The jury found defendant Joseph A. Sisneros guilty of the first degree murder of Luis Charles (Pen. Code, § 187, subd. (a))
In his timely appeal, defendant raises various contentions of error arising out of the trial court's decision to permit the prosecution to call Gloria Luna as a witness with the knowledge that she would refuse to be sworn and submit to questioning: (1) In violation of Evidence Code section 600, there was no admissible, nonspeculative inference that could be drawn from Luna's refusal; (2) the jury's consideration of her refusal violated defendant's right to confront adverse witnesses under the Sixth Amendment; (3) the jury's consideration of Luna's silent conduct also violated Evidence Code section 710 and defendant's right to due process under the state and federal Constitutions because convictions cannot be based on unsworn testimony; and (4) the court abused its discretion under Evidence Code section 352 in permitting Luna to be called as a witness. Defendant also raises two interrelated arguments arising out of Agent Daniel Evanilla's expert testimony
STATEMENT OF FACTS
It was stipulated for purposes of the felon in possession count that defendant had suffered a prior felony conviction.
On January 25, 2005, Paul "Pelon" Morales was staying with his friend Alfie, who lived on Buelah Avenue in the territory claimed by the Geraghty
Morales's friend "Pirate" stopped his van next to Morales with the engine running. Within a few minutes after the Gallant passed by, Morales heard two or three gunshots from the direction of Geraghty. Morales turned and saw defendant shooting Luis "Stranger" Charles, a Geraghty Loma gang member, who was lying on his back at the corner of Buelah and Geraghty.
Morales asked Pirate to drive him to the corner where the shooting took place. Pirate dropped him off at the intersection. Charles's girlfriend, "Sola," was on the front porch of Paul "Spider" Ortega's house. Morales approached Charles and asked if he was "all right." Charles was bleeding from his arm and calling to the people in Ortega's house to alert 9-1-1. Morales told him, "Hold on. Help is on the way." Charles did not answer when Morales asked who shot him.
Firefighter Victor Davila lived on Geraghty near the shooting location. He was at home at the time and heard five gunshots fired in quick succession. After waiting to make sure the shooting had stopped, Davila walked to his front gate and saw Luna's Gallant driving slowly northbound on Geraghty. From a distance of 10 feet, Davila saw the driver was a woman with dark, "wavy mousey hair"; the passenger was a bald male with a dark "chopped style moustache." They appeared to be "[o]lder type gangsters." There were no other cars driving on the street. Davila turned his attention to Charles, who was lying on his back and screaming in pain. Davila went back to his house for his medical bag, returning to give first aid to Charles. Charles told Davila he was having trouble breathing. There were four or five visible gunshot wounds, some of which had entered Charles's chest. Charles was taken away in an ambulance.
Ortega lived on Geraghty for approximately 10 years, but moved away several months after the shooting incident. Ortega was a member of the Cantaranas gang, based in Santa Fe Springs. By the time of the shooting, however, Ortega had become friends with all his neighbors, including those from Geraghty Loma. His home had become a hangout for Geraghty Loma members. He was friends with Charles. Ortega was also acquainted with defendant, whom he knew as "Joe-Joe." On the day of the shooting, Charles and his girlfriend Marlene (whose gang moniker was "Sola") were visiting Ortega's house. Ortega was cooking. At approximately 4:00 p.m., Ortega heard four or five gunshots in front of his house. A few minutes later, he left the house alone and approached Charles, who was standing in front of his house; Charles had suffered bullet wounds to his stomach and left arm.
Charles eventually died from complications arising out of the multiple gunshot wounds he received.
Agent Evanilla, a gang expert, had monitored the activities of the Mexican Mafia since 1995. The prison gang was comprised of approximately 165 members and 1,200 "validated associates." The gang's primary activities are committing murders, robberies, extortion, and other crimes to raise money for the gang.
Agent Evanilla's knowledge of the Mexican Mafia came from various sources, including his interviews with gang members and associates either when they are arrested, after being released, or when they attempt to leave
The Department relies on a "validation system" to classify an inmate as a member or associate of the Mexican Mafia. An associate is an aspiring member who commits criminal activities on behalf of the gang as a necessary prerequisite for membership. A Mexican Mafia member will sponsor a person identified as "a good earner" for the gang—someone who obtains money for the gang by "taxation" of drug dealers on the street and drug sellers in prison. The aspiring member must also accept gang assignments to assault other inmates in the interest of the Eme. If the aspirant does well in these matters and receives the necessary sponsorship, his membership will be put up to a vote by the existing members. In addition, full-fledged membership requires the commission of a stabbing or killing on behalf of the gang. Leaving the gang will subject a member to being targeted for killing by the gang. Prison investigators monitor the prison activities, mail, and telephone calls of all Hispanic inmates from Southern California gangs to determine their status vis-a-vis the Mexican Mafia. If three independent investigators uncover a direct link between an inmate and a previously validated member or associate, the inmate will be deemed a validated member or associate. The Department reviews and updates its validations every six years.
While on the streets, members of Hispanic gangs in Southern California will attack members of rival Hispanic gangs. However, once in prison, all such gang members must eschew such rivalries in favor of allegiance to the Mexican Mafia and its rivals. At the same time, the Mexican Mafia exercises a supervisory role over Hispanic street gangs in Southern California by designating a representative in each street gang who is responsible for remitting a portion of the gang's criminal proceeds to the Mexican Mafia. Failure to cooperate with the Mexican Mafia in that regard or in refusing assignments will result in being put on a "green light" list, whereby they are targeted for killing by Mexican Mafia members and associates.
The expert believed defendant was an Eme associate based on his being validated by the Department in the early 1990's when he was incarcerated at Folsom Prison. In connection with his six-year review in 2000, defendant did not dispute his Eme affiliation. The agent's opinion was bolstered by two recent incidents in county jail that showed defendant being treated as a Mexican Mafia associate. According to Agent Evanilla, victim Charles was a
Based on a hypothetical set of facts that recapitulated the prosecution case for murder, Agent Evanilla opined the killing of Charles would have been committed to benefit the Mexican Mafia. The expert explained that the manner of the killing was not typical of a street gang driveby shooting in which the shooters would remain in the car and try to avoid being seen and identified. Here, the shooter got out of the car in broad daylight and committed the shooting with no regard to witness identification. This was consistent with the Mexican Mafia's reputation for witness intimidation. The manner of shooting was also consistent with Mexican Mafia protocol—and contrary to a street gang driveby—in that the shooter was careful to avoid shooting innocent bystanders.
I. Luna's Refusal to Take the Witness Oath
Defendant raises four interrelated claims of state law evidentiary error and federal and state constitutional violations arising out of the trial court's decision to permit the prosecution to call Luna as a witness, knowing she intended to remain silent and refuse the testimonial oath at the risk of being cited for contempt. To place those claims in context, we summarize the relevant trial court proceedings.
On the fifth day of trial, Luna was taken out of custody and brought to court for a hearing outside the jury's presence. She was represented by her own counsel. The prosecution was aware of Luna's strong disinclination to testify, but argued she was subject to being called as a witness because she lacked a Fifth Amendment right against self-incrimination. Luna had been charged with murder along with defendant, but she entered a plea to being an accessory to the Charles murder and admitted the gang allegation. She received a seven-year term and did not appeal within the jurisdictional time period. Luna's counsel agreed that she had no constitutional right to remain silent, but informed the trial court that Luna would nevertheless refuse to be sworn as a witness and would refuse to answer any questions, despite the risk of being held in contempt. When the court asked Luna to confirm her attorney's representation, Luna refused to acknowledge the court.
Based on People v. Lopez (1999) 71 Cal.App.4th 1550 [84 Cal.Rptr.2d 655] (Lopez), the prosecutor requested that the trial court order her to testify in
The defense objected to Luna's being placed in front of the jury for any purpose. Her status as a prior codefendant "would raise certain issues about the right to confront and cross-examine a witness being called by the People." The defense argued that allowing the jury to draw a negative inference from her refusal would be improper because any inference would be purely speculative as to her motivation (e.g., love for defendant or fear of retribution).
The trial court ruled that Luna would be called and administered the oath. If she refused, she would be ordered to do so and advised her failure would result in a contempt citation. Contrary to the prosecution's position, the court ruled the prosecution would not be permitted to question Luna if she refused to be sworn.
Luna was called as a prosecution witness. When the clerk attempted to administer the oath, Luna made no response. The trial court asked whether she understood the clerk's request. Again, she made no response. The court advised Luna that she had no constitutional right to refuse the oath or to testify. When she made no response, the court ordered her to be sworn as a witness. In the face of Luna's continued silence, the court advised her that further refusals would merit a finding of contempt of court. Given "one last opportunity," Luna persisted in her silence. The court found her in contempt because she "refused to answer any questions of the court or to take the oath, in direct violation of lawful order of this court, in the presence of the court." The court added that her punishment would be determined at a later date. Following Luna's excusal, the court instructed the jury that "the appearance of the last individual and anything as a result of it is received for a limited purpose only. It is received only for [the] limited purpose as it may relate to any expert opinion offered by Agent Evanilla and for the basis of any expert opinion."
In the first aspect of his claim, defendant argues the trial court's ruling violated Evidence Code section 600, subdivision (b),
Nor do we perceive a reasonable likelihood of impermissible prejudice. Not only did the trial court specially instruct the jury that Luna's conduct was to be considered solely as support for the gang expert's opinion, but it also instructed more generally that evidence admitted for a limited purpose could be considered only for that purpose. Further, the jury was not to speculate as to why "a person other than defendant was or may have been involved in" the charged offenses was not being prosecuted, and the jury was not bound to accept an expert opinion, but "must consider the strengths and weaknesses of the reasons" supporting the opinion. "`[It is] the almost invariable assumption of the law that jurors follow their instructions.' [Citation.] `[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to
Defendant also argues the trial court's ruling violated Evidence Code section 710 and his right to due process under the state and federal Constitutions because convictions cannot be based on unsworn testimony. Under California law, it is generally the case that "[e]very witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law ...." (Evid. Code, § 710.) However, there was no statutory error or due process violation because, as the trial court carefully instructed, Luna was not a witness and did not testify.
Finally, by failing to interpose a timely and specific objection based on Evidence Code section 352, defendant forfeited his contention that the trial court abused its discretion under that provision in permitting Luna to be called as a witness in the jury's presence. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1130 [74 Cal.Rptr.2d 121, 954 P.2d 384].) In any event, were the issue properly before us, it would fail on the merits. Luna's appearance was admitted for a single, narrow purpose—to support the gang expert's opinion that the Mexican Mafia typically engaged in efforts of witness intimidation. Her refusal to be sworn as a witness was highly probative in that regard and there is no basis in the record to find the jury considered it for any other purpose.
In sum, there was no state law evidentiary error or constitutional violation arising out of Luna's refusal. In addition, any error would have been harmless whether assessed in terms of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had ruled for the defense, or the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], applicable to constitutional claims of error.
The judgment is corrected to delete reference to the $5,030 state construction penalty. The clerk of the superior court is to forward a copy of the amended abstract of judgment and minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Armstrong, Acting P. J., and Mosk, J., concurred.