Opinion
G044156 Super. Ct. No. 08WF0147
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO RUIZ, JR., Defendant and Appellant.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.
R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant claims the trial court erred when it admitted several pieces of evidence and when it denied a motion for judgment of acquittal. Finding no errors, we affirm.
I
FACTS
A jury found Ignacio Ruiz, Jr., guilty of the first degree murder of Abraham Sanchez. A special circumstance was found to be true: "Murder Committed for Criminal Street Gang Purpose" within the meaning of Penal Code section 190.2, subdivision (a)(22). (All statutory references are to the Penal Code, unless otherwise indicated.) It was also found to be true defendant committed the murder for the benefit of, at the direction of, or in the association with Southside Huntington Beach, a criminal street gang within the meaning of section 186.22, subdivision (b)(1), and that defendant was a principal who vicariously discharged a firearm causing the death within the meaning of section 12022.53, subdivisions (d) and (e)(1).
The jury also found defendant guilty of the attempted murder of Cruz Aguirre. The allegation under section 186.22, subdivision (b)(1) was found to be true. Defendant was also found guilty of street terrorism. The court sentenced defendant to life in prison without the possibility of parole, as well as a consecutive sentence of 25 years to life plus another consecutive sentence of life with the possibility of parole.
Both Aguirre and Sanchez associated with the Amberleaf gang. Amberleaf and the Southside Huntington Beach gang were rival gangs. They did not get along and were "just always fighting each other."
Report of Incident
Late at night on Friday January 18 or very early on Saturday January 19, 2008, a motorist who was driving around Main and Delaware Streets in Huntington Beach called 911. The motorist stated to the dispatcher: ". . . there's two men laying in the street and there were kids just beating them up." The motorist added: "And there was something laying in the street and I saw some kids running, and then . . . um . . . they were moving, and it's two people. I'm . . . I'm driving out where I can try and see. They started to walk towards my car." There were "like 5 or 6 of them" and they were "probably 17 or 18 years old." They all wore dark jeans and hooded sweatshirts.
A second motorist called 911, reporting: ". . . I'm driving down Delaware and Ellis in Huntington Beach and there's two guys laying on the side of the road. I think they got jumped or something, but they're not moving." The second motorist saw a black Suburban go southbound on Deleware.
Investigation
Police responded to the scene just after midnight. A dark colored Suburban was spotted in Huntington Beach and police pulled it over. Inside were "two male Hispanics in their late teens, early twenties, short hair." After the two exited the vehicle, officers "went to check to make sure anybody else wasn't hiding in-between the seats or anyone else was in the vehicle." An officer observed "blood on the seat behind the driver's seat on the edge and that there was blood in the middle of the third row seat and a baseball bat that was on the floor between the second and third seat that appeared to have blood on it also." Blood was found in other parts of the car, too.
Lay Witnesses
Cruz Aguirre
At trial, Cruz Aguirre testified about what happened: "I got stabbed. My friend got killed." Aguirre said he and Abraham Sanchez left a party together on Sanchez's bicycle. An SUV stopped right in front of them, and "like, eight guys jump out of that car." No one said anything. He did not recognize any of them. According to Aguirre: "They just started running up on me and my friend and started just beating us up, jumping us," and "after that I like [didn't] really remember much."
Miguel Camacho
Miguel Camacho was in a jail jumpsuit when he testified because he said "we committed murder and an attempt." He was 19 years old on January 18 and 19, 2008. He received about five telephone calls during the evening of January 18 from defendant's codefendant Hector Pacheco. Camacho said: "Then he called me again, and he was — he called me, like, two, three times telling me that if I was gonna go back to where they were at. I told him no. I kept on telling him no. Then he said they were gonna go f. . . up some Amberleaf — Amberleaf."
Camacho was not surprised about the plans "'cause there had been tagging of Amberleaf in the hood before." He added Amberleaf had been doing some "crossouts," explaining that meant "when they cross out somebody in the neighborhood. I'm going to slash some rival neighborhood" signifying "disrespect to the gang." To gain its respect back, a gang has to "get them back." He said that shows "that you're willing to handle your business which it comes — when they disrespect your neighborhood."
Camacho went back to the neighborhood and parked the Suburban inside the apartments in the parking lot. There were about 20 "homies" underneath a tree. Camacho greeted defendant by asking him "What's up?" and saying his name was "Midget." Defendant responded: "Oh, I'm Lil Dreamer. Remember? I bumped into you awhile back." Camacho heard "Lil Dreamer say they had a gun — he had a gun" and that "he only had six bullets." Defendant said "he was gonna be dumping" and that "if somebody didn't want to go, not to go." The group then headed toward cars, but "not everybody went."
Camacho drove his car and five others got inside. Defendant rode in the passenger seat of a white car which pulled up next to Camacho as he drove down Gothard Street. As Camacho approached Delaware Street, he observed "a bike coming towards us." Camacho said "[a]ll the guys in my car lowered down the windows and started hitting the guys up." He explained what that means: "You're asking them where they're from, you know what I mean? You got — hitting them up, saying, 'Where are you from?' Do you know what I mean?" He gave an example of how hitting someone up might occur: "Hey, where you from? Then if he bang, you claim a set, then I'll go back and tell 'em my set. I'll be, 'Hey, Southside Huntington Beach.'"
At the time of the incident, Camacho said the others in his car "were screaming out 'Southside' and 'Where you from?' Things like that." Camacho did not "get to hear" a response from those on the bicycle. He kept driving along Delaware Street when "everybody got off" so he started to pull the Suburban into a parking lot. He turned his vehicle around, never came to a stop, and "that's when everybody start coming back to my car."
While he was turning the Suburban around, he heard a single gunshot. Camacho observed: "I seen 'em punching him and kicking him and then that's when I — I was pulling up . . . . That's when everyone just started running back towards my car." As they drove away, the white car pulled up next to the passenger window of the Suburban. Camacho heard defendant say: "I got him. I got him."
Camacho was driving north, going down an alley "and that's when the helicopter put the light on us." He asked someone in the car what he wanted to do; the other person responded, "Let's just go eat."
The police pulled them over when they were in the parking lot of a Stater Bros. store. Camacho said: "Cops surround the car. We get arrested."
Jesus Varela Ortega
Jesus Varela Ortega was with Camacho that evening. He said they drove the Suburban to the area where the tree was at about 11:00 p.m. They introduced themselves to the people they did not know. He introduced himself as "Little Pigeon from Southside Huntington Beach." He said his brother is named "Big Pigeon."
While the group was under the tree, it became apparent that something was about to take place. Ortega described the plan: "We were gonna go rumble with Amberleaf." He said that "rumble" meant "fight." When he was asked why they intended to fight Amberleaf, Ortega responded: "Because they — I guess they came and threw bottles or something, and we were gonna go fight 'em."
Before the group left, Ortega became aware that defendant had a gun. Ortega said defendant pulled the gun out and: "Said that if anybody needs to use it, that it was real loud, so that if we needed to use it — if somebody needed to use it, it was gonna be real loud, and you got to get out of there quick."
Ortega also said there were two cars, the Suburban and another white car. Defendant was in the white car. About the time the group got to Delaware Street, they saw "two Amberleaf gang members on a bike." Ortega said he was the first one to jump out of the Suburban. Ortega described what he personally did: ". . . I dragged him off his bike, and I dragged him to the sidewalk and I was just beating him up." Once the victim was on the sidewalk, Ortega kicked and stomped him. The victim had no weapons and was "balled up," and "a bunch of people ran up, just started kicking him, too." Ortega added: "Maybe before I dropped him to the ground maybe I slammed his head. I don't remember."
While Ortega was in the process of beating up one victim, he "was just turning around trying to get away from the guy that was getting beat up because a lot of punches were landing on [him]" when he heard a gunshot which came from his right side. When he heard the gunshot, Ortega ran toward the car, and he was the first one who got back to the Suburban. "Lil Sniper" said he stabbed one of the victims.
At some point after the two vehicles left the scene, the cars were stopped. The white car drove up next to the Suburban. Ortega saw defendant hand Little Sniper the gun. Defendant announced he shot one of the victims in the chest.
David Candelario
David Candelario was with defendant and others in the Southside gang before the incident, somewhere between 11:00 p.m. and midnight. He was "just hanging out, drinking" with "Hector, uh, Sniper and Dreamer, Danny, Cesar, and a couple other people I can't recall." His moniker is "Grizzly."
Candelario said Amberleaf "were our enemies" who go spray paint which is "like disrespecting." When a gang is disrespected, it calls for retaliation. Candelario described what happened before the incident: "There were some phone calls. They asked to use my phone so we could call Jesus Ortega, Little Pigeon, to give us a ride, 'cause we only had one car driven by Cesar Gutierrez, and it wasn't enough to take all of us. So we were calling Miguel Camacho and Little Pigeon 'cause they were together to pick us up." Candelario permitted Pacheco to use his telephone.
Candelario was asked whether anyone had weapons. He responded: "Lil Dreamer pulled out a handgun, I think it was a revolver, and showed it to us." Defendant said "it was fully loaded, all six bullets."
At some point, 30 to 45 minutes after Camacho and Ortega arrived, Candelario got into a dark blue SUV with Camacho, Ortega, Pacheco, Kevin and Lil Sniper. Camacho was driving.
When they got to Delaware Street and saw the bicycle. Candelario described what happened next: "We drive by. Next Lil Sniper rolls down the window, and he screams out 'Where you from, Leva?'" a Spanish word which roughly translates to mean "like a punk." The people on the bicycle "threw up Amberleaf. They said they were from Amberleaf." The group in the Suburban parked and "everybody starts getting out, and a group goes after one, and Lil Dreamer goes after the other one closer to Amberleaf." The white car was behind the Suburban, and Camacho and Ortega stayed in the Suburban.
Candelario testified he saw defendant run toward "the other guy." Candelario heard a gunshot and saw defendant "running back with a gun like close to his stomach, to his waistband." Candelario was asked: "The individual that you saw Lil Dreamer approaching, you heard the gunshot, and he then went down. Did you see him with any weapons at all?" He responded: "No."
Inside the SUV, Pacheco said he "was cut." Pacheco had a knife and told Candelario "he stabbed the guy." At some point, the two vehicles stopped. Candelario said "Lil Dreamer pulled [the gun] out and asked [him] to hold it so he could tighten his belt" because his pants were falling down. The vehicles split up when they saw the helicopter.
Defendant's Interview by Police
Defendant was interviewed by Huntington Beach detectives on January 29, 2008. At first, he denied any gang affiliations, but said he knew "a lot of people" from Southside. He denied being called anything but Ignacio or Junior or Nacho, and specifically denied being called Dreamer. As police questioned more, defendant said: "Alright, alright, alright. I'm DREAMER." After that, he admitted his connection with the gang: "How long I been hanging with Southside? Hm, I don't know. Like a year or two . . . ."
He told police he was probably in Huntington Beach that Friday night but he "didn't kill anybody." He said he was was "gonna tell you what I know from my heart." He stated: "Alright. Yes, I was right there when it happened but it was, what was it? STEVE started fighting and then out of nowhere [unintelligible] just heard a shot, and I wasn't fighting. I wasn't fighting. I was in the, I was in the, I was in the side and people started fighting, you know, and but then I just heard it go boom. I heard everybody say, get in the car. I mean, what the f. . . you guys do . . . ."
Police pressed for more details, and defendant admitted he was under the tree drinking that Friday night with about 10 others. He explained how he got in a white car: "[W]ell they just got in the car, right. I go, where you guys going? They go, we're just cruising. I'm like, alright. Let's go." He said "some other guys took off in another car." The other was "like a big car." Defendant added: "It was probably like a, probably like a Suburban." He said they drove in a "nice white neighborhood."
Defendant said they got out of the cars and others were swinging at "these guys." Defendant then heard "a boom," which could have been something like the sound of a gunshot. He said he never heard the sound of a gunshot, but has heard such sounds on television. A detective asked whether "any of his blood splattered on" defendant, and he said he didn't think so, but he didn't know.
Medical Experts
A pathologist performed an autopsy on Sanchez. A gunshot "went essentially through the heart, through the esophagus, through the lower lobe of the right lung before exiting." The doctor said he found "tattoos on the posterior aspect of each calf, so on each lower legs. On the left lower leg there is a capital H and on the right lower leg there is a capital B." Inside the mouth, there was "this first little bit" and "a capital M and a capital L," possibly A.M.L., but the pathologist could not be certain.
The emergency room doctor at UCI Medical Center said he treated a "19-year-old Hispanic male" at 1:00 a.m. on January 19, 2008. The doctor said "he had anywhere from 9 to 12 stab wounds to his flank, which is the side and his back. Again, he was alert, oriented. He was conscious and talking with us, but he was in quite a bit of respiratory difficulty and abdominal pain as well."
Gang Expert
Arthur Preece was assigned to the Huntington Beach Neighborhood Enhancement Team, or gang unit, in January 2008. At the time of trial, Preece had 13 years experience "working gangs in Huntington Beach."
Preece was asked about three individuals: Gergario Lopez Lopez, Juan Carlos Barrera and Mariano Mendez. He was familiar with Lopez "through numerous contacts," including "25 gang-related contacts with law enforcement," and said Lopez was an active participant in Southside Huntington Beach in 2006 when he committed aggravated assault. He was convicted of that crime in 2007.
Barrera was an active participant and gang member in the Southside gang in 2004 when he committed an assault with a shotgun for which he was convicted in 2005. Preece investigated the crime.
Mendez was an active participant and gang member of Southside between October 7, 2004 and April 4, 2005 when he committed assault with a deadly weapon with great bodily injury and witness intimidation. He was convicted of both crimes.
Preece opined defendant was both a participant and a member of the Southside Huntington Beach gang at the time of this incident. He explained that while defendant was in custody he was written up several times. "[T]hree times in February he was written up for tagging SSHB on his cell wall. That same month he was also written up for yelling 'Southside Huntington Beach' three times after being warned by the officers not to. And then the third time he participated in a gang roll call and yelled out 'Southside Huntington Beach' and made some disrespectful comments about a rival gang."
Preece said he was not familiar with defendant until his arrest in January 2008. But Preece testified he "looked at several documents." One of the documents relayed an incident of a gang "hit-up" wherein defendant was in the company of a person who had a "blue bandanna hanging out of his pocket," indicating "he's representing." Another concerned defendant's counselor at the Youth Family Resource Center who reported defendant would yell out his gang name, Southside Huntington Beach, from March 2007 until he was arrested in January 2008. Preece also said he observed "about a stone's throw" from defendant's home, Southside Huntington Beach graffiti "six feet tall and about 12 to 15 feet in length" about a week before the crimes in this case.
The expert was asked a hypothetical question, mirroring the facts in this case, about whether or not the gang engages in a pattern of criminal gang activity. He responded: "My opinion would be that yes, he had knowledge that Southside Huntington Beach was a criminal street gang." He clarified that "he" referred to the hypothetical person in the question.
Another hypothetical question was posed to Preece which mirrored the facts in this case, and which identified two gangs, gang A and gang B. Gang B was described as "like a tagging crew," and gang A as a criminal street gang which was a rival of gang B. The prosecutor asked: "Based on that hypothetical and addressing this hypothetical, do you have an opinion as to whether the fatal gunshot and the stabbing would be consistent, consistent with crimes committed by members of A for the benefit of, at the direction of, or in association with gang A?" Preece responded: "That definitely for the benefit of, yes." The expert said the basis of his opinion was: "As we mentioned before, the disrespect factor, you have to retaliate or you lose respect in the gang culture. Respect is everything. Their street creds are based on respect. Without street creds or your reputation on the street — which translates into your reputation in the jail also. If you . . . allow other gangs to get away with tagging, you allow B to get away with tagging and throwing bottles in your neighborhood, you're going to lose that respect, those street creds, so it's to benefit your gang, benefit — goes towards your street creds."
II
DISCUSSION
Active Participation
Defendant contends "the trial court erred when it allowed the prosecution gang expert to testify regarding his belief that [defendant] was an active participant in Southside Huntington Beach gang and that [defendant] committed the crime for the benefit of the gang." He concedes the law permits an expert to testify in the form of hypothetical questions which mirror the facts of a case. But he challenges "the substance of the expert's opinion for its lack of compliance with the constitutional and federal and state decisional law in that the expert's testimony was no more than an expression of how he wished the case to be decided." Citing to Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, and Kumho Tire Co., Ltd. v. Carmichael (1999) 526 U.S. 137, he argues the trial judge here "did not perform his gatekeeper function adequately, thus it was an abuse of discretion to permit this testimony to be presented to the jury."
"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code § 800.) "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code § 801.) "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code § 805.)
A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered. (Evid. Code, § 720.) "In reviewing a trial court's ruling allowing expert testimony, we ask whether the ruling was an abuse of discretion. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 177.)
In Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, the United States Supreme Court held that under Federal Rules of Evidence Rule 702 the trial judge has a special obligation to ensure any and all scientific testimony is not only relevant but reliable. (Id. at pp. 589-590.) In Kumho Tire Co., Ltd. v. Carmichael, supra, 526 U.S. 137, the court extended this gatekeeping function to include all expert testimony. (Id. at pp. 147-148.)
In United States v. Hankey (9th Cir. 2000) 203 F.3d 1160, the appeals court concluded the trial court "properly discharged its 'gatekeeping' function as set forth in the Supreme Court cases of Kumho Tire, Joiner [General Elec. Co. v. Joiner (1997) 522 U.S. 136.] and Daubert in admitting the gang expert's testimony." (Id. at p. 1164.) In Hankey, there was evidence the gang expert had been on the Compton Police Department for 21 years, he had been working undercover with gang members in the thousands since 1989, he had extensive personal knowledge regarding the two affiliated gangs of which Hankey was a member. (Id. at pp. 1168-1169.)
Here the trial court performed its gatekeeping function as well. The gang expert was a sworn police officer who had served in a gang unit for 13 years in Huntington Beach. He attended classes on gang investigations in three different counties and teaches classes on gangs himself. He is well read on the topic of street gangs. He is a member of the Orange County Gang Investigators Association which meets once a month with gang investigators from four Southern California counties to "share intel about gang-related incidents within the county." He has participated in at least 50 gang-related search warrants. He has had "meaningful conversation[s]" with hundreds of gang members. Preece testified he has "been at Huntington Beach for approximately 24 years and Southside has been active in all those years that I've been there, and then became more familiar with them as . . . I was put in the gang unit."
It is settled that a gang expert may render an opinion on whether or not a crime benefits a gang within the meaning of section 186.22, subdivision (b)(1) through the use of hypothetical questions. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514.) Criminal street gangs are secretive and loosely defined, and whether or not someone is involved within the meaning of section 186.22, subdivision (a) "is not a simple matter and requires the accumulation of a wide variety of evidence over time and its evaluation by those familiar with gang arcana in light of pertinent criteria." (People v. Valdez (1997) 58 Cal.App.4th 494, 507, fn. omitted.)
In addition to the expert's background as a police officer in Huntington Beach and his experience and familiarity with gangs, and Southside Huntington Beach specifically, he testified about some of the reasons he concluded defendant was a member of the gang. He related how defendant was written up several times in jail shortly after the instant crimes for calling out the name of the gang and for writing the name on his cell wall. He also related that defendant had called out Southside's name to his counselor for the better part of two years prior to the crimes here.
We do not conclude the trial court abused its discretion in permitting Preece to testify as a gang expert. We do conclude the trial judge properly admitted gang expert evidence.
Statements of Accomplices
Defendant next argues "the trial court erred when it allowed into evidence out of court statements made to the police by two accomplices under the theory that they were prior consistent statements." He further argues "prior consistent statements must have been made before the maker has a motive to fabricate." It is not exactly clear which out-of-court statements defendant is now complaining about, but we will assume he objects to the statements Ortega and Camacho made to the police implicating defendant in the instant crimes, which statements were made before they negotiated a plea bargain with the prosecution.
On direct examination, Ortega testified he pled guilty to committing manslaughter and admitted a gang enhancement and "two strikes." He said he expected to be sentenced to six years in prison. He was told he faced life without the possibility of parole but that if he testified truthfully, he would receive six years. While under cross-examination, Ortega admitted he cooked up a story and tried to "sell the story to the officers." He admitted he was trying to negotiate with detectives, and that he faced life without the possibility of parole if he did not "cut this deal."
Camacho testified on direct examination that he was housed in protective custody in the jail. He said he made an agreement in exchange for his testimony. He pled guilty to manslaughter in exchange for six years in prison. On cross-examination, Camacho admitted he spent months thinking about being charged with murder and spending the rest of his life in prison or facing the death penalty before he sat down with the prosecution. Questions about whether or not he told the truth and implying he was a liar consume numerous pages of the reporter's transcript.
After both had testified, the judge memorialized a sidebar conference from earlier in the day when the court permitted the prosecutor to admit a prior consistent statement of Ortega. Defense counsel indicated he had objected.
When the prosecutor requested permission to play the initial police interviews of Ortega and Camacho, the court conducted a hearing wherein several portions of the interviews were ordered redacted pursuant to defense objections. Then the court permitted Huntington Beach Detective Tom Weizoerick to testify about his interaction with Ortega and Camacho when the two were first arrested on January 19. The two were placed in the backseat of separate patrol cars. They were kept separated in the jail. Weizoerick interviewed Camacho for two hours and then interviewed Ortega, and then he returned to reinterview Camacho. A recording of redacted interviews was played and the jury was given copies of redacted transcripts.
In People v. DeSantis (1992) 2 Cal.4th 1198, the defendant also argued a witness's motive to fabricate arose at an earlier time before he spoke with the police, "when he realized he could bear the entire penal consequences of the incident." (Id. at p. 1229.) The prosecution contended, just as in the instant case, the statement was admissible as a prior consistent statement, and the Supreme Court agreed, stating that "the defense examination of an accomplice turned prosecution witness implied that a plea bargain that the accomplice had accepted provided an additional motive to testify untruthfully. 'This, in turn, entitled the prosecution to show that [the accomplice's] testimony was consistent with the [apparently hearsay] recorded statement he gave shortly after his arrest but before the "deal" was consummated, that is, before the subsequent, specific motive to fabricate arose. [Citations.]' [Citation.]" (Ibid.)
Under the circumstances in this record, we cannot conclude the trial court erred. Nor can we conclude defendant was deprived of his constitutional rights. The fundamental premise of due process requires that a party be afforded an opportunity to examine and respond to evidence, which may deprive him or her of life, liberty, or property. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.) Here defense counsel was afforded ample opportunity to cross-examine witnesses and to call witnesses on his own behalf. The statements Ortega and Camacho made to the police at the time they were arrested and prior to plea bargain agreements were properly admitted as prior consistent statements.
Statement About the Gun
Next defendant claims the trial court erred when it allowed Candelario to testify that a nonwitness gang member, Alex, told Candelario that he had telephoned defendant to tell him to bring a gun. The Attorney General argues the trial court could have reasonably concluded the statement reflected planning activity in furtherance of a conspiracy.
While Candelario was on redirect examination, the prosecutor asked: "Back under the tree early in the evening did you hear anyone calling — making a phone call for a gun?" The witness said he heard Alex say that. The prosecutor then asked Candelario what Alex said, and there was a hearsay objection. The prosecutor argued that what Candelario heard was admissible as a statement in furtherance of a conspiracy under Evidence Code section 1223. The court ordered counsel to the sidebar and the prosecutor said Candelario testified before the grand jury that another gang member, Alex, told him someone had telephoned defendant to bring a gun. The court told the prosecutor the jury would be excused for a hearing pursuant to Evidence Code section 402.
At the hearing, the prosecutor asked questions and Candelario answered them as follows:
"Q. Going back to the rally point underneath the tree . . . did you hear someone call someone to bring a gun?
"A. Yes
"Q. You overheard that?
"A. Yes.
"Q. Who did you hear make the call?
"A. Alex.
"Q. Did you hear what he said?
"A. Um, no.
"Q. How do you know he called someone to bring the gun if you didn't hear what he said?
"A. 'Cause he was telling us that he knew somebody. He was gonna call 'em.
"Q. He told you he knew somebody and was gonna call 'em?
"A. Yeah.
"Q. Did he tell you who he was going to call?
"A. Yes.
"Q. Who?
"A. Lil Dreamer.
"Q. No further — and after that call, at some point in time was that — did you see Lil Dreamer show up under the tree?
"A. Yes.
"Q. Is that when you had an opportunity to see this revolver?
"A. Yes."
All counsel were given an opportunity to question Candelario during the hearing and argue to the court. The court ruled: My understanding of what he just testified to is that out at Dairyview under the tree when they were discussing the revenge, if you will, that Alex told Mr. Candelario that he was calling to get a gun and thereafter a gun showed up. Based on that, I think it's admissible."
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence." (Evid. Code § 1223.)
Even if a conspiracy is not charged in the information, evidence of a conspiracy may be admitted. (People v. Jourdain (1980) 111 Cal.App.3d 396, 404.) "'Hearsay evidence is of course generally inadmissible. Hearsay statements by coconspirators, however, may nevertheless be admitted against a party if, at the threshold, the offering party presents "independent evidence to establish prima facie the existence of . . . [a] conspiracy." [Citations.] Once independent proof of a conspiracy has been shown, three preliminary facts must be established: "(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy."' [Citations.]" (People v. Jeffrey (1995) 37 Cal.App.4th 209, 215.)
Here the court permitted the prosecutor to question Candelario about defendant's participation in planning to commit the crimes. We find no abuse of discretion.
Section 1118.1 Motion
Defendant next argues the trial court erred in denying the motion brought under section 1118.1 in that "[i]ndependent corroborating evidence is required before the statements of accomplices can be considered against [defendant]." The Attorney General contends defendant's argument is specious "because Ruiz's own statements to police provided the necessary corroboration."
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right." (§ 1118.1.)
"'"The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'" [Citation.] "The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case." [Citations.]"' (People v. Arias (2011) 193 Cal.App.4th 1428, 1437.)
"A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one 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." (§ 1111.) Corroborating evidence need be only slight. (People v. Lewis (2001) 26 Cal.4th 334, 370.)
Defendant admitted to detectives that he was present during the events that night. He said he was present when the group gathered under the tree and when the crimes were committed. His story contained inconsistencies such as one statement where he said he was standing on the side when he heard a boom, and another where he said he was not sure whether blood splattered on him. The gang expert testified defendant was a member of the gang when the instant crimes were committed. These pieces of evidence are independent of the testimony of the accomplices and could have provided corroboration for the jury to determine defendant had motive and opportunity to commit the crimes. (People v. Szeto (1981) 29 Cal.3d 20, 27-28.) After examining the evidence in this record, we cannot find the trial court erred when it denied the motion for judgment of acquittal.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.