Opinion
B196189
6-4-2008
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO VILLA et al., Defendants and Appellants.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant Alfredo Villa. Charlotte E. Costan, under appointment by the Court of Appeal; Law Offices of Barry O. Bernstein, Barry O. Bernstein and Alison Minet Adams for Defendant and Appellant Mauro Padilla. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Mauro Padilla was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, one count of second degree robbery in violation of Penal Code section 211, and two counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). Appellant Alfredo Villa was convicted of two counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The jury was unable to reach a verdict on an attempted murder charge against Padilla. The trial court declared a mistrial on the first degree murder and robbery charges against Villa.
The trial court sentenced Villa to a total term of eight years in state prison. The court sentenced Padilla to life in prison without the possibility of parole for the murder, plus a 25-year term for the Penal Code section 12022.53 firearm enhancement plus a 10-year term pursuant to Penal Code section 186.22. The court sentenced Padilla to a total of 22 years, 8 months in prison for the remaining counts.
Appellants appeal from the judgment of conviction, contending that the trial court erred in excluding evidence that the detective in this case had coerced a confession in a related case, and in admitting evidence of their out-of-court statements, an error which they claim violated their rights under the Confrontation Clause. Appellants also contend that a reference to the Mexican Mafia during trial was incurably prejudicial and that there is insufficient evidence to support their convictions. Padilla contends that the trial court erred in imposing a 10-year enhancement term for the Penal Code section 186.22 allegation. Respondent agrees that the term was error. We agree as well, and order the term stricken. We affirm the judgment of conviction in all other respects.
Facts
On May 29, 2004, Oscar Gutierrez got married. He and his wife had a large reception at a hall at Arlington and Adams. The hall was in territory controlled by the Rollin 20s and the Black P-Stones gangs. There were about 100 or so guests in attendance, including Pedro Carrillo and appellants Villa and Padilla. Padilla and Villa were members of the Orphans gang. Carrillo was a friend of Gutierrezs and Villa was Gutierrezs co-worker. Villa wore a white suit. Gutierrez knew Padilla, but had not invited him to the wedding. Gutierrez did not see the three men for several hours during the wedding, from about 9:00 p.m. to 11:45 p.m.
Between 11:00 p.m. and 11:30 p.m. that night, a man, later identified as appellant Padilla, approached the entrance of the J & Y Liquor Store at the corner of 8th and Union Streets, carrying a chrome .25 automatic handgun. The liquor store is in territory controlled by the Orphans gang, but adjacent to disputed gang territory. Padilla went up to Edward Brown, pointed the pistol at Browns face and said this was the Orphans neighborhood. Brown knew Padilla was referring to a local gang. Padilla then entered the liquor store.
Angela Cheng was working as the cashier at the liquor store that night. She saw a man enter the store and point a gun at each of the five customers. He said angrily, "Do you want it?" Cheng told the stock boy to activate the stores video surveillance camera. This videotape, and stills taken from it, were shown to the jury at trial.
Cheng did not identify the man with a gun.
William Horner was one of the customers in the store when the man with the gun entered. The man with the gun said something about Orphans, and called Horner a snitch. Horner believed that man was an Orphans gang member known as Joker. Joker is Villas gang name.
Padilla left the store and again pointed the gun at Browns head. Brown mentioned a few names of people he knew to be Orphans gang members. Padilla left.
Cheng observed the man with the gun pointed at Browns head. She saw the man cross the street, then heard gunshots.
According to Brown, Padilla ran across the street to the pay phone on 8th and Union, gun still in hand. Victor Fernandez, who was using the phone, started to back up. Padilla shot the man three or four times. Padilla then jumped over a brick wall, got into a car with tinted windows parked with its lights off in front of a donut shop, and drove away. Brown described the car as a black two-door with tinted windows, either a Nissan or Toyota.
When Padilla approached him, Fernandez was on the phone with his wife, Alma Cifuentes, who lived in Guatemala. Fernandez told his wife he had no cash, but would send her money when he got paid. Cifuentes heard two voices. One person said, "Lets go." The other asked for money in an angry voice. Fernandez said, "I dont have any." One of the men demanded Fernandezs wallet and cellular phone. Fernandez said, "Thats all I have." Cifuentes heard gunshots. Fernandez died of a gunshot wound to the chest.
Horner, who had left the store and was about three feet from his apartment building, heard gunshots.
Jose Alaniz and his wife, Angie Ruiz, in their second floor apartment across the street from the phone booth, were watching television when Alaniz heard a gunshot. Alaniz looked out the window and saw a man shooting another man who was talking on the pay phone. He shot three more times. The shooter was wearing jeans and a short-sleeved plaid or checkered fancy cowboy-type shirt. Ruiz, who also looked out the window, described the mans attire as a white T-shirt and blue jeans. The couple saw the shooter walk or run to a car parked in the driveway of the shopping center parking lot. He got into the passengers side of the car and it was driven away. Neither could see the mans face because he was too far away.
When Gutierrez saw Padilla, Villa and Carrillo again at his wedding reception, Villa told Gutierrez, "We went to do a jale." Gutierrez just laughed and responded, "Dont tell me nothing. Get outta here."
A "jale" is Spanish street slang. Basically, it is like a mission. If members of the gang are going to "bust a jale," it means they are going to do a job for the benefit of the gang. A jale can refer to shootings.
Police came to the reception in the early morning hours in response to a report of an assault with a deadly weapon. People were leaving the reception in a hurry and were not cooperative with police. The assault victim was David Villafuerte, an 18th Street gang member known as Little Peewee. He was shot in the left side of his chest and on his back by a .38 caliber firearm, and spent a week in the hospital. Gutierrez later told police that Padilla shot Villafuerte. Padilla was charged with the attempted murder of Villafuerte, but the jury was unable to reach a verdict on this charge.
Meanwhile, police had begun an investigation of the Fernandez murder.
Detective Phelps went to the scene of the shooting. Phelps went to the liquor store, spoke with Angela Cheng, and watched a portion of the videotape on the monitor. Cheng gave the videotape to Detective Phelps. Three .25 caliber shell casings from a semi-automatic firearm were recovered at the scene. The casings matched a bullet recovered from the autopsy. Phelps turned the investigation over to Detectives Breuer and Mota.
Detective Breuer interrogated Horner, one of the customers in the liquor store, two or three days after the shooting. Horner was a cocaine user and an Orphans gang member and had been identified by the store clerk and on the liquor store security surveillance tape. Horner claimed that he did not recognize the man with the gun because he was not an Orphans gang member. Horner identified a photograph of Francisco Lugo, an Avenues gang member, as the gunman. Breuer compared Lugos photo to a still photo taken from the surveillance tape in the liquor store and determined that Lugo was not the shooter.
Breuer then showed more pictures to Horner and Horner eventually identified three different photos in a six-pack, one of whom was Villa. Breuer brought Horner back for a surreptitiously tape-recorded interrogation. Horner told Breuer that the gunman in the liquor store was Villa. Horner identified Villa as the shooter at the preliminary hearing in the case filed against Villa and Carrillo.
On June 25, 2004, police located Brown, the other man outside the liquor store when the crimes occurred. Brown had had run-ins with the police for most of his life. Brown admitted he sustained prior convictions for "a couple of things," including attempted murder and the sale of cocaine. At the time of the shooting, he was addicted to cocaine and was homeless. Detective Mota initially questioned and interrogated him at Rampart Street Station.
Brown later spoke with Detective Mota and Detective Breuer. At that time, he was in a drug rehabilitation center. The detectives showed Brown a six-pack photographic line-up and Brown identified Villa as the man with the gun. Brown also identified Villa as the shooter at the preliminary hearing in the case against Villa and Carrillo.
Police gave money to Brown and relocated him out-of-state. Horner was also placed in a witness relocation program and given a couple of hundred dollars in cash for hotel and meal money.
Horner eventually left the hotel and could not be located.
In October 2004, police arrested Villa and Carrillo. The two men were put in a cell together and their conversation was surreptiously recorded. During this conversation, they discussed being in the back seat of a car with the windows rolled up and thus hidden from surveillance cameras. At some point after being arrested, Villa and Carrillo called Gutierrez and asked him to tell police that they were at the wedding the whole time.
In June 2005, two months after the preliminary hearing in the Villa-Carrillo case, Detective Breuer began to follow up on a tip he received that appellant Padilla was involved in the shootings. Photos taken at Gutierrezs wedding were obtained by the detective and used in an attempt to identify suspects and witnesses. In particular, a photo of Padilla taken at the wedding was compared to a still photo taken from the tapes produced by a security camera at the liquor store. The hair length, mustache, build, cut of his shirt, including the collar, buttons, and where the sleeve falls, matched on both photographs. The detective came to believe that Padilla was the man who came into the liquor store with the gun.
On July 12, 2005, Detectives Mota and Breuer brought Gutierrez to Rampart Station and questioned him. The interview lasted from 2:00 p.m. until 8:30 p.m. At trial, Gutierrez claimed that he had gone for many days before the interview without sleeping because he had been using methamphetamine. He did not tell this to Detective Brewer. Gutierrez claimed that he was hallucinating from his drug use, and did not understand all of the English words the detectives used. This interview was taped.
After the formal, taped interrogation of Gutierrez in the police station, Detective Breuer and District Attorney Kim met with Gutierrez in his familys restaurant to discuss Gutierrezs testimony. Breuer did not record this conversation.
At the trial of this matter, Gutierrez claimed to remember little of what he allegedly told the detectives. He blamed this on his extensive drug use. Gutierrez did not recall telling Breuer and Mota that Padilla, Villa, and Carrillo came back to his wedding together, or that Villa told him, "We went to do a jale." He claimed that he could not recall these things because he was under the influence of drugs and had been drinking the day of his wedding party. Gutierrez also claimed that he was so pressured and threatened during his interrogation by Breuer and Mota that he made things up just to get out of the interrogation room. Gutierrez did not recall telling the detectives about a meeting at Villas house three months before Gutierrezs wedding, during which Padilla offered to sell Gutierrez a small chrome handgun and mentioned doing a jale against La Raza Loca and an 18th Street gang.
Padilla was arrested in September 2005. At some point, Villa was dismissed from the Carrillo case, and charges were filed against Villa and Padilla in this case.
After Padillas arrest, his mother, Maria Padilla, and her daughter, Diana Padilla, went to Rampart Street Station to speak to Detectives Breuer and Mota. Breuer showed them two video stills and two standard photographs. The women claimed that they identified Padilla in the standard photos but not the video stills. According to Detectives Breuer and Mota, the women identified Padilla in the video stills from the liquor store as well. The audiotape of their interrogation was ambiguous, although there were two "yes" responses, one by the mother and one by the daughter. Padillas mother claimed that Detective Breuer told her that Padilla was going to get the death penalty.
In March 2006, just before the preliminary hearing in this matter, Detectives Breuer and Mota and district attorney investigators met with Brown. Detective Brewer told Brown that Brown had made a mistake. He showed him another second six-pack. Brown made a tentative identification of Padilla. Brown based his tentative decision on Padillas hairline. The district attorney also told Brown that he had made a mistake in his previous identification.
At the second preliminary hearing, Brown stated that he made a mistake when he identified Villa as the shooter. Brown said it was Padilla with the gun, stating, "Im 100 percent certain this time." No one threatened Brown or told him what to say. He was not coerced in any way.
Horner did not change his identification of the shooter as Villa. There was a problem with Horners identification of Villa as the shooter, however. Photographs of the person in the liquor store show he had a full head of hair. Photographs from Gutierrezs wedding show that Villa had no hair at all.
At trial, Los Angeles Police Officer Tony Fitzsimmons testified as an expert on the 18th Street and Orphans gang. He was also familiar with the Vista Rifa, Wanderers, Crazy Riders, La Raza Loca and Whitmore Street gangs.
The Orphans have 40 documented members. They engage in robberies, extortion, shootings, assaults, murder, vandalism, and drinking in public. One Orphans gang member has been convicted of violating Penal Code section 422, making a criminal threat. Another has been convicted of violating Penal Code section 211, robbery.
Orphans members have gang signs and tattoos, tattoos that show their allegiance to the Mexican Mafia. Padilla has Orphans tattoos, as does codefendant Villa. In Officer Fitzsimmonss opinion, Villa and Padilla are active members of the Orphans gang.
The boundaries of the Orphans gang are 7th Street to the north, James M. Wood to the south, Union to the west, and Green to the east. At the time of the crimes in this case, the Orphans and La Raza Loca were engaged in a dispute over the northwest corner of 8th Street and Union Avenue, which is a shopping center parking lot. There was a feud going on for control of the shopping center which La Raza Loca claimed. The liquor store itself is in Orphans territory.
In Officer Fitzsimmonss opinion, an Orphans member would not go to that parking lot without being armed. If three Orphans parked in that parking lot which was in La Raza Loca territory, and one Orphans member went into the liquor store, the person in the back seat would act as the lookout for law enforcement and for rival gang members, and the driver would be prepared for the getaway.
Officer Fitzsimmons opined that the Fernandez shooting was a botched robbery. Fernandez was shot to instill fear and enhance the gangs reputation. He also opined that the assaults of Horner and Brown were for the benefit of the gang.
Appellants did not testify at trial.
Discussion
1. Carrillo confession
Appellants contend that the trial court erred in excluding evidence of another courts finding that Detective Breuer had coerced a confession from Carrillo. They contend that the coercion was relevant to impeach Breuer and to show that he had a custom and habit of using coercive tactics. Appellants also argue that the evidence was admissible under Evidence Code section 1101, subdivisions (b) and (c). Appellants further contend that the trial courts ruling resulted in a miscarriage of justice. We do not agree.
All further statutory references are to the Evidence Code unless otherwise indicated.
A challenge to the admission or exclusion of evidence under section 1101 is reviewed for an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 120.) A challenge to the admission or exclusion of evidence of habit or custom is reviewed under the same standard. (People v. Hughes (2002) 27 Cal.4th 287, 337.)
Section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
In order to be relevant as a common design or plan, "evidence of uncharged misconduct must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402; see People v. Catlin, supra, 26 Cal.4th at p. 120 [poisoning three women with the herbicide paraquat showed a common plan or design].)
We see no evidence that Breuers supposed coercion in this case was committed pursuant to the same design or plan he committed in the Carrillo case. There are no common features. The court in that case found that Breuer (and Mota) lied to Carrillo extensively, including telling him that he could go home if he would say that Villa was the shooter. Carrillo initially stated that Padilla was the shooter. In the present case, Gutierrez claimed that Breuer obtained his cooperation by threatening to charge him as an accomplice. In appellants view, Brown and Horton were bribed by Breuer, first to identify Villa as the shooter, then to change their identification to Padilla. Appellants also claim that Breuer threatened Padillas mother by telling her that Padilla could get the death penalty, presumably to get her to say that Padilla was the man in the store surveillance videos. Further, there is no evidence that Breuer made attempts to influence all of the key witnesses in the case. Cheng, for example, did not identify the shooter, but did not report any threats or offers of bribes from Breuer aimed at getting her to falsely identify someone as the shooter. Thus, there is no common method used by Breuer to supposedly obtain false testimony, and nothing to suggest a plan. Evidence of Breuers coercion was therefore not admissible under subdivision (b).
Brown expressly and repeatedly denied being threatened by police or the district attorney.
Section 1101, subdivision (c) provides that nothing in section 1101 prohibits evidence of prior bad acts to support or attack the credibility of a witness. The Law Revision Commission comment to section 1101 explains that the admissibility of character evidence offered on the issue of credibility is governed under sections 786-790. Section 787 provides, that with the exception of felony convictions, "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." (§ 787.) Thus, Breuers coercion was not admissible under subdivision (c).
Evidence of habit or custom is governed by section 1105, which provides that such evidence may be admitted to prove conduct on a specified occasion in conformity with the habit or custom. (§ 1105; People v. Memro (1985) 38 Cal.3d 658, 681 [evidence that "interrogating officers had a custom or habit of obtaining confessions by violence, force, threat, or unlawful aggressive behavior on issue of whether confession was coerced"].)
"Habit means a persons regular or consistent response to a repeated situation. `Custom means the routine practice or behavior on the part of a group or organization that is equivalent to the habit of an individual." (Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 33.8, p. 1267.) "Habit" or "custom" is generally established by evidence of repeated instances of similar conduct. (People v. Memro, supra, 38 Cal.3d at p. 681.) Coercion of Carrillo does not establish habit. Even with appellants claims in this case, appellants have not established that coercion was Breuers regular response to a repeated situation.
2. Padillas statements to Gutierrez — Villas claim
Gutierrez told police that three months before the crimes in this matter, at a meeting of five people at Villas house, Padilla offered to sell Gutierrez a small chrome handgun. Padilla also stated that he wanted to commit a jale, starting with the La Raza Loca gang. Villa was present during this conversation. Villa contends Gutierrezs and Padillas statements were hearsay, the trial court erred in admitting those statements, and the admission of those statements violated his right to confrontation as set forth in Bruton v. U.S. (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. We see no error under state or federal law in the admission of Gutierrezs statements to police.
We review a trial courts determination of the admissibility of evidence, including the application of hearsay exceptions, for an abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Mayo (2006) 140 Cal.App.4th 535, 553.) We review de novo the legal question of whether admission of the evidence was constitutional. (People v. Cromer (2001) 24 Cal.4th 889, 893-894; People v. Mayo, supra, 140 Cal.App.4th at p. 553.)
Hearsay is "a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) Except as provided by law, hearsay is inadmissible. (§ 1200, subd. (b).)
The statements at issue in this case involve double hearsay. Gutierrezs statement to police was hearsay, and that statement contained a hearsay statement by Padilla. We analyze the two mens statements separately.
In Bruton, the Court found that admission of a non-testifying co-defendants confession which inculpated the defendant violated the defendants rights under the Confrontation Clause. (Bruton v. U.S., supra, 391 U.S. 123.) Since that decision, the United States Supreme Court has clarified the scope of the Confrontation Clause in Crawford v. Washington (2004) 541 U.S. 36.
In Crawford, the United States Supreme Court held that the Confrontation Clause prohibits the use of "testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 57.) The Court in Crawford declined to give a comprehensive definition of "testimonial," but indicated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed." (Id. at p. 68.) The specific statement at issue in Bruton was made to police officers, and so was testimonial within the meaning of Crawford.
The Confrontation Clause does not bar admission of all testimonial statements, however. "[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) Further, the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Ibid.)
Under Crawford, "the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability." (Whorton v. Bockting (2007) __ U.S. ___ [127 S.Ct. 1173, 1183].) "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law." (Crawford v. Washington, supra, 541 U.S. at p. 68.)
Here, Gutierrez testified at trial and was asked about Padillas offer and statement. He claimed that he did not remember them. He was then impeached with his statements to police. These statements were testimonial hearsay, but were admissible at trial since Gutierrez had appeared for cross-examination. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) California law permitted the admission of Gutierrezs hearsay statements as prior inconsistent statements within the meaning of section 1235.
Padillas offer to sell the gun was not offered for the truth of the matter asserted, that is that Padilla was actually trying to sell the gun. It was offered to give context to the display of the gun. Thus, it could properly be admitted under federal and state law. Since the statement was not offered for the truth of the matter asserted, the Confrontation Clause did not bar its use. (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) Similarly, a statement under California law is hearsay only if it is offered for the truth of the matter asserted. (§ 1200.)
The verbal offer to sell was of marginal relevance, however. Even assuming that the trial court should have excluded the verbal offer on relevancy grounds, we see no prejudice to appellants under any standard of review. It was the fact of the gun that was significant. If anything, the offer to sell was helpful to appellants because it showed that Padilla was trying to get rid of the gun. The jury could reasonably have viewed this statement as weakening the inference that it was the same gun used in the crimes in this case.
We discuss the admissibility of evidence that Padilla possessed a gun in section 3, supra.
Padillas statement about a jale was offered for the truth of the matter asserted, that is, to show that he planned to commit a jale. Since Villa was present when the statement was made, the statement could show that Villa knew what Padilla was planning when he drove to the liquor store and intended to participate. The statement thus inferentially incriminates Villa. We see no application of Bruton to this case, however.
As we discuss, supra, under Crawford, "the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability." (Whorton v. Bockting, supra, __ U.S. ___ .)
Padillas statement to Gutierrez was not testimonial. The Confrontation Clause has no application to his statement.
Padillas statement about doing a jale was admissible as a declaration against interest under section 1230. "If a hearsay statement qualifies as a declaration against interest under Evidence Code section 1230, it becomes admissible against any party to the litigation to the extent that it is relevant to an issue presented." (Estate of Huntington (1976) 58 Cal.App.3d 197, 211.) Thus, Padillas statement could properly be admitted against Villa under state law.
Padillas statement was also admissible as a party admission pursuant to section 1220.
3. Padillas statements to Gutierrez — Padillas claim
Padilla claims that his statements to Gutierrez were evidence of prior bad acts and so their admission was barred by section 1101. Villa joins and makes the same claim about his statements.
Appellants have forfeited their claim under section 1101 by failing to assert it in the trial court. (People v. Thomas (1992) 2 Cal.4th 489, 520.)
In an attempt to avoid forfeiture, appellant relies on People v. Ogunmola (1985) 39 Cal.3d 120. This reliance is misplaced. The Court in Ogunmola held only that when the law at the time of trial made it futile for defense counsel to object under section 1101, but counsel did object pursuant to section 352, the failure to object under section 1101 did not bar consideration of section 1101 claim on appeal. (People v. Ogunmola, supra, 39 Cal.3d at p. 123.) Nothing in the state of the law made it futile for Padillas counsel to object on section 1101 grounds at trial.
Assuming for the sake of argument that this claim was not waived, we would see no error.
We see no merit to appellants claim that the trial court erroneously admitted Padillas statements for the purpose of impeaching Gutierrez. As we discuss above, there was no bar to Gutierrez testifying at trial about Padillas statement. When Gutierrez claimed a loss of memory, the trial court allowed Gutierrezs statements to Detective Breuer to be used to impeach his trial testimony. This was proper under section 1235, which permits the admission of prior inconsistent statements of a witness. Statements admitted pursuant to section 1235 may be used as substantive proof. (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.)
It is well-established that the rule against character evidence does not bar the admission of evidence that the defendant possessed a gun that could have been used to commit the charged crime. As our Supreme Court has explained: "When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendants possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendants possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]" (People v. Cox (2003) 30 Cal.4th 916, 956, quoting People v. Riser (1956) 47 Cal.2d 566, 577.)
Assuming that Padillas statement that he planned to commit a jale constituted evidence of a prior bad act, it would still be admissible under section 1101, subdivision (b) to show intent.
4. Villas statement to Gutierrez
Gutierrez told police that there was a period of several hours when he did not see Padilla, Villa or Carrillo at his wedding reception. When he saw them after that absence, Villa said, "We went to do a jale." Padilla contends that admission of the hearsay statements violated his rights under the Confrontation Clause.
Padilla contends, correctly, that Gutierrezs statements to police were testimonial. Gutierrez testified at trial, however. As we discuss, supra, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) California law permitted the admission of Gutierrezs hearsay statements as prior inconsistent statements within the meaning of section 1235.
Padilla also contends that Villas statement was testimonial because there had been a shooting at the reception and police had been called, and so it was foreseeable that any statement of any party-goer to any other party-goer would be available for use in a criminal prosecution. We will assume for the sake of argument that foreseeability of use is a proper test for determining whether a statement is testimonial.
We do not agree that Villas statement to Gutierrez was testimonial. It appears that the statement was made before the shooting began. According to Gutierrez, when the three men came back to the party, Villa told him "We went to do a jale." Gutierrez stated "I just laughed and . . . I just told [Villa] `Dont tell me nothing. Get outta here. So the last thing I knew, that . . . that they start shooting in the party."
Villa and Gutierrez were friends and co-workers, and Villa clearly trusted Gutierrez. Three months before the crimes in this case, Padilla had offered to sell Gutierrez a gun and mentioned doing a jale, and Gutierrez had not reported that to the police. After Villa was arrested, he called Gutierrez and asked him to falsely tell police that he and Carrillo had been at the wedding the whole time. Thus, Villa could not have reasonably foreseen that Gutierrez would tell police about Villas statement at the reception.
As we discuss, supra, under Crawford, "the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability." (Whorton v. Bockting, supra, __ U.S. ___ .)
Villas statement was properly admitted under state law pursuant to section 1230 as a declaration against interest. As such, it was also admissible against Padilla. (Estate of Huntington, supra, 58 Cal.App.3d at p. 211.)
5. Jailhouse conversation
Padilla contends that the trial court erred in admitting two portions of a transcript of a recorded jailhouse conversation between Villa and Carrillo and that this violated his federal constitutional right to confrontation as set forth in Aranda/Bruton.
Appellant did not object to the "Pee Wee" conversation, which occurred at pages 49 and 50 of the transcript. Thus, he has forfeited any claim of error regarding this conversation.
Assuming that the claim had not been waived, we would find no prejudice to Padilla under any standard of review. Nothing in that conversation referred to Padilla. Padilla is mistaken when he contends that one of the males said that "he" arranged for Peewee to pawn the "two-five." The male simply said that Pee-Wee pawned the "two five." There is no evidence that Pee-Wee was one of Padillas nicknames.
Appellant did object to a second portion of the conversation at pages 80 through 84 of the transcript, in which Villa and Carrillo discussed remaining in the car and thus avoiding being photographed. The conversation also discusses a third person getting in and out of the car. Together with other testimony, this could be understood as referring to Padilla, and thus showing that he was the man with the gun in the liquor store, and the shooter.
Although the conversation was hearsay, it was not testimonial. Villa and Carrillo were alone in a jail cell and were being surreptiously recorded. As we discuss, supra, Bruton and the Confrontation Clause are not implicated when a statement is nontestimonial. Under state law, Villas statement was admissible as a declaration against interest under section 1230. As such, it was also admissible against Padilla. (Estate of Huntington, supra, 58 Cal.App.3d at p. 211.)
6. Mexican Mafia
Appellants contend that the gang experts brief mention of the Mexican Mafia was extraordinarily and incurably prejudicial, and that the trial court erred in denying their motion for a mistrial. We do not agree.
"We review a trial courts ruling on a motion for mistrial for abuse of discretion. [Citation.] Such a motion should only be granted when a defendants `chances of receiving a fair trial have been irreparably damaged. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 128.)
Here, the prosecutor asked if the Orphans Gang had any tattoos that they used to identify themselves as Orphan Gang members. The expert replied: "There is a small variety, but the most common one is they are all going to be a take-off of the Orphan Gang name. The most common is an O.P.H.S. which is an abbreviation for Orphans. You can have an `O and a 13. 13 is going to stand for the 13th letter of the alphabet which is the letter `M which shows they are tied to the Mexican Mafia and their allegiance to that prison gang." Appellants promptly objected and requested a mistrial on the ground that the reference was irrelevant and incurably prejudicial.
We agree with appellants that the reference to the Mexican Mafia had very little relevance. Villa did have two tattoos which contained the number 13, so some acknowledgement that Orphans gang members used the number 13 was necessary. There was no need for the gang expert to explain why the Orphans gang used the number 13, however.
We cannot agree with appellants that the reference was extraordinarily prejudicial. Appellants are correct that the Mexican Mafia is an extremely violent gang which began in prison and still has many members there. The nature of the Mexican Mafia was not discussed at trial, however. We see nothing to suggest that the average person would be aware of the history and nature of the Mexican Mafia and would strongly differentiate the Mafia from other criminal gangs.
To support their claim that it is common knowledge that the Mexican Mafia is a notorious prison gang, appellants rely on Alvarado v. Superior Court (2000) 23 Cal.4th 1121. In that case, the trial court made its remarks about the Mexican Mafia as part of its ruling authorizing withholding the names of witnesses due to possible harm from the Mexican Mafia. We see nothing in the courts comments in Alvarado to indicate that the general public was aware of the history and nature of the Mexican Mafia. Further, any person with detailed knowledge of the Mexican Mafia would also understand that virtually all local Hispanic gangs are tied to the Mexican Mafia in one way or another and thus that the Orphans were not unusual in this regard.
Villa contends that the reference to the Mexican Mafia as a "prison" gang told the jury that Orphans gang members with a "13" tattoo had been in prison. That inference might be a reasonable one if the gang expert had testified that such individuals were members of the Mexican Mafia, but he did not. His testimony suggests the opposite, that members of the Orphans gang were affiliated with, but not members of the Mexican Mafia.
As the trial court pointed out, this was one brief reference in a four week trial. The jury was properly aware that appellants were members of the Orphans criminal street gang, and that at the time of the crimes in this case, that gang was involved in a territorial dispute with a rival gang that was so violent that Orphans gang members would not go into the disputed area unarmed. We see no prejudice to appellants, no reasonable probability that they would have received a more favorable outcome in the absences of the evidence, and no abuse of discretion in the trial courts denial of their motion for a mistrial.
Appellants reliance on People v. Albarran (2007) 149 Cal.App.4th 214 is misplaced. That case involved the admission of a great deal of gang evidence, including a reference to a Mexican Mafia tattoo, in a case in which the trial court and the Court of Appeal ultimately found there was no evidence of a gang motive. We do not find the gang evidence in this case to have been irrelevant, excessive or unusually inflammatory.
To the extent that appellants contend that the admission of the evidence violated their federal constitutional right to due process and a fair trial, we do not agree. Assuming that the admission of the evidence raised constitutional issues, we do not find that the reference to the Mexican Mafia rendered appellants trial fundamentally unfair and we are convinced beyond a reasonable doubt that the reference did not contribute to the verdict against appellants.
7. Sufficiency of the evidence
Appellants contend that there is insufficient evidence to support their conviction. We do not agree.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314, internal citations omitted.)
Padilla contends that there is no physical evidence of any kind to connect him to the crimes in this case, and no credible witness testimony. We see sufficient evidence.
Brown testified that Padilla was the man who came into the liquor store with a gun, pointed the gun at Brown and Horner, left the store, crossed the street and shot Fernandez. This is sufficient evidence to support the conviction.
Appellant complains that Brown was not credible because he changed his identification of the shooter and was receiving money from the police department. It was the jurys task to evaluate Browns credibility.
"The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Robert V. (1982) 132 Cal.App.3d 815, 821.) "It is for the jury to consider such inconsistencies and determine whether they were such as to justify the repudiation of the testimony of the witness in its entirety." (People v. Fremont (1941) 47 Cal.App.2d 341, 349.) ""Conflicts and even testimony which 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."" (People v. Lewis (2001) 26 Cal.4th 334, 361.)
Further, more than Browns testimony linked Padilla to the crimes. Gutierrez testified that Padilla was absent from the wedding for several hours. The man in the liquor store was caught on videotape, and the jury was able to view that videotape and stills taken from it and compare those images with photos of Padilla taken at the wedding and with Padillas appearance at trial. Padillas mother and sister told police that the man in the video stills was Padilla. Cheng testified that the man with the gun ran across the street after leaving the liquor store and then she heard gunshots. The neighbors description of the shooters clothing was consistent with Padillas attire in the wedding photos.
Villa contends that there is no evidence that he knew that Padilla intended to assault anyone in the store or that he aided, promoted, encouraged or facilitated the assaults.
"[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrators actus reus — a crime committed by the direct perpetrator, (b) the aider and abettors mens rea — knowledge of the direct perpetrators unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettors actus reus — conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
"Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.]" (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)
Here, Villa left the wedding reception of a friend, went with two fellow gang members to a liquor store adjacent to an area which was being fought over by his gang and a rival gang, remained in the car with the windows rolled up while Padilla went inside the liquor store, then returned to the wedding reception with Padilla and Carrillo. Upon his return, Villa spoke with his friend Gutierrez. He did not express surprise or dismay about Padillas activities at the liquor store. Rather, he told his friend, "We went to do a jale." This statement creates an inference that Villa was aware of Padillas plan from the beginning. Later, in jail, Villa discussed the location of the video cameras outside the liquor store and in the shopping center. Given Villas awareness of his surroundings, it would be reasonable to infer that he acted as a look-out while waiting in the car.
8. Cumulative error
Padilla contends that cumulative error deprived him of a fair trial. Villa joins in this contention. Since we have found no error in appellants trial, we reject this claim.
9. Padillas sentence
Padilla contends that the trial court erred in imposing a 10-year enhancement term under Penal Code section 186.22 to his life sentence for murder. Respondent agrees. We agree as well.
Padilla was sentenced to life in prison without the possibility of parole. When the substantive crime carries a life sentence, subdivision (b)(5) of Penal Code section 186.22 is applicable. (People v. Lopez (2005) 34 Cal.4th 1002.) That subdivision provides for a minimum parole eligibility date of 15 years when a defendant is sentenced to "imprisonment in the state prison for life." (Pen. Code, § 186.22, subd. (b)(5).) This is true even though it will have no practical effect on first or second degree murder sentences, which have minimum parole eligibility terms of 25 and 15 years respectively. (People v. Lopez, supra, 34 Cal.4th at pp. 1008-1009.) Since Padilla has no possibility of parole, we order the 10-year enhancement term pursuant to Penal Code section 186.22 stricken.
Disposition
The 10-year Penal Code section 186.22 enhancement to Padillas sentence for murder is ordered stricken. The judgment is affirmed in all other respects.
We concur:
Turner, P. J.
Mosk, J.