term of five years, plus a term of 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and 20 years for the firearm enhancement (§ 12022.53, subd. (c)). For the assault upon Torres, the court imposed and stayed a sentence of 24 years (§ 654), composed of the upper term of four years, plus 10 years each for the gang and firearm enhancements. The court imposed a concurrent term of eight years, composed of the upper terms for the assault and the gang enhancement, for the assault upon Logroño. The aggregate sentence was 35 years.
The court originally imposed a term of 25 years to life under subdivision (d) of section 12022.53, but recalled the sentence six days later and struck the subdivision (d) enhancement.
Defendant appeals.
FACTUAL BACKGROUND
1. The Attempted Murder
About 3:00 p.m. on March 20, 2015, Kenya Gooden was driving home southward on Broadway after speaking with her daughter at Bethune Middle School. As she neared the intersection of Broadway and 67th Street, she noticed that the traffic was slowing and that cars were turning right and left. The traffic and Gooden came to a stop between 67th and 68th Streets.
Gooden saw defendant in the street firing a gun. She described defendant as a heavyset Hispanic with a lot of facial hair and a full head of hair; he wore a light or white top and a dark bottom. Defendant was about 12 feet from Gooden. As Gooden described the scene, she saw defendant "aiming his gun, firing his gun in a northeast direction, pretty much close face to face to me, just firing with a look of something on his face, like trouble on his face." She saw a spark from the gun. Gooden counted at least three shots. Gooden could tell defendant was aiming at someone who was running towards the school. She saw defendant run in the same direction, cutting across Broadway.
Gooden returned to Bethune Middle School to pick up her daughter and notify the school about the shooting. She was concerned about her daughter and the other children's safety. The school day had ended less than an hour earlier and there were "a lot of kids in the area walking around, crossing the street."
2. The Assaults
About the same time, Logroño was sweeping the floors at Target Coin Laundry, less than a block northeast of the shooting and across the street from the school. As Logroño was sweeping, Torres ran inside the laundromat, bleeding from his arm, and asked Logroño to call the police. Almost immediately thereafter, Logroño saw Raul Gonzalez (Raul) follow Torres inside and start hitting him. Logroño did not have a phone and was not able to call the police, but he urged Raul to calm down and stop hitting Torres. Raul did not stop: "He just kept hitting him." "He was hitting him until they left, until he was lying on the floor." Defendant followed Raul inside, and "both of them were hitting him." Torres was "thrown on the floor and getting stepped on."
Logroño was the victim of the aggravated assault alleged in count 4.
Torres was the victim of the attempted murder (count 1) and one of the aggravated assaults (count 2). --------
At some point, defendant stopped hitting Torres and started hitting Logroño, who knew defendant by name. Logroño told defendant to calm down and asked defendant why he was hitting him. Defendant hit Logroño four or five times around his face and ears and then kicked him in his legs. Logroño put his arm up to ward off a blow, and his watch "was torn away." Logroño escaped outside onto Broadway. Logroño's face was swollen because of the blows.
Once Logroño made it outside, defendant and Raul hit Torres "a little bit more." They went across Broadway, "yelling and forcing cars to stop. And right at that moment, that's when the police passed by."
Officers Sarabia and Secor responded to the report of an assault with a deadly weapon inside Target Coin Laundry. Sarabia found Torres on the ground behind the laundromat. He had blood on his shirt and face, fresh bruising to the left side of his face, and what looked like a gunshot wound to his left arm. Torres was missing a shoe. Seeing the blood and Torres's open wound, Sarabia and his partner called for paramedics.
Torres told the officers he had been walking on Broadway when he was jumped by two Hispanic men. The skinnier of the two men followed him into the laundromat and beat him again. Torres said he hurt his arm climbing over a fence. Although Torres appeared to be in pain, he declined treatment. He would not allow the paramedics to touch him or assess his injuries.
3. Torres's Gunshot Injuries
About two hours after the incident, experiencing fevers, chills, nausea, and vomiting, Torres called paramedics from his home. Paramedics took him to St. Francis Medical Center where surgeons repaired a liver laceration and removed a bullet from Torres's back. Torres suffered a gunshot wound to his back and a through-and-through gunshot wound to his left arm. He had lost a significant amount of blood. Torres was not discharged from the hospital until March 24, 2015.
4. Detention and Arrest
Contemporaneously with the shooting and the assaults, Luis Mijangos, an officer with the Los Angeles School Police Department, was patrolling the area around Bethune Middle School. He was in full police uniform, alone in a marked black-and-white police car. Around 3:00 p.m., a call went out of a shooting and an assault with a deadly weapon around 69th and Broadway. There were two suspects. One suspect was a heavyset male Hispanic, wearing a brown shirt, who was last seen walking west on 67th Street away from Broadway.
After searching the area, Mijangos saw defendant who matched the description. Defendant and Raul were approaching 68th Street, walking northbound in an alley that paralleled Broadway to the west. Defendant was sweating profusely. After calling for backup, Mijangos asked defendant to put his hands behind his back and interlock his fingers. Defendant made fists, took a fighting stance, and told Mijangos "what the fuck did I want, that he wasn't doing shit for me." Defendant was "noncompliant, agitated, violent, combative, and he just was not listening ... ." Additional officers arrived about 30 seconds later, and defendant was handcuffed. Even in handcuffs, defendant continued to curse at Mijangos and behave aggressively. Officers also detained Raul who had ignored Mijangos and kept walking. Mijangos did not notice any injuries on defendant or Raul.
When defendant was arrested, he wore a gray or brown shirt, black basketball shorts, and sandals. He had a full head of hair, cut short, and some facial hair. Officer Melissa Angert returned to the crime scene after Raul told her that the fight started because he saw a guy spray painting "CX" on a blue wall, and to search for casings.
DISCUSSION
Initially, defendant argued: trial counsel was ineffective for failing to object on Aranda/Bruton grounds when Angert testified that Raul told her defendant was the shooter; the court erred when it refused to allow the defense to impeach Angert's testimony with a recording of Raul's custodial interview; and the prosecutor committed misconduct by urging the jury to use Mijangos's testimony about the brown shirt for an improper purpose. In his reply brief, defendant concedes counsel was not ineffective and the court's refusal to play the custodial interview was not prejudicial. Defendant maintains his claim of prosecutorial misconduct, however.
1. The Conceded Contentions
1.1. Facts Underlying the Conceded Contentions
The two contentions which defendant abandoned in his reply brief were based on Angert's testimony. She interviewed Raul once by herself and once in the company of Detective Ahn. During Raul's interview, Raul stated that it was defendant who had shot Torres.
At trial, the prosecutor asked Angert whether Raul told her anything that led Angert to revisit the scene of the shooting. Defense counsel objected because anything Raul told Angert was hearsay. The prosecutor responded that she asked the question to explain Angert's subsequent conduct. The court allowed Angert to answer the question, noting that the prosecutor's question called only for information relevant to the officer's decision to return to the crime scene. Angert went on to testify that Raul told her Raul and defendant had an altercation with a person who was tagging "CX" on a blue wall. She added: "He eventually admitted that Roberto shot this guy."
Defense counsel objected again, and the court told the jury: "None of that is admissible for the truth of the matter asserted. That's just to explain what her subsequent investigation was, which was to go back to 68th and Broadway." During her examination by defense counsel, Angert repeated Raul's statement that it was defendant who had shot Torres.
After the close of evidence, the court instructed the jury: "Also there were statements that were introduced for a limited purpose through one of the detectives that testified. She was an officer at the time. And those were the statements of Raul Gonzalez. Those statements were admitted for a limited purpose and that was to explain her conduct. To the extent that she included any information in her response that wasn't necessary to explain her conduct, those statements of Raul Gonzalez are stricken. So the fact of who shot is not before you in evidence through that. The only thing that was of any relevance is that she went back because somebody shot and she was looking for casings. Again, all of that testimony, none of it was introduced for the truth of the matter asserted."
1.2. The abandoned contentions are not supported by the law and the facts.
The contention that counsel was ineffective because he did not object on Aranda/Bruton grounds to Angert's testimony relating Raul's statement that it was defendant who shot Torres is without merit. The Aranda/Bruton rule does not apply unless the confessing defendant is being jointly tried with the defendant against whom the confession is being introduced. (People v. Brown (2003) 31 Cal.4th 518, 537.) Here, Raul was not tried with defendant. (See People v. Gonzalez (2018) 5 Cal.5th 186, 206 [declining to extend Aranda/Bruton rule beyond joint trials].)
The contention that the court erred when it refused to allow the defense to impeach Angert's testimony with a recording of Raul's custodial interview is also without merit. Raul's interview was admitted only for a limited purpose and not for the truth of the matter asserted therein. There was therefore no point in impeaching Angert's testimony with Raul's statement.
In short, defendant properly abandoned both contentions.
2. The prosecutor did not commit misconduct.
Defendant argues the prosecutor committed misconduct by suggesting that Gooden, when reporting the shooting to the school, had stated that the shooter was wearing a brown shirt. In other words, defendant argues the prosecutor's effort to harmonize Gooden's testimony and to eliminate the contradiction between her trial testimony, the shooter was wearing a light or white shirt, and the fact that defendant was arrested in a gray or brown shirt constituted misconduct.
2.1. Gooden's Description and the People's Argument
Gooden was an eyewitness to the shooting and the only person to identify defendant as the shooter. At first, she testified that defendant was wearing a "light top." Later, she testified that the shooter as wearing a "white-colored, I believe it was, a white T-shirt and dark-colored jeans or something. A dark bottom and a white top." Although Gooden was not focused on the shooter's clothing, she could "tell it was a dark bottom and a white top." Gooden also described the shooter as having longer hair when she was interviewed by a detective.
As noted, when defendant was arrested just after the shooting, he wore a gray or brown shirt, black basketball shorts, and sandals. Defendant's hair was short. The prosecutor tried to rehabilitate Gooden's eyewitness identification by suggesting that on the day of the shooting defendant changed his shirt after the shooting.
During closing argument, the prosecutor tried to connect Gooden to the description of the suspect that Mijangos received: "[S]he goes and she reports this to the school. And the school goes on lockdown. They radio a dispatch for school police, 'a suspect wearing a brown shirt.' That's the radio call that Officer Mijangos hears." Defense counsel objected that the description was not admitted for its truth, and the court agreed. The court told the jury the information in the call was for the limited purpose of explaining Mijangos's conduct.
The prosecutor then argued Mijangos found defendant wearing a brown shirt and detained him because Mijangos was looking for someone wearing a brown shirt. Counsel objected again, and the court responded that it had already given a limiting instruction "and that goes to why he was detained, acted as he did, and stopping him."
When the prosecutor looped back to Gooden reporting the shooting to the school, noting the school dispatch described the suspect as wearing a brown shirt, counsel objected again and asked the court to impose sanctions. The court overruled the objection, noting the prosecutor had "moved on to something else."
Before the break, the court told the jury: "I just want to clarify something very clearly. The evidence that he was looking for somebody in a brown shirt explains why he stopped the defendant. Okay? But that call is not evidence that the shooter had a brown shirt. Got it? The limited purpose for that is that he was looking for somebody—that's why he stopped this guy. But we don't know what the source of that information was. We have no evidence as to who made that—what led to that call. Therefore, what is in that call is not admissible for the truth of the matter asserted. It explains why they stopped the defendant, but it's not evidence the shooter had a brown shirt. Got it?"
After the prosecutor's argument, counsel moved for a mistrial, contending the prosecutor used an impermissible inference to argue "the shooter was wearing a brown T-shirt." The court denied the motion, noting it had instructed the jury "a couple of times" on the proper use of that evidence.
During rebuttal, the prosecutor returned to the brown shirt. "We have evidence that Kenya saw the defendant shoot. Kenya went to the school and reported it. And the school put out a description of a brown T-shirt. That's the evidence that we have." Counsel objected, and the court told the jury this was not a permissible inference.
Once the prosecutor was finished, counsel moved again for a mistrial, contending the prosecutor's arguments were improper "where they were attempting to smuggle in inference claims that could not be argued openly and legally in court." The court denied the motion.
2.2. There was no misconduct.
We begin by noting that whether Gooden was right or wrong about the color of defendant's shirt is of marginal importance. What is important is that there was no equivocation or hesitation in Gooden's identification of defendant as the man she saw firing a gun. Because she was "face to face" and 12 feet from defendant at 3:00 p.m. in the afternoon, she was in a very good position to observe him. Her description included the expression on defendant's face, the direction he was shooting, and the number of shots fired. Given the stress of being in the middle of a shooting on a public street, Gooden cannot be faulted if she misremembered the color of defendant's shirt or the length of his hair.
There is also no dispute that the radio call received by Mijangos stated that one of the suspects was wearing a brown shirt. Gooden reported the shooting to the school after seeing defendant fire a gun. A school administrator communicated Gooden's report to school police. And there was evidence at trial that Gooden's report was the source of the description Mijangos received from dispatch.
Based on the evidence at trial, it was reasonable to infer that Gooden described the shooter to the school as wearing a brown shirt. Although this was not the only reasonable inference, prosecutors have broad discretion to state their views as to " 'what inferences may be drawn [from the evidence].' " (People v. Sims (1993) 5 Cal.4th 405, 463, quoting People v. Mitcham (1992) 1 Cal.4th 1027, 1052.) It is for the jury to decide among competing inferences. (People v. Jablonski (2006) 37 Cal.4th 774, 835.)
The prosecutor, therefore, did not commit misconduct.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.