Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. BA262899-01, 02, 03, Kathleen Kennedy, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant Eddy Zuniga; Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Paz; and Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant Renan Alvarado.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Joseph P. Lee and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, Acting P. J.
INTRODUCTION
A jury convicted defendants and appellants Eddy Zuniga, Jaime Paz, and Renan Alvarado of the first degree murder of Elmer Vazquez. (Pen. Code, § 187, subd. (a) .) The jury found true the allegations that each defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in the commission of the murder and that each defendant committed the murder for the benefit of a criminal street gang within the meaning of section 186.22, subdivisions (b)(1)(C) and (b)(5). Paz admitted that he suffered a prior conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and section 667, subdivision (a), and Alvarado admitted a prior conviction within the meaning of section 667.5, subdivision (b). The trial court struck Alvarado’s enhancement under section 12022, subdivision (b)(1) pursuant to an earlier granted section 995 motion, and his enhancement under section 667.5, subdivision (b). The trial court sentenced Zuniga to 26 years to life in state prison, Paz to 56 years to life in state prison, and Alvarado to 25 years to life in state prison.
We adopt the spelling of the victim’s last name found in the verdict forms-“Vazquez,” and not the spelling from the amended information-“Vasquez.”
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, Zuniga contends that the trial court erred in failing to suppress surreptitiously recorded statements he and Paz made while held in a jail cell because the statements were the product of an unreasonably delayed arraignment and that insufficient evidence supports the jury’s finding that he personally used a dangerous and deadly weapon. Paz contends that the admission of DNA test results violated his Sixth Amendment right to confrontation because the witness who testified about the results, Dr. Charlotte Word, did not perform the tests; the trial court incorrectly instructed the jury on the beyond a reasonable doubt burden of proof; and he was convicted by a jury of fewer than 12 sworn jurors. Alvarado contends that insufficient evidence supports his murder conviction; the introduction of the Zuniga’s and Paz’s surreptitiously recorded statements was error under People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 (the Aranda-Bruton rule) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford); the trial court erred in refusing to instruct the jury on manslaughter as a lesser included offense to murder; a witness’s initial identification of the defendants was so tainted that it tainted all subsequent identifications; the admission of Dr. Word’s testimony violated his Sixth Amendment right to confrontation; and defense counsel’s performance was constitutionally deficient because he failed to seek the exclusion of Dr. Word’s testimony. Each defendant joins the arguments of his co-defendants to the extent that any of their arguments benefits him.
BACKGROUND
Cesar Ramos was a former member of the Mara Salvatrucha gang who was known as “Little Shy Boy” and who had been convicted of assault by means of force likely to produce great bodily injury in 1996 or 1997. About 2:30 a.m., on March 29, 2004, Ramos walked past a vacant apartment building know as the “Destroyer” in the area of Westmoreland and James M. Wood Boulevard in Los Angeles. Mara Salvatrucha gang members Zuniga, whom Ramos knew as “Stalker”; Paz, whom Ramos knew as “Jimmy” and who was also known as “Pantera”; and Alvarado, whom Ramos knew as “Night Owl,” were drinking beer at the Destroyer. Ramos asked if could drink a beer. Elmer Vazquez, a member of the Playboy gang, arrived shortly thereafter.
After conversing for some time, Vazquez asked Ramos to go with him to a nearby 7-Eleven. Ramos accompanied Vazquez to the 7-Eleven where Vazquez withdrew money from an ATM. Ramos and Vazquez returned to the Destroyer. Ramos sat down, drank a beer, and listened to his headphones. Vazquez gave money to Zuniga and Alvarado to purchase drugs. Zuniga and Alvarado returned with drugs that they put in cigarettes. Defendants smoked the cigarettes with Vazquez. Based on the smell from the cigarettes, Ramos believed they contained crack cocaine.
At some point, Paz and Vazquez stood at the front of an area between the Destroyer and an adjacent, twin apartment building and argued about why Vazquez had joined the Playboy gang. When the argument started, Zuniga and Alvarado, who were in the back of the area between the two buildings, came to the front. With Paz, Zuniga and Alvarado surrounding Vazquez at a distance of about four feet, Ramos said to defendants, “Why don’t you argue some other day when you guys are not drunk.” Paz responded, “Shut the fuck up. You don’t know nothin’. Get out of here. You don’t know nothin.” Ramos decided to “step away” and said to Paz, “I don’t want to get into it. I don’t want no trouble.”
Ramos testified that the last thing he saw before he left was Alvarado slapping Vazquez’s face. Ramos did not see Zuniga or Paz do anything before he left. As he was leaving, Ramos heard Vazquez screaming. Later in his testimony, Ramos stated that he heard a slap as he was leaving, but did not look back and, apparently, did not see who struck the blow. Ramos testified that he did not hear any other blows, words, or anything else as he walked away. Los Angeles Police Department Detective Gene Parshall testified that Ramos told him that as he was leaving, all three defendants were hitting Vazquez.
About 4:00 a.m. on March 29, 2004, Saul Trinidad, who lived in an apartment on James M. Wood Boulevard, was awakened by noises that sounded like a person was heaving or grunting – as if the person had been hit in the stomach and had the wind knocked out of him. The noises continued for about five to six minutes and then stopped. Trinidad called the police. Trinidad testified that he did not hear anything else and could not see anything because there was no light. Trinidad told the operator that he heard people punching someone and that the suspects ran into the abandoned twin building next door.
Los Angeles Police Department Officer Christopher Curry and his partner were dispatched to an area near Westmoreland and James M. Wood Boulevard. As the officers approached the location, Officer Curry saw three men walking away. There, between two apartment buildings, one of which was abandoned, Officer Curry saw a person lying on his back with lacerations to his neck and injuries to the left side of his chest. The person appeared to be dead.
Los Angeles Police Department Officer Dave Rich and his partner were dispatched to the area of James M. Wood Boulevard and Westmoreland to look for possible suspects seen leaving the area. As the officers traveled to the location on San Marino Street, Zuniga crossed the street. Zuniga was wearing a Pendleton jacket without a shirt. The officers detained Zuniga and took him to the police station. Zuniga’s clothes were booked into evidence. Zuniga’s jacket and pants had reddish brown stains that appeared to be blood. Swabs were collected from Zuniga’s hands. The swabs tested positive for blood.
About 5:30 a.m., Detective Parshall arrived at the scene. Vazquez’s body was lying between the Destroyer and a twin apartment building. There was a flat head screwdriver lying on Vazquez’s arm. A belt had been wrapped around Vazquez’s head. Vazquez’s beige T-shirt was found next to his body. Vazquez’s shirt had a “great deal” of blood on it. A white tank top undershirt was found next to Vazquez’s body. The white tank top had large bloodstains on it.
Los Angeles County Coroner’s Office Deputy Medical Examiner Ajay Panchal testified that Vazquez died from multiple injuries. Dr. Panchal testified that Vazquez suffered 47 sharp force injuries to his head, neck, and chest. Vazquez suffered 18 sharp force injuries to his neck, none of which were fatal, and three of which were inflicted after he was dead. Vazquez suffered 17 sharp force injuries to the middle of his chest, 10 of which were fatal, and all of which were inflicted while he was still alive. Vazquez suffered 12 sharp force injuries to a Playboy bunny tattoo on his upper right chest, all of which were inflicted after he was dead. Vazquez’s body also showed signs of blunt force trauma and asphyxia or compression of the neck. Vazquez had some bruising on his arms, but no other defensive wounds.
Dr. Panchal explained that sharp force injuries include stab wounds-a wound that is deeper than it is long, and incise wounds-wounds that are longer than they are deep.
The direction of the wounds within Vazquez’s tattoo was primarily front to back, right to left (from Vazquez’s right side to his left), and downward. The direction of the wounds to the center of Vazquez’s chest and his neck was left to right, front to back, and upward. The neck compression Vazquez suffered could have been caused by a belt. The stab wounds Vazquez suffered could have been cause by a flat head screwdriver. Toxicology reports revealed cocaine and alcohol in Vazquez’s blood.
About 5:30 to 6:00 a.m., Los Angeles Police Department Lieutenant Officer Edward Prokop, a K-9 handler, and his K-9, Axel, located Paz behind a door to a storage area beneath a stairwell at the Destroyer. When Paz was brought to the command post, he was wearing a blue jacket that had “bloody material” on it that appeared to be flesh. Stains on Paz’s jacket were later tested and determined to be blood. Paz was not wearing shoes. A pair of white shoes was found behind a door to a “cubby hole” at the Destroyer. The shoes apparently were identified as Paz’s shoes and had red stains on them that appeared to be blood. Officer Parshall found the pattern on the bottom of the shoes on the driveway within a couple of feet of Vazquez’s body. Paz had a long, wide gouge in his right arm. Swabs were collected from Paz’s hands. The swabs tested positive for blood.
A police officer recovered a pair of sweat pants from a nearby dumpster. In the sweat pants were various items including credit and other cards bearing Vazquez’s name and the name of a friend of Vazquez. A fingerprint lifted from a beer bottle recovered from the area matched Alvarado’s left index finger.
After Zuniga and Paz were arrested, they were placed in a jail cell together and their conversations, including their side of telephone conversations, were surreptitiously recorded. The conversations took place before Zuniga and Paz were arraigned. The recordings totaled 48 hours. Prior to trial, defendants moved to suppress the recorded conversations. The trial court denied the motion. A C.D. containing portions of the recordings-about 2 hours and 32 minutes-was played for the jury. The recordings mostly were in Spanish. As the C.D. was played, a transcript of the C.D. in Spanish and its English translation was displayed on a screen for the jury.
In a recording from March 29, 2004, Paz said to Zuniga, “They caught you with blood.... And they found blood on my shoes, too. Zuniga responded that “they” had found blood on his hands, but that he had told them that he “found a shirt full of blood on his path” and that he “covered” himself with it. Zuniga said that when the police stopped him, he would have gotten rid of his pants and told the police that he had been robbed, but he panicked. Paz said that his shoes had been taken because they were full of blood. Paz said, “How do I explain the jacket, man?
Zuniga asked where “Night Owl” had gone. Paz said, “I don’t know. Didn’t he take off running with you? Zuniga responded, “No. I crossed over to where those pieces of wood were, over there, to the other side. And there I washed my hands real good. But when they passed... Did they get you with blood in your hands? Yes?” Zuniga continued, “Just if we would have had gloves on, right?” Zuniga stated that his worst fear was that a neighbor would “come out and say that they saw that.”
During the recording for March 30, 2004, Paz said to Zuniga, “They don’t have evidence that we were the ones that killed him. They have found blood yes, but they don’t have evidence....” Zuniga responded, “I was thinking the same thing, you know.” Paz said, “You put your hands on him... Who took his wallet. Zuniga responded, “Night owl.” Paz asked “who took his belt.” Zuniga again responded, “Night owl.”
Zuniga said to Paz that “the bad thing is that you did get... they did get you exactly right there....” Paz responded, “But they got me the next day, man.” Paz said that he had fallen asleep. Zuniga asked if Paz “heard all the cops that were around there? Paz responded, “Not me. They were looking for me.” Zuniga said Paz should have left. Paz responded, “Yes, I fucked up....”
Paz said, “They got the bottles.... Our fingerprints are on there.” Zuniga said that his sister said that “they” found a knife. Paz stated, “I had the knife.” Zuniga said that “they told her that it was a knife.” Paz said, “But it wasn’t a knife. They know that it wasn’t a knife, man. A knife leaves a different impression.... It is true, I had a knife there.”
Zuniga said, “In the end, we’re not going to get out of this... I lose hope. We’re not getting out of here soon.” Zuniga said that he was not going to tell “them” about “the Mara. Because they don’t have me as a gang member yet. You surely can’t deny it, you, old man.”
Discussing how they could work with their lawyers, Paz said, “They look at the case first and then they tell you, ‘Look, we can work with this.’ But the issue is here. The problem with the blood. How do we get rid of that? And why was that shirt full of blood....?” Paz asked Zuniga, “And why did you grab it?” Zuniga said, “Because I saw that it was full of blood and I got my shoes dirty. So I... so that it didn’t stay there but I never thought that it was going to be from... uh... it was full of blood because of a killing.” Later, Zuniga stated that he believed that his fingerprints would be on the cans, but suggested that he could say that he was there in the morning or afternoon eating bread. Paz asked Zuniga what he had done with the shirt. Zuniga said that he had put it in a trash can at a school far away.
Paz said that “they” wanted him to tell them who else was involved, but that he did not want “to go as a rat.... For being a rat they’ll kill you anywhere.”
When Ramos learned that Vazquez had been killed, he feared for his life. After Vazquez was killed, someone “pulled a gun” on Ramos’s wife or girlfriend and threatened to kill or tried to kill her and his children. On a couple of occasions, Mara Salvatrucha gang members came to Ramos’s work and chased him. Later, the police contacted Ramos, and he told them what had happened. After Ramos testified at the preliminary hearing, Mara Salvatrucha gang members beat up Ramos. The police department helped Ramos relocate. The trial court instructed the jury that there was no evidence that defendants were involved in the threats or Ramos’s beating and that the evidence was received to assist the jury in evaluating Ramos’s state of mind, his credibility, and his testimony.
Dr. Charlotte Word was a consultant in forensic DNA testing for Orchid Cellmark. Dr. Word did not perform DNA analysis, she reviewed the DNA analysis that other persons performed. Dr. Word reviewed the testing done in this case and opined that Vazquez was the source of DNA found on Zuniga’s pants and Paz’s jacket. Dr. Word testified that Vazquez’s DNA profile would be repeated once in every four quadrillion unrelated Hispanic persons. In September 2004, Orchid Cellmark discovered that Sarah Blair, the analyst who performed the DNA testifying in this case had manipulated some of the data for some of the negative test controls in the cases she worked on. Blair was terminated. Orchid Cellmark notified the Los Angeles Police Department of what had happened and it sent a second set of samples to be tested. The test results for the second set of samples matched the result for the first set. Dr. Word did not identify the name of the second analyst. The Orchid Cellmark reports were admitted into evidence without objection.
Los Angeles Police Department Officer Rafael Lopez testified as a gang expert on the Mara Salvatrucha gang. Office Lopez opined that defendants were Mara Salvatrucha members. Officer Lopez testified that Vazquez was a member of the Playboy gang. The most common tattoo for a Playboy gang member was a Playboy bunny. It is “very uncommon” for members of rival gangs such as Mara Salvatrucha and the Playboys to drink or smoke drugs together.
Based on the facts of this case, Officer Lopez opined that the murder was committed for the benefit of Mara Salvatrucha. The brutality of the attack established fear and enhanced Mara Salvatrucha’s reputation in the community. The postmortem stabs to the bunny tattoo indicated Mara Salvatrucha’s disrespect for the Playboys.
DISCUSSION
I. Sufficiency Of The Evidence
Alvarado contends that insufficient evidence supports his conviction for murdering Vazquez. Zuniga contends that insufficient evidence supports the jury’s finding that he personally used a deadly and dangerous weapon. Sufficient evidence supports Alvarado’s murder conviction and the jury’s personal use of a deadly and dangerous weapon finding as to Zuniga.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.) In deciding the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (Id. at p. 1181.)
We review a claim that insufficient evidence supports an enhancement applying the same standard that we apply to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806.) Thus, in support of the judgment, we presume every fact that the trier of fact reasonably could have deduced from the evidence. (Ibid.)
B. Alvarado’s Murder Conviction
At trial, Ramos testified that during the early morning of March 29, 2004, Mara Salvatrucha gang members Zuniga, Paz, and Alvarado were drinking beer at the Destroyer. Vazquez, a member of the rival Playboy gang, arrived and purchased crack cocaine from Zuniga and Alvarado. Vazquez share the drugs with defendants. At some point, Paz argued with Vazquez about why Vazquez had joined the Playboy gang. Zuniga and Alvarado came from a back area and, with Paz, surrounded Vazquez.
Ramos testified that he was told to leave and that the last thing he saw before he left was Alvarado slapping Vazquez’s face. Later in his testimony, Ramos stated that he heard a slap as he was leaving, but did not look back and, apparently, did not see who struck the blow. Detective Parshall testified that Ramos told him that as he was leaving, all three defendants were hitting Vazquez. Ramos testified that as he was leaving the area, he heard Vazquez screaming.
Apart from Ramos’s testimony, other evidence established Alvarado’s presence at the scene. One of Alvarado’s fingerprints was lifted from a beer bottle recovered from the area. In their jail cell conversations, Zuniga asked Paz where “Night Owl” (Alvarado’s gang moniker) had gone. Paz responded that he did not know and said to Zuniga, “Didn’t he take off running with you?” Zuniga said, “No.”
Below, we hold that recordings of these jail cell conversations were admissible.
A jail cell conversation between Paz and Zuniga demonstrated Alvarado’s participation in Vazquez’s murder. In that conversation, Paz asked Zuniga who had taken “his” belt. Zuniga responded, “Night Owl.” Paz asked Zuniga who had taken “his” wallet. Zuniga again responded, “Night Owl.”
Responding to a hypothetical question using the facts of this case, Officer Lopez opined that Vazquez’s murder was committed for the benefit of Mara Salvatrucha gang. Officer’s Lopez’s opinion was based on the brutality of the attack and the postmortem stabs to Vazquez’s Playboy bunny tattoo.
Based on the evidence adduced at trial, a rational juror could find beyond a reasonable doubt that Alvarado was guilty of Vazquez’s murder on the theory that Vazquez’s murder resulted from a gang dispute and was committed for the benefit of a gang. The evidence showed that a member of Alvarado’s gang (Paz) got into an argument with a rival gang member (Vazquez). Alvarado and another gang member (Zuniga) came to the aid of their fellow gang member, surrounding the rival gang member and preventing his escape. The rival gang member was then beaten and stabbed to death.
C. The Jury’s Finding That Zuniga Used A Dangerous And Deadly Weapon
“In order to find ‘true’ a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]” (People v. Wims (1995) 10 Cal.4th 293, 302-303, overruled on another ground in People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Vazquez suffered 47 sharp force injuries to his head, neck, and chest. When Zuniga was apprehended shortly after Vazquez’s murder, he had blood on his hands, jacket, and pants. Blood-stained samples taken from Zuniga’s pants matched Vazquez’s DNA profile at a frequency ratio for Hispanics of one in four quadrillion. Dr. Panchal testified that the direction of the 35 wounds to the center of Vazquez’s chest and his neck was left to right, front to back, and upward. Detective Parshall testified that he observed Zuniga and Paz writing with their right hands during trial. A reasonable inference from this evidence is that the 35 sharp force injuries to the center of Vazquez’s chest and his neck were inflicted by a right-handed person and that Zuniga is right-handed.
Below, we hold that the DNA evidence was admissible.
During one of the jail cell recordings, Paz said to Zuniga, “They don’t have evidence that we were the ones that killed him. They have found blood yes, but they don’t have evidence....” Zuniga responded, “I was thinking the same thing, you know.” Later, Paz said to Zuniga, “You put your hands on him....” Zuniga did not dispute the point.
Based on the evidence adduced at trial, a rational juror could find beyond a reasonable doubt that Zuniga had blood on his hands and clothes, including Vazquez’s blood on his pants, the wounds to the center of Vazquez’s chest were inflicted by a right-handed person and Zuniga was right-handed, and Zuniga agreed with Paz’s jail cell statements that Zuniga put his hands on Vazquez and other suggestions regarding what occurred. The evidence is sufficient to conclude that Zuniga used a dangerous and deadly weapon in murdering Vazquez.
II. Suppression Of The Recorded Jail Cell Statements By Zuniga And Paz
Zuniga contends that the trial court erred in failing to suppress his surreptitiously recorded statements made while he and Paz were held in a jail cell because the statements were the product of an unreasonably delayed arraignment in violation of the Fourth Amendment to the United States Constitution. The trial court did not err.
A. Background
Zuniga moved to suppress the recorded jail cell conversations on the ground that a delay of an arraignment for the purpose of obtaining incriminating statements violates the Fourth and Fourteenth Amendments of the United States Constitution. Zuniga argued that his arraignment was delayed intentionally for the sole purpose of obtaining incriminating statements from Zuniga while he was in the jail cell. Paz and Alvarado joined Zuniga’s motion.
At the hearing on the suppression motion, Detective Parshall testified that Zuniga was arrested about 4:00 or 4:30 a.m. on March 29, 2004. Paz was taken into custody between 9:00 and 10:00 a.m. the same day. Zuniga and Paz were booked into custody between 5:00 and 6:00 p.m. and placed in a holding cell at Parker Center. Police personnel provided Zuniga with a cell phone. Zuniga was given a cell phone so that if he made an admission on the cell phone it could be recorded. Conversations between Zuniga and Paz in the jail cell were recorded surreptitiously, as was Zuniga while he spoke on the cell phone. March 31, 2004, was a court holiday. Zuniga and Paz were arraigned on April 1, 2004.
Detective Parshall testified that there were a number of reasons why Zuniga was not taken to court for his arraignment until April 1, 2004. First, Zuniga was not required to be arraigned until April 1. Second, the police were continuing to investigate the case, interview people, prepare reports, and perform “all the things we have to do for a homicide.” Detective Parshall testified that the scientific investigation division processed the crime scene. After the crime scene was processed, the police needed to speak with Zuniga, Paz, and two other persons detained at the scene. The police also interviewed residents who lived in the area; officers who responded to the scene, including the K-9 officer; criminalists from the coroner’s office and the police department; the 911 caller; and the victim’s family and friends. Detective Parshall testified that there was a lot of work to do to prepare the case before it could be filed. Detective Parshall testified that “We had to get video from the 7-Eleven. We had to review the video. We identified people on a video. [¶] I had to put time lines together. [¶] I had to try to identify other people on a video. We showed the video to victim’s family members. [¶] We had notifications to do. [¶] We had reports to do. [¶] We had a lengthy follow up report that’s required for filing to complete. [¶] We had to complete our crime report, our death report. [¶] We had to complete property reports. [¶] We had to gather F.I. cards. [¶] We had to interview officers that responded to the scene that took part in an investigation.”
Detective Parshall testified that he was “still collecting evidence and actively working on what [he] needed to file the case on the 31st.” Detective Parshall testified that he got very little sleep, worked all day on March 31, and that his main focus was in readying this case for filing. Asked if the only reason that he did not bring the case for filing was that he was waiting to get a recorded statement from “defendants,” Detective Parshall said, “No.”
Detective Parshall testified that the police interviewed Paz on March 29 and 30. Zuniga had invoked his Miranda rights. The primary incriminating evidence recovered by the police on March 29 and 30 was the blood on Zuniga’s and Paz’s clothes. On March 29, the police used a dog with a scent pad to determine that Zuniga had been in the area where the murder took place. The police knew that Zuniga and Paz were members of the Mara Salvatrucha gang and that the victim was a member of the rival Playboy gang. None of the witnesses interviewed on March 29 and 30 implicated either Zuniga or Paz.
Detective Parshall hoped that during the time that Zuniga and Paz were being recorded that Zuniga would make admissions. Asked if he felt that the longer Zuniga and Paz were confined without the benefit of an attorney the more likely they would discuss the murder, Detective Parshall replied, “Not entirely. [¶] We were hoping they would make statements, however long they were going to be in there.” Zuniga and Paz were recorded from about 6:30 p.m. on March 29, to about 2:40 p.m. on March 31.
The trial court denied the suppression motion, ruling that there was no Fourth or Fourteenth Amendment violation. The trial court found that the defendants failed to show when the statements were made during the period, reasoning that statements made at the beginning of the period would have been made even if there had been a delay. The trial court also found that the police were actively investigating the case up to April 1 and that an experienced detective would not take a “bare-bones” case to the District Attorney’s Office, particularly a murder case, and expect to get it filed. The trial court found that the detectives did not do anything improper and did not delay the arraignment for the “explicit purpose” of trying to get Zuniga and Paz to make incriminating statements that could be recorded.
B. Relevant Principles
Under the Fourth Amendment, a State “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” (Gerstein v. Pugh (1975) 420 U.S. 103, 124-125 (Gerstein).) A State procedure that provides for a judicial determination of probable cause within 48 hours of arrest will, as a general matter, satisfy the Fourth Amendment’s requirement that such a determination be made promptly. (County of Riverside v. McLaughlin (1991) 500 U.S. 44, 53, 56.)
Under section 849, subdivision (a), “When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.” A “magistrate” is an officer who has the power to issue an arrest warrant for a person charged with a public offense. (§ 807.) As relevant here, a superior court judge is a “magistrate.” (§ 808.)
The parties’ reliance on section 825 is misplaced. That statute concerns persons arrested pursuant to an arrest warrant and does not apply to this case. (People v. Hughes (2002) 27 Cal.4th 287, 326-327.)
A probable cause determination in a particular case does not pass “constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein, supra, 420 U.S. at pages 124-125, if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 56.) “‘To justify exclusion of a statement, defendant must show that the delay produced admissions or that there was an essential connection between the illegal detention and admissions of guilt.’ (People v. Turner [(1994)] 8 Cal.4th [137,] 176.)” (People v. Hughes, supra, 27 Cal.4th at p. 326 [addressing a constitutional claim based on a delayed arraignment].)
People v. Turner, supra, 8 Cal.4th 137 was overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.
Respondent moved to augment the record on appeal to include the Superior Court’s docket sheet for Zuniga for the period from Zuniga’s arrest to his preliminary hearing. We granted the motion. On our own motion, we ordered the record augmented to include a relevant portion of the Superior Court’s docket sheet for Paz for the corresponding period. Both docket sheets contain the following entry, “PCD found on 033004 on 01:52.” That entry is sufficient evidence to establish that a “magistrate” found probable cause as to Zuniga and Paz on March 30, 2004, at 1:52 a.m., less than 20 hours after Zuniga was arrested, less than 17 hours after Paz was arrested, and less than nine hours after Zuniga and Paz were booked into custody. (Evid. Code, § 664 ; In re Lopez (1970) 2 Cal.3d 141, 146 [“Because there is a presumption that in preparing the docket entry official duty was regularly performed (Evid.Code, § 664), ‘on collateral attack such an entry must ordinarily be deemed to speak the truth.’ [Citation.]”]; Smith v. Smith (1958) 157 Cal.App.2d 658, 662 [“‘The presumption is that official duty has been regularly performed... and that the minutes of the court are correct.’ [Citation.]”].) Under the facts of this case, the probable cause determinations were made promptly and satisfy the Fourth Amendment requirement set forth in Gerstein, supra, 420 U.S. at pages 124-125.
Evidence Code section 664 provides, in relevant part, “It is presumed that official duty has been regularly performed.”
Even if Zuniga’s arraignment and a probable cause determination were unreasonably delayed, any such delay did not justify exclusion of the recorded statements because Zuniga failed to show that “‘the delay produced admissions or that there was an essential connection between the illegal detention and admissions of guilt.’” (People v. Hughes, supra, 27 Cal.4th at p. 326; see People v. Thompson (1980) 27 Cal.3d 303, 329 [statement not excluded unless defendant shows “‘illegal detention produced the admission’ or that there was an ‘essential connection between the illegal detention and the confession’”], overruled on other grounds by People v. Rowland, supra, 4 Cal.4th at p. 260.) Thus, although the statements occurred during the assumed unreasonable delay, nothing in the record suggests that the delay produced the statements or that there was any connection between the assumed unreasonable delay and the statements. Zuniga made the statements at issue voluntarily to the person with whom he shared his jail cell or to another person on a cell phone, and not to a police officer.
Substantial evidence supports the trial court’s finding that any delay was for a purpose other than trying to get Zuniga and Paz to make incriminating statements. Zuniga “has shown nothing more than a ‘but for’ relationship between his prearraignment detention and the taping.” (People v. Carrera (1989) 49 Cal.3d 291, 324.) This is not sufficient. (Id.) Accordingly, the trial court did not err in failing to suppress the recording of the jail cell statements.
III. Admission Of The Surreptitiously Recorded Jail Cell Statements By Zuniga And Paz Did Not Violate The Aranda-Bruton Rule Or Crawford
Alvarado contends that the admission of the surreptitiously recorded jail cell statements by Zuniga and Paz violated his right to confront and cross-examine Paz in violation of the Aranda-Bruton rule. Additionally, Alvarado contends that the trial court should have excluded the recorded statements of Zuniga and Paz because they were testimonial hearsay within the meaning of Crawford, supra, 541 U.S. 36. The trial court properly admitted the recorded statements.
Because the Aranda-Bruton rule does not apply when the defendant whose extrajudicial statements implicating a codefendant testifies, Alvarado’s Aranda-Bruton claim is cognizable only as to Paz’s statements. (Nelson v. O’Neil (1971) 402 U.S. 622, 626-630 [when declaring codefendant testifies at trial, no constitutional violation in permitting the introduction of his extrajudicial statements incriminating codefendant].)
A. Background
Prior to trial, Alvarado moved for separate trials. Alvarado argued that he anticipated that the prosecution would seek to introduce recordings of Zuniga’s and Paz’s jail cell statements that would implicate him in Vazquez’s murder. Alvarado argued that if the statements were admitted at a joint trial, the jury would not be able to follow an instruction by the trial court to consider the statements only against Zuniga and Paz. The trial court denied the motion, finding the statements were non-testimonial and admissible under People v. Greenberger (1997) 58 Cal.App.4th 298. At the next hearing, Alvarado’s counsel stated that because there were statements by Zuniga and Paz that incriminated Alvarado, he was requesting dual juries. The trial court denied the request.
B. Relevant Principles
In Crawford, supra, 541 U.S. 36, the United States Supreme Court held that the admission of testimonial hearsay in a criminal trial is a violation of the confrontation clause unless the witness is unavailable at trial and the defendant had a prior opportunity for cross-examination. (Id. at p. 59.) “Crawford recognized that if the statement in issue is nontestimonial, the rules of evidence, including hearsay rules, apply. Crawford stated: ‘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, supra, 541 U.S. at p. 68.) Thus, state courts may consider ‘reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. [Citation.]’ (Id. at p. 57 [124 S.Ct. at p. 1368].)” (People v. Cervantes (2004) 118 Cal.App.4th 162, 173.) Thus, if the statements at issue in this case were nontestimonial, we consider whether they were properly admitted consistent with the hearsay rules of evidence. (Ibid.)
“Crawford declined to define the term ‘testimonial’ (Crawford, supra, 541 U.S. at p. 53 [124 S.Ct. at p. 1375]), but gave examples of testimonial statements. Crawford listed as testimonial: (1) plea allocutions showing the existence of a conspiracy; (2) grand jury testimony; (3) prior trial testimony; (4) ex parte testimony at a preliminary hearing; and (5) statements taken by police officers in the course of interrogations. (Crawford, supra, 541 U.S. at pp. 52-66 [124 S.Ct. at pp. 1364-1372]).” (People v. Cervantes, supra, 118 Cal.App.4th at p. 172.)
The recorded statements by Zuniga and Paz at issue were not of the type contemplated by Crawford, supra, 541 U.S. 36 and were nontestimonial. The statements between Zuniga and Paz concerning Alvarado and his role in Vazquez’s murder were made when they were alone in a jail cell. There is no indication in the record that either defendant was aware that the statements were being recorded or that either intended that the statements would be available for later use at trial. (Id. at p. 52.) This is so because if Zuniga and Paz were aware that the statements were being recorded, they likely would not have made incriminating statement about themselves or each other. (See People v. Gutierrez (2009) 45 Cal.4th 789, 812-813; People v. Cervantes, supra, 118 Cal.App.4th at p. 174.)
Having held that the recorded statements were nontestimonial, we consider the question of whether the statements fall within a well-settled hearsay exception. “The Aranda/Bruton rule addresses the situation in which ‘an out-of-court confession of one defendant... incriminates not only that defendant but another defendant jointly charged.’ [Citation.] ‘The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant’s confession that is “powerfully incriminating” as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant.’ [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 537, italics omitted.)
In People v. Greenberger, supra, 58 Cal.App.4th 298, the court observed that “Bruton does not stand for the proposition that all statements of one defendant that implicate another may not be introduced against all defendants in a joint trial. The Bruton opinion itself stated that the offending hearsay statement in that case was clearly inadmissible against the nondeclarant under traditional rules of evidence, and that there was no recognized exception to the hearsay rule for its admission.” (Id. at p. 332.) The court continued, “[s]ince declarations against interest may be admitted in evidence without doing violence to the confrontation clause, we see no reason why such declarations, when made by a codefendant, should not also be admissible. This is not to say that all statements which incriminate the declarant and implicate the codefendant are admissible. Any such statement must satisfy the statutory definition of a declaration against interest and likewise satisfy the constitutional requirement of trustworthiness. This necessarily requires a ‘fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved;...’ [Citation.] There is nothing in Bruton which prohibits introduction of such evidence.” (People v. Greenberger, supra, 58 Cal.App.4th at p. 332; see O’Neill’s Cal. Confessions Law (2009 ed.) § 17:17 [“Although pre-Crawford cases must be viewed with some caution, they should remain good law if the conditions discussed above are satisfied”].)
Evidence Code section 1230 sets forth the declaration against interest exception to the hearsay rule a follows, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
“With respect to the penal interest exception, the proponent of the evidence ‘must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.’ [Citations.] A court may not, applying this hearsay exception, find a declarant’s statement sufficiently reliable for admission ‘“solely because it incorporates an admission of criminal culpability.”’ [Citation.] As the high court reasoned in interpreting the analogous exception to the federal hearsay rule, ‘[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory nature. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.’ [Citation.] Whether a statement is self-inculpatory or not can only be determined by viewing the statement in context. [¶] In view of these concerns, this court ‘long ago determined that “the hearsay exception should not apply to collateral assertions within declarations against penal interest.” [Citation.]... [W]e have declared [Evidence Code] section 1230’s exception to the hearsay rule “inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.”’ [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 153.) In People v. Schmaus (2003) 109 Cal.App.4th 846, 856-857 (Schmaus), we noted that doubt has been cast on People v. Greenberger, supra, 58 Cal.App.4th 298 because a plurality of the United States Supreme Court in Lilly v. Virginia (1999) 527 U.S. 116, 134, fn. 5 suggested that an accomplice’s out-of-court custodial confession that incriminates the defendant is not admissible as a declaration against interest because it “does not come within a firmly rooted hearsay exception.” Nevertheless, courts in this state have admitted such testimony under a trustworthiness test. (See Schmaus, supra, 109 Cal.App.4th at 859.)
A witness is unavailable within the meaning of Evidence Code section 1230, when a witness, like Paz, exercises his right not to testify under the Fifth Amendment. (People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.) Paz’s statements on the recording were against his penal interest as they inculpated him in Vazquez’s murder. The statements were reliable as they would appear to Paz to have been made in confidence to Zuniga, his fellow gang member, while they were alone in a jail cell. There is no indication in the record that Paz knew that his statements were being recorded and thus were other than candid. Paz’s statements about Alvarado were specifically contrary to Paz’s interests because they further implicated Paz in Vazquez’s murder. Accordingly, under the totality of the circumstances, the statements satisfy any requirement of reliability and trustworthiness.
We review the trustworthiness under the de novo standard of review. (People v. Cervantes, supra, 118 Cal.App.4th at pp. 174-175.)
IV. The Trial Court Properly Refused To Instruct The Jury On Voluntary Manslaughter
Alvarado contends that the trial court erred in refusing to instruct the jury on voluntary manslaughter on a sudden quarrel or heat of passion theory. The trial court properly refused the instruction.
A. Background
During a discussion of jury instructions, Zuniga’s counsel requested an instruction on voluntary manslaughter on a sudden quarrel or intoxication theory. Zuniga’s counsel argued that there was evidence that Vazquez and others got “heated.” Paz’s counsel argued that there was a sudden quarrel. The trial court observed that an instruction on voluntary manslaughter is not justified every time there is evidence of an argument. Zuniga’s counsel responded that in this case there was evidence of a heated argument coupled with significant evidence of intoxication.
The trial court ruled that evidence of voluntary intoxication, short of unconsciousness, does not reduce murder to voluntary manslaughter, and there was no evidence of voluntary intoxication to the level of unconsciousness. The trial court also ruled that there was not sufficient evidence of provocation to instruct on voluntary manslaughter. The trial court stated that all the record showed was that there was an argument about why Vazquez had joined one gang and not another. The trial court stated that there was no evidence that anyone had “lost all reason, or that a reasonable person would have lost all reason in a similar circumstance.”
B. Relevant Principles
A trial court has a sua sponte duty to instruct “‘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. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
A trial court is not required to instruct on a lesser included offense merely because there is “‘any evidence, no matter how weak.’” (People v. Breverman, supra, 19 Cal.4th at p. 162.) Instead, the duty to instruct on a lesser included offense arises when the “evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]” (Ibid.) Evidence is substantial in this context when a jury composed of reasonable persons could conclude that the defendant committed the lesser offense, but not the greater offense. (Ibid.) In deciding whether there is substantial evidence to justify instructions on a lesser offense, courts do not evaluate witness credibility, a task that is reserved for the jury. (Ibid.)
Murder is an unlawful killing with malice. (§ 187; People v. Lee (1999) 20 Cal.4th 47, 59.) Manslaughter is “the unlawful killing of a human being without malice.” (§ 192.) If there is evidence that negates malice, an intentional killing is reduced to voluntary manslaughter. (People v. Lee, supra, 20 Cal.4th at p. 59.) A killing “upon a sudden quarrel or heat of passion” is voluntary manslaughter. (§ 192, subd. (a).) If a defendant acts upon a sudden quarrel or heat of passion upon sufficient provocation, malice is presumed to be absent. (People v. Lee, supra, 20 Cal.4th at p. 59.) Because heat of passion reduces an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice, heat of passion voluntary manslaughter is a lesser necessarily included offense of intentional murder. (People v. Breverman, supra, 19 Cal.4th at p. 154.)
“Although section 192, subdivision (a), refers to ‘sudden quarrel or heat of passion,’ the factor which distinguishes the ‘heat of passion’ form of voluntary manslaughter from murder is provocation.” (People v. Lee, supra, 20 Cal.4th at p. 59.) The victim must cause the provocation that incites the defendant to homicidal conduct in the heat of passion. (Ibid.) The victim’s provocative conduct may be verbal or physical, but must “be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.”’ [Citation.]” (Ibid.)
“The test of adequate provocation is an objective one.... The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee, supra, 20 Cal.4th at p. 60.) Moreover, although a defendant, subjectively, must actually kill under the heat of passion (People v. Steele (2002) 27 Cal.4th 1230, 1252), a defendant may not “set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused” (People v. Cole (2004) 33 Cal.4th 1158, 1215-1216). “Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Lee, supra, 20 Cal.4th at p. 60.)
The evidence adduced at trial showed that there was an argument between Paz and Vazquez concerning Vazquez’s decision to join the rival Playboy gang. There is no evidence that affirmatively demonstrates that Vazquez said or did anything that was sufficiently provocative that it would have caused “an ordinary person of average disposition to act rashly or without due deliberation and reflection.” Absent evidence of the required provocation, there was insufficient evidence to instruct the jury on voluntary manslaughter as a lesser included offense to murder.
V. The Admission of DNA Evidence
Paz and Alvarado contend that admission of DNA test results violated their Sixth Amendment right to confrontation because the witness who testified about the results, Dr. Charlotte Word, did not perform the tests. They further contend that they did not waive their contention by failing to object in the trial court.
A. Forfeiture
The failure to object in the trial court that the admission of evidence violates the right to confrontation forfeits appellate review of the claim. (People v. Burgener (2003) 29 Cal.4th 833, 869; Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 2534, fn. 3, 174 L.Ed.2d 314 (Melendez-Diaz) [“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections”].) The issue of the application of Melendez-Diaz is presently before our Supreme Court. (See, e.g., People v. Rutterschmidt, S176213.) None of the defendants objected to the admission of the DNA evidence on confrontation grounds, thus forfeiting review of this claim.
B. Relevant Principles
Even if this claim has not been forfeited, the claim fails on the merits. As set forth above, in Crawford, supra, 541 U.S. 36, the United States Supreme Court held that the admission of testimonial hearsay in a criminal trial is a violation of the confrontation clause unless the witness is unavailable at trial and the defendant had a prior opportunity for cross-examination. (Id. at p. 59.) In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court rejected the argument that a laboratory director’s testimony that the defendant’s DNA matched DNA found on the victim violated the confrontation clause because the director’s opinion was not based on testing she personally conducted. (Id. at p. 593-594.) The court held that DNA reports are not testimonial hearsay inadmissible under the confrontation clause. (Id. at pp. 605-607.) The court concluded that contemporaneous recordings of observable events in laboratory reports are not testimonial because the biologist who generated the report generated it as part of her job and not to incriminate the defendant. (Id. at p. 607.) In Melendez-Diaz v. Massachusetts, supra, 557 U.S. ___, 129 S.Ct. 2527, the United States Supreme Court held that “certificates of analysis” – functionally “affidavits” – that showed the results of forensic drug tests were testimonial under Crawford. (Id. at pp. 2530-2532.)
Under Geier, supra, 41 Cal.4th 555, Dr. Word’s testimony and the DNA reports were not inadmissible testimonial hearsay. (Id. at pp. 605-607.) Alvarado argues that the holding in Melendez-Diaz, supra, 129 S.Ct. 2527, “casts serious doubt” on the holding in Geier, supra, 41 Cal.4th 555. Although subject to some question, we will continue to follow and apply Geier, supra, 41 Cal.4th 555. In Melendez-Diaz, the scientific evidence at issue was presented through affidavits, a means of introducing hearsay evidence specifically proscribed in Crawford, supra, 541 U.S. 36. (Crawford, supra, 541 U.S. at pp. 51-52.) Here, as in Geier, the DNA evidence was presented through a qualified expert – Dr. Word in this case – who testified at trial and was subject to cross-examination.
C. Harmless Error
Even if the admission of the DNA evidence was a confrontation clause violation, any error was harmless. “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 106 S.Ct. 1431].) ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ (Delaware v. Van Arsdall, supra, at p. 681.) The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ (Neder v. United States (1999) 527 U.S. 1, 18 [144 L.Ed.2d 35, 119 S.Ct. 1827].)” (Geier, supra, 41 Cal.4th at p. 608.)
Apart from any Orchid Cellmark DNA evidence, the evidence in support of defendants’ convictions is substantial. Ramos’s testimony placed all three defendants at the scene, surrounding Vazquez, with Paz arguing with Vazquez about Vazquez’s membership in a rival gang. As Ramos left the area, he heard Vazquez screaming. Zuniga and Paz were found in the area – Paz behind a door to a storage area beneath a stairwell at the Destroyer. Zuniga’s and Paz’s hands were swabbed by a Los Angeles Police Department criminalist and tested positive for blood. In their jail cell conversations, Paz and Zuniga discussed how they had been found with blood on themselves. Paz and Zuniga implicated Alvarado in Vazquez’s murder when they discussed Alvarado taking “his” belt and wallet. As for Alvarado, none of the Orchid Cellmark DNA evidence that was admitted concerned him.
VI. Alvarado’s Trial Counsel’s Failure To Object To The Admission Of Dr. Word’s Testimony
Alvarado claims that he was denied his right to the effective assistance of trial counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution by trial counsel’s failure to object to Dr. Word’s testimony on confrontation grounds as set forth in Crawford v. Washington, supra, 541 U.S. 36, even though the DNA evidence did not directly implicate Alvarado. We disagree.
“‘Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]’” (People v. Foster (2003) 111 Cal.App.4th 379, 383.) “Generally,... prejudice must be affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) If the defendant fails to make a sufficient showing either of deficient performance or prejudice, the ineffective assistance claim fails. (People v. Foster, supra, 111 Cal.App.4th at p. 383.)
Alvarado’s ineffective assistance claims fails because, as discussed above, Dr. Word’s testimony was admissible as against a confrontation objection under Crawford v. Washington, supra, 541 U.S. 36. When there is “no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.” (People v. Cudjo (1993) 6 Cal.4th 585, 616.) The failure to object to admissible evidence is both reasonable and non-prejudicial. If at some time the California Supreme Court or United States Supreme Court determines that the evidence such as is involved here is inadmissible, and if it is determined he forfeited the issue, Alvarado may then, if necessary, raise an ineffective assistance of counsel claim.
VII. The Trial Court’s Instruction On Reasonable Doubt
Paz contends that the trial court violated his federal constitutional rights to due process, a fair trial, and a jury trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments when, in voir dire, it instructed the jurors to decide the case based upon their own common sense and secured promises from the jurors to so decide the case. In instructing the jury in this manner, Paz contends, the trial court incorrectly instructed the jury on the reasonable doubt burden of proof and lowered the prosecution’s burden.
A. Background
During voir dire, the trial court stated:
“The Court: Now, I’m going to ask a question to which I expect to receive an overwhelming response, and that is this:
“Do any of you have common sense?
“(The prospective jurors respond in the affirmative.)
“The Court: So some of you are laughing. Some of you are thinking. And then most of you said yes.
“Juror Number 10, do you have common sense?
“Prospective Juror No. 10: Yes.
“The Court: Have you ever heard this impression: common sense is the most uncommon of the senses?
“Prospective Juror No. 3: Yes.
“The Court: All right. Mark Twain, as I understand, that’s from. But anyway, what do you think about that expression, common sense is the most uncommon of the senses?
“Prospective Juror No. 3: Because it’s hard to come by actually. Even though we think we all have it, when it gets down to living and doing things sometimes we forget about common sense.
The Court: And you’re right. We all do have common sense. Every single one of us has common sense. We don’t always use it however. I have a brother, he’s two years older than I am. We were raised by the same parents, pretty much went to the same schools all the way through. I don’t know where my brother was when the common sense was being handed out to everyone else in the family. I mean, when you talk to my brother, he’ll tell you the latest thing that he’s invested in, kind of get-rich-quick schemes that he’s gotten involved with over the years, none of which have panned out, ladies and gentlemen, and the rest of us would never even think about doing some of the things that he’s done. Very nice person my brother. I love him dearly. I would never take investment advice from him because he doesn’t seem to have or use common sense.
“Now, as Juror Number 3 indicated, she said common sense is sometime hard to come by. Let me ask you Juror Number 2. Have you ever been in a situation in your life where you made some kind of decision or you took some action and maybe, you know, you responded emotionally before you had all the facts, and if you had to do all over again, could really sit back and think about things, you might handle some situation differently than you actually did?
“Prospective Juror No. 2: I do that all the time.
“The Court: And you know, you’re a very honest person. All of us, we have all been in that situation at one time or another. Hopefully we learn from our mistakes and as we get older that happens to us less and less, but we’re all capable of acting without common sense and we’re all capable of acting with common sense because we all have common sense, but one of the most important attributes that you bring as a member of the jury is common sense. It’s important that you use your common sense in reaching a decision in applying the law and in making your determinations of the credibility and so forth.
“Will you all promise that you’re not going to leave your common sense at home, that you’re all going to utilize your common sense in reaching a decision in this case if you’re one of the deliberating jurors?”
“(The prospective jurors respond in the affirmative.)
Later, the trial court stated:
“The Court: [¶] All right. Juror Number 4, during the course of this trial you may feel some emotions as you hear the testimony. You will hear that somebody was killed and that always tugs at our emotions. It’s not a pleasant thing to think about. So you may feel sympathy for a witness or for a family member of someone that was killed in this case. On the other hand, you might look at the defendants here and they’re young men who are, you know, in a tight spot, obviously, being charged with this kind of crime and you may look at them and you may feel sorry and feel sympathy for the defendants.
“And you are a human being and you are entitled to feel the emotions that you feel. We don’t get 12 robots to decide the case. We have 12 human being here to decide the case, but one of the things I’m going to tell you is that sympathy either for the victim or sympathy for the defendant, if you happen to feel that, is not a good basis for your decision. You have to decide what the facts are and apply the law to those facts and decide whether or not the prosecution has met its burden of proving the charges beyond a reasonable doubt. Can you make the distinction between those feelings of sympathy and actually a decision based upon the facts and the law?
“Prospective Juror No. 4: I would have problems with that. I do get very sympathetic so I don’t know where that would leave me.
“The Court: Okay. I think that all of us as human beings will feel sympathy. I mean, it’s not a happy situation when someone is killed, let’s face it, but nonetheless you wouldn’t want a defendant who had not – that the evidence did not demonstrate that the defendant was responsible for that death to be held responsible even though you might feel sorry for the fact that someone was killed; am I right?
“Prospective Juror No. 4: Yeah, that’s true.
“The Court: By the same token, Juror Number 3, the fact that the defendants are young men who, you know, who seem – look like nice regular people who are here in court, you wouldn’t want them to escape responsibility seemingly because you feel sorry for them if the evidence proved they were responsible for the crime beyond a reasonable doubt, would you?
“Prospective Juror No. 3: No.
“The Court: So, ladies and gentlemen, it’s important that you decide this case based not on emotion, but on the evidence and the facts, applying your common sense and your reason, and after discussing the case with the other ladies and gentlemen during deliberations to come to a fair decision based upon the facts and the law despite the fact that you may have some emotions that you feel during the course of the trial.
“Does that make sense to you, ladies and gentlemen?
“ (The prospective jurors respond in the affirmative.)
“The Court: Juror Number 9, how do you feel about that?
“Prospective Juror No. 9: I – I would have to go with the decision based on what I heard, but then I am an emotional person so I would have to do it the best that I could.
“The Court: Okay. And you know what, that’s all we can ask of everyone. We can only ask you to do the best you can. And all of us in our own lives from time to time have difficult decisions that we have to make and sometimes there are emotional components to those decisions, but ultimately when we have to make that decision we usually have to say, ‘Okay, the emotions go here, but I have to do the right thing and I have to make whatever the decision has to be in our life.’
“We have decisions that from time to time are very important decisions that we have to make and we have to do it based upon common sense and reason and not just on emotional issues, and that’s what we’re asking you as jurors to do. I can’t tell you not to feel emotions, you’re going to feel emotions from time to time, but I can ask you to make a decision based upon the facts and the law.”
After the first round of challenges for cause, the trial court asked newly seated prospective jurors if they would use their common sense in reaching a decision in this case. The trial court asked some of the prospective jurors if they would agree to use their common sense in reaching a decision. The trial court also stated that each defendant’s guilt had to be proved beyond a reasonable doubt.
B. Relevant Principles
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) “The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence-that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ [Citation.]” (Id. at p. 363.) When a trial court instructs a jury in a manner that there is a reasonable likelihood that the jury understood the instructions to allow it to convict based on proof insufficient to meet the Winship standard, the instructions are unconstitutional. (Victor v. Nebraska (1994) 511 U.S. 1, 6.)
The trial court instructed the jury with CALJIC No. 2.90 as follows:
The United States Supreme Court approved California’s beyond a reasonable doubt instruction in Victor v. Nebraska, supra, 511 U.S. at pages 16 through 17.
“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
Paz contends that the trial court attempted to explain the reasonable doubt burden of proof by directing the jury to view it in the context of reason and common sense and by defining the latter in terms of the poor investment decisions made by the judge’s brother and in terms of the important decisions in life lowered the prosecution’s burden of proof beyond the due process requirement of reasonable doubt and constituted error requiring reversal of the judgment. Paz misconstrues the trial court’s discussion of common sense.
There are cases in which a trial court has “amplified” on the standard reasonable doubt standard in CALJIC No. 2.90, and thereby lowered the prosecutor’s burden of proof. (See e.g., People v. Johnson (2004) 119 Cal.App.4th 976, 978-984; People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172.) This is not such a case. The trial court instructed the jury to evaluate the evidence and apply the law using common sense and not to be swayed by emotion. The trial court did not discuss common sense to explain the concept of reasonable doubt. Accordingly, the trial court did not incorrectly instruct the jury on the beyond a reasonable doubt standard.
VIII. Paz Was Tried By A Jury Consisting of 12 Jurors
Paz contends that his conviction must be reversed because the verdict rendered against him was rendered by less than the constitutionally mandated 12 jurors. Paz bases his contention on the trial court’s failure to give an alternate juror the same oath given to trial jurors when the alternate juror replaced a trial juror.
A. Background
After the 12 trial jurors were selected, the court clerk, pursuant to Code of Civil Procedure section 232, subdivision (b), administered the following oath: “Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and the instructions of the court? [¶] I do?” The trial jurors responded affirmatively.
After three alternate jurors were selected, the court clerk administered the following oath: “Do you and each of you understand and agree that you will act as alternate jurors in the cause now pending before this court by listening attentively to the evidence and the instructions of the court, and at that you will serve as a trial juror when called upon by the court, so help you God?” The alternate jurors responded affirmatively.
Prior to opening statements, the trial court pre-instructed the trial and alternate jurors on their “basic functions, duties and conduct.” The trial court instructed the jurors that they were to base their decisions on the facts and the law. The jurors were to determine the facts only from the evidence received at trial and the trial court would provide them with the law they were to apply. The trial court specifically instructed the alternate jurors, in part, that they were “bound by all of these admonitions.”
On November 18, 2008, the parties agreed that trial juror number 8, who had been using a Chinese-English dictionary to assist her in understanding the proceedings, should be excused and replaced with an alternate juror. When the alternate juror was seated as the new trial juror number 8, the court clerk did not administer the oath set forth in Code of Civil Procedure section 232, subdivision (b). Neither Paz nor either of his co-defendants objected to the alternate juror being seated as a trial juror without being administered the oath in Code of Civil Procedure section 232, subdivision (b).
Paz’s claim on appeal is with respect to the alternate juror who replaced a trial juror on November 18, 2008. We note that another alternate juror previously had been seated on November 13, 2008, without being administered the oath in Code of Civil Procedure section 232, subdivision (b). Paz makes no claim with respect to the seating of that alternate juror.
B. Forfeiture
“The forfeiture doctrine is a ‘well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been-but were not-raised in the trial court. [Citation.]’ (People v. Vera (1997) 15 Cal.4th 269, 275 [62 Cal.Rptr.2d 754, 934 P.2d 1279]; see People v. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185 [151 Cal.Rptr. 837, 588 P.2d 1261].) Strong policy reasons support this rule: ‘It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]’ (Vera, at p. 276.) ‘“‘“The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.”’” [Citation.]’ (Saunders, at p. 590.)” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
If Paz had timely objected to the failure to administer to the seated alternate juror the oath in Code of Civil Procedure section 232, subdivision (b), the trial court easily could have corrected any error. Paz’s failure (and the failure of other defendants) to object forfeited any error with respect to the failure to administer the same oath to the alternate juror as sworn to by the trial jurors.
C. Failure to Administer Oath Not Reversible Error
Even had there been no forfeiture, there was no reversible error. Section 1089 governs the selection and seating of alternate jurors. Section 1089 provides, in pertinent part, that “[t]he alternate jurors shall be seated so as to have equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected....” Paz objects that the oath administered to the alternate jurors, unlike the oath administered to the trial jurors, did not advise them that they were to render a true verdict “‘according only to the evidence presented to [them] and to the instructions of the court,’” and failed to obtain their agreement to render a verdict according only to the evidence presented and the instructions of the court.
In People v. Cruz (2001) 93 Cal.App.4th 69, the defendant challenged his conviction on the ground that the jury had been sworn incorrectly. (Id. at p. 72.) The oath was incorrectly administered because the jury was not asked to agree to follow the instructions of the trial court. (Ibid.) The Court of Appeal held that there was no reversible error in the misadministration of the oath, reasoning that the jury had been instructed that it was to follow the law as given to it by the trial court, jurors are presumed to follow the instructions, and the defendant failed to rebut that presumption. (Id. at pp. 73-74.)
In this case, the trial court instructed the trial and alternate jurors, prior to the presentation of evidence, to base their decisions on the facts and the law. The trial court told the jurors that they were to determine the facts only from the evidence received at trial and the trial court would provide them with the law they were to apply. The trial court also instructed the jury with CALJIC No. 1.00, which further informed the jurors of their obligation to base their decision on the facts and the law. That instruction told the jurors that they were to determine the facts from the evidence received at trial and not any other source and that they were required to accept the law as stated by the trial court. Even if the alternate juror did not expressly agree to decide the case only on the facts presented to him and the trial court’s instructions, we presume that he followed the instructions. (People v. Cruz, supra, 93 Cal.App.4th at pp. 73-74.) Defendants have not rebutted that presumption. Accordingly, there was no reversible error in the misadministration of the oath. (Id. a tp. 74.)
The trial court instructed the jury with CALJIC No. 1.00 as follows:
IX. The Trial Court Properly Admitted Ramos’s Identification Of Alvarado
Alvarado contends that Detective Parshall told Ramos who the suspects were and showed Ramos photographs of the suspects. By his actions, Alvarado contends, Detective Parshall tainted all subsequent identifications by Ramos. Alvarado forfeited appellate review of this issue by failing to object in the trial court. In any event, the trial court properly admitted Ramos’s identification of defendants.
A. Background
Alvarado objects to Ramos’s identification of him based, in part, on the following excerpt from the cross-examination of Ramos by Zuniga’s counsel:
“Q Do you know this gentleman that I’m now standing behind, Mr. Parshall?
“A Yes.
“Q Did Mr. Parshall tell you who he thought the suspects in the case were?
“A Yeah, he told me about the suspects in the case.
“Q He told you that he thought the suspects were Nite Owl, Pantera and Stalker?
“A At the station, yes.
“Q Did you feel that if you didn’t blame these persons, that you might get in trouble?
“A Can you repeat that question again please.
“Q Did you feel that if you didn’t point the finger, blame these people, that you might get in trouble given what Mr. Parshall had told you about who he thought the suspects were?
“A There’s always a fear inside of me of the police.
“Q And what – what kind of fear of the police was it?
“A Everything.
“Q Well, tell us about it.
“A I never been in this situation before.
“Q Well, you’re not – you weren’t afraid that the police were going to harm you, were you?
“A I don’t know.
“Q What you were afraid of was that you might be prosecuted; isn’t that true?
“A No.”
Later, Zuniga’s counsel asked Ramos about photographs that Detective Parshall had shown him. Ramos did not understand the question, and Zuniga’s counsel read the following exchange from the preliminary hearing to Ramos upon which Alvarado also bases his contention:
“‘[Q] When he named them to you, did he tell you, Mr. Parshall, that he, Mr. Parshall, believed or had information that they were involved in this murder?
“‘A Obviously they have the information.
“‘Q And why do you say it was obvious? Did they tell you?
“‘A No, but he showed me the pictures of the three persons.
“‘Q And what did he tell you, if anything, about those pictures?
“‘A About the murder.
“‘Q Did he say that these three persons were involved in the murder?
“‘A Yes.’”
B. Relevant Principles
To preserve a challenge to an identification procedure, a defendant must timely object in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Medina (1995) 11 Cal.4th 694, 753.) Neither Alvarado nor either of his co-defendants objected in the trial court to the pre-trial identification procedure. Accordingly, appellate review of this issue has been forfeited. (People v. Cunningham, supra, 25 Cal.4th at p. 989; People v. Medina, supra, 11 Cal.4th at p. 753.)
Even if this issue was preserved for review, we would hold that the trial court properly admitted Ramos’s identification of defendants. “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. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 989.) “Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘“‘totality of the circumstances’”’ to warrant reversal of a conviction on this ground. [Citation.]” (Id. at p. 990.)
Assuming that the pre-trial identification procedure was unduly suggestive and unnecessary, Ramos’s identification of defendants was nevertheless reliable under the totality of the circumstances. This case does not involve the identification of a stranger. Ramos testified that he was a former member of the Mara Salvatrucha gang, the same gang to which defendants belonged. Ramos knew each of the defendants. Ramos was at the Destroyer on the morning of Vazquez’s murder. Ramos testified that when Paz argued with Vazquez about Vazquez’s choice to join a rival gang, he saw Alvarado and Zuniga approach and, with Paz, surround Vazquez. Detective Parshall testified that when he interviewed Ramos, he did not tell Ramos ahead of time who the suspects were. Under the totality of circumstances, there is not a substantial likelihood of unreliable misidentification by Ramos. (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.)
DISPOSITION
The judgments are affirmed.
We concur: KRIEGLER, J., WEISMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“Members of the Jury:
“You have heard all the evidence, and now it is my duty to instruct you on the law that applies to this case. The law requires that I read the instructions to you. You will have these instructions in written form in the jury room to refer to during your deliberations.
“You must base your decision on the facts and the law.
“You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A ‘fact’ is something proved by the evidence or by stipulation. A stipulation is an agreement between attorneys regarding the facts. Second, you must apply the law that I state to you, to the facts, as you determine them, and in this way arrive at your verdict and any finding you are instructed to include in your verdict.
“You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
“You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because he has been arrested for this offense, charged with a crime, or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty. You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the People and a defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.”