Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. LA046123, Martin Herscovitz, Judge.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Ronnie Molina was convicted of one count of first degree murder and two counts of attempted premeditated murder with firearm and gang allegations found true. In addition, Molina stipulated to the special circumstance allegation that he had a prior conviction for first degree murder. He was sentenced to state prison as follows: life without the possibility of parole plus 25 years to life on the murder count, a consecutive term of life plus 25 years to life on the first attempted murder count and a concurrent life sentence on the second attempted murder count. Molina appeals, claiming instructional error as well as error in connection with the jury’s deliberations. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
On April 5, 2002, at about 10:00 p.m., Luis Gutierrez exited the building next to where he lived on Saticoy Street. Molina and two other Hispanic men in a blue Jeep with a white rag top pulled up and stopped. One passenger, echoed by the others in the car, asked Gutierrez where he was from which Gutierrez understood as a question as to his gang affiliation. At the time, the Brown Pride gang was in Gutierrez’s neighborhood. He had been “hit up” in this manner hundreds of times before. He responded, “Nowhere” and “I don’t bang.” One man said, “Fuck Brown Pride. This is Pacoima.” Gutierrez thought it was unusual for Pacoima gang members to be in the Saticoy area.
The men then pulled up in front of Gutierrez’s building. His friend Alfredo Castro was exiting the building. The Jeep’s occupants asked Castro where he was from and if he was from Brown Pride. He said he was from “nowhere,” meaning he did not belong to a gang. Castro recognized Joel Vasquez, an ISS gang member, in the back of the Jeep because they went to high school together. He saw Molina as well. The men drove away and said “ISS Pacoima.” The front passenger appeared to reach down for something. Gutierrez and Castro met up and discussed how both had been “hit up.”
Gutierrez went inside for about 10 minutes. Then he and two friends (Aaron Flores and Javier Marquez) went to a liquor store and bought three beers. They walked back to the parking lot of their building where they drank the beer. Marquez took “two hits” of marijuana. Castro joined the three, had a beer and smoked some marijuana. Gutierrez mentioned the incident with the men in the Jeep. After about an hour, Castro left for his apartment.
The apartment manager came out and kicked Gutierrez and his friends out into the alley where they stood against the wall. The same Jeep that had approached Gutierrez about an hour or hour and a half before drove slowly down the alley. The same three men were inside. Marquez had seen Molina before. The driver asked the three, “Where you from?” Gutierrez again said he was not from any gang. The men asked, “Where the Brown Priders kicking at?” and “Are you from Brown Pride?” Marquez’s brother had been a Brown Pride associate in 1993. Marquez had seen Brown Pride graffiti in the area, and some Brown Pride gang members lived two buildings away.
The driver and rear passenger screamed at Flores, hitting him up. Flores said, “I don’t,” but Molina, in the front passenger seat, pointed a gun at Flores, said, “Yes, you are from Brown Pride,” and shot at him. Another man yelled, “Pacoima,” and the men opened fire on Flores, shooting 10 or 11 times. Gutierrez crouched and ran beside the Jeep. The men continued shooting as Flores ran. Marquez was alone, on the ground. He was shot in the elbow.
Castro heard shots, went to the window and heard Gutierrez say Flores had been shot. Gutierrez thought Flores had run home. He met up with Marquez inside the building and both decided to go home. Concerned about retaliation if he called the police, Gutierrez did not contact the police. Marquez went to a friend’s apartment and wrapped a shirt around his elbow before going to his brother’s apartment. Castro went out and saw people standing around Flores’s body, screaming.
After about 5 or 10 minutes, police arrived and attempted to speak with Castro. He did not want to get involved and said he knew nothing. Officers went to Gutierrez’s apartment and handcuffed him. When detectives told him his friend Flores had been killed, he spoke with police. Marquez also decided to tell the police what he had seen upon learning Flores had been killed.
The next day, the alley bore “ISS Pacoima” graffiti. A couple of days later, Castro’s friend (Ruben Barajas) was talking with police on the phone. Castro got on the phone and said he knew who had committed the crimes.
Detective Andrew Purdy was investigating the murder of Brandon Garamendez which occurred on April 4, 2002, just after 9:00 p.m. He was then involved in the retaliation murder investigation of Flores which occurred less than a mile and a half away the following day.
Detective Brad Roberts prepared photographic “six-pack” lineups: one with Alex Vasquez’s picture in it and another which included both Molina’s and Joel Vasquez’s pictures. Three days after Flores’s shooting, Marquez identified Alex Vasquez as the person in the back of the Jeep with a large silver gun. Castro identified Joel Vasquez (Castro’s teaching assistant in middle school) as the rear passenger.
One week after Flores’s murder, Detective Roberts served a search warrant at Alex Vasquez’s apartment while Detective Purdy served a search warrant at Joel Vasquez’s apartment. Molina jumped out the back window at the latter’s apartment. Three admitted ISS gang members (Pedro Ruiz, Giovanni Leone and Angel Medina) were also there. They were all preparing to attend Garamendez’s funeral. Among various other gang-related photographs, police found a photo of ten people, including Molina, Leone, Garamendez and Chris “Hazard” Juarez. In the closet, police found a box of .38 caliber ammunition, a box with gang graffiti, including Garamendez’s moniker (“Swiss”), “RIP Villan” and “ISS K.” Garamendez’s picture with his dates of birth and death was inside. There was also a newspaper article about the gang homicides of Jesse Abel and Jack Loutsios. A tattoo on Molina’s back read, “In loving memory of my two homeboys, Jess Abel and Jack Loutsios.” Other “Insane Suspects” and “ISS K” graffiti was found, and “homie dolls” and a model of a Los Angeles County Sheriff’s jail bus were sitting on the dining room table.
Also that day, Castro identified both Joel Vazquez and Molina in the photographic lineup. Castro identified Molina, Joel Vasquez and Alex Vasquez at the preliminary hearing. Three days later, Gutierrez did not identify anyone from the six-pack photos.
He said he did not identify Molina at the preliminary hearing because he went to high school with Molina’s sisters and they knew where he lived; he was scared and confused.
Molina was charged with one count of first degree murder (Flores) and two counts of attempted premeditated murder (Gutierrez and Marquez) along with firearm and gang allegations as well as a special circumstance allegation for a prior first degree murder conviction.
At trial, the People presented evidence of the facts summarized above in addition to the following:
In October 2003, Detective Roberts spoke with Castro after he was severely beaten, stabbed, strangled and kicked repeatedly in the face and body. He said he would refuse to testify.
On January 12, 2006, Marquez testified regarding his identifications, but the following day, testified he was not sure about them. Marquez was in custody for driving without a license at the time. He said he was not sure whether Molina fired his gun at Flores and then said he did not know why his testimony had changed. He later testified that he was not telling the truth when he said he was not sure Molina had been in the Jeep’s front passenger seat. He said he was concerned for his safety.
A gang expert (Officer Norman Peters) testified regarding gang culture, the ISS Pacoima gang and the Insane Suspects “crew” (signified by the “K”). His first contact with Molina was in September 2001. Molina admitted his Pacoima 13 gang membership and his “Gangster” moniker. Peters opined Molina was a Pacoima 13 gang member and an ISS associate. ISS’s rivals included Brown Pride whose territory encompassed the scene of these crimes. He testified that 20 or 30 minutes before Flores’s murder, he had heard ISS was looking for someone to shoot or kill in retaliation for Garamendez’s murder. He saw Angel Medina in court in January 2003 and said it was common for gang members to attend court to intimidate witnesses.
In Molina’s defense, a bartender said Molina had a drink at the Chances bar at about 7:30 p.m. on the night of the shootings. His former girlfriend (Sarah Leone) with whom he had a daughter testified that Molina borrowed her car (a white Dodge Shadow) at about 9:45 p.m.
Leone lived next door to the bar and about one or one and a half miles from the crime scene. It took about three minutes to travel this distance.
Dr. Robert Shomer testified as an expert regarding memory perception and the unreliability of eyewitness identification. He said memory drops off after the first 24 hours and does not improve over time; he also addressed hypotheticals.
The jury convicted Molina as charged. Molina stipulated to the special circumstance allegation that he had a prior conviction for first degree murder. He was sentenced to state prison for a term of life without the possibility of parole plus 25 years to life on the murder count, a consecutive term of life plus 25 years to life on the first attempted murder count and a concurrent life sentence on the second attempted murder count. Molina appeals.
DISCUSSION
I. Molina Has Failed to Demonstrate Error in the Jury’s Instruction with CALCRIM No. 332.
The jury was instructed as follows: “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
“An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert's opinion.” (CALCRIM No. 332.)
Jurors were also instructed with CALCRIM No. 226 which provides, in pertinent part: “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
“How well was the witness able to remember and describe what happened?
“What was the witness's behavior while testifying?
“Did the witness understand the questions and answer them directly?
“Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
“What was the witness's attitude about the case or about testifying?
“Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
“How reasonable is the testimony when you consider all the other evidence in the case?
“Did other evidence prove or disprove any fact about which the witness testified?
“Did the witness admit to being untruthful?
“Has the witness been convicted of a felony?
“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
“If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.
“If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”
According to Molina, because his expert (Dr. Shomer) testified that he did not do his own research but had studied “research done by many, many others,” jurors understood these instructions to mean that if the defense did not prove the studies “true and accurate,” his expert testimony had to be rejected. This instructional error, he says, contributed to the verdict and reversal is required because the actual verdict rested upon a finding that Gutierrez’s identification was credible. This is so, he says, because after two hours of deliberation, jurors requested read back of Gutierrez’s testimony, and one hour after completion of this read back, they reached their verdict.
He notes further that a prior jury was unable to reach a unanimous verdict as to both Molina and Joel Vazquez but convicted Alex Vazquez.
First, although defense counsel had four days to review the jury instructions, there was no objection to either CALCRIM No. 332 or No. 226. Molina waived any claim of instructional error in this regard. (People v. Bolin (1998) 18 Cal.4th 297, 326.) Further, Molina has failed to articulate a meaningful distinction between the substance of these instructions and CALJIC Nos. 2.80 and 2.82. In People v. Williams (1988) 45 Cal.3d 1268, 1320, our Supreme Court identified CALJIC No. 2.80 as a “proper instruction,” and in People v. Boyette (2002) 29 Cal.4th 381, 452), cited CALJIC No. 2.82 with approval. Further, in People v. Frye (1998) 18 Cal.4th 894, 960-961, the California Supreme Court rejected a similar claim that CALJIC No. 2.82 created an impermissible burden shifting. Molina has failed to demonstrate error.
II. Molina Has Failed to Establish Error in the Alternate Jurors’ Presence in the Jury Room During Read Back of Gutierrez’s Testimony.
On January 19, 2006, in response to a question from an alternate juror about how far into the following week trial would continue, the trial court stated: “It depends. Deliberations are up to the jury. For the alternates, we have you available to us because we bring you back into court if there’s any questions, read back of testimony, or when there’s a verdict. So we usually have the alternates here in the cafeteria or somewhere where you’re comfortable while the jury is in deliberations.” (Italics added.)
On January 24, 2006, the court’s instructions included the following: “[Y]our notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes.” The court further stated: “The other thing that was brought up to me that some of the alternates mentioned about being present in the jury room when the jury deliberates. That’s simply not permitted. The rules say that the jury must be alone. If an alternate is substituted in during deliberations, so that you don’t miss anything, the jury is told to start deliberations entirely over again. So you won’t miss any of the deliberations if you participate, but the rules do not allow the participation of non-deliberating jurors.” (Italics added.)
Later that day, the bailiff swore that he would “take charge of the alternate jurors and keep them apart from the jury while they are deliberating on the cause, until otherwise instructed by the court . . . .” (Italics added.)
After the jurors left the courtroom, defense counsel was asked: “Do you have a problem if there is a read back of testimony, with having the court reporter go into the jury room alone?” He responded, “Fine.” Molina also said he did not want to be present “for read back and stuff like that.” Defense counsel said he “just want[ed] to be notified,” and the court responded, “We’ll notify you of any questions, and we’ll discuss it.”
On January 25, 2006, with defense counsel (and Molina) absent, the jury sent a note: “We want to hear or read to us the test. of Luis Gutierrez[.]” According to the minute order, “Parties are notified. At 2:10 p.m. the court report [sic] goes into the deliberation room and reads the requested read back. Also present in the deliberation room are the alternate jurors. . . .” (Italics added.) Jurors were then instructed to return the following morning when read back was to resume.
According to the minute order for January 26, 2206, “The defendant is present (in lock up) and not represented by counsel[.] [¶] At 9:30 a.m. the jury and alternate jurors are present in the jury deliberation room. The court reporter resumes read back. [¶] At 10:00 a.m. the court report[er] stops read back at the request of the jurors. The alternate jurors and court report[er] are escorted out of the deliberation room. Jury resumes deliberations.
“At 11:04 a.m. the bailiff is buzzed. Jury informs the bailiff that they have reached verdicts. Parties are notified.” (Italics added.)
Before the jury returned, the court stated for the record that defense counsel (Mr. Di Sabatino) was engaged in a preliminary hearing elsewhere and that another attorney (Mr. Weiss) was standing in for him. When jurors came into the courtroom, they were sent back to cure an inconsistency in their verdicts. Thereafter they returned and the verdicts were read. The court advised jurors counsel would like to speak with them if they were willing. Defense counsel later requested a transcript of the proceedings in connection with the initially inconsistent verdict.
We reject Molina’s claim of error arising out of the alternate jurors’ presence at the time of read back testimony. First, he waived any objection by failing to raise the issue in the trial court (when further inquiry could have been made) and, in fact, acquiesced in having the alternate jurors present inasmuch as defense counsel was present when the court explained that it would proceed in this manner. (People v. Burgener (2003) 29 Cal.4th 833, 886; and see People v. Jackson (1996) 13 Cal.4th 1164, 1231, fn. 17.)
Further, in People v. Valles (1979) 24 Cal.3d 121, 125, the California Supreme Court stated that “the presence of alternates in the jury room during deliberations is not necessarily detrimental to a defendant’s right of trial by jury . . . .” While concern may be valid when an intruder is a “total stranger,” such reasoning “loses its force when the intruder is an alternate juror chosen in the same way as a regular juror, subjected to the same test of impartiality, and required to possess all the qualifications of a regular juror. There is no reason to believe that the presence of an alternate would in any way restrict honest comment by the jurors or prejudice the defendant.” (Ibid., italics added.)
The Valles court stated: “The alternate should . . . be instructed that he is not to participate in the jury’s deliberations in any manner except by silent attention unless he is required by the court to take the place of an original juror. If this instruction is disobeyed, the standard rule concerning juror misconduct applies, namely, that it is presumed prejudicial to the defendant unless the contrary appears.” (People v. Valles, supra, 24 Cal.3d at p. 128, italics added.)
According to the record in this case, the jurors and alternate jurors were clearly told that although alternate jurors would be present for read back, they were not to participate in deliberations; they would only do so in the event they replaced an original juror and then deliberations would start all over again. (See People v. Valles, supra, 24 Cal.3d at p. 128.) The record further states that the alternate jurors were escorted out as soon as the read back was completed and the jury only resumed deliberations after the alternates had left. The bailiff swore to uphold his duty in this regard, and the court reporter was present when the alternates were present (see People v. Oliver (1987) 196 Cal.App.3d 423, 436), but there is nothing in the record to suggest any irregularity in the proceedings. Consequently, we find no error.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J., ZELON, J.