Opinion
B227881
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JOVANY RODRIGUEZ, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA298155)
APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Pounders, Judge. Affirmed as modified.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jovany Rodriguez appeals from the judgment entered following his conviction by jury of second degree murder (count 1), attempted murder (count 2), and deliberate and premeditated attempted murder (count 3). (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 664, subd. (a).) The jury concluded the following allegations were true: (1) as to counts 1 and 2, that a principal used and discharged a firearm, which caused great bodily injury and death; (2) as to count 3, that appellant and a principal used and discharged a firearm; and (3) as to all counts, that the crimes were committed with the intent to promote criminal conduct by gang members. (§§ 12022.53, subds. (b), (c), (d) & (e), 186.22, subd. (b)(1).) Appellant contends the trial court committed instructional error and admitted inadmissible evidence, the identification procedure was unduly suggestive, there is insufficient evidence to support the gang enhancement, and the abstract of judgment contains various errors. We agree that the abstract must be corrected. As modified, we affirm the judgment.
Appellant was originally charged with two other defendants. After his case was severed, an amended information that deleted the counts referring to the codefendants was filed. Although the amended information listed the second attempted murder charge as count 8, the instructions and the verdict form referred to that charge as count 3. To maintain continuity, we will do the same.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In the reporter's transcript and the parties' briefs, several people are identified by their nicknames or gang monikers. In order to avoid confusion, we will refer to them by their surnames.
I. Counts 1 and 2
On January 7, 2006, at approximately 2:35 p.m., Patricia Quiroa and Denise Rivera were riding in a white SUV driven by Juan Padilla. Quiroa was in the front seat. Padilla stopped to buy marijuana at a house on 46th Street and Hooper in Los Angeles while Quiroa and Rivera waited in the car. Padilla got back in the car and began driving down 46th Street, turning on Central Avenue. When he stopped at the intersection of Central and Vernon, a gray car with tinted windows pulled up alongside the passenger side of the SUV. Three Hispanic individuals were in the gray car. Someone from the gray car fired a gun, striking Quiroa in the neck and Padilla in the right temple. Padilla later died as a result of the gunshot wound.
Rivera was unable to identify any of the occupants of the gray car. Quiroa told police that the driver was the shooter. At a photographic lineup, Quiroa identified Eric Rosas as the driver of the vehicle. (Eric is a cousin of William Rosas, who was later convicted in connection with this crime.) At a live lineup, Quiroa did not identify appellant.
A police ballistics expert testified that a bullet came through the front passenger window of Padilla's car. Four .380 caliber shell casings were found in the street. Padilla's car had bullet marks on the passenger side and a bullet was found in the passenger door.
The intersection where the shooting occurred was on the border of the territories of two rival gangs, the Barrio Mojados gang (also referred to as BMS) and the 38th Street gang.
Vanessa Vallejo lived on 46th Street, two houses away from the house where Padilla had stopped to purchase marijuana. She admitted to being a member of BMS. She was interviewed by police at the station in March 2006. At first, she told them that Michael Garcia and "Lil Chino" committed the murder.
Lil Chino's real name was never revealed.
After the initial interview, Vallejo was put in a room with Estefani Gomez. Their conversation was monitored by the police. Gomez yelled at Vallejo, asking why she had said Garcia and Lil Chino were responsible for the shooting. Gomez said, "[Garcia] and Lil Chino, they don't even know each other. What are you telling them?" Gomez also said, "About what the fuck are they talking about some fucking murder that [Garcia] told me about?" and "I'm about to get locked up for something I don't even know about, something I didn't even do." Vallejo told Gomez that she gave Garcia's name to the detectives because he had snitched on a gang member, and that she gave them Lil Chino's name because he had gone to Mexico.
During a second interview on the same day, Vallejo made certain statements, which Detective Fanning transcribed. She told him that Garcia came to her house with William Rosas and appellant, in Rosas's car. Appellant had a .380 caliber gun. They saw a "bald fool" (the victim) getting out of a car two houses away, and Rosas said he wanted to "bang" on him. Vallejo told him not to do it in front of her house. Ten minutes later, Rosas, Garcia, and appellant left in Rosas's car. Rosas was driving, Garcia was in the front passenger seat, and appellant was seated in the back seat behind Garcia. Garcia had the gun, which he got from appellant. After they left, Vallejo heard gunshots. The men came back to Vallejo's house in Rosas's car at around 11:00 p.m., still in the same seating arrangement. Garcia had the gun. Appellant was sitting with his head down. Rosas told Vallejo, "[I] fucked up. [I'm] stupid, [I] wasn't thinking." On the day after the shooting, Garcia came back to her house and told her, "Damn I fucked up, I fucked up . . . I thought he was a guy from '38th Street.'" Garcia was nervous and shaky and said he regretted what he did. Garcia asked Vallejo if she had heard about "the murder at Vernon & Central," and when she said she had, Garcia said he "fucked up." Detective Fanning then wrote for Vallejo: "Everything I told you is true. I wanted Detective Fanning to write this for me because I can't write English and I can only write a little bit in Spanish." Vallejo signed each page of the statement.
At trial Vallejo was given a transcript of her interview with police. She testified that "everything I said was just a lie. . . . I was on drugs, so I don't know what I was saying." She also said she did not remember making certain statements to Gomez while they were in a room together at the station. Vallejo claimed to have made up the statement about Garcia being a snitch. On cross-examination, she testified that she was only 14 at the time of the police interview and that she had been using marijuana and crystal meth on a daily basis. When the police questioned her, she panicked and told them lies. She said they were pressuring her to say what they wanted to hear.
II. Count 3
In the evening of January 13, 2006, Linda Arvizu and her companion Gabriel Martinez Manzo were at their home on 48th Street. The home was on the border of BMS and 38th Street gang territories. Arvizu heard gunshots, went outside, and saw a man hiding in her backyard. Manzo and Arvizu tried to push him out and he ran away towards the front of the house. Manzo saw a second man standing in the street. It was dark, but the street lights were on. Arvizu and Manzo heard the person who had been hiding in the backyard tell the second man to shoot or kill Manzo. Arvizu heard the second man tell her to take Manzo inside the house or he would shoot him. The second man fired his gun two or three times. Manzo's pants were struck with the bullet but he was not injured.
Arvizu estimated that Manzo was about 40 feet from Garcia when the second man fired his gun. Manzo testified that he was approximately 40 feet from the second man when the shots were fired and that he was about 20 feet from Garcia.
Arvizu and Manzo identified appellant as the shooter when they saw him at the police station prior to viewing a photographic lineup. At the subsequent photographic lineup, both Arvizu and Manzo again identified appellant. At a live lineup, Arvizu did not identify appellant, but Manzo did. At the preliminary hearing, both identified appellant. At trial, Arvizu said she was unsure of her identifications and said she did not remember identifying appellant.
Manzo said that in the photographic lineup, the picture of appellant was darker than the others in the lineup and that the size of his head was larger. He said he was sure when he identified appellant at the preliminary hearing but did not remember which picture he identified. At trial, he said he did not remember very well whether appellant was the man who shot him.
Garcia testified that he was the man hiding in the backyard and that appellant was the second man, the shooter. Garcia had entered into a plea agreement for attempted murder and felony vandalism. Garcia said that on the day of the Manzo shooting, he was at Eric Rosas's house hanging out with appellant, Estefani Gomez, and his girlfriend, Lil One. Garcia, appellant, Gomez, and Lil One went to a park. Appellant had his .380 caliber gun and Garcia was wearing a bulletproof vest. Gomez and Lil One were spray painting graffiti.
Lil One's true name was not revealed.
Two people came up to them, said disrespectful things about BMS, and started shooting. Appellant shot back. Garcia then ran into Arvizu's backyard and said that a man (Manzo) told him to get out, but Garcia said he was too scared to come out of the yard. The man pushed him off his property and Garcia ran away. Appellant was standing in the street behind a truck or a van with a gun in his hand. Appellant stepped in front of Manzo and told him to go back in the house, aiming the gun at him. Garcia was about two or three houses away from Manzo when appellant fired. Garcia first described the distance between him and Manzo as being 20 feet, then said it was 40 feet. Garcia denied telling appellant to "shoot him." Garcia wrote a statement on February 8, 2006, which said that appellant shot at Manzo, "because he got mad because the guy push[ed] me out, chase[d] me out."
Garcia admitted that telling the police about appellant constituted "snitching." Garcia denied that he, appellant, and Rosas were near Vernon and Central, the site of the Padilla shooting. He said he had been to Vallejo's house but not immediately before or after the Padilla shooting.
In a police interview, Estefani Gomez said that on the night they were painting graffiti, appellant had a gun. She also told them that "we" banged on a boy at the park. Appellant told her that he got "into it with the 38s" but that the gun broke so he couldn't shoot back anymore. Appellant told her that a Black male was responsible for the shooting at Vernon and Central.
At trial, Gomez testified that she was also a BMS member and on January 13, 2006, she was at Eric's house with appellant, Garcia, and Lil One. Eric had a gun. The four of them left to go to Fred Roberts Park, which was in the territory of the 38th Street gang. She and Lil One painted graffiti on a wall. She said that she "banged" on someone and explained that to "bang" means to ask someone what neighborhood he or she is from. They were shot at by someone who was from the 38th Street gang. She denied saying anything about a gun at the police interview, and said she did not remember making certain statements.
A police ballistics expert testified that the same gun was used in both shootings.
Appellant did not testify.
DISCUSSION
I. The Trial Court Did Not Err by Failing to Instruct on Manslaughter in Counts 1 and 2
Appellant was charged with murder in count 1 and attempted murder in count 2. The jury was instructed on first degree and second degree murder. It also was given instructions on aiding and abetting. It was instructed that murder is in the second degree if there is insufficient evidence of deliberation and premeditation.
At trial, appellant did not request any instructions on manslaughter, nor did he request that the court give any clarifying instructions to the jury. During deliberations, the jury sent a question to the court, asking, "If we determine no premeditation in the murder, can we find on the attempted murder, that it was committed willfully, deliberately and with premeditation specifically with regards to [appellant]?" The court (not the judge who presided over trial) provided this response: "In answer to that, the short answer is 'Yes.' But what I will say to you is this, you were instructed, I am sure, that you are the sole judges of the facts, and you are to apply the law as it was given to you . . . , and in this way, arrive at your verdict, and you are to consider each count separately."
Appellant contends the jury should have been instructed on involuntary or voluntary manslaughter because there was evidence that he was not the one who shot Padilla and Quiroa, and at most, he had the intent to verbally confront or scare Padilla. He also claims that the failure to instruct on manslaughter in count 1 was prejudicial since it compelled the jury to find appellant guilty on count 2 in order to render consistent verdicts.
Manslaughter, the unlawful killing of a human being without malice (§ 192), is a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. (§ 188.) An unlawful killing with malice is murder. (§ 187.) An unintentional killing is voluntary manslaughter if the evidence negates malice. (People v. Lee (1999) 20 Cal.4th 47, 58-59.) A defendant who unintentionally kills while committing a misdemeanor, a lawful act, or a noninherently dangerous felony is guilty of involuntary manslaughter. (People v. Butler (2010) 187 Cal.App.4th 998, 1012.)
Even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues. The trial court's obligation includes giving instructions on lesser included offenses "'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.) The substantial evidence required to trigger the duty to instruct on such lesser offenses is not merely any evidence no matter how weak, but rather, evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (People v. Cruz (2008) 44 Cal.4th 636, 664, citing People v. Flannel (1979) 25 Cal.3d 668, 684.)
On appeal, we employ a de novo standard of review and independently determine whether an instruction on lesser included offenses should have been given. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
The theory presented by the prosecution at trial was that appellant was guilty of murder as an aider and abettor. "[A]n aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) The jury was not instructed on the natural and probable consequences theory.
In closing, the prosecutor argued, "[I]f [appellant] gives up the gun for some unknown reason at [Vallejo's] house, knowing that these guys are going to do a drive-by and bang . . . or he's in the car and he hands the gun to Stomper, it's the same — it's the same difference in terms of aiding and abetting. If you give somebody a gun knowing that they're going to commit a murder with it, you're guilty. . . . And that's what aiding and abetting is all about. If you help make it happen, and you know that the shooter is going to commit this crime, then you're guilty."
"[O]utside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator. 'To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." [Citation.] When the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." [Citation.]' [Citation; fn. omitted.] What this means here, when the charged offense and the intended offense—murder or attempted murder—are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator." (McCoy, supra, 25 Cal.4th at p. 1118.)
Appellant argues Vallejo told the police that the group said they were going to "bang" on a "bald fool," which, based on Gomez's testimony, means to ask someone what gang he or she is from, not to shoot. From this, appellant asserts there was evidence he merely intended to aid and abet a gang confrontation. As a result, the jury could properly have convicted him of involuntary manslaughter. He also points to the undisputed evidence that either Garcia or Rosas was the shooter and that their statements after the shooting indicated there was not supposed to be a shooting.
He notes the jury did not find him to be the shooter, as it concluded that a principal discharged a firearm and caused death.
Contrary to appellant's contention, there is no substantial evidence from which a reasonable juror could have concluded that the lesser offense of manslaughter, but not the greater crime of murder, was committed. He relies heavily on two pieces of evidence to support his assertion that he lacked the intent to kill. His arguments miss the mark.
First, he notes that Rosas said he wanted to "bang" on the victim and, citing the testimony of Estefani Gomez, asserts the term means that Rosas intended to simply ask Padilla what gang he was from. Although Gomez testified that when she wanted to "bang," she intended to learn a potential rival's gang affiliation, there is no evidence that appellant or Rosas shared Gomez's use of the term. Irrespective of the meaning of the word "bang," there is strong evidence of appellant's intent to kill that night. We need look no further than the facts underlying the shooting. Appellant and his cohorts believed Padilla was a rival gang member and decided to confront him armed with a handgun. The gun was fired almost immediately after Rosas pulled his vehicle directly alongside Padilla's. There was no evidence that anyone in Rosas's car asked Padilla where he was from or that an exchange of words escalated into a shooting. Nor is there evidence that appellant was surprised or upset that the shots had been fired or that what was intended to have been an episode of simple harassment turned into a deadly encounter. In addition, the prosecution's gang expert provided the motive demonstrating that appellant and his companions intended the outcome that occurred. The expert testified that Rosas was known to direct other BMS members to commit violent crimes and the BMS gang would enhance its reputation for fear and intimidation by shooting at an unknown person in BMS territory.
Second, appellant points out that after the shooting, Rosas and Garcia said they had "fucked up," and asserts this means they did not intend to kill Padilla. Not so. Rosas did not explain himself, and Garcia specifically told Vallejo he regretted what he did because he mistakenly thought Padilla was from "38th Street," not because he did not intend to kill his target.
We conclude there was insufficient evidence to support the theory that appellant went with his fellow gang members with the intent of starting a nonviolent confrontation with Padilla. As such, the court did not err by failing to instruct the jury on manslaughter. (People v. Valdez (2004) 32 Cal.4th 73, 116-118.)
Our conclusion necessarily means there was no federal constitutional error. We also need not discuss appellant's claim that CALJIC No. 3.00 "forced" the jury into convicting him of murder as it was given no alternative to the murder charge. No alternative charge was warranted.
II. The Trial Court Property Declined to Instruct on Voluntary Manslaughter in Count 3
Appellant was charged in count 3 with the attempted murder of Manzo. The trial court denied appellant's request to instruct the jury on attempted voluntary manslaughter based on the imperfect defense of another. As he did at trial, appellant argues there was sufficient evidence to support the theory that he fired the gun because he believed it was necessary to protect Garcia from Manzo. He relies on the fact that Manzo was much larger than Garcia and was wielding a pipe when he pushed Garcia off his property.
"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771.) "[B]oth self- defense and defense of others require[] a fear of imminent harm (People v. Humphrey (1996) 13 Cal.4th 1073, 1082)." (People v. Michaels (2002) 28 Cal.4th 486, 530.)
There was insufficient evidence to support the theory that appellant fired because he feared Garcia was in imminent harm. The testimony was undisputed that Garcia was running away from Manzo and was approximately two houses away from him when appellant started shooting. The distance between Garcia and Manzo at the time appellant fired was estimated to be either 20 or 40 feet. Manzo did not chase Garcia once Garcia left the yard. There was no evidence that Manzo or Arvizu was affiliated with the 38th Street gang or knew Garcia was a member of BMS. Although Garcia testified that he thought Manzo had a pipe in his hand, he did not see one. Nor did he claim that Manzo threatened him with it. Garcia denied that he told appellant to shoot Manzo. Significantly, there was no testimony as to what appellant thought at the time he fired or whether he heard Garcia tell him to shoot Manzo.
We conclude there was no evidence that appellant believed, reasonably or unreasonably, that any threatened danger to Garcia was "imminent." (People v. Uriarte (1990) 223 Cal.App.3d 192, 195-198 [no direct or circumstantial evidence suggesting defendant believed that it was necessary to shoot or that he was in imminent harm].)
As we find the court did not err in refusing to instruct on self-defense and defense of others, there was no violation of appellant's federal or state constitutional rights.
III. The Admission of Rosas's and Garcia's Statements Was Harmless Error
Prior to the testimony of Vanessa Vallejo, appellant's counsel asked the trial court to bar Vallejo from referring to the statements of Rosas and Garcia that they had "fucked up" and appellant's reaction to those statements of putting his head down. Counsel argued the evidence was hearsay, irrelevant, and more prejudicial than probative. The court ruled that it would allow the statements and appellant's reaction as adoptive admissions, providing the proper foundation was laid. The Attorney General suggests the court ultimately concluded that the evidence was admissible because it was relevant to show that Rosas, Garcia, and appellant were together before and after the shooting. However, the record is not clear in that regard. What is certain is that the court instructed the jury with CALJIC No. 2.71.5, the instruction on adoptive admissions. We conclude the trial court ruled, at least in part, that the evidence at issue was admissible as an adoptive admission. Moreover, even if the court determined the evidence was relevant for some other independent reason, it still had to address appellant's hearsay objection. As the prosecutor pressed no other hearsay exception below, we examine whether the adoptive admission exception set forth in Evidence Code section 1221 applies.
Citing People v. Carter (2003) 30 Cal.4th 1166 (Carter), appellant contends the court erred in allowing Rosas's and Garcia's statements against him as adoptive admissions. We agree.
In Carter, the trial court allowed a witness to testify to a conversation during which a third person gave an account of a robbery and shooting with which the defendant was later charged. At some point the defendant joined the conversation. The prosecution argued that the statements regarding the offenses were admissible against the defendant as adoptive admissions and the trial court agreed. The Supreme Court found the trial court erred. It noted that a "fundamental problem with treating as an adoptive admission defendant's failure to contradict Moore's recounting of the Salgado offenses is that nothing in Moore's remarks referred to defendant or accused him of anything. There being, in essence, nothing for defendant to deny, a condition of the hearsay exception for adoptive admissions did not exist, and the trial court therefore erred in concluding Moore's remarks were admissible as adoptive admissions. [Citation.]" (Carter, supra, 30 Cal.4th at pp. 1196-1197.)
Here, neither Rosas nor Garcia accused appellant of any wrongdoing. Each lamented that he had "fucked up." As in Carter, there was nothing in either Rosas's or Garcia's remarks for appellant to deny. As a result, Rosas's and Garcia's statements were hearsay and should have been excluded.
The error, however, was harmless. Appellant asserts, "the admission of Rosas['s] and Garcia's statements, which the jury was allowed to attribute to Rodriguez as adoptive admissions, provided the essential evidence tending to show that he, too, harbored the intent to kill. Without this evidence, the jury would have been hard pressed to find that [appellant] (who was not the gunman) harbored the intent to kill merely because he accompanied his fellow gang members to bang on someone." We are not persuaded.
Appellant claims the error requires reversal because it violated his right to due process. We disagree. The trial court's application of ordinary evidentiary rules does not violate a defendant's right to due process unless it results in an impermissible infringement on his or her right to present a defense. (People v. Thornton (2007) 41 Cal.4th 391, 443.) There was no such violation here.
Initially, we observe that CALJIC No. 2.71.5 informed the jury that if it found appellant failed to make a denial in the face of an accusation that he heard and understood, "then the circumstance of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation was true." As appellant has adroitly pointed out, there was no accusation expressed directly to him by either Rosas or Garcia. Neither proclaimed that any member of the trio in Rosas's vehicle intended to kill Padilla. At best, their statements lent credence to the prosecution's claim that appellant was in the car with Rosas and Garcia at the time of the shooting, a fact that was established by other evidence.
As we stated above, the facts surrounding how and why the shooting occurred established that appellant intended to kill his victim. In light of that evidence, we are satisfied that a more favorable outcome for appellant would not have resulted had Rosas's and Garcia's statements after the shooting not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Because we deem the error harmless, we need not address whether the evidence also should have been excluded pursuant to Evidence Code section 352.
IV. The Pretrial Identifications by Manzo and Arvizu Were Properly Admitted
Appellant's counsel filed a pretrial motion to suppress the identifications of Manzo and Arvizu since they had viewed appellant at the police station prior to any lineup being conducted. Counsel also objected on the ground that appellant's picture in the photographic lineup was darker than the other photographs used and his head appeared larger.
During trial, an Evidence Code section 402 hearing was held during which Detective Fanning, who arranged the photographic lineup, testified. He told Manzo and Arvizu that they were coming to view a photographic lineup. He first placed the couple in a room next to an interview room with a two-way mirror. Appellant was being returned to the interview room by two uniformed officers, and they walked past the room where Manzo and Arvizu were waiting. Detective Fanning testified the placement of the victims was not intentional and there was nowhere else to put them. When Fanning returned to speak to Manzo and Arvizu, he learned that they saw appellant as he walked by. They were distraught and told Fanning they had seen the person who shot at them. Fanning also testified that he had no way of reducing the size of appellant's head in the photograph used in the lineup.
Appellant testified that he went to the restroom, and when he walked back into the interview room with the two-way mirror he was asked to wear a hooded sweatshirt. His picture was taken with the hood on. No one else was in the room, but the door was open.
The court overruled appellant's objections, noting that there was no way to make all of the photographs in a lineup identical and that the encounter between the witnesses and appellant at the police station was accidental. It concluded the procedures utilized did not affect Manzo's and Arvizu's identifications, observing they recognized appellant whey they saw him in the hall.
"'In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.' (People v. Cunningham (2001) 25 Cal.4th 926, 989.) 'We review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.' (People v. Gonzalez (2006) 38 Cal.4th 932, 943.) 'Only if the challenged identification procedure is unnecessarily suggestive is it necessary to determine the reliability of the resulting identification.' (People v. Yeoman (2003) 31 Cal.4th 93, 125 . . . .)" (People v. Alexander (2010) 49 Cal.4th 846, 901-902.)
After this case was briefed, appellant filed a request to file a supplemental brief which cites a pending United States Supreme Court case (Perry v. New Hampshire, cert. granted May 31, 2011, No. 10-8974, ___ U.S. ___ ) and a recent case from the New Jersey Supreme Court (State v. Henderson (N.J. Aug. 24, 2011) 27 A.3d 872). We granted appellant's request and have reviewed his letter brief and the cases cited therein.
When Manzo and Arvizu saw appellant at the station, he was not identified to them as a suspect or a participant in a lineup. They had not been told they were participating in a live lineup, so they could not have anticipated seeing him. They reported seeing appellant without any prompting by law enforcement. "[A] happenstance viewing of the defendant by the victim does not constitute a denial of due process. [Citation.]" (People v. Johnson (1989) 210 Cal.App.3d 316, 323 [witness saw defendant in a patrol car and at the police station shortly after the incident].)
We also find no violation of due process because of the picture of appellant used in the photographic lineup. Differences in background color and image size alone do not render photographs impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217-1218.)
The identification process utilized was not unduly suggestive. Manzo's and Arvizu's identifications were properly admitted.
V. The Evidence of the Jail Attack on Garcia Was Properly Admitted
Two years after appellant was arrested, appellant and Rosas confronted Garcia while the three were in custody. Appellant showed Garcia a police report showing that Garcia had implicated appellant in his statement to authorities. Appellant told Garcia that he would not share the information with other gang members. Days later, five or six inmates, including Rosas and appellant, attacked Garcia. Only one of the attackers was not a member of BMS. They put a rope around Garcia's neck and appellant injected him with a syringe while Rosas held him down. A deputy came to Garcia's aid and the attackers let him go. After the attack, Garcia's blood tested positive for morphine.
Prior to opening statements, defense counsel objected to Garcia's testimony with respect to the attack on the grounds that it was not relevant and was "clouding the issue." The court overruled the objection, stating that the fact appellant was involved in the beating with other BMS members was relevant to the jury's determination of Garcia's credibility. During direct examination of the deputy sheriff who stopped the fight, the prosecutor sought to introduce photographs of Garcia's puncture wounds. Defense counsel objected, claiming that appellant was not charged with any crime as a result of the altercation, and that the evidence of the fight was more prejudicial than probative. The court again stated that the evidence was not unduly prejudicial, and added that the altercation was "a specific act accomplished in part with [appellant's] cooperation and it does show a consciousness of guilt and an attempt to dissuade a witness."
Appellant argues the evidence was irrelevant for several reasons. First, the testimony was not necessary to establish his gang ties, as there was virtually no dispute that he was active in the BMS gang. Second, it did not demonstrate his consciousness of guilt because others participated in the attack. He asserts that the leader of the attack was a member of another gang. Third, even assuming he attacked Garcia for implicating him in the Manzo shooting, it is possible he did so because Garcia falsely accused him.
We review the trial court's ruling on the admission of evidence for abuse of discretion. We find error only where there is a clear showing that the trial court's ruling exceeded the bounds of reason. (People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)
There is no question the evidence of the attack on Garcia was extremely probative. Appellant glosses over the motive for the assault. He and Rosas confronted Garcia in the jail with a copy of the police report that contained Garcia's statements to police that implicated appellant. Days later, the attack on Garcia ensued. The evidence demonstrated an attempt to suppress evidence, which is relevant to show consciousness of guilt. (People v. Williams (1997) 16 Cal.4th 153, 201.) The testimony also was relevant to show how the attack affected Garcia's testimony. In addition, the fact that a number of BMS gang members participated in the assault served to explain the reluctance of other BMS members and associates to testify, principally Vanessa Vallejo. "Evidence that a witness is afraid to testify or fears retaliation is admissible because it bears on credibility. [Citations.]" (People v. Harris (2008) 43 Cal.4th 1269, 1288.)
Appellant's assertion that he may have attacked Garcia because Garcia falsely accused him of a crime does not change the fact that appellant had a motive to silence Garcia.
Appellant urges the violent nature of the attack rendered the evidence more prejudicial than probative. We disagree. The assault on Garcia was no more violent than the act of firing at a vehicle at close range with no warning (the Padilla killing) or shooting at an unarmed man who disrespected a fellow gang member (the Manzo shooting). The trial court's determination that the probative value of the evidence was not outweighed by its prejudicial effect was a proper exercise of its discretion. (People v. Thomas (2011) 51 Cal.4th 449, 485 [trial court's exercise of discretion in admitting evidence pursuant to Evidence Code section 352 will not be disturbed unless it results in a manifest abuse of that discretion resulting in a miscarriage of justice].)
Appellant contends the cumulative effect of the instructional and evidentiary errors deprived him of a fair trial. We addressed the only claim of error that has merit, the admission of Rosas's and Garcia's statements to Vallejo, and concluded the error was harmless. Appellant's claim of cumulative error necessarily fails.
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VI. The Gang and Firearms Enhancements Are Supported by the Evidence
Appellant contends the firearm enhancements on counts 1 and 2 and the gang enhancements on all counts must be reversed because there is insufficient evidence that the gang's primary activities included the crimes specified in section 186.22, subdivision (e). Appellant argues the gang expert did not establish that the prohibited crimes were committed by BMS members. At best, appellant urges, the expert said that he "investigated" several gang crimes. Appellant points out that if the gang enhancement is stricken, the firearm allegation that is contingent on the gang finding must also be reversed.
Detective David Torres of the Los Angeles Police Department had been investigating gang crimes for approximately 10 years. He was assigned to a gang task force in the Newton Division, primarily investigating the BMS gang. As part of his duties, Torres processed all arrests involving BMS members, interviewed its members, and kept intelligence files on its members. In working in this area for a number of years, he learned that the 38th Street gang was a rival of BMS and that there had been a number of shootings involving the gangs. He had personally investigated a shooting between members of BMS and 38th Street that took place at the same time as the shootings in this case. He was able to identify tattoos common to BMS members. He had specifically been assigned to gang units at three divisions within the city, and had actively interviewed and talked to gang members in 1998 and from 2002 to the present time. In 2005, he was made aware of all BMS arrests. Torres testified that the primary activities of the BMS gang were "[n]arcotic sales, violence of attempt murders, murders, shooting at inhabited dwellings, theft and robberies." He based his opinion on his own investigations when he was "actively working" the gang and conversations he had with current detectives who were on the task force actively investigating BMS. Torres was aware of a number of violent crimes committed by BMS members, and during a conversation with William Rosas, Rosas admitted he was directing other BMS members to commit violent crimes.
We conclude that appellant's contention has no merit. A gang's primary or principal activities may be established by consistent and repeated commission of the crimes enumerated in the statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Detective Torres had direct involvement and a substantial history with the BMS gang. He was not merely an expert on gangs, but an expert on this particular gang. He had personal knowledge of the crimes committed by its members and was qualified to opine on its primary activities. Given his extensive experience with the gang and intimate knowledge of its criminal activities, the jury could properly infer that the gang's primary activity was the commission of crimes enumerated in the statute.
VII. The Abstract of Judgment Must Be Amended
Appellant was awarded 1,704 days of actual custody credit. Appellant contends, and the Attorney General concedes, that since appellant was arrested on January 26, 2006, and was in custody until his sentencing on September 27, 2010, he is entitled to 1,706 days of actual custody credit.
The court imposed a term of 20 years to life for the section 12022.53, subdivision (c) enhancement on count 3. According to the statute, the term should be 20 years. (§ 12022.53, subd. (c).) The parties agree that the term of 20 years should have been imposed.
The jury found that the attempted murder in count 2 was not premeditated. The abstract of judgment, however, indicates that appellant was convicted in count 2 of attempted, willful, deliberate, and premeditated murder. The parties acknowledge the abstract must be corrected.
DISPOSITION
The judgment is modified to reflect the following: (1) appellant is entitled to 1,706 days of actual custody credit; (2) the term for the section 12022.53 subdivision (c) enhancement on count 3 is 20 years; and (3) in count 2, appellant was convicted of attempted murder and not willful, deliberate, and premeditated attempted murder. The clerk of the superior court is directed to correct the abstract of judgment accordingly and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.