Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. VA091171, Dewey Lawes Falcone, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Rios.
Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Omar Rigo Ramirez.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendants Juan Carlos Rios (Rios) and Omar Rigo Ramirez (Ramirez) appeal from judgments of conviction entered after a jury trial. Both defendants were convicted of first degree murder (Pen. Code, § 187, subd. (a); count 1), shooting at an occupied vehicle (id., § 246; count 3) and two counts of attempted carjacking (id., §§ 215, subd. (a), 664; counts 4 & 7). Rios also was convicted of attempted murder (id., §§ 187, subd. (a), 664; count 2) and two counts of possession of a firearm by a felon (id., § 12021, subd. (a)(1); counts 6 & 13).
As to Rios, the jury found the murder was committed while he was engaged in the attempted carjacking and to further the activities of a criminal street gang (Pen. Code, § 190.2, subds. (a)(17) & (a)(22)); both a principal and he personally discharged a firearm during the commission of the murder, causing great bodily injury (id., § 12022.53, subds. (b), (c), (d) & (e)); and the crime was committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)).
The jury found the attempted murder was willful, deliberate and premeditated (Pen. Code, § 664, subd. (a)); both a principal and he personally discharged a firearm during the commission of the murder, causing great bodily injury (id., § 12022.53, subds. (b), (c), (d) & (e)); and the crime was committed for the benefit of a criminal street gang (id., § 186.22, subds. (b)(1)(C) & (b)(4)). The jury also found firearm use and criminal street gang allegations true as to counts 3, 4 and 7, and criminal street gang allegations true as to count 6.
The trial court found true the allegation Rios had one prior serious felony conviction (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12). It sentenced him to life without the possibility of parole on count 1. It imposed a consecutive sentence of 30 years to life on count 2, and consecutive 25-year-to-life terms for the firearm use as to counts 1 and 2. The court stayed sentence on counts 3 through 7 under Penal Code section 654, and it stayed all other enhancements. It imposed a concurrent term of four years on count 13, and it imposed five years for the prior conviction.
The abstract of judgment erroneously states that a term of 30 years to life was imposed on count 3.
As to Ramirez, the jury found that in the commission of the murder and the attempted carjackings, counts 1, 4 and 7, a principal personally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subds. (b), (c), (d) & (e)), and the crimes were committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)). As to count 3, shooting at an occupied vehicle, the jury found that a principal personally discharged a firearm causing great bodily injury (id., § 12022.53, subds. (d) & (e)), and the crime was committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)).
The trial court sentenced Ramirez to 25 years to life for the murder, 15 years to life for shooting at an occupied vehicle, and it imposed two enhancements of 25 years to life for the firearm use. It stayed sentence on the remaining counts and enhancements.
On appeal, Rios challenges his convictions based on numerous claims of error occurring during the trial. Ramirez also challenges his conviction as well as the sentence imposed. We affirm.
FACTS
A. Prosecution
1. David Quesada
David Quesada (Quesada) worked painting cars for Alex Gutierrez’s (Gutierrez) father. Gutierrez was known as “Pirate, ” although Quesada did not know him by that name. Quesada was in his late 40’s and was not a gang member.
Sometime after 2:00 a.m. on June 17, 2005, Quesada had finished painting a car and was going to go home by bus. Gutierrez offered to drive him home but asked Quesada to accompany him to Hawaiian Gardens, where he was going to pick up money for a completed job.
As Gutierrez drove down Arline Avenue near 223rd Street in Hawaiian Gardens, Quesada noticed a man who was standing on the corner. Gutierrez continued driving to a residence on Clarkdale Avenue, but he and Quesada were unable to find the person who lived there. Since they did not have a cell phone, Gutierrez drove to a pay phone at the Bicycle Club casino and made a call. He then drove back to the Clarkdale Avenue residence.
Quesada noticed the man who had been standing on the corner walking toward Gutierrez’s car. Quesada recognized him by his white T-shirt and the fact Quesada did not see anyone else there. Quesada was 90 percent sure it was the same man he had seen earlier.
The man approached the driver’s side of Gutierrez’s car and asked Gutierrez for a cigarette. Gutierrez said he did not have one. The man whistled, and two other men, whose faces were covered, ran from the back of a van to the passenger’s side of the car. The first man drew a gun and told Gutierrez to park the car and get out. Quesada started to get out of the car, but Gutierrez started to drive away. The first man fired several shots at the car. One of the bullets struck Gutierrez, who lost control of the car, and it hit something. Quesada helped Gutierrez drive back to the casino, where a security guard called 911.
Sheriff’s deputies and paramedics responded to the casino and to Clarkdale Avenue. There were bullet holes in the hood and windshield of Gutierrez’s car, and Gutierrez was slumped over the steering wheel. Quesada told the deputies that three men in dark clothing approached the driver’s side of the car. One of them ordered Gutierrez to put the car in park and get out. Gutierrez started to drive away. There were four or five gunshots, and Gutierrez crashed into a parked car. He then managed to drive three blocks to the casino parking lot.
On Clarkdale Avenue, deputies observed collision damage to two vehicles and found shell casings in the street. A deputy spoke to Carlos Molina (Molina) then allowed him to leave.
That afternoon, Los Angeles County Sheriff’s Sergeant Barry Hall interviewed Quesada. At that time, Quesada said that only one man approached the driver’s side of the car, and the other two approached the passenger side. Sergeant Hall showed Quesada an album containing pictures of gang members and a photographic lineup. Quesada was unable to identify the shooter, because he never saw his face. From the photographic lineup, Quesada identified a photograph of Molina as looking like one of the men who approached the passenger’s side of the car. When Sergeant Hall later spoke to Quesada about identifying Carlos Molina, Quesada recanted and said he could not identify him, explaining that the men who approached the car were wearing masks. Quesada also was impeached with his prior convictions.
After the shooting, Molina gave a statement and was arrested for murder. When Quesada did not identify him, no charges were filed against Molina.
2. Forensic Evidence
Gutierrez died from a gunshot wound to his torso. At the time of his death, he had marijuana and methamphetamine in his system.
Sheriff’s deputies found a green plastic cup at the scene of the shooting. DNA consistent with that of Rios was on the cup.
The bullet that killed Gutierrez and one that hit his car came from a Norwegian.45 caliber pistol, as did shell casings found at the scene. About six weeks after the shooting, Cesar Reyes was detained following a traffic stop. The pistol used in the shooting was found in his possession.
3. The Figueroa Sisters
Lizbeth and Paola Figueroa lived with their family on Clarkdale Avenue in Hawaiian Gardens. Lizbeth testified that she knew members of the Varrio Hawaiian Gardens gang, including her cousin, Molina, who lived in his van, which was parked in front of the Figueroas’ house. Lizbeth was a member of the Young Crazy Gangster Crew.
At about 2:00 a.m. on June 17, 2005, “Pirate, ” a friend of Paola’s ex-boyfriend, came to her house, asking if Paola wanted to buy stereo speakers. Paola told him she could not help him because it was too late. He said if she did not buy them, he was going to knock on the neighbors’ doors, which angered Lizbeth and Paola. Lizbeth did not hear everything that “Pirate” and Paola said, but she saw him take a box out of his car and leave, so she assumed Paola had agreed to take the speakers so that “Pirate” would not disturb the neighbors.
Lizbeth and Paola then drove to a house on Juan Street about five blocks away to try to sell the speakers for “Pirate.” One of Lizbeth’s friends, Carlos Gallardo (Gallardo), who was often at the house, was there, along with five or six other men who were dressed like gangsters. Paola asked Gallardo if he knew anyone who wanted to buy speakers.
Rios came up to them and demanded to know who gave Paola the speakers. She replied that it was “just some friends.” He asked if they were “gangsters.” He also asked if they had guns, a nice car and money, and whether they looked like “Paisa, ” meaning Mexican nationals. Paola told him they were Paisa and had no money. Rios then asked if they were from his neighborhood, and Paola told him they were not. Rios then told Paola she should “tell the Paisa that Baby Toenail took the speakers.” Lizbeth did not know who Baby Toenail was.
Rios asked Paola to give him a ride home. He lived on Arline Avenue and 223rd Street, near the Figueroa sisters’ home. Paola agreed. Rios, Gallardo and Ramirez got into the sisters’ van. Lizbeth heard Rios say something about a gun. Gallardo responded, “why a gun if they were just Paisas? There is no gun needed.” Rios asked, “why not?”
Lizbeth heard Paola tell Rios what kind of car “Pirate” was driving. She heard Rios say he was going to look for the car. Rios went into his home for about five minutes and then returned to the van. They went to the sisters’ home. Lizbeth went inside, while Paola remained outside with the three men. Paola came in about 20 minutes later.
About an hour later, there was a knock on the door, and Lizbeth got out of bed to answer it. The three men were there. Gallardo jokingly asked if he could have some tacos. Rios was wearing a “Jason” mask on his forehead, and he was wearing a dark-colored mechanic’s jumpsuit that he had been wearing all night. Ramirez’s face was covered by a bandanna or ski mask. Gallardo was wearing a gray hoodie and dark pants, with a beanie covering part of his face, and a bandanna with a Mexican flag on it below his chin. Lizbeth called for Paola and returned to bed.
Lizbeth and Paola were awakened about 4:00 or 5:00 a.m. by the sound of gunshots and a loud crash. Molina, in a white T-shirt, was standing by his van, which had been hit by another vehicle.
About a week later, Lizbeth saw Rios on the street and told him that people were blaming her for the shooting. He asked for the names of the people who were blaming her. He told her, “I am like your brother. Just let me know and what happened to them, I could do the same thing to whoever is bothering you.” He added, “that’s what he gets for trying to get crazy and not get off the car.” He told Lizbeth that if the police came to talk to her, she should say that she did not know anything.
When Lizbeth talked to Sergeant Hall about the case, she was not honest with him because she was afraid of Rios. She was still afraid when she testified in the case. She acknowledged lying at a previous hearing in the case. She also was concerned that she could be charged in connection with the case based on her actions.
Both Lizbeth and Paola were threatened with prosecution as accomplices. They agreed to testify against Rios and Ramirez after receiving immunity from prosecution.
Paola testified that after “Pirate” came to her door, she asked Molina, who was sleeping in his van, whether he wanted to buy the speakers. Molina said he did not and stayed in his van. Paola had “Pirate” put the speakers in her van and said she would try to sell them. Paola gave “Pirate” her cell phone number so he could call her the next day. “Pirate” left, saying he was taking his passenger home but would come back.
It is unclear from Paola’s testimony whether “Pirate” said he would be back in a couple of minutes or the next day. ~(4 RT 2720-2722; 5 RT 3106; 7 RT 3626-3629)~
Paola later gave Rios and the others a ride home from the Juan Street house. She did not want to do so, because she was afraid Rios intended to rob “Pirate, ” but she agreed to drive him home because she was afraid of him. It appeared to Paola that Rios was the leader of the three men. Rios said that “they were going to come up sick status, ” meaning they “were going to try to get whatever they had.” Once the group arrived at the Figueroa sisters’ home, Paola went inside while Rios, Ramirez and Gallardo remained outside. About 20 minutes later, Rios asked Paola for a drink, and she gave him some juice in a green cup. During this time, Paola did not hear anyone mention a gun, and she did not see Rios with a gun.
Sometime after that, Paola drove Rios home. One or two hours later, she heard gunshots. After that, she heard Molina tell her father that his van had been hit by the gunshots.
Several days later, Paola spoke to Rios. According to Paola, “He asked me what happened in front of my house, and I told him that my cousin was in custody for it, and he told me that part of the reason they were confusing my cousin is because he looked like [Ramirez] and that [Ramirez] didn’t do whatever he had to do the right way, but for me not to worry because they didn’t have no fingerprints o[r] nothing and because I was in the police station.”
Rios then told Paola “[t]hat he didn’t care about doing his life in jail or heard he was wanted, that for me to watch my back because I have kids and I am out here.” Paola took this to be a threat and was concerned for her safety and that of her children.
Paola testified she lied to sheriff’s deputies on two occasions, because she was afraid of Rios and others. She did not lie about everything when she was first interviewed; she just did not tell them about going to Juan Street after “Pirate” came to her home. She also did not tell the deputies that Rios, Ramirez and Gallardo came to her home until one of the deputies asked her a specific question about that. In addition, she lied or withheld information at the preliminary hearing. She acknowledged that she was still scared when she testified.
The prosecutor played a recording of a conversation Paola had with Sergeant Hall at her home.
4. Ramirez
Sergeant Hall interviewed Ramirez. Ramirez was 15 years old and waived his Miranda rights. Ramirez stated that he was a member of the Hawaiian Gardens gang. He had been “jumped in” the gang twice: first into the gang and then into the Malditos clique.
The trial was held before two juries—one for each defendant. Sergeant Hall’s testimony as to Ramirez’s interview was before Ramirez’s jury only.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Ramirez acknowledged that he heard Rios asking questions about the victims and knew Rios was planning a carjacking. He heard Rios say that he wanted to “jack these fools, but he did not say anything about shooting them. Ramirez explained he did not want a gun to be used and did not want to be involved in a “big stupid thing, ” but Rios insisted. He first claimed that he did not know Rios had a gun until Rios drew it during the attempted carjacking. He then admitted that he saw Rios with a gun when they were at the Figueroa sisters’ home prior to the attempted carjacking, and he knew Rios carried a gun with him.
Ramirez acknowledged that he, Rios and Gallardo were present during the attempted carjacking. Rios was the one who asked the victims for a cigarette. When Ramirez saw Rios draw a gun, he did not want to be involved in the carjacking. It was Rios who shot the gun and killed the victim.
Ramirez told Sergeant Hall that he knew the victims were from Long Beach. According to Sergeant Hall, Ramirez explained that “people from other areas, other cities basically just can’t be driving through their neighborhood, and that if they are, they’re going to get jammed up for being in the neighborhood especially on Juan Street. He was claiming even the cops don’t go down there.” After learning of Rios’s plans, Ramirez was not planning on stealing from the victims. He just planned to tell them not to come back to the neighborhood.
5. Gallardo
Gallardo joined the Hawaiian Gardens gang when he was 17. Ramirez joined later, and Gallardo participated when Ramirez was “jumped in” the gang. Gallardo had known Rios for a couple of months at the time of the shooting; Rios was a member of at least one of the gang’s cliques, which were the Malditos and the Loquitos. The Juan Street house was a regular hangout for members of the gang.
Gallardo testified that the Figueroa sisters approached him about buying the speakers. Rios spoke to the sisters about the speakers, and Gallardo later heard Rios say that he was planning to steal the speakers. Gallardo went with Rios and Ramirez in the Figueroa sisters’ van. Someone mentioned that the people who wanted to sell the speakers were from Long Beach. Rios asked if they were gang members, whether they had guns, whether they were Paisa, and what kind of car they were driving. When Paola said they were Paisa, Rios said he was going to steal the speakers.
They drove to Rios’s house on Arline Avenue. Rios went inside and came back out about 10 to 15 minutes later. He had sweaters, a “Jason” mask and a Mexican flag bandanna. He kept the mask, gave the sweaters to Gallardo and the bandanna to Ramirez. The three men walked to the Figueroa sisters’ home. The sisters went inside, while the three stayed outside. After awhile, Gallardo knocked on the door and, when Paola answered, he asked for tacos. She gave him a green cup of orange juice, which he gave to Rios.
Ten minutes later, Rios said he was going home and left. He returned 10 to 15 minutes later. He remained there while Gallardo and Ramirez went looking for the Paisa, so they could steal the speakers. Gallardo saw the car return and stop on the street. Rios, wearing the mask, approached the driver’s side of the car. Gallardo and Ramirez approached the passenger’s side. Gallardo had his face covered with a sweater, and Ramirez had his covered with the bandanna. Rios asked the driver who he was looking for and also asked for a cigarette.
Gallardo thought the occupants of the car looked Paisa. He told the passenger in Spanish that nothing would happen to him if he got out of the car. The passenger started to comply. At the same time, Rios was arguing with the driver and told him to get out of the car. The driver started reaching for the glove compartment, and Rios fired five or six shots at him. Gallardo asked Rios what he was doing. He told Rios he had made a mess of things and added, “you’re on your own.” Gallardo and Ramirez ran in one direction, and Rios ran in another.
Gallardo was asked at trial whether he, Rios and Ramirez had planned to carjack the victims. He testified that he had suggested that they “punk” or intimidate them. While that could involve the use of a gun, they had not discussed using a gun. Rios wanted to go further than “punking” the victims, which to Gallardo meant probably using a weapon, although he did not see Rios with a gun prior to the shooting. Gallardo thought he, Rios and Ramirez were going to Clarkdale Avenue to carjack the victims.
Gallardo also testified that in gang culture, a person who “tell[s] on somebody” is a “rat, ” and “rats” “get the green light, ” meaning that other gang members can hurt them. Once Gallardo spoke to sheriff’s deputies in this case, he became a “rat.” This put him and his relatives in Los Angeles in jeopardy, and he was concerned that his relatives could be harmed because of his testimony.
Gallardo originally was charged with murder with special circumstances and other charges and faced a sentence of life without the possibility of parole. He made a deal with the prosecution under which he would plead guilty to attempted murder and voluntary manslaughter, and he would receive a sentence of 26 years and eight months, of which he had to serve at least 85 percent. In exchange, he agreed to testify truthfully in the case.
Gallardo admitted that he originally told law enforcement officers that he knew nothing about this case. He also falsely denied that he was a gang member. Eventually, he agreed to cooperate.
Gallardo was a tagger before joining the Hawaiian Gardens gang and had a juvenile adjudication for vandalism. He was in protective custody when he testified at trial.
6. Rios’s Subsequent Possession of a Firearm
Catalina Perez lived with Meralda Ornelas, who was Rios’s wife or girlfriend, on Juan Street. Early in the morning on September 1, 2005, sheriff’s deputies went to their home, looking for Rios. Perez told the deputies that Rios had left about 3:00 a.m. Rios had a black.25 caliber pistol, and he had dyed his hair blond or orange so that he would not be recognized. Ornelas suggested that Rios might be found at the home of his former girlfriend, Rosa Segura (Segura), on Horst Street in Hawaiian Gardens.
Deputies arrived at Segura’s house at 6:47 a.m. Segura was sweeping the porch. The deputies detained Segura. According to Deputies Daniel Aleman and Eduardo Aguirre, Segura told the deputies that earlier that morning, Rios got up, saw the police and threw a gun on the grass in the backyard. She retrieved it and put it in her dresser drawer, because she had children who played in the backyard. She said that Rios was hiding in the bathroom.
Deputy Aleman made an announcement that everyone in the house should come outside. About 10 people came outside, but Rios was not among them. Deputy Aleman made several more announcements, and other deputies tried telephoning the house, but Rios did not come out or answer the phone. Deputy Aleman heard what sounded like someone kicking drywall. Deputies sprayed tear gas into the house. Deputy Aleman heard the sound of someone moving around in the house. Deputy Aleman inspected the house and found a hole in the ceiling, big enough for a person to fit through. Eventually, Rios was arrested in the backyard. Search of the house revealed a loaded gun in the bedroom.
Segura testified that she was Rios’s former girlfriend. She did not believe that Rios was a gang member. On September 1, 2005, she found a gun in the backyard; she did not know whose it was. She picked it up and put it in a drawer in her bedroom. Rios was asleep in her son’s bedroom.
The prosecutor played a taped interview and asked Segura to admit that, in the interview, she said that Rios put the gun in the backyard. Segura said she did not remember, but that she did not see Rios with the gun. Segura testified that the deputies intimidated her by pointing a gun at her daughter, threatening to attack her daughter and Rios with dogs, and threatening to arrest her. One of the deputies told her that she would be “eaten like a pig” by the dogs. She only said that Rios had a gun because of the threats.
Deputy Aguirre, who spoke to Segura several times at her home, denied threatening her or hearing any of the other deputies threaten her. The trial court took judicial notice of the fact that Segura did not obey her subpoena. The court issued a body attachment and Segura was arrested.
7. Gang Evidence
Sergeant Phillip Santisteven arrested Ramirez at his home. During booking, Ramirez told Sergeant Santisteven that he had been a member of the Hawaiian Gardens gang since he was 10 years old. Additionally, he was a member of the Loquitos clique, which was very selective and only let certain people join. He told Sergeant Santisteven his gang nickname was Little Mono and his uncle was Big Mono.
Detective Brandt House testified as a gang expert, who had experience investigating gangs, including the Hawaiian Gardens gang. He gave basic information regarding the reasons for joining a gang, the age of gang members, and gang hierarchy.
Detective House explained that gang members are territorial and are sensitive to perceived disrespect. They gain respect through intimidation. They perceive people coming into their territory as a threat “unless identified otherwise.”
Gang members consider Mexican nationals, Paisa, to be inferior and easy targets for crime, since they are unlikely to report crimes against them. Gang members also intimidate people in the gang’s territory so they will not report crimes committed by gang members, and it is very rare that people living in gang territory will report gang crimes.
According to Detective House, it was “extremely common” for gang members to share guns with one another. He had investigated numerous crimes in which different gang members used the same gun in different crimes. Cesar Reyes, who had the gun used in the instant crime, was a member of the Hawaiian Gardens gang.
Gang members commonly worked together to commit crimes, and they were expected to support one another in the commission of crimes. A gang member who failed to do so “would be subject to some type of violence from their gang. They refer to it as being regulated. I would expect him to be regulated in some way, and that could be anywhere from a beating to being murdered, depending on what it was that he did wrong or did not act upon that he should have.” A gang member who failed to support fellow gang members might avoid punishment, however, if he had a relative who was a high-ranking member of the gang.
In gang culture, it is unacceptable to become a “rat” or a “snitch” by cooperating with law enforcement or testifying in court. The gang will issue a “green light” to kill a rat or snitch. The gang will assault or even kill non-gang members who testify against gang members. If gang members testify against their fellow gang members, law enforcement must take special measures to protect them.
Detective House explained that the Hawaiian Gardens gang has existed since the 1950’s and has about 1000 members. The detective described the gang’s two cliques, territory, symbols and hand signs. He described the gang’s primary activities, including assault, carjacking, vehicle theft and robbery. Robbery has two primary motivations: obtaining money and showing dominance over territory.
His testimony included reference to the predicate felonies for a gang enhancement.
Detective House researched Rios’s and Ramirez’s backgrounds and concluded both were members of Varrio Hawaiian Gardens, and Ramirez was a member of the Loquitos clique. Rios had admitted to Detective House that he was a gang member. Both Rios and Ramirez had gang tattoos. Detective House noted that Ramirez’s uncle was a high-ranking member of the gang, and for that reason Ramirez may have escaped gang retribution.
According to Detective House, the Figueroa sisters were not gang members. However, Gallardo, Molina and Catalina Perez were members of Varrio Hawaiian Gardens.
Given a hypothetical mirroring the facts of this case, Detective House opined the crime was committed for the benefit of, at the direction of, and in association with the gang. He explained the gang was “asserting their dominance over that neighborhood, over that turf area. They are setting an example for individuals who come from outside of the neighborhood who may want to operate in their turf area without their permission. They are setting an example for what’s going to happen to those people if they do that.” In addition, Rios and Ramirez would advance the gang’s status and their own status in the gang through commission of the crimes.
B. Defense
Rios presented no defense witnesses. Sergeant Hall testified on behalf of Ramirez. He testified that Ramirez initially did not know that Rios had a gun. However, Ramirez saw a gun when they were in the driveway. Ramirez told Sergeant Hall that if he did not help Rios, the neighborhood would find out and someone might kill Ramirez later.
Sergeant Hall noted that at first, Ramirez claimed he did not do or say anything. He later admitted that he approached the car, put his hand on the car and told the passenger to get out. He insisted that he did not plan the crime; he did not want to approach the car, but Rios insisted. He did not want to hurt anyone.
DISCUSSION
A. Ramirez’s Statements Implicating Rios
Prior to trial, Rios moved to sever his trial from that of Ramirez and Gallardo—who had not yet entered into a plea agreement—on the ground their statements to law enforcement were inadmissible against him under Aranda/Bruton and Crawford. The trial court denied the severance motion but ruled that each defendant would have a separate jury.
In People v. Aranda (1965) 63 Cal.2d 518, the California Supreme Court held that when the prosecution intends to offer the extrajudicial statement of one defendant which incriminates a codefendant, the trial court must either grant separate trials, exclude the statement, or excise all references to the nondeclarant defendant. (Id. at pp. 530-531.) Under Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476], “‘[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating [statement] of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the [statement] only against the codefendant.’” (People v. Mitcham (1992) 1 Cal.4th 1027, 1045, quoting from Richardson v. Marsh (1987) 481 U.S. 200, 207 [107 S.Ct. 1702, 95 L.Ed.2d 176].) Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] clarifies the type of statements which cannot be used against a codefendant.
In later discussing Gallardo’s testimony, Ramirez’s counsel, Mr. Batsakis, indicated he might ask whether Rios had threatened Gallardo. Rios’s counsel pointed out there might be other areas which Mr. Batsakis would like to go into which might impinge on Rios’s rights. The trial court responded, “If you get to that point, Mr. Batsakis, do you think when you get up to cross, let’s take a quick side bar so we can rule on that.”
No problems arose during Mr. Batsakis’s cross-examination of Gallardo. As Mr. Batsakis was cross-examining the gang expert, the following took place:
“Q By Mr. Batsakis: Detective House, I’m going to read part of the [preliminary hearing] transcript. I want to get your opinion on what was discussed here, at the bottom of page 326.
“(Reading:)
“By Mr. Batsakis: Good morning, Detective Hall.
“Detective Hall: Good morning.
“Question: When you spoke to Mr. Ramirez, did he indicate to you at the time he walked up to the passenger window or just after of the victim’s car, he felt bad [for] what was happening? [¶]... [¶]
“Is that a fair statement?
“Answer by Detective Hall: Yes.
“Question: And that he wanted to walk away and run away, but if [Rios] found out, Mr. Ramirez thought he would be beaten or killed for leaving his homeboy without backup?
“Q Is that a statement he made?
“Mr. Gutierrez: Objection, your honor. Ask to approach.
“The Court: Okay.”
At that point, Mr. Gutierrez moved for a mistrial, explaining: “Mr. Batsakis knows that we had a severance because of the Aranda-Bruton issue. Now, he is introducing Mr. Ramirez’[s] statement where he is laying out my client as the motivating factor behind Mr. Ramirez’[s] involvement in the case.” Mr. Gutierrez added that he had asked Mr. Batsakis “if there was going to be any reference to my client coercing [Mr. Ramirez] to be involved in the charge or any issues with character that would go into the proffer, any reference to the proffer, that would be outside of the presence of my jury, and we were going to do that.... Mr. Batsakis said he wasn’t going to go into it, and that’s why I agreed to sit through his cross-examination of this officer. But he has read into the record a statement of Mr. Ramirez attributing blame to my client, which is the whole reason why we have a separate jury.”
The court asked whether there was an answer given to the question, and the court reporter confirmed there was not. Mr. Gutierrez argued that even though there was no answer, “but that implication to this jury, that question suggests that Mr. Ramirez has laid out [Rios], and that’s why we have dual juries, Judge. That was just a complete violation of the Aranda-Bruton rule, and I don’t know how we unring the bell.”
The prosecutor responded that the question did not mention who Ramirez feared and indicated fear of gang retaliation, not retaliation by Rios. The court agreed and denied the motion for mistrial. It then admonished the juries, and particularly the jury for Rios, “that the questions read by Mr. Batsakis from that transcript for which we did not receive an answer from Detective House, that you are admonished not to consider that at all.”
A defendant’s motion for a mistrial should be granted “if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854; accord, People v. Hines (1997) 15 Cal.4th 997, 1038.) We review the trial court’s ruling on the motion “under the deferential abuse of discretion standard.” (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Valdez (2004) 32 Cal.4th 73, 128.)
It is presumed the jury has heeded any admonitions given to it, curing the error addressed by the admonitions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.’” (People v. Allen (1978) 77 Cal.App.3d 924, 935; accord, People v. Cox, supra, 30 Cal.4th at p. 953.) Only when defendant’s “‘chances of receiving a fair trial have been irreparably damaged’” should a mistrial be granted. (People v. Valdez, supra, 32 Cal.4th at p. 128.)
This is not that exceptional case in which the error could not be cured by admonition and Rios’s chance of receiving a fair trial was irreparably damaged. First, no answer was given to the improper question. The jury was admonished to ignore the question and subsequently instructed pursuant to CALJIC No. 1.02 that questions are not evidence. (See People v. Stewart (2004) 33 Cal.4th 425, 493 & fn. 30.)
Second, as the trial court recognized, the question did not directly implicate Rios. Rather, it suggested gang retaliation if Ramirez did not provide backup for Rios. (See People v. Song (2004) 124 Cal.App.4th 973, 982.)
Finally, in light of testimony by Gallardo as to Rios’s actions in initiating the crime and the Figueroa sisters as to his attempts to dissuade them from testifying, the brief reference to Ramirez’s fear of retaliation if he did not back up Rios was harmless beyond a reasonable doubt. (See People v. Song, supra, 124 Cal.App.4th at p. 984.)
B. Refusal to Strike Figueroa Sisters’ Testimony and Dismiss Counts 1-7
Following Lizbeth’s and during Paola’s testimony, Rios moved to strike their testimony or, in the alternative, grant a mistrial. The motion was based on their admissions that they lied under oath.
The trial court indicated that it had reviewed the Figueroa sisters’ pretrial and trial testimony “and zeroed in on those areas that Mr. Gutierrez brought out on cross-examination where those two witnesses admitted that they lied at the preliminary hearing and on occasion fabricated or lied during the trial.” The court then went over the testimony, highlighting the areas in which the sisters admitted lying.
The court stated that “in weighing the testimony of both sisters and comparing the admitted lies as established by Mr. Gutierrez as to the trial testimony versus the preliminary hearing testimony, as to both those sisters, those so-called lies in the court’s opinion are really de minimus to their overall testimony, and that there was no substantial lie that the defendant has been affected by.”
The court noted that it could comment on the sisters’ testimony, but “the jury is the exclusive judge of the facts as well as the witness’ testimony, and to strike a witness’ testimony would prevent the jury from discharging its role as a finder of fact. So the cases I’ve read indicate to me that this court, based upon the record before it, would be committing prejudicial error if it were to strike the testimony of the Figueroa sisters.” The court therefore denied the motion to strike, and it denied the motion for mistrial on the same basis.
It is well established that “‘[a]llowing false testimony to go unchallenged impairs the integrity of the factfinding objective of a trial [citation], because such testimony hinders or blocks the disclosure of the truth to the trier of fact [citation].’ [Citation.] A criminal judgment obtained through the use of false evidence violates due process.... [Citations.]” (Campbell v. Superior Court (2008) 159 Cal.App.4th 635, 652.)
It is not required, however, that the testimony of a witness who testifies falsely in some respects be stricken in its entirety. In People v. Riel (2000) 22 Cal.4th 1153, one of the defendant’s co-perpetrators, Edwards, testified pursuant to a plea agreement. The jury was informed of the plea agreement and given standard instructions as to how to view Edwards’s testimony. (Id. at pp. 1180-1181.)
The defendant argued that the record showed Edwards’s testimony was questionable. The court responded that “Edwards’s credibility was indeed suspect. Defense counsel cross-examined him effectively. Edwards made many prior inconsistent statements and had an obvious motive to blame defendant and minimize his own participation in the crime. He admitted he lied numerous times in the past about this crime. But these circumstances—known to the jury—do not provide a basis to exclude his testimony.” (People v. Riel, supra, 22 Cal.4th at p. 1181.) The defendant and Edwards were in the best position to know what occurred, both testified, and both had a reason to lie. The “[d]efendant had no right to have the jury hear only his version of the events and not the contrary testimony of another participant. It was for the jury to evaluate the testimony of both and the remaining evidence and determine where the truth lay.” (Ibid.)
Similarly here, the Figueroa sisters were witnesses to much of what occurred. They were testifying in order to avoid prosecution, and the jury was informed of that fact. They were cross-examined extensively, and the jury was aware of the inconsistencies in their testimony and of their admissions that they had testified falsely, both at the preliminary hearing and at trial. The jury was instructed on witness credibility (CALJIC Nos. 2.13, 2.20, 2.21.1, 2.22, 2.23), including instruction with CALJIC No. 2.21.2 that: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
Rios additionally claims that the trial court erroneously believed it had no power under Evidence Code section 352 “to declare a disbelief in a witness’ testimony and strike it.” Vorse v. Sarasy (1997) 53 Cal.App.4th 998, on which the trial court relied, held that “[t]he trial court’s ability to exclude hearsay testimony based upon an evaluation of the testifying witness’s credibility is limited to circumstances in which ‘the testimony is physically impossible or its falsity is apparent “without resorting to inferences or deductions.” [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury’s resolution; such doubts do not afford a ground for refusing to admit evidence under [a] hearsay exception.... [Citations.]’” (Id. at p. 1011, quoting from People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) As discussed above, that portions of the Figueroa sisters’ testimony were false did not require that the entirety of their testimony be stricken. The trial court did not err in refusing to strike their testimony under Evidence Code section 352.
Rios also disagrees with the trial court’s characterization of the Figueroa sisters’ lies as “really de minimus to their overall testimony, ” and its conclusion “that there was no substantial lie that the defendant has been affected by.” He claims their testimony was prejudicial and the trial court should have granted a mistrial.
As previously stated, a defendant’s motion for a mistrial should be granted only if the court, in its discretion, determines there has been prejudice that is incurable by admonition or instruction. (People v. Hines, supra, 15 Cal.4th at p. 1038; People v. Haskett, supra, 30 Cal.3d at p. 854.) We review the trial court’s ruling for abuse of discretion. (People v. Valdez, supra, 32 Cal.4th at p. 128.)
As discussed above, the jury was aware of the problems with the sisters’ testimony and was instructed on how to view that testimony. We presume the jury was able to follow the court’s instructions (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331) and disregard any testimony it found to be false. Accordingly, Rios’s “‘chances of receiving a fair trial [were not] irreparably damaged’” by the sisters’ false testimony, and the trial court did not abuse its discretion in denying his motion for a mistrial. (People v. Valdez, supra, 32 Cal.4th at p. 128.)
C. Evidentiary Rulings
Rios challenges a number of the trial court’s evidentiary rulings. He contends that individually and/or cumulatively, they deprived him of a fair trial and due process of law.
1. Rios’s Prior Felony Convictions
Rios was charged in counts 6 and 13 with possession of a firearm by a felon. Prior to trial, he moved to bifurcate trial of these counts. The trial court denied his motion but asked whether Rios wanted to stipulate for purposes of those counts that defendant was an ex-felon. Mr. Gutierrez responded by asking the court “to bifurcate a portion of those two counts, and that is that he’s an ex-con, only proceed with possession of a weapon on those two counts as opposed to bifurcating the two counts entirely.” The court denied that motion and again asked Mr. Gutierrez whether Rios wanted to stipulate to the prior convictions or have the People prove them. Mr. Gutierrez said he anticipated a stipulation but requested time to consult with Rios first. The court responded, “Well, my problem is what do I do with the jury when I begin to tell them what the case is about?” Mr. Gutierrez stated, “Ex-felon with a gun.”
According to Rios, “[f]or purposes of counts 6 and 13, [he] offered to stipulate that [he] had a prior conviction.... Initially, the trial court granted the bifurcation motion.... However, at the prosecutor’s insistence, the trial court allowed the prosecutor to inform the jury of [Rios’s] prior convictions in the prosecutor’s opening statement and case-in-chief.”
The citations to the record that Rios provides in support of this claim of error show something different. It appears that the court granted bifurcation of trial on the priors for purposes of sentencing, not for purposes of trial on counts 6 and 13. Immediately after granting bifurcation of the priors, it denied Rios’s bifurcation motion.
Thereafter, the court discussed sanitizing the priors in connection with the gang murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)). The prosecutor argued “that the People must prove that the defendant knew that members of his gang have committed various crimes. [¶] Normally, the way that’s done is that defendants are served with STEP notices, pieces of paper that say, ‘You are on notice that this gang commits the following 33 crimes and you are hereby on notice.’ We don’t have a STEP notice. Mr. Rios was never served with a STEP notice. [¶] The only evidence, the best evidence, in my opinion better than a STEP notice, are his convictions, the 211 and 459, because they are his and they are fresh. The fact he was a gang member before he picked up those offenses shows he must have knowledge of the criminal activities of this gang through his own conduct. I have no other means of proving that element, Judge. None.”
California Street Terrorism Enforcement and Prevention Act, Penal Code section 186.20 et seq.
While Mr. Gutierrez objected that the specific offenses should not be disclosed because they were more prejudicial than probative (Evid. Code, § 352), the prosecutor maintained that it was necessary to prove the specific felonies qualified under the statute. The trial court offered, “Let’s just do this to save a little time. Just ‘convicted felon, ’ and leave that for your opening statement, and let me do some research on this.” Mr. Gutierrez objected that this “invites the jury to speculate that maybe it is even more serious than robbery or burglary.” The trial court overruled the objection.
The following day, the court revisited the issue and agreed to allow the prosecutor to refer to the specific crimes in order to prove the special circumstance allegation under Penal Code section 190.2, subdivision (a)(22). Later, Mr. Gutierrez again challenged the necessity of showing that Rios had been convicted of the specified felonies in order to prove the special circumstance, pointing out the prejudice involved. The trial court pointed out that it was “going to come out anyhow in that he is charged in two counts as an ex-felon with a gun.” Mr. Gutierrez offered that Rios was willing to stipulate that he was an ex-felon so the jury would be precluded from knowing what the crimes were. The court ruled that it would permit the reference to defendant’s convictions of robbery and burglary to satisfy the requirements of the special circumstance.
In his opening statement, the prosecutor discussed the Hawaiian Gardens gang, its primary activities, and crimes committed by its members. The prosecutor turned to the defendants, their tattoos showing gang membership, and stated that Rios “is a hard core member of Varrio Hawaiian Gardens. He has been a member for about ten years. He has prior felony convictions for robbery and for burglary.”
As noted in People v. Calderon (1994) 9 Cal.4th 69, “[h]aving a jury determine the truth of a prior conviction allegation at the same time it determines the defendant’s guilt of the charged offense often poses a grave risk of prejudice.... ‘Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. [Citations.]’ [Citation.]” (Id. at p. 75.)
However, in some cases the jury necessarily will learn of the defendant’s prior convictions, such as where evidence of the prior convictions is necessary to prove the defendant committed the charged offense (People v. Calderon, supra, 9 Cal.4th at p. 78), as is the case here, with respect to both the possession of a firearm by an ex-felon charge and the Penal Code section 190.2, subdivision (a)(22), special circumstance. Inasmuch as the jury would in any event learn that defendant was an ex-felon, and his prior offenses were less serious than the current ones, we find no abuse of discretion in the trial court’s ruling. (Calderon, supra, at pp. 78-79; see People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
As the People point out, defendant is incorrect in his assumption the predicate offenses for a gang enhancement under Penal Code section 186.22, which serves as the basis for the gang special circumstance, must have been found to have been gang-related crimes. (People v. Gardeley (1996) 14 Cal.4th 605, 621.) Thus, even if there were no gang allegations in connection with defendant’s prior convictions, they still could serve as predicate felonies for purposes of determining whether the current crimes were gang-related.
2. Determination as to Gallardo’s Credibility
The prosecutor used a PowerPoint presentation in conjunction with his opening statement. Prior to that time, the trial court reviewed the individual slides in the presentation with counsel.
Mr. Gutierrez objected to slide No. 151 to “the indication that your honor will determine if [Gallardo] testifies truthfully. There are cases that talk about that basically implies that the court is vouching for the credibility of the witness. I think that’s inappropriate to interject the court as a determinator [sic] of a witness’s credibility.”
The slides themselves were not introduced into evidence and are not part of the record on appeal.
The prosecutor explained that the jury would not know what the court’s determination was, but it was important to put that information on the slide, in that “[it] goes to his credibility, ... because he is testifying as a witness for the prosecution in exchange for some consideration.... [I]t’s very important to explain correctly and accurately the parameters of this deal, ” i.e., that Gallardo must testify truthfully and is not “a puppet saying what the People want him to say.”
The court responded, “But I think the objection is who decides whether he testifies truthfully, and then Judge Falcone does that, and it indicates that, if I don’t say anything to the jury, then whatever he said is truthful and his cross-examination may not be worth anything.” The trial court overruled the objection, and Mr. Gutierrez moved for a mistrial. The court responded that it was “a little uncomfortable” with the language, and it was “thinking is that what we should do is delete who will decide whether Gallardo testifies truthfully. ‘Only Judge Falcone, ’ that should be deleted.”
The court explained that “[t]he thing that bothers me is, when we put that in the opening statement and it’s locked in the jury’s mind what Mr. Gallardo testifies to, no matter what Mr. Gutierrez does to impeach him, they’re just going to say, ‘Well, Judge Falcone says whatever he says is right, and, therefore, we don’t hear from Judge Falcone.’ How do I get involved in it as far as the jury deciding whether or not I’m satisfied he is testifying truthfully or not?” The prosecutor responded, “You don’t.”
Mr. Gutierrez added, “The implication is you are vouching, and the jury says, ‘If this person was lying, Judge Falcone would have, as the judge, instructed us not to consider his testimony, to reject it, or he would have struck his testimony. The fact he has been allowed to testify and we are making our decision based on his testimony, ’ and then, at some future date, the implication is that the court is vouching for him”
The trial court then indicated it had changed its mind and would sustain “the objection by the defense that Judge Falcone would determine whether or not Mr. Gallardo is testifying truthfully. If you want to couch it in some other way, I don’t know how you are going to do it, but that should be deleted.” The prosecutor complained that he was “at a loss” as to how to frame it differently, since the slide accurately reflected the deal with Gallardo. After further discussion, the trial court allowed the prosecutor until the following day to suggest alternative language.
The following day, after the opening statements had been read to Ramirez’s jury, the court noted the prosecutor “pointed out there has been a deal, and he spelled out very carefully what the deal was, that [Gallardo] pled to certain charges, what he faced by pleading to those charges, the exposure to state prison to those charges. He also pointed out... that they decide the credibility, however, of Mr. Gallardo, and that the prosecution and the sheriff’s department have no control over what Mr. Gallardo is going to say. And, at some point in time, long after this trial is over, this court, Judge Falcone, will make a determination as to whether or not Mr. Gallardo kept his promise and his deal with the People.”
Mr. Gutierrez repeated his concerns and objection of the previous day. The trial court, however, was “satisfied that the presentation has been sanitized to such an extent that Mr. Rios will not be prejudiced. [The prosecutor] does point out, as I say to the other jury, that they determine the credibility of Mr. Gallardo, and when I instruct this jury, I will likewise instruct them that they determine the credibility of all witnesses. So the objection is noted and overruled.”
During his opening statement, the prosecutor told the jury it was seeing “the actual paperwork outlining the parameters regarding [Gallarado’s] plea, but one thing I want to bring to your attention is that the way this deal is structured, and it was purposely set up this way, myself, my office, the district attorney and the sheriff’s [department], have no authority, absolutely zero authority to make the decision in terms of whether he’s telling the truth and whether he is entitled to the lesser sentence. That is not my call. That is not the sheriff’s call, and that is not your call either. That is not a decision for the jury or me or for the sheriff’s department. He must tell the truth, but the D.A. purposely doesn’t have the authority to make that call.
“So, in terms of whether Mr. Gallardo gets the benefit, the 26-year, 8-month sentence at 85 percent, that decision is made or it will be made by the judge, Judge Falcone. Long after this case is done, long after you have gone home, the jury has been discharged and the trial is over, Judge Falcone on a later date will make an independent determination about whether or not Mr. Gallardo is entitled to the 26 years, 8 months, okay?
“But you, as jurors, must make your own assessment of Mr. Gallardo’s credibility independent of whatever decision Judge Falcone might make in the future....”
During Gallardo’s testimony, as the prosecutor was discussing his plea agreement, the trial court admonished the jury: “We’re going to get into the terms of this agreement between the authorities and Mr. Gallardo and the issue of what the court’s responsibility will be after this trial is over. [¶] However, you people will decide the credibility, that is, the believability of Mr. Gallardo’s testimony not to rely upon the fact that at some point in time I will make another type of determination. [¶] But as to whether or not you believe or do not believe Mr. Gallardo’s testimony based upon everything that you have heard and will hear that again is solely for the jurors to determine and not for the court.”
In the prosecutor’s argument to the jury, he reiterated that neither he, the sheriff’s department nor the jury had “the authority to decide whether or not Gallardo is being truthful” with reference to the plea agreement. Mr. Gutierrez objected to the statement “that the jury has no right to make a determination of witness credibility. They are the exclusive judges of Mr. Gallardo’s credibility for the trial.” The trial court admonished the jury, “That’s a correct statement. Today you people decide the credibility of Mr. Gallardo.”
The prosecutor then explained, “The judge is the one who decides whether or not Mr. Gallardo is entitled to his 26 years, 8 months sentence. Now, you must assess Mr. Gallardo’s credibility on your own in reaching your decision in this case, and you must do so without regard for whatever decision the judge makes.”
It is improper for a judge to vouch for the credibility of a witness. (People v. Coddington (2000) 23 Cal.4th 529, 616, disapproved on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) That did not occur here.
It is not reasonably probable that the jury understood slide No. 151 and the prosecutor’s comments to mean that the trial court was vouching for Gallardo’s credibility. To the extent the slide and comments suggested the jury did not have the power to make a determination as to Gallardo’s credibility, the trial court clearly instructed the jury—on more than one occasion—that, for purposes of this trial, it did have the duty to make a determination as to Gallardo’s credibility, and any determination the court made on the matter would take place after the trial had concluded. We presume the jury followed these instructions, curing any misconceptions that the slide and comments may have caused. (People v. Hovarter, supra, 44 Cal.4th at p. 1005.)
We disagree with Rios’s claim that the trial court’s instructions “did not eliminate the risk of prejudice.” This was not a case in which improper and highly prejudicial evidence was put before the jury. It was simply a question of the jury’s duty in the trial, and the trial court clarified that matter. There was no prejudicial error.
3. Evidence of Paola Figueroa’s Bias
When Mr. Gutierrez sought to cross examine Paola Figueroa about the Department of Children and Family Services (DCFS) coming to her house and discussing taking her children away from her, the trial court sustained its own objection. Mr. Gutierrez sought to be heard on the matter, as it was relevant to the issue of bias. The trial court declined his request.
As Mr. Gutierrez continued to refer to DCFS, the trial court held a hearing outside the presence of the jury. Mr. Gutierrez argued that questions about DCFS coming to Paola’s home “goes to bias and pressure and coercion on this witness to make statements that implicated” Rios. The court stated it was exercising its discretion under Evidence Code section 352 to exclude the evidence as more prejudicial than probative.
Ramirez’s counsel also objected, pointing out that Paola had admitted lying, and DCFS coming to her house might have been a motivating factor. The court responded that “it has already been brought out that she was a suspect, she could have been charged as an accomplice. I think that’s sufficient. I don’t need to bring Children Services in for that.”
Evidence Code section 352 gives the trial court the discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues or misleading the jury. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “‘In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value.’” (People v. Valencia (2008) 43 Cal.4th 268, 286.)
It is true a defendant has the right to have the trier of fact consider pertinent evidence in his behalf. “Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) However, this does not mean “a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.” (Ibid.; accord, People v. Milner (1988) 45 Cal.3d 227, 240, fn. 11.) Defendant’s right to present on his behalf “does not require ‘the court [to] allow an unlimited inquiry into collateral matters.’” (People v. Ayala (2000) 23 Cal.4th 225, 282.) The proffered evidence must be of more than slight or limited probative value. (Ibid.) Trial courts do not abuse their discretion under section 352 in excluding evidence marginally relevant for impeachment purposes in order “‘to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral... issues.’” (People v. Hamilton (2009) 45 Cal.4th 863, 946.)
Here, the jury was presented with evidence that Paola lied to sheriff’s deputies and lied in court. It was presented with evidence of a motive to lie—she was threatened with prosecution as an accomplice unless she testified. The trial court did not abuse its discretion in refusing to allow defendants to delve into an additional motive for Paola to lie. (People v. Hamilton, supra, 45 Cal.4th at p. 946.)
Rios also argues that the record does not affirmatively show that the trial court weighed the probative value of the proffered evidence against its potential for prejudice. The Supreme Court has repeatedly ruled that “‘the trial [court] need not expressly weigh prejudice against probative value—or even expressly state that [it] has done so.’” (People v. Lucas (1995) 12 Cal.4th 415, 448.) So long as “ [t]he record demonstrates that the trial court ‘understood and fulfilled its responsibilities under Evidence Code section 352[, n]othing more [is] required.’” (Id. at p. 449.) The record here clearly demonstrates that the trial court understood and fulfilled its responsibility under Evidence Code section 352 to weigh the probative value of the proffered evidence against its prejudicial effect; “‘[n]othing more was required.’” (Ibid.)
4. Evidence of Flight
Prior to trial, the court acknowledged there was an issue as to whether or not evidence of flight would be admitted. During review of the prosecution’s slides prior to trial, Mr. Gutierrez stated, “I have a series of cases I can cite to the court as to flight is discretionary to the court.” He added, “What deputies can hear in regards to flight and destruction of property is all hearsay. I would object to references to SWAT deputies.” The trial court overruled the objection.
Thereafter, Mr. Gutierrez again objected to evidence that the SWAT team responded to Segura’s house and argued “that evidence of flight in this particular case is irrelevant. We’re talking about September of 2005; not June 17th of 2005.” He added that there were “a number of explanations that could explain the flight, ” including the fact that Rios had “absconded from parole prior to June and had picked up at least one misdemeanor, possibly a felony, ” “so we’re inviting the jury to speculate as to the flight.” Additionally, he argued that the evidence was more prejudicial than probative and should be excluded under Evidence Code section 352. As to evidence regarding the SWAT team, Mr. Gutierrez argued it was simply irrelevant to any of the issues in the case.
After hearing argument from the prosecutor, the trial court ruled, “The fact that a number of deputies went to the place, did what they did, called out, yelled out, whatever they did, and no answer. They have to go in, look for them. The ceiling issue, the running issue. The appearance of Mr. Rios, yes. Let’s keep away from those SWAT teams and things like that, machine guns, cannons, tanks. Okay? In other words, I’m sanitizing to the extent that I appreciate the deputy sheriffs went there, not SWAT, and they did what they had to do, the normal arresting of a suspect.”
Penal Code section 1127c, on which Rios relies, states: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.”
It is Rios’s position that the immediacy required by Penal Code section 1127c was not present here, so the trial court erred in admitting evidence as to his apprehension at Segura’s house as evidence of “flight.”
Both Rios and the People cite the principle that “‘a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” [Citations.] “‘[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed nor arrested.’” [Citations.]’” (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
As other cases cited by Rios make clear, however, the concept of flight includes more than immediate flight from the crime scene. For example, in People v. Mason (1991) 52 Cal.3d 909, the defendant’s flight took place four weeks after the commission of murder, and he argued “that his flight was so remote from the charged offenses that it ‘was of marginal probative value, if any.’” (Id. at p. 941.) The court responded that “[c]ommon sense... suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as multiple murders after only a few weeks. Nor do our decisions create inflexible rules about the required proximity between crime and flight. Instead, the facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt.” (Ibid.)
In People v. Scott (1959) 176 Cal.App.2d 458, the defendant’s flight did not occur until almost a year after the disappearance of his wife. He had recently been indicted for other offenses, but an accusation that he killed his wife had been made, and he reasonably could have anticipated an investigation and indictment for her murder. (Id. at pp. 506-507.)
In People v. Bradford, supra, 14 Cal.4th 1005, there was sufficient evidence to support an instruction on flight where, after committing the crime, the defendant packed his belongings, made arrangements to stay with someone out of town, and “repeatedly pleaded with his roommate to drive him out of town.” (Id. at p. 1055.)
Here, there was evidence that two and a half months after the shooting, Rios had dyed his hair blond or orange so that he would not be recognized. Rios was at the home of his former girlfriend, Segura, having left his wife or girlfriend’s house at 3:00 a.m. After sheriff’s deputies arrived at the scene and ordered everyone out of the house, defendant knocked a hole in the ceiling and hid. He eventually was apprehended in the backyard.
This evidence supports a reasonable inference that defendant disguised himself, hid and then fled to avoid being apprehended for the shooting. That it occurred some time after the shooting does not preclude a finding of flight, in that it occurred at a time when he reasonably could have anticipated that the deputies were at Segura’s house to arrest him. (People v. Scott, supra, 176 Cal.App.2d at pp. 506-507.) Under the facts of this case, “it is reasonable to infer that flight shows consciousness of guilt.” (People v. Mason, supra, 52 Cal.3d at p. 941.) Hence, the trial court did not err in admitting evidence of defendant’s flight or in instructing the jury on flight showing consciousness of guilt. (People v. Smithey, supra, 20 Cal.4th at p. 982; People v. Bradford, supra, 14 Cal.4th at p. 1055.)
5. Gang Evidence
Rios contends the trial court erred in “the wholesale admission of gang evidence.” As specific examples of error, he lists the prosecutor’s 180-slide PowerPoint presentation of “Gangs 101” during his opening statement; testimony regarding “green lights” marking “rats” or “snitches” for death; excess evidence of predicate acts necessary to demonstrate a pattern of criminal activity by Varrio Hawaiian Gardens; and improper expert opinion about guns being passed around among gang members.
As noted in People v. Ruiz (1998) 62 Cal.App.4th 234, “California courts have long recognized the potential prejudicial effect of gang membership evidence.” (Id. at p. 239.) “Due to its potential prejudicial impact on a jury, our Supreme Court has condemned the introduction of ‘evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.’” (Id. at p. 240, quoting from People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) It should not be admitted if its only purpose is to prove defendant’s criminal disposition or bad character in order to create an inference defendant committed the charged offenses. (Ruiz, supra, at p. 240; accord, Evid. Code, § 1101, subd. (a).)
When gang evidence meets the test of relevancy, however, it is admissible unless its prejudicial effect clearly outweighs its probative value. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) We review the trial court’s decision to admit gang evidence for abuse of discretion. (Ibid.; People v. Waidla (2000) 22 Cal.4th 690, 717.)
The trial court properly admits evidence pertaining to gangs and gang membership when the evidence is relevant to a material issue at trial, such as identity or motive. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Martinez (2003) 113 Cal.App.4th 400, 413.) It is admissible “when the very reason for the crime is gang related.” (People v. Ruiz, supra, 62 Cal.App.4th at p. 239.)
Gang evidence is also admissible on the issue of witness credibility. (People v. Martinez, supra, 113 Cal.App.4th at p. 414; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Evidence that a witness is fearful of retaliation for implicating or testifying against a gang member is relevant to the issue of the witness’s credibility, especially where the witness has given inconsistent statements concerning a crime. (Martinez, supra, at p. 414; Sanchez, supra, at pp. 1449-1450.)
Rios recognizes, as he must, that gang evidence was admissible in this case. The perpetrators of the crimes were gang members, and the motivation for the crime was, at least in part, gang-related. There were witnesses who were gang members or known to be gang members, and who feared gang retaliation. Gang evidence also was admissible to prove the gang enhancements and special circumstance.
Might there have been gang evidence admitted which should have been excluded under Evidence Code section 352 as lacking significant probative value, or as redundant or unduly time consuming? There might have been. However, the erroneous admission of the evidence does not require reversal of the judgment unless it is reasonably probable defendant would have obtained a more favorable result had there been no error. (People v. Earp (1999) 20 Cal.4th 826, 878.) Inasmuch as there was a wealth of gang evidence that was properly admitted, it is not reasonably probable that Rios would have received a more favorable result if various pieces of gang evidence had been excluded. Hence, reversal is not required. (Ibid.)
D. Instructional Error
Rios claims instructional errors, individually and collectively, deprived him of due process of law. The first of these we addressed above in connection with Rios’s claims of evidentiary error. Since evidence of flight properly was admitted, instruction on flight was proper. (People v. Smithey, supra, 20 Cal.4th at p. 982; People v. Bradford, supra, 14 Cal.4th at p. 1055.) We now examine the remaining claims of error.
1. Accomplice Instructions—CALJIC Nos. 2.27 and 3.16
CALJIC No. 2.27 reads: “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.”
As the court was discussing jury instructions with counsel, Mr. Gutierrez objected to CALJIC No. 2.27 on the sufficiency of the testimony of one witness, or, in the alternative, requested to have it modified, on the ground “the testimony of the Figueroa sisters and Gallardo require corroboration since they were accomplices.” The prosecutor took the position it was a jury question whether the Figueroa sisters were accomplices but acknowledged Gallardo was an accomplice as a matter of law.
The trial court noted the second bracketed portion of CALJIC No. 2.27 refers to witnesses whose testimony did not require corroboration, and it would later instruct the jury that an accomplice’s testimony must be corroborated. Mr. Gutierrez responded, “My concern is with the first bracket, ... I think that should be removed.” The trial court agreed and crossed the first bracketed portion out of the instruction.
When the discussion reached CALJIC No. 3.16, Mr. Gutierrez requested that the court include the Figueroa sisters as accomplices as a matter of law. The prosecutor disagreed, taking the position “it’s an open question.... As to the sisters, they are right on the border right there.” The trial court stated it could not find the Figueroa sisters to be accomplices as a matter of law and declined Mr. Gutierrez’s request.
An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Pen. Code, § 1111.) One is “liable to prosecution for the identical offense” if he fits the definition of a principal provided in Penal Code section 31. (People v. Horton (1995) 11 Cal.4th 1068, 1113.) That is, if he or she directly commits an act constituting an offense, aids and abets commission of the offense or, although not present, advises and encourages its commission, he or she fits the definition of a principal. (Pen. Code, § 31.)
We agree with Rios that there was evidence the Figueroa sisters aided and abetted the commission of the crimes. We do not agree the evidence establishes that they were aiders and abettors—and thus accomplices—as a matter of law.
There was evidence that when the sisters were trying to sell the speakers to Gallardo, Rios, who was not a friend of theirs, demanded information about the person who gave them the speakers. Rios asked Paola for a ride home, and she agreed. She did not want to give him a ride, because she was afraid he intended to rob “Pirate, ” but she agreed to drive him home because she was afraid of him. Paola drove Rios, Ramirez and Gallardo to Rios’s home and then to her house.
If the sisters merely gave Rios, Ramirez and Gallardo a ride but did not share their intent, then the sisters would be accessories only, not accomplices. (People v. Sully (1991) 53 Cal.3d 1195, 1227; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177, fn. 14.) Accomplices include an aider and abettor, who “assists the perpetrator and shares the perpetrator’s criminal purpose. [Citation.] It is not sufficient that he merely gives assistance with knowledge of the perpetrator’s criminal purpose. [Citations.]” (Sully, supra, at p. 1227.) Since there was evidence from which the jury could have found the Figueroa sisters were not accomplices, the trial court did not err in refusing to instruct the jury that they were accomplices as a matter of law.
2. CALJIC No. 6.20—Withdrawal from a Conspiracy
Mr. Gutierrez requested instruction with CALJIC No. 6.20 on withdrawal from a conspiracy, arguing: “Paola Figueroa says there was a knock on the door after there was a request for orange juice and some food, and that Mr. Rios told her, you know, ‘They’re not coming back. I want to go home.’ And she took him home, and that was the last time she saw him was when she took him home.” The trial court did not believe her testimony constituted substantial evidence of withdrawal from a conspiracy and refused the request.
As the People point out, Rios fails to cite anything in the record that supports Mr. Gutierrez’s statement regarding Paola Figueroa’s testimony. Rios cites Paola’s testimony that about 30 minutes after she gave Rios a drink, he asked for a ride back to his house. He did not say why he wanted to go back to his house. She drove Rios, Ramirez and Gallardo back to Rios’s house, they got out of her van, and she returned home.
Rios himself recognizes that the defense of withdrawal from a conspiracy requires “‘an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.’” (People v. Sconce (1991) 228 Cal.App.3d 693, 701; accord, In re Alcox (2006) 137 Cal.App.4th 657, 668.) Nothing in the cited testimony supports a finding that Rios communicated to his coconspirators an affirmative rejection of a conspiracy. In the absence of evidence supporting the requested instruction, the trial court was not required to give it. (People v. Watson (2000) 22 Cal.4th 220, 222.)
E. Prosecutorial Misconduct
Rios contends prosecutorial misconduct occurred “at two critical points in the trial”—during the prosecutor’s examination of Detective House and during argument—depriving Rios of a fair trial and due process of law. Specifically, he claims the prosecutor and Detective House violated the trial court’s order not to testify that murder was one of the primary activities of Varrio Hawaiian Gardens, and the prosecutor’s skull and crossbones PowerPoint presentation during argument was highly prejudicial.
“The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ [Citations.] A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (People v. Kennedy (2005) 36 Cal.4th 595, 617-618, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
It is misconduct to ask questions calling for inadmissible and prejudicial answers. (People v. Pitts (1990) 223 Cal.App.3d 606, 734.) In addition the “prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.]” (People v. Warren (1988) 45 Cal.3d 471, 481-482.)
Prior to trial, when discussing the slides the prosecutor intended to use during his opening statement, Mr. Gutierrez objected to a slide which indicated the primary activities of the Hawaiian Gardens gang included murder and robbery. The prosecutor asked if Mr. Gutierrez would have any objection to characterizing the activity as aggravated assault rather than murder. Mr. Gutierrez said he would not. The prosecutor agreed to modify his slide to refer to aggravated assaults and robbery.
Later, during the examination of Detective House, the prosecutor asked about the gang’s primary activities, and the detective described them as “violent aggravated assaults, robberies, carjackings, kidnappings, theft of vehicles.” The prosecutor then asked, “And, just so we understand what a felony assault is, what type of felony assaults are we talking about here?” The detective answered, “Well, felony assaults can range from a murder to an assault with a deadly weapon. When I’m talking about aggravated assaults, that’s what I’m talking about.”
Mr. Gutierrez objected and moved for a mistrial, reminding the court of its earlier ruling. The trial court stated that what it intended by its earlier ruling was that the prosecution not “designate as a prime activity murder itself. And when he indicated originally the primary activities, he said assault, robbery, carjacking, kidnapping, and theft. Then when [the prosecutor] asked him when we are talking about assault, talking about felony assaults, anything from assault with a deadly weapon and murder, I don’t think that was intentional. It was inadvertent. The bell had not been rung that the primary activity was per se murder, and that was what I was concerned about, that that issue not come up, i.e., primary activity of this gang was murder and, based upon what I have heard from Detective House, he has not gone that far, and so the motion for mistrial will be denied.”
We agree with the trial court’s assessment of the matter. Detective House did not violate the court’s previous order, and the evidence to which Mr. Gutierrez objected—that one of the gang’s primary activities was murder—did not come before the jury. The question and answer did not “‘“infect[] the trial with such unfairness as to make the conviction a denial of due process.”’” (People v. Kennedy, supra, 36 Cal.4th at p. 618.) That did not constitute prosecutorial misconduct.
Rios points to nothing in the record that describes the slides, he points to nothing that shows that they were used in a PowerPoint presentation during argument, or that shows that he objected to their use on the ground of prosecutorial misconduct. It is well established that the defendant has the burden of demonstrating error by an adequate record. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Clifton (1969) 270 Cal.App.2d 860, 862.) Rios’s failure to do so forfeits the claim of error on appeal.
In addition, in order to preserve a claim of prosecutorial misconduct on appeal, the defendant must object on that ground and request a curative admonition. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Again, Rios’s failure to do so forfeits the claim of error on appeal.
F. Sufficiency of the Evidence to Corroborate Accomplice Testimony
In order to support a conviction the testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense. (Pen. Code, § 1111.) Adequate corroboration of an accomplice’s testimony need not in itself be sufficient to convict the defendant; it may be slight and entitled to little consideration when standing alone. (People v. Richardson (2008) 43 Cal.4th 959, 1024; People v. Rodrigues, supra, 8 Cal.4th at p. 1128.) It “‘“‘need not corroborate the accomplice as to every fact to which he [or she] testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citations.]”’” (People v. Williams (1997) 16 Cal.4th 635, 680-681; accord, People v. Davis (2005) 36 Cal.4th 510, 543.)
Rios argues that even if the Figueroa sisters were not accomplices as a matter of law—and, as discussed above, they were not—there still is insufficient evidence corroborating accomplice Gallardo’s testimony to sustain Rios’s convictions on counts 1 through 4 and 6 and 7.
As Rios points out, Quesada could not identify him as the shooter; only Gallardo identified him as the shooter. Rios also relies on the fact that the Figueroa sisters did not witness the shooting; all they could do is place him at the scene prior to the shooting. The green plastic cup with Rios’s DNA on it also placed him at the scene but did not identify him as the shooter. The gun used in the shooting was found in the possession of another Varrio Hawaiian Gardens member after the shooting.
Having concluded that none of the foregoing evidence corroborated Gallardo’s testimony, Rios adds that “[t]he only other bit of evidence that on the surface, with the benefit of hindsight speculation, and assuming Paola was not an accomplice, might tend to corroborate Gallardo’s testimony is the recording of Paola’s police interrogation wherein Paola told the detective she ran into [Rios] about a week after the shooting, and he allegedly told her, ‘I did it.’” However, Rios adds, since Paola later testified that this was a lie, and her “lies make her inconsistent tales inherently incredible, ” the only evidence connecting him with the shooting was the green cup, and that was insufficient to corroborate Gallardo’s testimony.
That the Figueroa sisters did not witness the shooting does not mean that their testimony was insufficient to corroborate Gallardo’s testimony. Lizbeth heard Rios ask Paola questions about the victims. Lizbeth heard Paola tell Rios what kind of car the victims were driving and Rios say he was going to look for it. She heard Rios mention a gun and dismissed Gallardo’s comment that no gun was needed. She saw Rios, Ramirez and Gallardo with masks or clothes to cover their faces. She also heard Rios make a comment after the shooting implying that he was involved.
Paola interpreted the questions Rios asked and comments Rios made before the robbery to suggest that he intended to rob the victims. He also made comments after the shooting which suggested he was involved.
The sisters’ testimony together with the DNA evidence tended to implicate Rios in the crimes, showing not only his presence at the scene at some point during the night but also his intent to rob the victims at gunpoint.
Besides the sisters’ testimony, there was testimony by Detective House that Rios, Ramirez and Gallardo were members of Varrio Hawaiian Gardens. There was evidence that Rios knew law enforcement was looking for him and had dyed his hair so he would not be recognized.
The evidence putting Rios at the scene, showing his intent to rob the victims, identifying him as a member of the same gang as Gallardo, indicating he was present at the commission of the crime, and showing he was attempting to avoid apprehension for the crime was sufficient to corroborate Gallardo’s accomplice testimony. (People v. Williams, supra, 16 Cal.4th at pp. 680-681; see People v. Vu (2006) 143 Cal.App.4th 1009, 1022-1023.)
G. Consolidation of Count 13
Over Rios’s objection, the trial court consolidated count 13—possession of a firearm by a felon, stemming from the gun found at Segura’s house—with the other counts. In examining the relevant factors, the court found the two cases to be equally strong, neither case more inflammatory than the other, and some cross-admissible evidence. It therefore found no danger of prejudice and granted the prosecution’s motion to consolidate.
Rios “contends the prejudice generated by the joinder of his two cases led to his conviction despite the lack of corroborative evidence to support the convictions of counts 1-4 and 6-7. The joinder thus deprived [him] of due process and a fair trial.”
As discussed above, there was corroborative evidence separate from the evidence relating to Rios’s apprehension and possession of a firearm at Segura’s house. His claim of prejudice therefore is not well taken.
Moreover, there was no abuse of discretion in the trial court’s decision to grant consolidation. Penal Code section 954 provides in pertinent part: “An accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately....” When the charged offenses satisfy the requirements for joinder, a defendant seeking severance must clearly demonstrate a substantial danger of prejudice should the charged offenses be tried together. (People v. Bradford (1997) 15 Cal.4th 1229, 1315; People v. Memro (1995) 11 Cal.4th 786, 849.)
A court’s determination of a motion for severance depends on the circumstances of each case, guided by certain criteria. The court should consider whether “‘(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’ [Citation.]” (People v. Memro, supra, 11 Cal.4th at pp. 849-850; accord, People v. Bradford, supra, 15 Cal.4th at p. 1315.) While a lack of cross-admissibility no longer is an obstacle to joinder (Pen. Code, § 954.1), it is still an important consideration, for if the evidence is cross-admissible, that dispels any inference of prejudice. (Bradford, supra, at pp. 1315-1316.) An absence of cross-admissibility does not in itself demonstrate prejudice, however. (Memro, supra, at p. 850.)
The trial court’s ruling on a severance motion is a discretionary one which we review for abuse. “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Memro, supra, 11 Cal.4th at p. 850; accord, People v. Bradford, supra, 15 Cal.4th at p. 1315.) The denial of a severance motion may be an abuse of discretion when “(1) highly inflammatory offenses [are] joined with noninflammatory crimes; [and] (2) a relatively weak case [is] joined with a relatively strong case so that the aggregate evidence ha[s] a spillover effect and alter[s] the outcome on the relatively weak charges.” (People v. Hill (1995) 34 Cal.App.4th 727, 735; Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1287.)
Inasmuch as the charge in count 13 was the same as that in count 6, there was no issue of joining a highly inflammatory charge with a less inflammatory one. As the trial court found, neither case was significantly stronger or weaker than the other; both had problems with witness credibility. In addition, there was a certain degree of cross-admissibility, as the circumstances surrounding Rios’s apprehension at Segura’s house provided evidence of flight for purposes of the other counts. Accordingly, the decision to permit consolidation was not an abuse of discretion. (People v. Bradford, supra, 15 Cal.4th at p. 1315; People v. Memro, supra, 11 Cal.4th at p. 850.)
H. Voluntariness of Ramirez’s Confession
Outside the presence of the jury, Sergeant Hall testified that he spoke to Ramirez on September 22, 2005. In Sergeant Hall’s presence, a detective read Ramirez his Miranda rights. On a form, Ramirez indicated that he understood his rights, and then Ramirez signed the form.
On cross-examination by Ramirez’s attorney, Mr. Batsakis, Sergeant Hall testified that Ramirez had been arrested at his home and then brought to the sheriff’s station, where Sergeant Hall spoke to him in a small interview room. Ramirez was not handcuffed during the interview, although he was not free to leave. Sergeant Hall was in plain clothes. He told Ramirez he was a detective from sheriff’s homicide investigating a murder case.
The interview took place in the morning; Sergeant Hall did not ask if Ramirez had slept the night before or eaten breakfast that morning; he did not ask if Ramirez was hungry or thirsty. Sergeant Hall did not ask how old Ramirez was; he knew Ramirez was 15 or 16 years old. The sergeant did not ask if Ramirez wanted to talk to his parents. Sergeant Hall did not ask if Ramirez was in school, what grade he had completed, or if he spoke or read English; he knew Ramirez spoke English because Ramirez spoke to him in English.
Sergeant Hall testified he made no promises to Ramirez. He did not threaten Ramirez in any way, such as telling him “if he doesn’t cooperate, he is looking at a lot of time in jail.”
Although the interview was recorded, the reading and waiver of Ramirez’s Miranda rights was not recorded. Sergeant Hall explained this was because of the signed waiver of Ramirez’s rights.
Ramirez testified that he was arrested at home early in the morning; he was already awake at that time. He did not know why he was arrested. He was handcuffed and taken to the sheriff’s station, where he was put in an interview room. He was not threatened at the time of his arrest.
Before his interview, Sergeant Hall asked questions such as whether he was in school. He told the sergeant he was in school. He did not remember if he was asked how old he was, but he was 15 years old at the time. He was not asked if he was hungry, and he did not ask for anything. After about five minutes, he asked why he was arrested.
Ramirez remembered signing something, and he identified his signature on the Miranda warning form. He did not remember having the form read to him or initialing the form as each of his rights was explained to him. He did not know why he signed the form or what was going on. He did not sign the form before talking to Sergeant Hall but signed it “[a]fter we finished talking about everything.”
On cross-examination by the prosecutor, Ramirez testified that Sergeant Hall lied about having him sign the Miranda warning form at the beginning of their interview. Ramirez did not remember if another deputy read him his rights from the form before he even met Sergeant Hall.
On redirect examination, Ramirez testified that Sergeant Hall told him “[t]hat Gallardo had already spoken to them, and that he told them everything, and I was a bit surprised. I remember asking him like, ‘For reals?’ He said something, and then he said, ‘Yeah, he told us everything.’ So then he starts telling me, like, ‘Omar, you don’t want to go to jail. You don’t want to be in jail for the rest of your life for something you did not do. We know you did not do it. Just tell us what happened, and we are going to help you.’ And he said Gallardo already said everything, and we’re going to try to help him.”
Due to the credibility issue, the court requested that the deputy who gave Ramirez his Miranda advisements testify. Sergeant Santisteven testified that he was one of the deputies who arrested Ramirez at his home. He testified that “[p]rior to placing him in my car, I was advised that he was a minor at that time, and per our policy being that he was a minor, I advised him of his rights as I was placing him in the car.” The advisements were “done by memory verbally, ” and Ramirez said that he understood his rights.
On cross-examination by Mr. Batsakis, Sergeant Santisteven testified that Ramirez was arrested during the service of a search warrant, so there were at least five deputies present with guns drawn. Sergeant Santisteven did not tell Ramirez why he was being arrested. The sergeant did not have Ramirez execute a waiver of rights form because he did not “anticipat[e] being involved in any type of in depth interview.”
Mr. Batsakis then reexamined Ramirez, who testified he did not remember coming in contact with Sergeant Santisteven at his home, only at the sheriff’s station. When he spoke to Sergeant Santisteven at the station, the sergeant did not tell him his rights.
The court asked Ramirez to clarify whether Sergeant Santisteven did not tell him his rights or whether he had no recollection of the sergeant telling him his rights. Ramirez responded that he did not recall; the sergeant could have told him his rights, but he did not remember it.
The trial court acknowledged the conflicting testimony but concluded that Ramirez received his Miranda warnings prior to his interview, and his statement was free and voluntary.
To be valid, a defendant’s waiver of his rights and statement following Miranda warnings must be both knowing and intelligent (People v. Sims (1993) 5 Cal.4th 405, 440) and voluntary (People v. Hill (1992) 3 Cal.4th 959, 981, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13). The determination as to whether the waiver and statement met these qualifications is based on “‘the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’ [Citations.]” (Ibid.; accord, People v. Massie (1998) 19 Cal.4th 550, 576.) The People have the burden of proving the validity of the waiver and the voluntariness of the confession by the preponderance of the evidence. (People v. Bradford, supra, 14 Cal.4th at p. 1033.)
On appeal, we will uphold the trial court’s factual findings if they are supported by substantial evidence. (People v. Carrington (2009) 47 Cal.4th 145, 169.) We make an independent determination from those facts whether the statement was legally obtained. (Ibid.)
Ramirez contends the trial court failed to consider all of the relevant circumstances, including (1) “the suspicious circumstances of failing to tape record the giving of Miranda warnings, despite the fact that the police did tape the confession; and (2) the fact that he “was a child, a boy, a lad of 15.”
We start out with the observation that the circumstances Ramirez cites—the Miranda warnings that were not recorded and his age—were thoroughly explored by Mr. Batsakis at the hearing, as were the circumstances surrounding his arrest and interrogation. Ramirez points to nothing in the record suggesting the trial court did not consider these circumstances when making its decision.
Ramirez seems to be arguing that, under the circumstances, his confession was involuntary as a matter of law. We cannot agree.
A 15-year-old is old enough to be tried as an adult for an adult crime (Welf. & Inst. Code, § 707) and to give a knowing, intelligent and voluntary statement to law enforcement (People v. Lewis (2001) 26 Cal.4th 334, 384). Nothing in the record suggests that Ramirez did not understand and waive his Miranda rights or that he was coerced into giving a statement. We agree with the trial court that his statement was voluntary and admissible.
I. Sufficiency of the Evidence of Aiding and Abetting Shooting at an Occupied Motor Vehicle
Ramirez was tried as an aider and abettor, and the jury was instructed with CALJIC No. 3.01 on aiding and abetting. During deliberations, the jury sent a note to the court asking, “In count 3, does the law provide that all principles [sic] of the initial violent crime of (carjacking) share equal guilt as to the crime of shooting into an occupied vehicle[?]” ~(With the approval of Mr. Batsakis, the trial court responded by instructing the jury with CALJIC No. 3.02 on the liability of an aider and abettor for the natural and probable consequences of the intended crime.
As given by the trial court, CALJIC No. 3.02 provided: “One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
In assessing the sufficiency of the evidence to support a conviction, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
In People v. Medina (2009) 46 Cal.4th 913, on which both parties rely, the court explained that an aider and abettor “‘is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]’ [Citation.] Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’ [Citation.]” (Id. at p. 920.)
“‘[A]lthough variations in phrasing are found in decisions addressing the doctrine—“probable and natural, ” “natural and reasonable, ” and “reasonably foreseeable”—the ultimate factual question is one of foreseeability.’ [Citation.] Thus, ‘“[a] natural and probable consequence is a foreseeable consequence”....’ [Citation.] But ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough....” [Citation.]’ [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury. [Citations.]” (People v. Medina, supra, 46 Cal.4th at p. 920.)
It is Ramirez’s contention that “there was no evidence from which a rational trier of fact could have found that [Ramirez], who was only 15 years old, could have reasonably foreseen that Rios would shoot Gutierrez, the driver of the car.” We disagree.
As the Supreme Court noted in People v. Prettyman (1996) 14 Cal.4th 248, the “‘natural and probable consequences’ doctrine [has been applied] in situations where a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill one of the robbery victims. In those cases, courts upheld jury verdicts convicting the defendant of assault and/or attempted murder, on the ground that the jury could reasonably conclude that the crime was a natural and probable consequence of the robbery aided by the defendant. [Citations.]” (Id. at pp. 262-263.) It is reasonably inferable that an armed confederate engaged in the commission of a robbery will use his weapon during the course of the robbery, to overcome the victim’s resistance, to effect an escape, or even accidentally. (See People v. Rogers (1985) 172 Cal.App.3d 502, 515; People v. Fagalilo (1981) 123 Cal.App.3d 524, 532; People v. George (1968) 259 Cal.App.2d 424, 429.)
Ramirez’s own statement confirms that he knew Rios had a gun and was planning a carjacking. He also stated that he did not want Rios to use a gun in the commission of the carjacking. It is reasonably inferable from this statement that he was subjectively aware that Rios’s gun use might escalate from brandishing the gun to firing the gun if the victims resisted. Moreover, a reasonable person in Ramirez’s position would have foreseen that victims in a car would attempt to drive away rather than be carjacked, and Rios would shoot at the car to stop them. (People v. Prettyman, supra, 14 Cal.4th at pp. 262-263.)
There thus is substantial evidence from which a reasonable trier of fact could conclude that shooting at an occupied motor vehicle was a natural and probable consequence of the attempted carjacking. Ramirez’s conviction of that charge as an aider and abettor must be affirmed. (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
J. Cruel and Unusual Punishment
Ramirez contends that “[a] life sentence for a child with no prior record convicted of felony murder who was not armed, who did not kill, who had no intent to kill, and who did not know his codefendant was armed is cruel and unusual punishment under the federal and state constitutions.”
Prior to sentencing, Mr. Batsakis filed a sentencing memorandum setting forth mitigating factors he asked the court to consider in sentencing Ramirez. He pointed out that Ramirez had no significant criminal history; Ramirez voluntarily acknowledged wrongdoing at an early stage in the criminal proceedings; and Ramirez had been active in club soccer for a number of years and had competed in state and national championships.
Mr. Batsakis also claimed that Ramirez “suffered from a mental or physical condition that significantly reduced [culpability] for this crime, ” namely that he “was a Juvenile at the time of this crime, just turning fifteen years old. He lacked the developmental skills, experience, and/or the ability to reason and understand[] the consequences of his actions.” Mr. Batsakis added that the “[t]estimony supported the perspective that younger gang members obey older ones, even when they do not want to, out of fear of retaliation.”
In his responsive sentencing memorandum, the prosecutor noted that “Ramirez may have been a juvenile at the time of the offense, but he voluntarily and knowingly committed adult crimes with two adult accomplices in an adult manner.” Additionally, Ramirez was a hardcore member of Varrio Hawaiian Gardens, and while he initially gave a statement in the case, he ultimately refused to cooperate and testify in the case in exchange for a determinate sentence in the 20-year range. The prosecutor also noted that because of his age, Ramirez could not receive a sentence of life without the possibility of parole for special circumstances murder. “In other words, the Legislature already has enacted a penalty ‘discount’ based on the defendant’s age.”
At the sentencing hearing, a number of people were present on behalf of Ramirez. The trial court acknowledged receiving letters “laudatory of Mr. Ramirez, ” and that it read all of those letters. A number of those letters were about Ramirez’s soccer ability, but “[s]occer doesn’t necessarily make the man, ” and good athletes can do “wrong things.”
The court then observed that the prosecution did not bring a special circumstance charge, which carries a sentence of life without the possibility of parole, against Ramirez. Further, “[b]efore we ever went to trial, effort was made to give Mr. Ramirez a better deal than he is going to get today because of his conviction.... [¶] I wasn’t participating in this. I couldn’t. But I knew what was going on. Mr. Ramirez was given an opportunity to take a plea for less than if he were found guilty, and we almost thought that that had been accomplished, and then at the last minute, in some fashion, Mr. Ramirez decided not to take it.” Ramirez “was given every opportunity, and, in my opinion, he should have taken it because, based upon the evidence and the law, the case was overwhelming against Mr. Ramirez.”
The court then stated that it “want[ed] to bring out a couple of points for you to keep in mind. [Ramirez] was on Juan Street at 2:30 in the morning. Why is it, if he is a soccer player, that he is on the street with gang bangers at 2:30 in the morning? Why would he want to go out and car jack? He knew there was going to be a carjacking. He knew that. He was in a car with the girls and with Mr. Gallardo and Mr. Rios when they talked about getting a gun, and Gallardo said, ‘Don’t get a gun.’ [Rios] said, ‘Don’t tell me. I will get a gun if I want to.’ Rios walked up to one side, Mr. Ramirez and Mr. Gallardo walked up to the other side. They knew there was going to be a carjacking.
“Mr. Ramirez is a gang banger, jumped in at ten years old.... So playing soccer didn’t quite take him out of the element. He didn’t have to be there at 2:30 in the morning. He could say, ‘I’m going to play soccer tomorrow. I’m going to go to bed early.’”
At that point, the court gave Mr. Batsakis a final opportunity to argue the case, and he made an impassioned plea on Ramirez’s behalf. He concluded, “I wish there was some way we could sentence him appropriately. I think it is cruel and unusual punishment for a young man at 15 getting involved in something that he didn’t know the consequences. He couldn’t have the ability to think. His juvenility was a crutch. [¶] I wish the court had the power. If the court had the power to consider giving him a determinate sentence where he had some hope of rehabilitation, some hope of redemption, some hope of getting before a parole board where they have the skill and the opportunity to question somebody to see in fact if he is doing something with himself or he can get back into society.”
The trial court then “ask[ed] that these people who are here on behalf of Mr. Ramirez keep in mind that the law in some areas is unbending.” Ramirez was not eligible for parole, and he “was found guilty of an extreme[ly] serious charge under the aider and abettor theory, and he was 15 years old at the time of the crime. But the law, at that age, feels that they’re culpable, and at that age the only thing the court could not do is impose life without the possibility of parole.”
The court proceeded to sentence Ramirez to 25 years to life for the murder and a consecutive 25 years to life for the firearm use. It added that, “because of Mr. Ramirez’ age, if I could, I would strike that gun use allegation and give him a sentence of 25 to life. I cannot. The court has no power. No judge has the power according to the Legislature to strike that enhancement.”
Ramirez first observes that the California Supreme Court has condemned the felony-murder rule, citing People v. Dillon (1983) 34 Cal.3d 441, 463. The Supreme Court in Dillon, however, acknowledged that it “does not sit as a super-legislature with the power to judicially abrogate a statute merely because it is unwise or outdated.” (Ibid.) It upheld the felony-murder rule as constitutional (id. at p. 476), and we, of course, are bound by that holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
Ramirez next argues that, under the California Constitution, a court may reduce an “unjust sentence” resulting from the felony-murder rule. He contends the trial court failed to recognize that, based on this rule, it was not required to send him to prison for 50 years to life.
Under People v. Dillon, supra, 34 Cal.3d 441, an appellate court may reduce a first degree murder conviction to second degree murder when punishment as a first degree murderer would constitute cruel or unusual punishment. (Id. at p. 489.) Punishment is cruel or unusual when it “‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (Id. at p. 478, quoting from In re Lynch (1972) 8 Cal.3d 410, 424.) In determining proportionality, the court may examine “‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’” (Dillon, supra, at p. 479, quoting from Lynch, supra, at p. 425.) When looking at the nature of the offender, the court inquires “whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, supra, at p. 479.)
In Dillon, the defendant, who was convicted of first degree felony-murder, was an unusually immature 17-year-old, in no prior trouble with the law, who shot the victim in response to a suddenly developing situation which he perceived as threatening to his own life; while the defendant largely created the threatening situation, his immaturity prevented him from seeing the risk he created or from extricating himself from the situation without panicking. (People v. Dillon, supra, 34 Cal.3d at pp. 450, 488.) Additionally, his coparticipants in the underlying crime, who could have been liable for the killing as aiders and abettors, received only minimal punishment; none was convicted of any form of homicide. (Id. at p. 488.) For these reasons, the court held punishment as a first degree murderer with life imprisonment was cruel or unusual, and it reduced the defendant’s conviction to second degree murder. (Id. at p. 489.)
Here, by contrast, as the trial court pointed out, Ramirez knew there was going to be a carjacking and that Rios was going to use a gun. There was no evidence he was forced to go along with Rios and Gallardo and participate in the crime. There was no evidence he was unusually immature, and there was evidence he had already embarked on a path of criminality as a gang member and tagger. He, like Gallardo, was offered a lesser sentence, but he refused to accept that offer. In sum, nothing in Dillon mandates a finding his sentence constitutes cruel and unusual punishment and a reduction of his sentence to second degree murder.
The recent decision by the United States Supreme Court in Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011, 176 L.Ed.2d 825] does not mandate a contrary conclusion. In Graham, the court held that a juvenile defendant who did not commit homicide may not be sentenced to life without the possibility of parole under the Eight Amendment prohibition against cruel and unusual punishment. (Id. at pp. ___, ___ [130 S.Ct. at pp. 2030, 2034].) Ramirez was convicted of homicide and was not sentenced to life without the possibility of parole. Graham therefore does not bar his sentence. (People v. Mendez (2010) 188 Cal.App.4th 47, 63, review den. Dec. 1, 2010.)
Although not specifically raised as an issue, we note that the mandatory 25-years-to-life firearm use enhancement under Penal Code section 12022.53, subdivision (d), has been upheld as not violating the constitutional proscription against cruel and unusual punishment. (People v. Martinez (1999) 76 Cal.App.4th 489, 491-492.) As the court in Martinez observed in upholding the enhancement, a statutory punishment may violate the constitutional prohibitions against cruel and unusual punishment “‘if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Thompson (1994) 24 Cal.App.4th 299, 304; accord, Enmund v. Florida (1982) 458 U.S. 782, 788 [102 S.Ct. 3368, 73 L.Ed.2d 1140].) In determining whether a punishment constitutes cruel and unusual punishment, however, “[t]he judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (Martinez, supra, at p. 494; see also Ewing v. California (2003) 538 U.S. 11, 25 [123 S.Ct. 1179, 155 L.Ed.2d 108]; People v. Dillon, supra, 34 Cal.3d at p. 477.)
In other words, we start out with the assumption that a sentence of 50 years to life would have been constitutional had Ramirez been 18 years old at the time he committed his crimes, rather than 15 years old. The question is, do those three years compel a different result. We conclude they do not.
It is true that Ramirez’s “‘youth is relevant because the harshness of the penalty must be evaluated in relation to the particular characteristics of the offender.’ [Citations.] ‘The age of the offender and the nature of the crime each bear on the analysis.’ [Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].] As Graham noted, Roper v. Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1, 125 S.Ct. 1183], established that ‘[a]s compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influence and outside pressures, including peer pressure”; and their characters are “not as well formed.”’ (Graham, supra, at p. ___ [130 S.Ct. at p. 2026]; see Roper, supra, at pp. 569-570; In re Baker (2007) 151 Cal.App.4th 346, 376-377... [noting, in reliance on United States Supreme Court precedent, that ‘“‘[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.’”’].)” (People v. Mendez, supra, 188 Cal.App.4th at p. 65.)
Here, there was evidence to support a finding that Ramirez was influenced by peer pressure. He told Sergeant Hall that he did not want to approach the car, but Rios insisted. He was afraid that if he did not help Rios, the neighborhood would find out and someone might kill him later. In other words, “‘[t]here is no reason to believe that [Ramirez] should be denied the general presumption of diminished culpability that Roper indicates should apply to juvenile offenders.’ (Graham, supra, [560 U.S.] at p. ___ [130 S.Ct. at p. 2040].)” (People v. Mendez, supra, 188 Cal.App.4th at p. 65.)
There was little evidence concerning Ramirez’s “personal and family life and upbringing, ” his reasons for joining a gang, and any other “mitigating factors that would diminish his culpability and expose the harshness of his sentence.” (People v. Mendez, supra, 188 Cal.App.4th at pp. 65-66.) The letter submitted to the trial court by his soccer coach, of which we take judicial notice (Evid. Code, § 452, subd. (d)(1)), states that Ramirez’s “home life was directionless, no mother at home and a father with alcohol problems; [his coach] was his father figure.”
While these factors might support a decrease in Ramirez’s sentence, there is one factor—relied upon by the trial court—that does not. In both People v. Dillon, supra, 34 Cal.3d 441 and People v. Mendez, supra, 188 Cal.App.4th 47, an important factor in the courts’ decisions was that other participants in the crimes received significantly lesser punishments. In Dillon, “the excessiveness of defendant’s punishment [for first degree murder was] underscored by the petty chastisements handed out to the six other youths who participated with him in the same offenses.... At the very least they were aiders and abettors and hence principals in the commission of both the attempted robbery and the killing.... [Citation.] Yet none was convicted of any degree of homicide whatever, and none was sentenced to state prison for any crime.” (Dillon, supra, at p. 488.)
In Mendez, the 16-year-old defendant “confronted his victims at night with other known gang members, usually outnumbering the victims; he brandished a loaded gun at several victims, thus increasing the risk of death or injury; and he demanded and took their personal belongings.” (People v. Mendez, supra, 188 Cal.App.4th at p. 65.) He received a sentence of 84 years to life. In discussing the defendant’s claim that his sentence constituted cruel and unusual punishment, the court stated that it “cannot ignore that codefendant Ramos received a sentence nearly half as long as Mendez’s. The People argue this is because Ramos’s lack of personal use of a firearm made him ineligible for the gang enhancement, and thus for a life term, on count I (carjacking). [Citations.] But Ramos, not Mendez, was the only defendant who physically injured a victim. The fact that a defendant’s actions in committing the crimes did not result in physical injury ‘reflect[s] on his or her culpability and, in turn, serve[s] as some measure for the harshness of the sentence imposed.’ [Citation.]” (Id. at p. 66.)
Here, all three perpetrators were charged with the crimes. Rios, whose culpability was the greatest, received the most severe sentence—life without the possibility of parole. The only reason Gallardo received a lesser—though by no means “petty”—sentence was because he agreed to testify against the other two in exchange for the lesser sentence. Hence, Ramirez’s sentence is not cruel and unusual as disproportionate to the crime based on the sentences received by the other participants. (People v. Dillon, supra, 34 Cal.3d at p. 488.)
For the foregoing reasons, we reject Ramirez’s claim that his sentence constitutes cruel and unusual punishment.
DISPOSITION
The judgments are affirmed. The Superior Court is directed to prepare a corrected abstract of judgment for Rios reflecting a term of 30 years to life on count 2 rather than count 3 and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., WOODS, J.
CALJIC No. 3.16 reads: “If the crime of ________ was committed by anyone, the witness ________ was an accomplice as a matter of law and [his] [her] testimony is subject to the rule requiring corroboration.”
“In order to find the defendant guilty of the crime of shooting at an occupied motor vehicle, as charged in Count 3, you must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of attempted carjacking was committed; [¶] 2. That the defendant aided and abetted that crime; [¶] 3. That a co-principal in that crime committed the crime of shooting at an occupied motor vehicle; and [¶] 4. The crime of shooting at an occupied motor vehicle was a natural and probable consequence of the commission of the crime of attempted carjacking.
“In determining whether a consequence is ‘natural and probable, ’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.”