From Casetext: Smarter Legal Research

People v. Mares

California Court of Appeals, First District, First Division
Feb 5, 2010
No. A121521 (Cal. Ct. App. Feb. 5, 2010)


THE PEOPLE, Plaintiff and Respondent, v. MANUEL MARES, Defendant and Appellant. A121521 California Court of Appeal, First District, First Division February 5, 2010


Alameda County Super. Ct. No. H43634

Marchiano, P.J.

A jury convicted defendant Manuel Mares of first degree murder and related lesser offenses, and found that he personally and intentionally used a firearm. (Pen. Code, §§ 187, 12022.7, subd. (a), 12022.53, subd. (d).) The trial court sentenced him to 53 years to life. He raises two issues regarding the competency of the child eyewitness to the shooting, and also claims the witness’s father tampered with her testimony. Finally, he argues the trial court erroneously admitted evidence of his Internet searches for firearm silencers. We disagree with defendant’s contentions and affirm.


Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)

On October 19, 2006, Alia Ansari, a woman of Afghan descent, was walking with her daughter Latifa, who was almost four, to pick up her other children at school. Ansari was wearing a headscarf. At approximately 2:30 p.m., several witnesses in a residential area on Glenmoor Drive in Fremont heard a gunshot—or a popping noise—and a child screaming. Ansari was found lying dead with a gunshot wound to the face; Latifa was crying at her side. Ansari had been shot with a.38,.357, or 9-mm weapon. No one other than Latifa actually saw the shooting.

Christine Green was driving by the scene when she saw Latifa standing over Ansari’s body. Green stopped and escorted Latifa away from her mother. Green played with Latifa, but did not question her. Latifa told Green that a man shot her mommy.

Three witnesses saw a man running from a driveway, wearing a baggy white T-shirt, black pants, and black shoes. One witness saw that the man was wearing black gloves; another saw he was wearing a cap. The three witnesses saw the man run to an older-model black car, which might have been a Toyota Tercell or Corolla, with a spoiler. The man got into the car and sped off.

Other witnesses saw a black car speed away from the scene; one identified the car as a two-door foreign car, another as a two-door Toyota. One saw a male driver, wearing a baseball cap, who was neither African-American nor Caucasian, but closer to the witness’s own skin color—which the trial court described as an “olive complexion.” Another witness saw a male driver he described as Middle Eastern or Hispanic.

The police arrived and broadcast a description of the suspect and his vehicle. Patrol officers spotted a Hispanic male wearing a white T-shirt and black gloves, driving a black Toyota Tercel, and stopped the car. Defendant was the driver.

The police stopped defendant’s car close to the murder scene both in time and in physical location. Police officers responded to the scene at 2:39 p.m., and broadcast a description of defendant and his car within three minutes. The police officers in the field who heard the description apparently spotted defendant’s car within eight to 10 minutes. They spotted defendant’s car no more than three-eighths of a mile from the murder scene. Defendant was stopped 150 yards from his house.

The three witnesses who had seen the man running from the murder scene were taken to the scene of the traffic stop. In various degrees of detail, all three said that defendant’s appearance, clothing, and vehicle matched or were similar to those of the fleeing assailant. The witness who had seen the suspect wearing black gloves said that defendant’s gloves were “consistent” with, or similar to, those worn by the suspect.

The police took defendant to the Centerville Fire Station and detained him there. Officers transported Latifa and Green to the fire station. At the station, Sergeant Washington approached the passenger side of the police car in which Latifa sat on Green’s lap. Defendant was standing about 50 feet from the car between two plainclothes police officers. Washington asked Latifa if she knew defendant. She shook her head no. Washington realized the sun was in Latifa’s eyes, and had the patrol car pull forward to within 20 feet of defendant, eliminating the glare.

Washington testified he asked Latifa, “Do you know him?” Green testified he asked Latifa if she could see defendant.

Washington asked Latifa if she could see better. She nodded her head yes. He asked Latifa if she had seen the man before. She nodded her head in the affirmative. Sergeant Washington asked her when she had seen him. Latifa replied, “He hurt mommy.” Washington asked what the man did to Latifa’s mommy. She replied that the man had “shot” her mommy.

The police later took Latifa to CALICO, an organization equipped for questioning child witnesses, for an interview. During that interview, Latifa said she saw a man drive up in a car and shoot her mother. Latifa made a comment suggesting she did not know the difference between the truth and a lie, and made other statements somewhat inconsistent with her subsequent testimony.

At the outset of the trial, in February 2008, Latifa testified at a competency hearing outside the presence of the jury. She was then five years old.

Latifa testified that she understood the difference between the truth and a lie, and promised not to lie in her testimony. In response to a question from the court, Latifa testified it was wrong to lie, and that liars go to hell—where there is “jail” and a “very hot fire.” She also testified that “you get punished” for telling a lie. On cross-examination by defense counsel, Latifa said that if her sister or her father told her something was true she would “believe it.”

The trial court found Latifa understood the difference between truth and lies and the consequences of lying: “[S]he’s a number of times given me enough information to make me comfortable that she understands it.” The court also found “she has the capability to communicate, and for those reasons I’m finding that she’s competent to testify.”

Latifa testified before the jury on several occasions. On February 4, Latifa testified she knew the difference between the truth and a lie and promised to tell the truth. She remembered the day her mommy got hurt. She was with her mommy when a man with a gun shot her mother and drove off in a black car. She did not want to answer questions about whether she saw a man with no arms.

On February 5, Latifa testified she remembered seeing a man with no arms when she was with the police. The man with no arms had walked up to her mother, stood in front of her mother, and shot her. The man left in a black car.

When she told the police the man with no arms shot her mother, she was telling the truth. She testified the man’s pants were black and his shirt was white. His face was black. She identified a photograph of defendant taken at the show-up at the fire station, in which defendant is wearing a white T-shirt and his arms are not showing, as the man who killed her mother. We may conclude from the record that defendant’s arms were handcuffed behind his back. A man with his arms handcuffed behind his back could look like a “man with no arms” to a child witness.

After a recess, during which Latifa was given some chocolates, Latifa—whose attention seemed to be waning—briefly testified that the police took her to see a black man who killed her mother; she did not know the color of his clothes; his shirt was white, but he had no pants; and various parts of his face were not black.

On February 6, Latifa testified briefly. She said her father had told her, within the last two or three days, that the color of the shooter’s shirt was white. She also said her father had told her the color of the shooter’s face, but she did not say what that color was. She also denied going for a ride in a police car, or seeing any policemen, on the day her mother was shot.

On February 7, Latifa again testified that the man who shot her mother had black pants, a white shirt, and a black face. She also testified that a picture of defendant showed the man who shot her mother. Latifa said her father had told her the man in the picture had shot her mother, and she should testify she told the police her mother was shot by this man. She then testified that on the day her mother was shot, she saw the man in the picture, standing with police officers. She rode in a police car to see the man, who was wearing a white shirt and wasn’t showing his arms. When asked why she identified the man as the shooter, she did not respond because she had to go to the bathroom.

Later that day, Latifa seemed to testify that she identified defendant at the show-up because his arms were not showing. She also said she thought he was a “bad man” because he was being held by police. She said the man had a gun when he was being held by police, but that she had also seen him earlier with a gun.

Black leather gloves recovered from defendant’s car tested positive for gunshot residue. Defendant’s left hand bore particles consistent with gunshot residue; this meant defendant had either fired a gun or had been physically close to a gun. Particles on defendant’s T-shirt and left pant leg were consistent with gunshot residue.

No weapon, ammunition or silencer was found in defendant’s car. Police never recovered the murder weapon, ammunition, or a silencer, despite searching defendant’s residence.

Three days before the shooting, on October 16, 2006, police were called to defendant’s residence because he was incoherent and had kicked in a door.

The day before the shooting, on October 18, an Hispanic male driving a car similar to defendant’s fired five or six shots at a DHL van driven by Rodney White. This shooting also occurred in Fremont. White chose two pictures from a photographic line-up, one of which was defendant’s. White, who owned many guns, testified that the shots sounded like they came from a weapon smaller than a.357 or a.44.

The People presented evidence that a test of defendant’s blood showed that he used methamphetamine.

Danny Tong, a computer expert employed by the district attorney’s office who specialized in forensic examination of computers, examined the hard drive of defendant’s computer. Tong testified regarding computer searches conducted on October 8, 11, 15, and 16, 2006. The parties stipulated that these searches were conducted by defendant.

On October 8, defendant searched with the key words “firearms,” “anarchist cookbook,” “make silencer,” and “handgun.” He also apparently accessed a Web site dealing with how to make disposable silencers. On October 11, he searched the Military Library portion of the site, which involved silencers, body armor, explosives, and the like. The site apparently listed several books about silencers. Defendant found other links to sites involving silencers, and searched with the key words, “homemade silencers” and “how to make silencer.”

On cross-examination, Tong testified that defendant did not actually order anything from the Web sites, such as books or videos, and may not in all cases have gone all the way into a Web site to reach the actual details on how to make a silencer.

On October 15, defendant searched with the key words, “Faces of Death,” and found a Web site summarizing a video called “Faces of Death III” as follows: “A journey of death, disaster on the Autobahn, parachutist landing in a crocodile pit, torture and murder in El Salvador, video tape of rape and murder, and a car thief versus two junk yard dogs.” Defendant also accessed a link to “Faces of Death IV,” summarized as “depict[ing] cremation, electrocution, a[] terrorist[] destroyed by his own bomb, massacre of a Columbia[n] wedding party, the drawing and quartering of a Russian peasant, man-eating tiger turning on its trainer.”

Defendant did not testify. He presented evidence that Latifa did not pick him (or anyone else) out of a lineup, where she did not seem to pay attention. He also presented to the jury readbacks of Latifa’s testimony at pretrial 402 hearings, in which she testified defendant was not her mother’s killer. Specifically, at the pretrial hearings Latifa testified the shooter wore a black shirt and had a black forehead. She identified a show-up photograph of defendant as the man who shot her mother, then said it wasn’t him because he wasn’t black. She said, “Why is he white? ¶ [H]e wasn’t white. He was black. He was black.” She also said the photograph of defendant was “not him.” But she also said she was telling the truth when she told police the man in the photograph had shot her mother.

Finally, defendant presented testimony of a neuropsychologist that children under four have difficulty remembering strangers, and that the police questioning of Latifa was suggestive. This was to counter prosecution expert testimony to the contrary.

There is no substantive issue on appeal that the police questioning, or the in-field show-up, was impermissibly suggestive in violation of constitutional principles.


Defendant contends that Latifa was not competent to testify at trial, and that she was not competent at the time she made her in-field identification of defendant on the day of the murder. Defendant also contends Latifa’s father tampered with her testimony, primarily regarding the color of the shirt worn by the shooter. Finally, he contends the court erred by admitting defendant’s Internet searches for firearm silencers. We reject defendant’s contentions for the reasons set forth below.

Competency. The law of witness competency is straightforward. Generally, “every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (Evid. Code, § 700; see People v. Mincey (1992) 2 Cal.4th 408, 444 (Mincey).) A person is disqualified to be a witness, i.e., incompetent to testify, if he or she is either “[i]ncapable of expressing himself or herself concerning the matter so as to be understood...” or “[i]ncapable of understanding the duty of a witness to tell the truth.” (§ 701, subd. (a); see Mincey, supra, at p. 444.)

Subsequent statutory references are to the Evidence Code unless otherwise indicated.

Under section 701, the court determines competency based on a witness’s “capacity to communicate and his understanding of the duty to tell the truth.” The witness’s capacity to perceive and recollect facts is “a condition for the admission of his testimony concerning a particular matter instead of a condition for his competency to be a witness.” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 701, p. 284.) The witness’s capacity to perceive and recollect is generally only preliminarily determined by the court, and is ultimately left to the trier of fact. (People v. Lewis (2001) 26 Cal.4th 334, 356 (Lewis).)

Likewise, inconsistencies or exaggerated statements in a witness’s testimony do not raise questions of competency, but only questions of credibility to be resolved by the trier of fact. (Lewis, supra, 26 Cal.4th at pp. 356−357; Mincey, supra, 2 Cal.4th at pp. 444−445; In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299; People v. Willard (1983) 155 Cal.App.3d 237, 240 (Willard).)

“[T]he California courts have permitted children of very tender years... to testify. [Citations.]” (Cal. Law Revision Com. com., 29B West’s Ann. Evid. Code, supra, foll. § 701 at p. 285; see Bradburn v. Peacock (1955) 135 Cal.App.2d 161, 164−165 (Bradburn).) Children as young as three have been found to be competent witnesses. (1 McCormick on Evidence (6th ed. 2006) Competency, § 62, pp. 305−306, fn. 10; see Bradburn, supra, at pp. 164−165.)

The party challenging a witness’s competency bears the burden of showing disqualification. (People v. Dennis (1998) 17 Cal.4th 468, 525.) A trial court’s determination of competency will not be disturbed absent a clear abuse of discretion. (Ibid.; Mincey, supra, 2 Cal.4th at p. 445; Willard, supra, 155 Cal.App.3d at p. 239.)

Defendant claims Latifa was not competent to testify at trial. He points to the inconsistencies between her trial testimony and her testimony at pretrial section 402 hearings. But inconsistencies in testimony speak to credibility, not competency. The jury heard both the trial and the pretrial testimony and had the opportunity to observe Latifa’s demeanor at trial, both on direct and on cross-examination. It was the province of the jury to determine her credibility as a witness.

Defendant also argues that Latifa’s definition of truth included “whatever her father and her sister told her.” This is an overstatement. Defendant primarily relies on the claim that Latifa’s father told her to testify about the color of the shirt. We discuss that in the next section. Defendant also relies on Latifa’s brief testimony at the competency hearing that she would “believe it” if her sister or father told her something was true. At that hearing, she also testified clearly that she knew the difference between truth and a lie and the consequences of lying: going to “jail” and “very hot fire” in “hell.” The record simply does not support the sweeping assertion that Latifa’s concept of truth was whatever her sister or father said it was.

The trial court found Latifa knew the difference between truth and lies and was therefore competent. Defendant has not met his burden to show that ruling was an abuse of judicial discretion.

Defendant also argues that Latifa lacked the necessary personal knowledge to testify as to the identity of the shooter under section 702. This is separate from the issue of competency. In any case, she witnessed the shooting and saw the man who shot her mother. This gives her the requisite personal knowledge to identify him.

Defendant also argues that Latifa was incompetent to testify as a witness on the day of the homicide, some 15 to 16 months before trial, so that it was error to admit—as a hearsay exception under section 1238—her prior identification of defendant at the in-field showup at the fire station. Apparently, the trial court did not directly rule that Latifa was incompetent on the day of the homicide—but defendant cites to statements she made at the CALICO interview to suggest that she did not know the difference between the truth and a lie on the day she made the in-field identification.

Defendant relies on People v. Sanchez (1864) 24 Cal. 17 (Sanchez), but that case did not involve witness competency. It held only that a dying declaration, as a hearsay statement, must “stand upon the same footing as the testimony of a witness sworn in the case, and [be] governed by the same rules....” (Id. at p. 26.) That is, the dying declaration must be limited to the facts relevant to the issue—the circumstances causing the imminent death of the dying declarant—and not irrelevant facts or matters of opinion. (Ibid.)

Defendant also relies on two cases, distinguishable from the present case, in which a child was found incompetent to testify at trial. In People v. Ewing (1925) 71 Cal.App. 138 (Ewing), this court held that hearsay statements of a child were erroneously admitted to prove the corpus delicti when the child was not competent to testify at trial. (Ewing, supra, at pp. 140−143.) In In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.), the court held that if a child was found incompetent to testify his extrajudicial statements were also inadmissible, even if those statements were contained in a social study report otherwise admissible as an exception to the hearsay rule. (Basilio T., supra, at pp. 164−167.) The court suggested that incompetency at the time of the hearsay declaration would render it per se inadmissible, but seemed to presume incompetency at the time of the prior hearsay declaration from the young child’s incompetency at trial. (Id. at p. 167.) But the court also cited a passage of Wigmore which suggests that incompetency at the time of the hearsay statement would render it inadmissible even if the witness is competent to testify at trial. (Id. at pp. 166−167.)

Although it is not pertinent to our analysis, we note that Basilio T. has been superseded by statute in that hearsay statements in social studies are now admissible even if the child is incompetent to testify. (Welf. & Inst. Code, § 355, subd. (b); In re Lucero L. (2000) 22 Cal.4th 1227, 1239−1243.)

We need not resolve this issue under the testimony offered by Latifa in this case. Latifa was found competent to testify at trial and we uphold that finding. As a competent witness testifying in court, she identified a photograph of defendant as the man who shot her mother. This is more than sufficient competent evidence of the identity of the murderer.

Latifa also testified she remembered the in-field identification and was telling the truth when she identified defendant— thereby essentially ratifying the pretrial identification pursuant to section 1238. There is nothing to indicate Latifa, at the time of the identification, did not have the ability to perceive and recollect an event which had just occurred and which she witnessed. Her identifying statements to the officer would have been admissible if made by her while testifying. The fact that she was subsequently interviewed by adults at CALICO, and made statements suggesting she might not understand the meaning of the terms “truth” and “lie,” does not indicate she was unable to understand the concept of truthfully conveying events she had recently perceived. She was subject to cross-examination regarding her prior identifying statements. Any contradictions in her testimony raise matters of credibility that were squarely in the province of the jury. (Cf. People v. Gipson (2004) 117 Cal.App.4th 1065, 1071−1072 [“The fact that a witness may have suffered from mental disorders does not by itself support the claim that he is incapable of communicating so as to be understood. If there is evidence that the witness has the capacities to perceive, recall, and narrate, the determination whether he in fact perceived and does recall is left to the trier of fact. [Citation.]”].)

Section 1238 provides: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:

Alleged Witness Tampering. Defendant contends that Latifa’s father, Ansari’s husband Ahmad Ansari, tampered with Latifa’s testimony by telling her to identify a photograph of defendant as the man who shot her mother, and by telling her that the shooter wore a white shirt.

Ahmad Ansari testified that Latifa knew the difference between right and wrong. Generally, Latifa did not want to talk to him about her mother’s murder. Mr. Ansari told Latifa to tell the truth, and did not tell her what to say. The prosecutor told Mr. Ansari not to tell Latifa what to say. Mr. Ansari told Latifa to tell the truth. He did not correct her descriptions—for instance, he did not tell her she was wrong when she said, initially, that the shooter’s shirt was black. She had mentioned a man without arms before being shown a picture of defendant.

Defense counsel asked Mr. Ansari to explain the discrepancy between Latifa’s pretrial testimony that the shooter’s shirt was black and her trial testimony that the shirt was white. He said that at the time of the pretrial testimony she knew the color black, but did not know the colors red and white. During the time between the pretrial hearings and the trial, Mr. Ansari taught Latifa the colors white and red. When he talked to her about colors, he did not talk to her about her testimony, i.e., “about the picture and the man.” At the time of trial, Mr. Ansari was still not sure Latifa understood the color white.

Latifa testified at trial that she had learned the color white the weekend before she testified—but she denied her father had taught her the color white.

As this testimony shows, Mr. Ansari denied telling Latifa what to say and testified that he simply taught her the color white between her pretrial and her trial testimony. In denying defendant’s mistrial motion based on alleged witness tampering, the trial court ruled that any question of manipulation of the witness was for the jury. The court found that Latifa’s indication that her father told her what to say was subject to interpretation, and that Mr. Ansari’s teaching her the color white could be interpreted in multiple ways and was not necessarily an indication of manipulation.

We review a denial of a mistrial for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 282.) Under the circumstances before the trial court, given the tender age of the child witness and the testimony of Mr. Ansari, we cannot conclude the trial court abused its discretion. It was a matter for the jury to assess the credibility of Latifa and her father on the question of possible manipulation. The jury resolved that question against defendant. We see no error.

Evidence of Internet Searches. Defendant contends the trial court erred by admitting evidence of his Internet searches for firearm silencers. He claims there was no evidence the shooter used a silencer and admission of the searches was therefore prejudicial.

Defendant primarily relies on People v. Riser (1956) 47 Cal.2d 566 (Riser) and People v. Rinegold (1970) 13 Cal.App.3d 711 (Rinegold). These cases are inapposite. They merely state the rule that where the specific type of weapon used to commit the crime is not known, the People may introduce evidence of any weapons found in the defendant’s possession as circumstantial evidence of guilt—but where the People rely on a theory that a specific type of weapon was used, evidence of other weapons may not be admitted. In the latter case, evidence of weapons unrelated to the charged crime would be impermissible character evidence, i.e., evidence that defendant was the sort of person who carried deadly weapons. (Riser, supra, at p. 577; Rinegold, supra, at pp. 720−721.)

Riser was overruled on an unrelated ground in People v. Morse (1964) 60 Cal.2d 631, 637−638, fn. 2, 648−649.

But defendant’s argument does not involve weapons, but silencers. And there is no issue of admitting evidence of a particular type of silencer in contradistinction to evidence of a different type said to be used in the crime. Here, the evidence was of searches for silencers in general. This evidence was relevant because, contrary to defendant’s claim on appeal, there was evidence to suggest a silencer was used to kill Alia Ansari. Several witnesses heard a popping noise, as opposed to a gunshot. And White, whom defendant shot at the day before the killing, testified the gun sounded like a smaller caliber than the type of weapon actually used in the killing. This suggests the possibility that the weapon used by defendant was quieter than it should have been—because defendant was using a silencer.

Defendant argues that Rinegold extended the Riser rule to firearm “implements,” such as silencers. Defendant misreads a passage of Rinegold—in which the word “implement” was used to refer to a weapon, not a “weapon implement” such as a silencer. (Rinegold, supra, 13 Cal.App.3d at p. 720.)

Thus, defendant’s Internet searches for silencers in the weeks before the killing were pertinent to his state of mind regarding premeditation and deliberation, and evidence of the searches was properly admitted.

Defendant does not formally challenge, with citation to specific applicable authority, the admissibility of the evidence that he viewed the “Faces of Death” videos. This was improper character evidence and should not have been admitted. But any error is harmless.

We find no error from the contentions raised on appeal. Accordingly, we reject defendant’s final claim of cumulative error.


The judgment of conviction is affirmed.

We concur: Margulies, J. Dondero, J.

(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;

(b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and

(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”

Summaries of

People v. Mares

California Court of Appeals, First District, First Division
Feb 5, 2010
No. A121521 (Cal. Ct. App. Feb. 5, 2010)
Case details for

People v. Mares

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL MARES, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Feb 5, 2010


No. A121521 (Cal. Ct. App. Feb. 5, 2010)