Opinion
F072740
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ARMANDO MELENDEZ, Defendant and Appellant.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, F. Matt Chen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F14902295)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In an information filed June 10, 2014, defendant Richard Armando Melendez was charged with one count of murder (Pen. Code, § 187, subd. (a); count 1) with the special circumstances of (1) being perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)) and (2) being carried out to further the activities of a criminal street gang (§ 190.2, subd. (a)(22). The information also charged defendant with three counts of attempted murder (§§ 664/187, subd. (a); counts 2-4).
All further statutory references are to the Penal Code unless otherwise stated.
The information alleged that in the commission of each of the four counts, defendant personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)) and that each count came within the provisions of section 186.22, subdivision (b)(5).
A jury convicted defendant on all counts. On count 1, the court sentenced defendant to life in prison without the possibility of parole, plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d).) On count 2, the court sentenced defendant to nine years, plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(c), plus 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).) On count 3, the court sentenced defendant to a consecutive term of two years four months, plus 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).) On count 4, the court sentenced defendant to a consecutive term of two years four months, plus 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).)
The gang enhancements (§ 186.22, subd. (b)(5)) on counts 3 and 4 were stayed pursuant to section 654.
In total, defendant was sentenced to a determinate term of 23 years 8 months; followed by four consecutive terms of 25 years to life; followed by a consecutive term of life without the possibility of parole.
FACTS
We summarize the facts in the light most favorable to the judgment. (People v. Henning (2009) 173 Cal.App.4th 632, 635.)
Steven C.'s Prior Interaction with Defendant
Steven C. attended a probationary school with defendant. Steven was admitted to the juvenile justice campus in 2011 after a felony juvenile adjudication for possessing ammunition. At the time, Steven was affiliated with the West Fresno Norteños. The Norteños have several rivals, including the Bulldog gang.
We refer to many of the witnesses by their first name for readability (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 4, fn. 1) and privacy (see Cal. Rules of Court, rule 8.90(b)(10).)
Steven testified he dropped out of gangs and had not been "around the gang life for two years" when the incident occurred.
One day after school, a group of Bulldog gang members followed Steven and his friend. Defendant was in the group following Steven. As the group closed in, Steven saw a group of his own friends, who were Norteño gang members. The two groups - Steven and his Norteño friends on one side; and defendant and the Bulldog group on the other - got into a fight. During the fight, defendant tried to hit and tackle Steven, and Steven hit defendant. Steven's group outnumbered defendant's group. In Steven's view, his group "got the best" of defendant's group in the fight.
Events of March 4, 2014, and early March 5, 2014
Years later, on March 4, 2014, Steven and his best friend Brian F. went to a Mardi Gras festival in the Tower District of Fresno. Steven had smoked marijuana before leaving for the festival. As Steven and Brian were walking down Olive Avenue, a group of individuals started taunting them. Defendant was in the group and called Steven a "turtle" - apparently to mock Steven's appearance. Steven told Brian, " 'We got to get out of here, you know. We're out-numbered. There's more of them, less of us. I know them. I've had previous altercations with them. Nothing good is going to happen here.' " Steven and Brian then walked to the home of Oscar T.
Later, Steven, Brian, and Oscar returned to the festival in Brian's car. Their friends, Tyler F. and Anthony P., also joined them. To Steven's knowledge, none of the individuals in their group with were gang members.
Law enforcement stopped Brian's vehicle on suspicions of drunk driving. During the traffic stop, a group of 10 to 12 individuals walked by on both sides of the street. The group made gang signs ("B's for Bulldogs"), taunted Steven's group, and barked at them. Steven recognized defendant as one of the 10 to 12 individuals. Defendant was wearing a white shirt and rectangular, black-framed glasses.
The group also made "C's," but Steven did not know to what that referred.
Defendant said, " 'I'm not a Bulldog but I'll fight for them.' " One of the people in defendant's group said to defendant: " 'You got jumped by one of these ugly motherf[**]kers?' " Steven told them, " 'Get the f[**]k out of here. Go over there.' " Steven "may have" also said, " 'That's why you got beat up.' "
Near the end of the traffic stop, Anthony approached and asked, " 'Where you guys been?' " Steven told Anthony to go to the first available street so they could pick him up. The group then drove to pick up Anthony about a block away. While the group was picking up Anthony, Steven looked towards Olive Avenue and saw defendant "putting his arms up like, come fight me." Defendant then picked up his shirt, revealing a gun in his waistband.
Steven's testimony as to whether Anthony was in the car when the traffic stop occurred or whether Anthony approached the car from elsewhere is unclear. At one point, Steven testified that Anthony was in the car at the time of the traffic stop. At another point, Steven said they had "lost" Anthony, and he approached the car on foot during the traffic stop.
When asked why they did not just let Anthony in the car right then, Steven testified, "I don't know. We were in a traffic stop. We didn't know if they would be tripping." The meaning of this response is not clear.
The group returned to Oscar's house again and smoked marijuana. They stayed there for about 20 minutes, until Brian, Steven, Tyler, and Anthony left in Brian's car. Brian was driving, Steven was in the front passenger seat, Anthony was in the seat behind Steven, and Tyler was in the seat behind Brian. Brian began to drive towards the area of Valentine and Ashlan to drop Anthony off at his house. When Brian turned left on Ashlan, he said, " 'I think somebody's following us, I'm going to pull over to the right.' " Anthony looked back and saw a white car pull up to the left of Brian's car, with its two right-side windows rolled down. Within five or six seconds, Anthony heard 10 to 14 gunshots and saw muzzle flashes coming from the front seat. The muzzle flashes were coming from the front right passenger window.
Anthony felt a bullet fly past his face and break the window next to him. Brian's vehicle crashed, and Steven, Tyler and Anthony got out and ran towards a nearby Walgreens. Initially, Anthony did not know whether anyone had been hit by any bullets. Eventually, Anthony looked back and saw Brian's body "folded in between the steering wheel and the driver's seat."
Julian C. was working as a contracted security guard at a convenience store on Ashlan and Marks that night. At about 12:55 in the morning, Julian heard five to seven gunshots. Julian saw a tan vehicle ("maybe [a] Toyota Camry") traveling west at a high rate of speed. The vehicle ran a red light through the intersection of Ashlan and Marks. Julian headed toward the sound of the gunshots and encountered a small white vehicle. Three of its occupants got out and ran away. Julian told a fellow security guard to go after the three people fleeing while Julian went to the white vehicle. The white vehicle was still in drive and had struck a pole. Its driver (Brian) was unresponsive, and Julian attempted to render aid. Brian eventually became conscious, and paramedics took him away. Brian had suffered a gunshot wound to the head and would not survive.
Steven recognized defendant as the shooter, but thought his last name was Ramirez. Police showed Steven pictures of several people named "Richard Ramirez," but Steven said it was "not them." Steven said the Richard he was talking about had attended Violet Heintz Education Academy ("Violet Heintz") with him from 2010 to 2012. The principal of Violet Heintz located pictures of several "Richards" with different last names. Included in the second batch of "Richards" was a picture of defendant Richard Melendez. When Steven saw the photograph, he tapped it and said, " 'Shooter. No doubt.' "
Steven referred to the school as "Violet Heintz." The principal identified the full name of the school as Violet Heintz Education Academy.
Defendant was arrested at the home of his grandmother, Susan G. Law enforcement asked Susan for defendant's belongings, and she gave them defendant's cell phone. Both Susan and defendant's girlfriend, Maria V., confirmed the phone was defendant's.
The prosecution introduced evidence that the cell phone's geographical data was consistent with it having been in the area of the shooting when the shooting occurred; that it was used to access news sites concerning the shooting; and had been used to send circumstantially inculpatory text messages.
FBI Special Agent Easter testified that the "general location" of a cell phone can be determined by looking at which cell towers it connects to. Easter opined that, based upon the cell phone records, the call activity on defendant's phone was "consistent with being in the area of the homicide."
Defense expert Manfred Schenk disagreed with Special Agent Easter's conclusions. Schenk said that call detail records, drive test information and geographic cell tower data can only identify the location of a cell phone within a "20-plus mile range" but "cannot tell us more than that."
Defendant's phone sent a text message to a contact named "Security Jonathan" on March 6, 2014, at 8:46 p.m., saying, " 'So did u see da broken windows.' " At 8:49 p.m., defendant's phone sent a text message to Security Jonathan saying, " 'Ow I think we blew the windows off.' " Security Jonathan responded, " 'Lol which ones.' " Defendant's phone responded, " 'Da whole driver side.' " Security Jonathan responded, " 'Lol, damn.' "
Detective Villalvazo asked Maria if defendant carries a firearm. Maria said, "[H]e does" and that "he had one for about four to five months." The gun was silver and black. When Villalvazo showed her his Glock semiautomatic firearm, she said, " 'Yeah, it was that kind of gun.' " Maria said defendant usually hid the gun in his Honda Accord. Villalvazo searched defendant's car but found no expended casings or firearms.
Detective Villalvazo interrogated defendant at the police department. Defendant said he was wearing a white T-shirt at Mardi Gras.
Anthony and Tyler identified defendant as the shooter at trial. Later in his testimony, Anthony said he was 70 percent certain defendant was the shooter.
Gang Evidence
The Bulldog Criminal Street Gang
The parties stipulated that the Eastside Fresno Bulldogs and the West Fresno Norteños are criminal street gangs within the meaning of section 186.22, subdivision (f); their primary activities include the commission of crimes included in section 186.22, subdivisions (e)(1) through (33); and that their members have engaged in a pattern of criminal gang activity as defined in section 186.22, subdivisions (e)(1) through (33).
Officer Romero's Background Testimony
Officer Romero is a police officer with the Fresno Police Department, assigned to the gang task force. Romero is assigned to investigate the Bulldogs gang specifically, but he is also familiar with the Norteño gang.
Within the Bulldogs gang are several subsets, the largest of which is the Eastside Fresno Bulldogs. Some of the subsets have their own subsets. For example, the Bond Street Bulldogs and College Street Bulldogs are two subsets of the Eastside Fresno Bulldogs subset.
The main rivals of the Eastside Fresno Bulldogs are the Norteño and Sureño gangs. Their gang color is red. Their common symbols include "anything related to Fresno State" University, and they often have tattoos of a Bulldog face, the word "Fresno," or the number "624." But Officer Romero has "definitely" seen members of the gang without those tattoos. The gang has hand signs, including forming a letter "B" for Bulldogs or the letter "C" for College Street or Calwa. In order to intimidate people, Bulldogs will often bark or yell out " 'Bulldogs.' "
Loyalty and respect are very important within the Eastside Fresno Bulldog gang. Loyalty in that context means "hav[ing] another gang member's back." Respect in gang culture means being feared. You have to be violent to gain respect in the gang world.
Case-specific Evidence
Officer Irfan, a classification officer at the Fresno juvenile facility, testified that at a booking interview on August 28, 2010, defendant indicated he associated with the "Bulldogs" gang.
Officer Stokes, a correctional officer for juvenile hall, testified that in a November 4, 2010, report, she documented a "contact" between defendant and another minor who "claimed" "Norteño." Defendant "claimed" Bulldog.
During the booking process on March 8, 2014, Officer Murray, a classification officer, asked defendant if he had any gang associations. Defendant said he was an "Eastside Fresno Bulldog associate." Defendant said he might have problem with Norteños and Sureños due to his association. Defendant also said he would be fine housing with other Bulldogs. (Murray's testimony was later stricken by the trial court, as explained later in this opinion.)
In Officer Romero's testimony, the reporter's transcript indicates he was asked about a jail classification from March 8, 2015. The prosecutor likely meant to say, "March 8, 2014." The classification officer testified about a jail classification on March 8, 2014.
On January 9, 2015, defendant was placed in a court holding cell awaiting a hearing in the present case. Deputy Babineaux, who was responsible for the inmates coming to the courthouse from the jail, noticed the letters "O-O-S-E" had been scratched into the door to tank B of the holding cell. Defendant was the only one inside the cell at the time and the markings were "new." Babineaux read defendant his Miranda rights and asked him if he had any gang affiliation. Defendant said he was a "member of the Fresno Bulldogs." However, defendant denied scratching "O-O-S-E" into the door and said he did not want to speak with the officer any further. Babineaux searched Fresno County jail's inmate classification system which indicate that defendant's moniker is "Big Goose."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In Officer Romero's opinion, defendant is a member and active participant of the Eastside Fresno Bulldog gang. In making that determination, Romero considered several factors, including that on the night of the incident, defendant was with individuals who were making gang signs and barking. Other factors Romero considered were the "graffiti" in his holding cell, jail classifications, the incident described by Officer Stokes, admitting gang membership, associating with other Bulldog gang members, the fact that he had a moniker (i.e., "Big Goose"), and the "Fresno" tattoo on his arm. (Romero's testimony concerning defendant's statements to Officer Murray during a booking interview were stricken by the trial court, as explained later in this opinion.)
Officer Romero also reviewed a probation report concerning an incident on March 17, 2011. The probation report indicated that another student in a classroom called defendant a "mutt." Romero testified that "mutt" is a derogatory term for a Bulldog gang member. Defendant took offense to being called a "mutt" and stood up in class, causing a disturbance. When asked if someone "stand[ing] up" after being called a mutt makes it more likely they are a Bulldog, Romero responded, "I would say so."
Officer Romero was given a hypothetical scenario reflecting the facts of this case and asked whether such a crime would have been committed with the intent to promote or assist in the criminal conduct of the Bulldog gang. Romero responded, "Yes." Violent crimes benefit the Bulldogs because people who hear about the crimes are less likely to cooperate with the justice system.
Defense
Jonathan C. testified he spent time with defendant on one occasion. Jonathan, defendant, "Coco," and "Nonio" went out to shoot BB guns at cars. They came across the home of Ricardo G. Jonathan said Ricardo was an "asshole" and had "screwed [him] over." The group talked about possibly going to Ricardo's house and "doing something to his car."
Later that night, Jonathan got a text message from defendant saying, " 'Oh, we shot up the driver's side door.' " Jonathan remembered responding something to the effect of: " 'Oh, dang. Lol.' "
When Jonathan got a text saying, " 'So did u see da broken windows,' " he assumed defendant was talking about having shot at Ricardo's house or car. Jonathan was not with defendant on the night of Mardi Gras (March 4) and could not account for his whereabouts.
Officer Nichols
Officer Nichols testified that he responded to the scene and spoke with Anthony and Tyler. Tyler told Nichols that he thought shots were being fired from both the front side passenger and rear passenger windows. Tyler did not say he saw someone brandish a gun during Mardi Gras.
Anthony told Officer Nichols he only heard the shots and did not see the vehicle's occupants. On cross-examination by the prosecutor, Nichols testified that he spoke with Anthony and Tyler only briefly at the scene. Anthony and Tyler were "pretty broken up" and were crying at the time.
Investigator O'Neill
Investigator O'Neill is an investigator with the district attorney's office. She interviewed Anthony ahead of the preliminary hearing in the case. Anthony said someone had been aggressively requesting the Mardi Gras beads he was wearing. Anthony described the person as a 5-foot 10-inch, Hispanic male with rectangular glasses, a red Pro Club shirt, gray basketball style shorts, and a "49ers type of hat."
Anthony also described a person named "Tado," who he had also seen on the streets during Mardi Gras. Anthony said he was 75 percent sure he saw Tado in the car that had shot at them. Anthony showed O'Neill several images from his phone. Below one of the images (which was from a Facebook post) was writing that said, " 'Tado Tay Aranas, got to go MIA. Start from scratch. Trying to shake the feds. And, of course, caught Fadez from my Calwa crooks.' " Below that, it read: " 'It's a hard knock life when you pass away, but you got to stay on your toes yaman.' " The date stamp on the comment was "March 5."
Tyler did not tell Investigator O'Neill he had seen defendant brandishing a gun on the night of March 4, 2014.
Investigator Trevino
Investigator Trevino, also an investigator for the district attorney's office, testified. Tyler told Trevino he recognized a person named Tado from Mardi Gras. Tado was with defendant's group when they were "barking" at Tyler and his group. Tyler said Tado was wearing a Black Club T-shirt. Tyler said he was 80 to 90 percent sure he saw Tado in the rear of "the suspect vehicle" later that night. Anthony also said he recognized Tado as being in the vehicle.
Tyler did not say defendant brandished a firearm while in the Tower District.
Dr. Scott Fraser
The defense also offered the testimony of Dr. Scott Fraser. Dr. Fraser testified about the potential difficulties and shortcomings of eyewitness identifications.
Dr. Fraser discussed a phenomenon called conscious transference. It occurs when we "misidentify someone that we've encountered before, or during, or after, as being ... the culprit in question." It "occurs most frequently where the observation of a person in question is under conditions that produce an ambiguous or poof or incomplete memory store." Transference can occur without our awareness, which is called "unconscious transference."
DISCUSSION
I. Defendant has not Established Prejudicial Error Under Elizalde
A. Background
Defendant filed several motions in limine, including one to exclude jail classification evidence under Miranda, supra, 384 U.S. 436. The court held "an evidentiary hearing relating to jail classification issues" on June 3, 2015.
Defendant also moved to bifurcate out gang evidence from the trial on other offenses, which the trial court denied.
Events of August 27-28, 2010
Detective Wilkin testified that around 11:30 p.m. on August 27, 2010, he was on uniform patrol in the southwest district of Fresno. Wilkin observed two people riding bicycles without a headlight. The two identified themselves as Richard Melendez (defendant) and Jonathan Miranda. Wilkin "ran" both of their names and discovered that defendant had been reported missing in the Missing and Unidentified Person System. Wilkin told defendant he was out past curfew and asked if he "had anything illegal ... on him." Defendant said, "[W]ell," then paused, and then said, "[N]o." Then defendant told Wilkin to go ahead and check. Wilkin did a pat down and discovered nine live .38-caliber bullets in defendant's pocket. Wilkin, suspecting defendant had discarded a firearm, searched the area. He found a .38-caliber black revolver laying in dirt about 20 feet from where Wilkin had contacted defendant. Wilkin detained both individuals and read defendant his Miranda rights.
Detective Wilkin obtained Miranda's statement first. Miranda said defendant had acquired the gun for protection, and because he wanted to be a Bulldog gang member. Miranda saw defendant throw the gun away as they rounded the corner at an intersection. Miranda admitted that he was a Bulldog gang member.
After defendant was read his Miranda rights, he agreed to speak with Detective Wilkin. Defendant said he purchased the gun and ammunition from a friend he refused to identify. Defendant denied being a gang member.
Officer Irfan was working as a booking officer at the juvenile commitment facility on August 28, 2010. Booking officers take mug shots and fingerprints, and they enter information about the minors into the Juvenile Automation System (JAS). The information entered into JAS include the charges against the minor, their medical history, and parent contact information. The minor's gang associations are also entered into JAS. The minor's gang affiliation is used to make housing decisions to minimize gang fights in the facility.
Officer Irfan booked defendant on August 28, 2010. Irfan recorded into the computer system that defendant associated with Bulldogs. When asked why he entered that information into the system, Irfan said because he asks minors if they claim or associate with any gangs. Irfan's practice is to enter the information the minor tells him about gang affiliations or associations.
While the JAS system does prompt booking officers to give Miranda rights to the juveniles they are questioning, the prompt came after the questions about gang affiliation.
Events of March 8, 2014
Correctional Officer Murray works as a classification specialist at the jail for the Fresno County Sheriff's Department. Murray interviews and classifies inmates and uses that information to make housing decisions for inmates. If members of opposing gangs are housed together, altercations ensue.
On March 8, 2014, Officer Murray did a classification interview with defendant. The interview occurred within several hours of defendant being brought to the jail. During the interview, defendant told her he was an Eastside Fresno Bulldog associate. Defendant said he thought the victims in the case were either Norteño or Sureño associates. Murray documented defendant as a Bulldog associate. Officer Murray did not read defendant Miranda rights.
Events of January 9, 2015
Sheriff's Deputy Babineaux testified that he is currently assigned to security at the courthouse. His primary responsibility was transporting inmates to and from the felony courtrooms. There are seven "tanks" on the third floor of the courthouse for holding inmates. Inmates are segregated based on their jail housing so that inmates who are "not compatible" do not go into the same tank together.
On January 9, 2015, Deputy Babineaux opened the door to a tank where defendant was being held and observed the letters "OOSE" scratched into the paint of the door. Babineaux read defendant his Miranda rights and asked him about the markings. Defendant admitted he was a member of the Bulldog gang but denied scratching the letters into the door. Defendant then refused to speak any further to Babineaux.
At the close of the evidentiary hearing, defense counsel advised the court that the issue of whether arrestees needed to be Mirandized before being asked gang classification questions during booking was pending before the California Supreme Court in People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde). !(RT 230)!
On June 10, 2015, the trial court denied defendant's motion, holding that no Miranda violation occurred. The trial court observed that the Elizalde case was due for decision soon. The trial court also noted that the parties nonetheless wanted to move forward with the trial.
Voir dire began on June 16, 2015, and the jury was sworn the next day. Opening statements were given on June 18, and the presentation of evidence began the same day. The prosecution rested on June 24.
On June 25, the California Supreme Court issued its decision in Elizalde, supra, 61 Cal.4th 523. In that opinion, the Supreme Court held that a defendant must be Mirandized before his or her answers to gang affiliation answers in jail classification interviews may be used in the prosecution's case-in-chief. (Elizalde, supra, at p. 541.)
On June 30, 2015, the court held a hearing outside the presence of the jury. The court invited counsel to offer their position as to how Elizalde affected the case. The prosecutor argued that Officer Irfan's classification evidence remained admissible because defendant had been Mirandized by Officer Wilkin beforehand. As to Officer Murray's classification, the prosecutor suggested striking her testimony and give a limiting instruction. The prosecutor would not rely on the testimony in closing argument. Defense counsel moved for a mistrial.
The trial court observed that if Elizalde had been decided before its ruling on the motion in limine, it would have ruled Officer Irfan's testimony was admissible, but Officer Murray's testimony was inadmissible. The court indicated it would strike Murray's testimony and admonish the jury to disregard it. The court concluded Murray's testimony was not prejudicial in light of the substantial evidence of defendant's gang affiliation. The court subsequently told the jury that Murray's testimony was stricken, and they were to disregard it. Specifically, the trial court told jurors:
"Valerie Murray, who was the eighth witness called by the People, she testified during the morning session on June the 19th. Again, she was the People's eighth witness. And she testified during the morning session on June the 19th. As I've advised the attorneys, I'm going to order that her testimony be stricken and disregarded. Her testimony be stricken and disregarded. And before your deliberations begin, I will instruct you relating to that order that I just made. And when I instruct you before your deliberations begin, I'll state the following:
" 'If I order testimony stricken from the record, you must disregard it and not consider that testimony for any purpose.' "
"And both Counsel are aware of this order.
"So, again, for the record, to the members of the jury, I'm ordering the testimony of Valerie Murray be stricken and the jury is to disregard and not consider that testimony."
The court also struck portions of Officer Romero's testimony based on Officer Murray's testimony.
After the verdict, defendant moved for a new trial, relying largely on Elizalde. At the hearing on the motion, the prosecutor referenced a document produced in discovery that contained an entry by Officer Irfan on August 28, 2010, at 3:52 a.m. stating defendant had been booked. Officer Wilkin had initially made contact with defendant at 11:30 p.m. the night before and arrested him sometime shortly thereafter.
The trial court denied the motion for new trial.
B. Analysis
Defendant argues the trial court should have stricken the testimony of Officer Irfan. Barring that, the trial court should have granted his motion for a new trial. Both contentions center on the assertion that Officer Wilkin's Miranda advisement did not cover Irfan's classification interview because the location and the "interrogator" had changed. Because we disagree with that premise for the reasons explained below, we find no error.
Defendant also believes the trial court improperly considered in its legal analysis the fact that Officer Irfan Mirandized defendant after the gang affiliation questions. But we review the trial court's rulings, not its reasoning.
"Before being subjected to 'custodial interrogation,' a suspect 'must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 732, abrogated on another point by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Gang affiliation questions posed during the booking process at a detention facility are custodial interrogations under Miranda. (Elizalde, supra, 61 Cal.4th at p. 538.)
" 'After a valid Miranda waiver, readvisement prior to continued custodial interrogation is unnecessary "so long as a proper warning has been given, and 'the subsequent interrogation is "reasonably contemporaneous" with the prior knowing and intelligent waiver.' [Citations.]" [Citation.]' " (People v. Duff (2014) 58 Cal.4th 527, 555.)
In making this determination, courts may look at all of the circumstances. For example, courts often look to the amount of time between the Miranda advisement and the interrogation in question, any change in the interrogator or location of the interview, whether the defendant was reminded of the prior advisement, the suspect's past experience with law enforcement, and any indicia he subjectively understands and waives his rights. (People v. Pearson (2012) 53 Cal.4th 306, 316-317 (Pearson).) Even when one of the factors weighs in defendant's favor, the totality of the circumstances may still indicate that two encounters were reasonably contemporaneous. (E.g., id. at p. 317 ["we do not agree the absence of this factor alone undermined the trial court's finding ..."].)
The question here is whether Officer Irfan's booking interview at the detention facility was "reasonably contemporaneous" with Officer Wilkin's Miranda advisement upon defendant's arrest on the street some four and a half hours earlier.
In this case, some of the various factors cited in decisions like Pearson pull in different directions. However, on balance, we conclude the totality of the circumstances indicate defendant's booking interview was reasonably contemporaneous with his arrest and Miranda advisements.
Defendant's booking interview with Officer Irfan occurred mere hours after Officer Wilkin arrested and Mirandized him. While there was a change of location and interrogator from the street where Officer Wilkin arrested and Mirandized defendant to the detention facility where Irfan conducted the booking interview, nothing in that change of location or interrogator should have signaled to defendant the Miranda advisements no longer applied.
In People v. Lewis (2001) 26 Cal.4th 334, a detective Mirandized a defendant. Five hours later, a different investigator interrogated defendant without reissuing the Miranda admonishments. The Supreme Court held the subsequent interrogation was "reasonably contemporaneous" with the initial Miranda waived, and reissuing the admonishments was not required. (People v. Lewis, supra at pp. 386-387.) Indeed, even interrogations occurring 40 hours after an admonishment can be considered "reasonably contemporaneous." (People v. Williams (2010) 49 Cal.4th 405, 435.)
Defendant argues he "would likely have believed that the [booking] questions indeed concerned his safety and Juvenile Hall security rather than criminal prosecution." But the question is not whether the change of location and "interrogator" would have led defendant to believe the interrogators had different motives in questioning him. Rather, the question is whether the change of location and interrogator would lead defendant to believe the admonishment that his answers could be used against him no longer applied. The fact that the gang affiliation questions came mere hours after his arrest and Miranda advisements, and that they were being posed by a government official while defendant was still clearly in custody, indicates that defendant had no reason to believe the recent Miranda advisements no longer applied.
At the time, defendant was apparently relatively unacquainted with the justice system. While this factor alone does not preclude a finding of reasonably contemporaneity (Pearson, supra, 53 Cal.4th at p. 317), it is relevant to the totality-of-the-circumstances inquiry. However, despite his apparent lack of familiarity with the justice system, defendant refused to tell Officer Wilkin who had sold him the gun and ammunition he possessed. This raises an inference that defendant was able to understand and assert at least some of his Miranda rights.
Considering the totality of the circumstances, we agree with the trial court's conclusion that Officer Irfan's testimony was admissible.
As to Officer Murray's testimony, the trial court concluded it was inadmissible in light of Elizalde. Accordingly, the trial court struck the testimony and instructed the jury to disregard it. Nonetheless, defendant argues the jury's "exposure" to the testimony of Murray resulted in prejudice. This contention fails because we presume juries disregard stricken testimony. (People v. Seiterle (1963) 59 Cal.2d 703, 710, accord People v. Melendez (2016) 2 Cal.5th 1, 33.) Because we presume the jury disregarded the stricken testimony, there is no prejudice.
II. Defense Counsel was not Constitutionally Ineffective for Failing to Seek Exclusion of Deputy Babineaux's Testimony
Defendant argues trial counsel rendered ineffective assistance by failing to seek exclusion of Deputy Babineaux's testimony.
" ' "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonably probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.]" ' " (People v. Rices (2017) 4 Cal.5th 49, 80, citing Strickland v. Washington (1984) 466 U.S. 668, 694.)
"Failure to raise a meritless objection is not ineffective assistance of counsel. [Citation.]" (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
Defendant concedes that Deputy Babineaux was entitled to question defendant about the letters scratched into his holding cell door. However, defendant argues his responses to Babineaux's questions were not admissible at defendant's trial for murder because he was represented by counsel in that trial and counsel was not present during his questioning. Defendant goes to great lengths arguing that his right to counsel had attached by the time Babineaux questioned him, citing cases like Massiah v. United States (1964) 377 U.S. 201, 204-205. But the Attorney General does not argue that point. Since that point is not at issue, cases like Massiah "do not advance his argument." (Montejo v. Louisiana (2009) 556 U.S. 778, 791 (Montejo).)
The Attorney General contends that even if the right to counsel had attached, defendant waived that right when he answered questions after being given Miranda advisements. We agree.
The Sixth Amendment affords a defendant the right to have counsel present when law enforcement deliberately elicits incriminating statements while he or she is in custody after having been formally charged with a crime. (People v. Brice (1966) 239 Cal.App.2d 181, 191.) However, like many constitutional rights, the right to counsel can be waived. Indeed, Supreme Court precedents "place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. [Citations.]" (Montejo, supra, 556 U.S. at p. 786.) "The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. [Citation.]" (Ibid.) "And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick ...." (Ibid.)
Here, Deputy Babineaux read defendant his Miranda rights before questioning him, which included advising defendant of his "right to remain silent" and his "right to an attorney prior to and during any questioning." It also included the warning that "[a]nything" defendant said may be used against him in court. Nonetheless, defendant chose to answer Babineaux's questions. !(RT 2635-2636)! (See People v. Nelson (2012) 53 Cal.4th 367 [individual implicitly waives Miranda rights by answering questions after acknowledging he understands his rights].)
At the in limine hearing, Deputy Babineaux testified defendant stated he understood his Miranda rights. This fact defeats defendant's arguments that a "requisite level of comprehension" must be shown before a Miranda waiver can be established and that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given." Here, defendant was not silent as to his Miranda rights, he expressly indicated he understood them. Defendant offers no reason why we should find a lack of the "requisite level of comprehension" in light of his express indication that he understood his rights.
Defendant later ended the conversation.
Defendant responds that "Montejo did not conclude that a charged defendant who had invoked his Sixth Amendment right to counsel for the offenses charged must 're-invoke' his Sixth Amendment right to counsel every time law enforcement attempts to interrogate him." (Original italics.) But Montejo did observe that "a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings." (Montejo, supra, 556 U.S. at p. 794.) Defendant did not do that here. Instead, he said he understood his rights (including the right to have counsel present) and answered the questions anyway. Defendant was fully entitled to do that, because Supreme Court precedents "place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. [Citations.]" (Id. at p. 786.) Defendant is "unjustified to presume ... consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer." (Id. at p. 792.)
Defendant also argues that the rule of Edwards v. Arizona (1981) 451 U.S. 477 (Edwards) survived the Montejo decision. We agree, but that point is not dispositive. The Edwards rule is "that once 'an accused has invoked his right to have counsel present during custodial interrogation ... [he] is not subject to further interrogation by the authorities until counsel has been made available,' unless he initiates the contact. [Citation.]" (Montejo, supra, 556 U.S. at p. 787.) But here, defendant did not invoke his right to have counsel present during the custodial interrogation. Instead, he answered the substantive questions. Edwards is not applicable.
Defendant argues that at his arraignment, counsel was appointed at his request. But, "a defendant's request for counsel at arraignment creates no presumption invalidating a defendant's subsequent waiver of his right to counsel at police-initiated interrogation." (Jones v. United States (11th Cir. 2011) 478 Fed.Appx. 536, 540.)
Defendant also argues that he had "no reasonable basis" to recognize that his election to answer questions about graffiti would also waive his "Sixth Amendment right to counsel as to the pending murder charges." Defendant's argument misses the mark is several respects. First, defendant did not waive his "Sixth Amendment right to counsel as to the pending murder charges." Rather, he waived his Sixth Amendment right to have counsel present during Deputy Babineaux's custodial interrogation. Moreover, defendant did have a reasonable basis to recognize the consequences of answering questions without his lawyer present: the Miranda advisements themselves. Babineaux specifically told defendant he had the "right to an attorney prior to and during any questioning." The obvious consequence of waiving that right is that defendant would not have an attorney present during Babineaux's questioning.
In a similar vein, defendant says that if he had been advised, "Oh, yeah, this will become evidence at your murder trial," he would not have answered Deputy Babineaux's questions. But defendant was specifically advised that, "Anything you say may be used against you in court." That advisement was not limited to a potential future prosecution for graffiti or vandalism.
In sum, defendant validly waived his right to have counsel present during Deputy Babineaux's questioning. Consequently, an objection to Babineaux's testimony would have been fruitless, and counsel was not ineffective for failing to object. III. Any Sanchez Error was Harmless
The seminal case of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) held that, with certain exceptions, "the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses." (People v. Sanchez (2016) 63 Cal.4th 665, 670 (Sanchez).) In Sanchez, the California Supreme Court indicated that whether a gang expert's testimony violates this rule largely hinges on whether that testimony relates case-specific facts or background information.
"Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) In contrast, background information includes an expert's general knowledge about a topic, like gang culture. The Supreme Court provided the following hypothetical to demonstrate the distinction between case-specific facts and background information:
"That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who
saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify...." (Id. at p. 677.)
While background information is not "testimonial" (People v. Valadez (2013) 220 Cal.App.4th 16, 35), case-specific facts are testimonial. (See Sanchez, supra, 63 Cal.4th at pp. 694-695 ["When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial .... Further, testimonial statements do not become less so simply because an officer summarizes a verbatim statement or compiles the descriptions of multiple witnesses."].)
The improper admission of testimonial hearsay in violation of the right to confrontation is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18. (See, e.g., People v. Cage (2007) 40 Cal.4th 965, 991-992.) Under that standard, the beneficiary of a constitutional error (here, the People) must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman v. California, supra, at p. 24.)
The Attorney General concedes "that certain evidence likely constituted testimonial hearsay under Sanchez." Specifically, the Attorney General cites (1) the 2011 probation report indicating defendant was offended at being called a "mutt"; and (2) the information from the inmate database described by Deputy Babineaux indicating defendant's moniker is "Big Goose." We agree this evidence likely ran afoul of Sanchez. However, we find that any error was harmless beyond a reasonable doubt in light of the overwhelming gang evidence that was admissible.
Defendant concedes that certain facts relied upon by Officer Romero "were established independently by admissible evidence." Defendant cites the following evidence as falling into that category (1) testimony establishing that defendant's group was "barking" and flashing "gang signs" on the night of the incident; (2) Deputy Babineaux's observation of the letters "OOSE" on defendant's holding cell door; and (3) defendant's "Fresno" tattoo. We add to this list - over defendant's objection - Officer Irfan's and Babineaux's testimony concerning defendant's admission of gang association and gang membership, respectively.
Defendant contends Officer Romero's reliance on this evidence is improper because it was inadmissible under the Fifth and Sixth Amendments. However, we have rejected those arguments of inadmissibility. (See Discussion, parts I & II, ante.)
Defendant also suggests the jail classification evidence was testimonial hearsay. This is incorrect. While answers to booking questions may have evidentiary value, the primary purpose for gang affiliation questions is to further institutional security objectives. (People v. Leon (2016) 243 Cal.App.4th 1003, 1020.) As a result, such evidence is not testimonial. (Ibid.)
Finally, defendant apparently contends that his own statements to Deputy Babineaux should have been excluded. But since they were defendant's own statements, the right to confrontation has no applicability.
The parties also disagree as to whether the testimony of Tiffany Stokes violates Sanchez. Stokes worked as a correctional officer at Violet Hinds Education Academy. She testified defendant had "contact" with another minor who claimed to be a Northerner. Defendant "claim[ed] Bulldog." In his appellate briefing, defendant claims Stokes "had not observed the event and was reporting to the jury something that appeared in a 'chrono.' " It is true that Stokes said she was testifying based on information in a " 'chrono,' " which she described as documentation of an event. But Stokes testified that she wrote the " 'chrono' " she was testifying from. In his reply brief, defendant asserts that Stokes's testimony was ambiguous as to whether defendant claimed Bulldog to her or someone else. While we believe Stokes's testimony strongly indicates she had personal knowledge of defendant claiming Bulldog, we are convinced that even if the testimony had been improperly admitted, it was harmless beyond a reasonable doubt for the reasons described herein.
Taken together, this properly admitted evidence overwhelmingly supports defendant's gang ties. Specifically, the evidence gives rise to the following inferences: Less than four years before the murder, defendant admitted he associated with the Bulldog gang. On the night of the murder, defendant said, " 'I'm not a Bulldog, but I'll fight for them.' " When he made that statement, he was with a group of individuals barking and flashing gang signs at Steven's group. On January 9, 2015, less than a year after the murder, defendant flat out admitted he was a member of the Eastside Fresno Bulldogs. Because of this overwhelming evidence, we find any error in admitting the information from the 2011 probation report, defendant's moniker, and Stokes's testimony to be harmless beyond a reasonable doubt.
The gang enhancement "does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68.)
Barking is something Bulldog gang members do to intimidate others.
IV. The Prosecutor Did not Commit Prejudicial Misconduct in Closing Argument
A. Background
Defendant argues the prosecutor committed misconduct in two portions of his closing argument. We cite those portions below.
"[PROSECUTOR:] So look at some of the statements that the Defense made. I'm not going to go over all of them, but they're going to say anything to Mr. Melendez to get him off.
"[DEFENSE COUNSEL:]: Objection, Your Honor. Improper argument.
"THE COURT:· Overruled."
Later in the prosecutor's closing argument, he said:
"[PROSECUTOR:] There was no subconscious - subconscious transferences the Defense would have you believe. Pay an extra $5,000, see him for who he is. And Mr. Schenk for who he is. Nice $10,000 day for the Defense when they testified in this case. Two people that have no interest in the truth.
"[DEFENSE COUNSEL:] Objection, Your Honor. Improper argument.
"THE COURT: Overruled.
"[PROSECUTOR:] They don't have any interest in the truth in this case.
"[DEFENSE COUNSEL:] Same objection.
"THE COURT: Same ruling.
"[PROSECUTOR:] That's why they don't look at all the evidence. That's why Mr. Fraser doesn't consider things like cell phone evidence, or Defendant's statements, or messages on the phone. That's why Mr. Schenk doesn't consider what cell phone towers the cell phone actually connected to. Because they have one job to do, the job they get paid to do.
"[DEFENSE COUNSEL:] Objection. Improper argument.
"THE COURT: Objection's overruled."
B. Analysis
" ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citation.]' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) " ' " 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets ...." ' " [Citation.]' [Citation.]" (Ibid.)
A prosecutor may argue an expert witness is biased because of his or her compensation. (People v. Caldwell (2013) 212 Cal.App.4th 1262, 1272 (Caldwell).) Here, the prosecutor made such an argument, indicating the experts did not have "any interest in the truth in this case" because they were paid by the defense. Surely, this is a forceful - perhaps even hyperbolic - way of phrasing the argument that an expert is biased because of their compensation. But, at bottom, any argument that a witness is not credible because of self-interest is somewhat offensive to the witness. Asserting a witness would color, undermine or subvert the truth for pecuniary gain (or to avoid liability, or to exact revenge, or for any other self-interested reason) necessarily involves an "attack" on their "integrity." Nonetheless, we allow counsel wide latitude to argue the credibility of witnesses. (See People v. Valencia (2008) 43 Cal.4th 268, 305.) This latitude includes arguments that experts may be biased because of how they are compensated. (See Caldwell, supra, 212 Cal.App.4th at p. 1272.) " '[H]arsh and colorful attacks on the credibility of opposing witnesses [, however,] are permissible. [Citations.] Thus, counsel is free to remind jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness's testimony is unbelievable, unsound, or even a patent "lie." ' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 442.) We find no misconduct as to the prosecutor's statements about the defense experts.
To the extent State v. Smith (N.J. 1999) 770 A.2d 255, 270-271, suggests otherwise, we disagree with it.
In an earlier statement, the prosecutor addressed the "defense" more broadly so as to arguably encompass defense counsel: "So look at some of the statements that the Defense made. I'm not going to go over all of them, but they're going to say anything to Mr. Melendez to get him off." At its core, the prosecutor's argument was that defense counsel's goal in closing argument was not to present a balanced review of the evidence, but instead to seek an acquittal. We find no misconduct in such an argument. Nor do we think this argument is much different than similar arguments upheld by our Supreme Court.
In People v. Gionis (1995) 9 Cal.4th 1196, the prosecutor cited the differences between defense counsel's statements and the evidence introduced at trial. The prosecutor argued in closing: " '[Defense counsel]'s just doing his job. His job is to to [sic] get him off.' " (Id. at p. 1217.) The Supreme Court held this argument "did not exceed the bounds of permissible vigor. [Citation.]" (Id. at p. 1218.)
In People v. Miller (1990) 50 Cal.3d 954, the prosecutor argued: " '[T]he defense can come in here and say pretty much whatever they want to. That's the system.' " (Id. at p. 997.) The Supreme Court held the comment did not suggest defense counsel fabricated evidence or impugn his honesty or integrity. (Ibid.)
Consequently, we conclude the prosecutor's arguments cited by defendant do not constitute prejudicial misconduct.
V. Cumulative Error
Defendant argues that the errors at his trial had a cumulatively prejudicial effect. However, we only found likely error in the admission of certain testimony violative of Sanchez. And we determined that error was harmless. Therefore, defendant has not shown cumulatively prejudicial error.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.