NOT TO BE PUBLISHED IN OFFICIAL REPORTS
BAMATTRE-MANOUKIAN, Acting, P.J.
Defendants Richard Anthony Rodriguez, Joshua Samuel Herrera, and Alex Ray Samaro were convicted after jury trial of robbery in an inhabited dwelling while acting in concert (Pen. Code,
On appeal, Rodriguez contends that: (1) the trial court violated his federal constitutional rights and state laws when it admitted inculpatory hearsay statements by Samaro and Alexander Diaz; (2) the court violated his federal constitutional rights when it admitted evidence regarding an unrelated homicide; (3) there is insufficient evidence to support the gang enhancements; (4) the court violated his federal constitutional rights by failing to give a unanimity instruction on the assault count; (4) the punishment for the assault count must be stayed pursuant to section 654; (5) this court should review a sealed transcript of an in camera hearing; and (6) his trial counsel rendered ineffective assistance by failing to request an instruction precluding the jury from relying on a factually inadequate theory to convict him of the assault count. Rodriguez also joins in all arguments by his codefendants to the extent that they apply to him.
Herrera contends that: (1) the trial court violated his federal and state constitutional rights by admitting inculpatory hearsay statements by Samaro and Diaz; (2) there is insufficient evidence to support the assault conviction and the true finding on the personal use enhancement to the robbery count; and (3) the court violated his constitutional rights by failing to instruct the jury on the natural-and-probable-consequence requirement for aiding and abetting. Herrera also joins in all arguments by his codefendants to the extent that they apply to him.
Samaro contends that: (1) the trial court violated his constitutional rights by admitting Diaz's inculpatory hearsay statements to Sonia Ramirez and Samaro; (2) there is insufficient evidence to support the gang enhancements; (3) the court erred by failing to give a unanimity instruction on the assault count; and (4) the punishment for the assault count must be stayed pursuant to section 654. Samaro also joins in all arguments by his codefendants to the extent that they apply to him.
We find no error requiring reversal of any of the counts or enhancements and, therefore, we will affirm the judgments.
All three defendants were charged by first amended information with robbery in an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); count 1), first degree burglary while an inhabitant was present (§§ 459, 460, subd. (a); count 2), and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 3). The information separately charged Samaro with possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 4) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 5), and Rodriguez with attempting to dissuade a witness by use of force or threat (§ 136.1, subd. (c)(1); count 6). The information further alleged that all three defendants committed the robbery, burglary, and assault for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)); that all three defendants personally used a firearm in the commission of the robbery (§ 12022.53, subd. (b)); that Samaro personally used a firearm during the commission of the burglary (§ 12022.5, subd. (a)); that Samaro possessed the methamphetamine for the benefit of or in association with a criminal street gang; and that Rodriguez attempted to dissuade the witness for the benefit of or in association with a criminal street gang.
On April 26, 2006, upon stipulation of the parties, the court held an in camera hearing to review "Brady material for the purposes of impeachment or any other evidence to be used by a Defense in this particular case."
The prosecutor moved in limine to introduce statements Samaro made during a recorded conversation with Alexander Diaz "about what Samaro did," stating that "none of [the statements] actually reference the other defendants." The court found that Samaro's statements were ones against his penal interest, and ruled that the redacted statements would be admitted. Defendants objected to the prosecutor's motion to introduce evidence regarding a homicide committed by Diaz in Olinder Park as one of the predicate offenses for the criminal street gang enhancement. The court overruled defendants' objection. The court also denied Rodriguez's request to sever the trial on count 6, and denied Herrera's request to bifurcate trial on the gang enhancements.
The Prosecution's Trial Evidence
The Charged Offenses
On April 24, 2003, Thomas Martinez
In early May 2003, Martinez told Diaz's parole officer and San Jose Police Sergeant Byron Jones that Diaz might be responsible for the Olinder Park homicide. Ramirez moved out of the apartment for unrelated reasons, but she left some of her personal belongings there. She called Martinez on May 9, 2003, and told him that she was not coming back and that, if he did not give her her belongings, he would be dealt with. Martinez told her to come get them. Soon thereafter, Diaz called Martinez and asked to borrow some money, but he did not say that he was going to collect Ramirez's belongings. Ramirez testified that Diaz did not like Martinez because of the way Martinez treated her, and that she did not ask Diaz to collect her belongings from Martinez's apartment.
On May 9, 2003, a team of San Jose police officers conducted surveillance on Diaz because he was a suspect in the Olinder Park homicide. Around 10:15 a.m., Diaz left a residence on Cleveland Avenue and the officers followed him until he arrived at a house on Longacre Court at 11:38 a.m. Other men were at the Longacre house, apparently "hanging out." Around 12:27 p.m., while Diaz was talking to the occupants of a Toyota that had pulled into the driveway, the officers saw that Diaz had a gun in his back waistband.
Around 12:40 p.m., Diaz and defendants got into a green Honda. Herrera was the driver, Samaro was the front passenger, and Rodriguez and Diaz were the back passengers. The officers followed the Honda as it drove around and finally arrived at an apartment complex on Saratoga Avenue in Santa Clara around 2:00 p.m. The Honda pulled up to the curb and the three passengers got out. While they quickly went up a stairway in the front of the complex, Herrera drove forward 30 to 40 yards and then backed the car into an alley. He left the car running and constantly looked over his shoulder at the apartment complex. Diaz, Rodriguez and Samaro entered an upstairs apartment, later determined to be Martinez's apartment. The surveillance officers could not tell whether any of the three men were carrying anything when they went up the stairway and entered the apartment.
Diaz entered Martinez's apartment alone and asked to borrow some money from Martinez. Martinez looked out the window when he heard a knock on the door, and he saw Rodriguez, whom he recognized. Diaz said that Rodriguez had given him a ride, so Martinez allowed Diaz to let Rodriguez in. After Rodriguez came inside, there was another knock on the door. Rodriguez opened it. Samaro backed inside and closed the door. He turned around and cocked and pointed a sawed-off shotgun at Martinez. Rodriguez then pulled out a handgun and pointed it at Martinez. Diaz held out a knife and told Martinez to get down on the floor. Although Martinez thought he had $500 in a bedroom dresser drawer when the three men entered his apartment, he said that he did not have any money.
Martinez did not lie down. Instead, he grabbed Diaz, who was standing in the bedroom doorway, threw him towards Rodriguez and Samaro, and ran into the bedroom. He slammed the bedroom door shut and pushed the top part of a dresser up against it. He then unbolted and opened the back door, pushed open the latched screen door, ran onto the back walkway, and jumped down to the ground. He hurt his right knee and shoulder when he hit the ground, and got up and ran as best he could. He heard somebody running in front of the apartment and he saw Rodriguez running towards him. Rodriguez hit him in the face and the two of them fell over a short fence as they wrestled with and hit each other.
Martinez pulled Rodriguez's shirt over his head and then took off running. He hid at a nearby complex, then went to a store and used a public phone to call Sergeant Jones. After he talked to Jones, Martinez returned to his apartment and found both the front and the back doors open. He closed the back door, went inside through the front door to get his keys, closed the front door, and left again. Officers arrived before Martinez was able to leave the complex. Martinez had a bruise on his face, an abrasion on his left shoulder/bicep area, blood on his hand from a cut, and he was limping. He had not noticed that anything was missing from his apartment when he first went back to it because it was in disarray, but he later discovered that the $500 he thought he had was not in his dresser drawer, and a small white safe that may have contained methamphetamine had been taken from the bedroom. Martinez testified that the safe belonged to Ramirez, but Ramirez denied it. Nothing else had been taken.
Officers saw Samaro leave the apartment and run down the front stairway and around to the back of the apartment complex. Around 2:06 p.m., officers saw Diaz and Rodriguez leave the apartment, go down the front stairway and directly to the Honda, and get into the rear seat. Rodriguez had a small white safe with him, and Diaz had what looked like a sawed-off shotgun wrapped in clothing. Officers saw Samaro reappear about 15 seconds later, run directly to the Honda, and get into the front passenger seat. Before Samaro had his car door shut, the Honda sped away. Officers followed the Honda as it went directly back to the Longacre house. The officers were advised by their sergeant while en route that a home invasion robbery had just occurred at the Saratoga Avenue apartment.
The Honda arrived at the Longacre house at 2:36 p.m. Diaz and defendants left the Honda and went inside the house carrying the safe and bundled shotgun. Around 2:42 p.m., officers heard a firearm being discharged inside the residence. Around 2:48 p.m., Herrera and Samaro came out of the residence, got back into the Honda, and left.
Rodriguez and Diaz were taken into custody at the Longacre house later that day. Rodriguez tried to flee out the back and Diaz was found some hours later in the trunk of a car in the garage. Rodriguez had gang-related tattoos and fresh scratch marks on his neck, back, and wrist. An empty white safe; a gray safe containing methamphetamine, live shotgun shells, batteries, a scale, and two rolls of film; and two sawed-off shotguns were found on the floor of the living room, which was being used as a bedroom. Red gang graffiti was on all four walls of the room, including the red initials VMF and VNC and the words "San Jo XIV," and the front window was broken. A pellet gun was found in the garage. Two sets of paperwork with Rodriguez's name on them and another roll of film were found in a closet of another bedroom. Three live shotgun shells were found inside a bathroom toilet bowl and two spent shotgun shells were found on the front porch. Some of the photographs on the three rolls of film depicted Herrera with other individuals, including Diaz, Samaro, and VMF gang member Francisco Duran, wearing gang-related clothing and displaying gang-related hand signs.
Samaro was taken into custody that same day following a traffic stop of the green Honda. He had gang-related tattoos at the time of his arrest. He was the passenger in the Honda, and he ran from the officers who made the traffic stop. He was followed and stopped at gunpoint. He pulled a clear plastic bag containing 55.8 grams, or around two ounces, of methamphetamine from his waistband and threw it underneath a car before being taken into custody. The value of the methamphetamine would be between $600 and $2,000, depending on its quality. A typical methamphetamine user uses only about one gram of methamphetamine a day.
Herrera, the driver of the Honda at the time of the traffic stop, was taken into custody at the site of the stop. At the time, Herrera had gang-related tattoos. The following items were seized following a later search of Herrera's bedroom: a photo album containing photos of Herrera and others, including Samaro, wearing gang-related clothing and displaying gang-related hand signs; gang-related clothing; and a copy of a newspaper article on the Olinder Park homicide. The parties stipulated that Diaz was convicted of murder as a result of the Olinder Park homicide but there is no evidence that any of the defendants were present at the time that homicide occurred.
A crime scene investigator found blood on the front door knob and door jamb of Martinez's apartment. There was a dresser partially blocking entry through the door from the living room into the bedroom, the top part of that dresser was on the bed, and the bedroom was in disarray. Black scuff marks, which appeared to have been made by a shoe trying to force the door open, were on the living room side of the bedroom door. The screen door and door frame of the door leading from the bedroom to the back walkway were damaged from having the screen door forced open. Two small pieces of black plastic were found and seized from the carport on the side of the apartment complex. The plastic pieces were from the pellet gun found in the garage of the Longacre house. The $500 that Martinez reported missing from his dresser drawer was not found at the Longacre house or on Samaro or Herrera.
Martinez testified that, when he was in a holding cell before testifying at the preliminary examination in this case, Rodriguez, who was in the next holding cell, said to him, "you're going to get yours." Martinez said that he testified at the preliminary hearing and at the trial, nonetheless, because he felt an "obligation" to do so due to the fact that a 15-year-old child had been shot to death.
The Gang Evidence
San Jose Police Officer Gregory Lombardo testified as an expert witness regarding gang activities. He testified that Northern California Hispanic street gangs, Norteños, identify with the letter N, the number 14, and the color red. Their rivals, Sureños, identify with the letter M, the number 13, and the color blue. Norteño gang-related tattoos include various depictions of the number 14 and the word Norte. Norteño gang members from San Jose often have a shark tattooed on their chest or the number 408.
Gang members perceive that "snitching" or cooperating with the police is "one of the ultimate insults you could do to their gang." "If you don't agree with what they're doing, you can't tell anybody about it, you can't snitch because if you were to snitch your health would be in jeopardy, your life would probably be in jeopardy, depending on the severity of the crime." "If you're actually in the gang and you're not involved in what they are doing, they're going to look at you and not trust you anymore." "You'll lose respect in the gang, you may get kicked out of the gang, you may get hurt, you may even get assaulted by the gang because you're not participating."
Varrio Meadow Fair (VMF) is a Norteño gang that frequents the area in San Jose from which they take their name. The gang has been in continuous existence since the 1990s. At last count, a few years before trial, there were 35 to 40 active members of VMF. Its primary activities are assaults with a deadly weapon, murder and attempted murder, possession for sale of narcotics, witness intimidation, burglary, and robbery. Herrera is a member of VMF.
Varrio Norte Catorce (VNC) is a Norteño gang that frequents the same area as does VMF, and the "[t]wo gangs were kind of like sister gangs. VNC is more the enforcement arm" for VMF. VNC was formed by Diaz and another person, it had been in continuous existence for four or five years at the time of trial, and it had 10 to 15 members at last count. Its primary activities are murder, assaults with a deadly weapon, and robbery. Samaro and Rodriguez are active members of VNC.
Lombardo testified regarding five separate incidents following which VMF gang members were convicted of attempted murder with a street gang enhancement, witness intimidation with a street gang enhancement, assault with a deadly weapon with a street gang enhancement, or voluntary manslaughter with a criminal street gang enhancement, as a result of the incidents. Lombardo also testified regarding the Olinder Park incident for which Diaz was convicted of murder with a criminal street gang enhancement. At the time Diaz committed the murder, he was with another VNC gang member and a VMF gang member.
In Lombardo's opinion, the offenses committed against Martinez were committed for the benefit of VMF and VNC rather than as an attempt by Diaz to avenge Ramirez. Diaz did not go to Martinez's apartment alone, he went with VMF and VNC gang members, they took the safe and any money found back to their gang house rather than to Ramirez, and they did not take anything else belonging to Ramirez. Taking the safe and money from Martinez's apartment would benefit both gangs because the gangs could use or sell the drugs or other items of value they found in the safe, they could use any money found to buy weapons or drugs or anything else the gang wanted, and they could use the safe itself to store or hide things. In addition, by entering Martinez's apartment using a show of force and threatening Martinez, they have increased the prestige of each individual involved within their respective gangs, and enhanced the reputation of their gangs, because they "took care of business . . . and showed him that [they] can't have that kind of disrespect toward a gang member's family." In addition, the threats Rodriguez made against Martinez while they were both in custody were made for the benefit of both gangs because intimidating Martinez would jeopardize the case against all three defendants.
The Out-of-Court Statements
After the police interviewed Diaz on May 10, 2003, they placed him in a room with his mother, Sonia Ramirez, and secretly tape-recorded their conversation. Before a CD of excerpts of the recording was played for the jury, the court instructed the jury that "you must remember at the time this tape-recording was made neither one of them knew the tape was being made. And the tape as with any other taped evidence, you should view it and consider it with caution. As jurors, you may reject the evidence, you may reject some of it and accept the rest, and of course you may accept all of the evidence. Your determination of the evidence and what weight to give it is entirely yours after a full review of all the rest of the evidence in the case."
During their conversation, Diaz responded "I did" when Ramirez stated that Martinez told her that Diaz had "`pulled guns out on'" him. Diaz said that "we robbed him for his shit." "He just ran like a little bitch and . . . took off. Lucky he didn't stay there; he woulda got shot." He said, "They got three of my homies for that." He said, "I took the box too; nothin' in there. No, what he had was, he, he thought it was in a sock drawer, but we just took it." He said that they asked him for two ounces and "he put `em out there." "Sharkie [Rodriguez] fucked him up bad. And then he ran, . . . Sharkie kicked `em, and he ran for the back door. And if he woulda laid on the ground, he woulda got sh-, he, he was gonna take him out." "[W]e were gonna make money off that shit. Wetto was gonna sell that shit for me." "He was like, he's like, well, he had this guy right there, he was like, `Here, here's the, it's all right here.' And then my homie just pulled out the gun too." "He was like, `Whoa, man, I ain't got no money on me man,' `cause then he seen my homie Silent [Samaro] come up too, and he was like, that whole, . . . he was like, `Who's that?' And then my homie: `Shit, take out some money.' And then they pull (inaudible)." Diaz said that Herrera, the man with the braid that Ramirez had seen at the police station, "was just the driver for Tom, a driver on Tom's thing." "Tom didn't see him though." Diaz said that the police did not find the methamphetamine because "he gave `em to Silent. I don't know what the fuck he did with it."
Samaro and Diaz were placed in a room together after Diaz talked to Ramirez, and this conversation was also secretly tape-recorded. Before a CD of excerpts of the recording was played for the jury, the court instructed the jury that "Alexander Diaz's statements may be considered by you only for the limited purpose of supplying context to Alex Samaro's statement. Alexander Diaz's statements to Alex Samaro are not to be considered for the truth of facts stated by Alexander Diaz. They're just to give meaning to the words stated by Alex Samaro."
During their conversation, Samaro said that the police claimed that "that dope was, was two ounces." "It was more than two ounces. That's a lot, huh. But then they was like, oh, was it crystal or . . . crank. And it's like, well, if this is crystal, it's worth this. And if it's crank it's worth that. Well I think it looks better `cause it's crank." Samaro asked, "What kind of robbery do you think they, they're trying to give me?" Diaz responded, "Strong armed. `Cause he said we had guns." Samaro said, "They didn't catch me with the gun." Diaz said, "I was thinking too, man, what if we shot his ass right there." "Phew, we would have been in a whole lot of trouble." Samaro responded, "It could have been over." Diaz said, "The crime rate's gonna go down now." Samaro responded, "um hm. . . . Meadow Fair's gonna be a safe place." "Survive as a neighborhood."
The Defense Trial Evidence
Martin Sanchez-Jankowski, a sociology professor at the University of California, testified on Samaro's behalf as an expert on California street gangs.
Generally, it is uncommon for a California street gang to "raid" the residence of a person who has no affiliation with that gang. It is also very unusual for members of two different gangs to work in concert unless they were being threatened by rival gangs, and for gang members to commit gang crimes with people who are not gang members or associates. If gang members were to take a safe belonging to one of the gang member's mother, and to carry the safe back to a gang house and distribute its contents to gang members, then the offense could have been committed for the benefit and enhancement of the gang. And, it benefits a gang when witnesses are dissuaded from testifying against its members.
Sally Duran, Samaro's aunt, testified on Samaro's behalf that he was living with her, working full-time, and enrolled in college in 2003. He attended a tattoo removal program from January through March 2003. He was dismissed from the program for being under the influence. Rodriguez is Samaro's cousin and Herrera is a close family friend. Juan Avila, the supervisor of the tattoo removal program that Samaro attended, testified that Samaro was terminated from the program for being under the influence before graduating from the program and getting any of his tattoos removed.
Esau Herrera, defendant Herrera's uncle, testified on Herrera's behalf that Herrera completed a certificate program for emergency medical technicians while living with his father in Florida. He enrolled in the fire fighter program at Mission College when he returned to San Jose after he completed the Florida program. This case prevented him from completing the fire fighter program. In Esau Herrera's opinion, defendant Herrera is "a good and honest kid," and "a plush teddy bear" when it comes to violence, and it would be "completely out of character" for him to be involved in a robbery. Defendant Herrera has been involved in the legal system twice before, and Esau Herrera was his legal advisor both times: once when Herrera was a juvenile and the other people in Herrera's car got out after a traffic incident and banged on the other car with a crowbar and a bat, and once when Herrera was an adult and he possessed a knife that looked like a pen. But these incidents do not affect Esau Herrera's opinion of defendant Herrera's character. Defendant Herrera "is a gang wannabe."
Edward Peterson, a criminalist with the Santa Clara County Crime Lab, testified on Rodriguez's behalf, that the pellet gun found in the garage of the Longacre house is not a firearm, but a plastic replica of a Beretta model 92 pistol that shoots plastic BBs. Some of its parts, besides the pieces that were found, are missing. It would not be operative even if the parts that were found were still on the gun, and it is not a lethal weapon. The sawed-off shotgun that was found could fire the shells that were found, and it is a lethal weapon.
On June 20, 2006, the jury found all three defendants guilty of robbery in an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); count 1), first degree burglary while an inhabitant was present (§§ 459, 460, subd. (a); count 2), and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 3). The jury separately found Samaro guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 4), and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 5). The jury also found true allegations that all three defendants committed the robbery, burglary, and assault for the benefit of or in association with a criminal street gang (§186.22, subd. (b)), that all three defendants personally used a firearm during the commission of the robbery (§ 12022.53, subd. (b)), that Samaro personally used a firearm during the commission of the burglary (§ 12022.5, subd. (a)), and that Samaro possessed the methamphetamine for the benefit of or in association with a criminal street gang. The jury found Rodriguez not guilty of attempting to dissuade a witness (§ 136.1, subd. (c)(1); count 6).
Defendants Herrera and Samaro filed motions for new trial, and Rodriguez filed a joinder in the motions. The court held a hearing on the motions on September 5, 2007, and took the matter under submission. On November 20, 2007, the court filed an order stating, "After having independently reviewed the trial record . . . the Court finds that sufficient credible evidence was presented to sustain the verdicts. The Court further finds that the trial Court did not make any erroneous legal rulings that affected any substantial right of the defendants. Accordingly, defendants' motions for a New Trial and to Modify Verdict are DENIED."
At the sentencing hearing on March 20 and 21, 2008, defendants argued that the sentences prescribed by law for count 1 constitute cruel or unusual punishment. The court found that defendants had not established their claims. Defendants also argued that "all of the actions here are 654." Without explicitly ruling on defendants' claim, the court sentenced Samaro to the indeterminate term of 15 years to life consecutive to the determinate term of eight years. The sentence consists of the midterm of three years on count 3 (aggravated assault) with a consecutive term of three years for the gang enhancement, a consecutive term of two years (one-third the midterm for the possession of methamphetamine and the gang enhancement) on count 4, and a consecutive term of 15 years to life on count 1 (robbery in concert in an inhabited dwelling with a gang enhancement). The court stayed a six-year term on count 5 (transportation of methamphetamine) and a 24-year term on count 2 (first degree burglary while an inhabitant was present) pursuant to section 654, and struck the 10-year firearm use enhancement on count 1.
The court sentenced Rodriguez to the indeterminate term of 15 years to life. The sentence consists of a term of 15 years to life on count 1 (robbery in concert in an inhabited dwelling with a gang enhancement), and a concurrent term of six years on count 3 (aggravated assault with a gang enhancement). The court stayed the firearm use enhancement on count 1, and a term of 14 years on count 2 (first degree burglary while an inhabitant was present) pursuant to section 654.
The court sentenced Herrera to a term of 19 years in state prison. The sentence consists of the aggravated term of nine years on count 1 (robbery in concert in an inhabited dwelling) with a consecutive term of 10 years for the firearm use enhancement, and a concurrent term of five years on count 3 (aggravated assault with a gang enhancement). The court struck the gang enhancement on count 1, and stayed a 12-year term on count 2 (first degree burglary with a gang enhancement) pursuant to section 654.
The Out-of-Court Statements
The prosecutor called Diaz, who was in custody serving a term of 80 years to life, to testify at trial, but Diaz refused to answer any questions. He did not invoke his right against self-incrimination, but stated that he had "nothing to say about this case." He said that he would refuse to comply with any order of the court requiring him to testify, even if he were to be found in contempt. The court found that, in view of Diaz's responses, Diaz was "not available for the purpose of the admission of previously entered statements made by him under incriminatory circumstances to himself and to one or more of the defendants in this case." The court further found that the statements made by Diaz to Ramirez were not testimonial, and were "made under circumstances that are trustworthy." Ramirez testified at trial, but Samaro did not.
Defendants now contend that the trial court violated their federal and state constitutional rights and state laws when it admitted the out-of-court statements of Diaz and Samaro. Defendants argue that Diaz's statements implicated them in violation of their right to confrontation and cross-examination because the statements were testimonial and were not trustworthy. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) They further argue that admission of the statements violate the rule set forth in Bruton v. United States (1968) 391 U.S. 123 (Bruton). Bruton "addresses the situation in which `an out-of-court confession of one defendant . . . incriminates not only that defendant but another defendant jointly charged.' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 537.) As Diaz was not jointly charged or tried with defendants, Bruton would not preclude admission of Diaz's out-of-court statements against defendants. (Ibid.)
A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const. 6th Amend.; Cal. Const., art. 1, § 15.) In Crawford, the United States Supreme Court held that, under the confrontation clause, "[t]estimonial statements of witnesses absent from trial" are admissible "only were the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." (Crawford, supra, 541 U.S. at p. 59, fn. omitted.) "Under Crawford, . . . the Confrontation Clause has no application to [out-of-court, nontestimonial statements not subject to prior cross-examination] and therefore permits their admission even if they lack indicia of reliability." (Whorton v. Bockting (2007) 549 U.S. 406, 420; see also Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).) "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.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage) the California Supreme Court considered the issue of whether a statement made to a person unaffiliated with law enforcement was testimonial. In Cage, the victim, John, had made a statement to a physician, Dr. Russell, about the offense when the physician asked "`what happened.'" (Id. at p. 986.) The court concluded that the statement was nontestimonial. "Objectively viewed, the primary purpose of the question, and the answer, was not to establish or prove past facts for possible criminal use, but to help Dr. Russell deal with the immediate medical situation he faced." (Ibid.) "If a statement made under `interrogation' to a law enforcement official is nontestimonial where `the circumstances objectively indicate' that it was not `primar[ily] [for the purpose of] establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution' (Davis, supra, 547 U.S. 813, ), we cannot assume the court would apply a different, more stringent standard to a noninterrogational statement made outside the context of law enforcement. It seems clear the court would consider such a statement within neither the `core' nor the `perimeter' of the concerns addressed by the confrontation clause." (Cage, supra, 40 Cal.4th at pp. 987-988.)
Under Crawford, Davis, and Cage, the recorded out-of-court statements made by Diaz and Samaro were all nontestimonial. None of the speakers on the recordings played for the jury was "acting as a witness" (Davis, supra, 547 U.S. at p. 828), and the conversations lacked the "formality" and "solemnity that characterizes testimony by witnesses." (Cage, supra, 40 Cal.4th at p. 987.) The statements were not made to law enforcement personnel or to anyone acting in conjunction with law enforcement. No "structured questioning" occurred, and it appeared that the speakers believed that their conversations were private. (Ibid.) Indeed, it was clear that the "`primary purpose' "of these statements was to bring the individuals up to date on what they each had done since last they had seen each other, and that the statements were not intended for use at trial. (Id. at p. 988.) For all these reasons, the statements at issue were nontestimonial and therefore were not subject to the confrontation clause.
The veracity of nontestimonial hearsay statements is sufficiently dependable to allow the untested admission of such statements against a defendant when (1) the evidence falls within a firmly rooted hearsay exception or (2) the evidence contains "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statements' reliability. (Ohio v. Roberts (1980) 448 U.S. 56, 66; Crawford, supra, 541 U.S. at p. 68.) In Lilly v. Virginia (1999) 527 U.S. 116 (Lilly), a plurality of the court held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." (Id. at p. 134, fn. omitted.) "This, of course, does not mean, . . . that the Confrontation Clause imposes a `blanket ban on the government's use of [nontestifying] accomplice statements that incriminate a defendant.' Rather it simply means that the government must satisfy the second prong of the Ohio v. Roberts, 448 U.S. 56 (1980), test[, that the statements bear a particularized guarantee of trustworthiness,] in order to introduce such statements." (Lilly, supra, 527 U.S. at p. 134, fn. 5.) On appeal, we conduct a de novo review to determine whether the trustworthiness test has been satisfied. (Id. at pp. 136-137.)
"In California, `[e]vidence 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, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.' ([Evid. Code,] § 1230.) The proponent of such 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. [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)
"`To determine whether [a particular] declaration [against penal interest] passes [Evidence Code][section 1230's] required threshold of trustworthiness, a trial court "may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant."' [Citation.] We have recognized that, in this context, assessing trustworthiness `"requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception."' [Citation.]" (Duarte, supra, 24 Cal.4th at p. 614.)
"There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against [penal] interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. [Citations.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger).) "When examining what was actually said by the declarant special attention must be paid to any statements that tend to inculpate the nondeclarant. This is so because a statement's content is most reliable in that portion which inculpates the declarant. It is least reliable in that portion which shifts responsibility. Controversy necessarily arises when the declarant makes statements which are self-inculpatory as well as inculpatory of another. This is why Evidence Code section 1230 only permits an exception to the hearsay rule for statements that are specially disserving of the declarant's penal interest. [Citation.] This is not to say that a statement that incriminates the declarant and also inculpates the nondeclarant cannot be specifically disserving of the declarant's penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances. [Citations.]" (Id. at p. 335.)
The Court of Appeal in Greenberger considered out-of-court statements made by some defendants implicating other defendants. The court held that "a defendant's declarations against [penal] interest may be received in a joint trial without denying the codefendant the right of confrontation guaranteed by the United States Constitution." (Greenberger, supra, 58 Cal.App.4th at p. 314.) "There is nothing in Bruton which prohibits introduction of such evidence." (Id. at p. 332.) "A careful reading of Bruton and its progeny reflects a body of law which has dealt with the use of limiting instructions to prevent inadmissible and highly prejudicial evidence from infecting the case of the jointly tried codefendant. 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. The court went on to state that `we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.' [Citation.]" (Id. at pp. 331-332.)
"Since declarations against [penal] 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." (Greenberger,supra, 58 Cal.App.4th at p. 332.) "[A] declaration against [penal] interest may be admitted in a joint trial so long as the statement satisfies the statutory definition and otherwise satisfies the constitutional requirement of trustworthiness." (Id. at p. 334.) "In determining the particularized guarantees of trustworthiness, consideration of corroborating evidence is inappropriate since that would constitute `bootstrapping on the trustworthiness of other evidence at trial.' [Citation.]" (Id. at p. 336.)
In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes), a nontestifying codefendant, Morales, inculpated himself and his two codefendants, Cervantes and Martinez, in a murder and an attempted murder while speaking to a friend of all three defendants, Ojeda. (Id. at pp. 166-167.) On appeal the two codefendants contended that Morales's statement to the friend should have been excluded. (Id. at p. 169.) The appellate court found that the trial court did not err in admitting evidence of the statement at the defendants' joint trial. Following Greenberger, the court found that the statement qualified as a declaration against penal interest and satisfied the constitutional standard of trustworthiness. (Cervantes, supra, at p. 177.) "The evidence here showed Morales made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. . . . Regarding the content of the statement, Morales did not attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez." (Id. at p. 175.) "Ojeda consistently reported that Morales admitted shooting at the second male with Cervantes. The statement Cervantes shot the first male, as well as the statement Morales shot at the second male, both incriminated Morales because Morales was acting in concert with Cervantes at all relevant times. Thus, the discrepancies in the statement as repeated by Ojeda does not preclude a finding the statement was trustworthy." (Id. at p. 176.) "Regarding the claim the statement should have been redacted to exclude reference to the nondeclarants, Greenberger specifically held this is not required where the statement admitted into evidence is disserving to the interests of the declarant. We agree with Greenberger's analysis on this point." (Ibid.)
Greenberger was decided before Lilly and Crawford. Cervantes was decided after Lilly and Crawford, and acknowledged that their holdings apply to admissions that are testimonial hearsay. (Cervantes, supra, 118 Cal.App.4th at pp. 170-173.) But the Cervantes court found that Greenberger's analysis of the issue of admissions that are nontestimonial hearsay, as the out-of-court statements in this case are, is still good law. Therefore, we must conduct an independent review of the totality of the circumstances that surround the making of the statements in this case in order to determine whether the trustworthiness test has been satisfied, and thus whether the statements were properly admitted. (Cervantes, supra, 118 Cal.App.4th at p. 174; Lilly, supra, 527 U.S. at pp. 136-137.)
Here, the statements by Diaz and Samaro implicated themselves as well as Rodriguez and Herrera in the home invasion robbery of Martinez. Diaz told Ramirez, his mother, how the robbery of Martinez, his mother's husband, was committed, who was involved in it, and in what manner, thereby admitting that he was acting in concert with defendants at all relevant times. The statements were not made to the police during questioning and Diaz did not attempt to mitigate his own conduct or to shift the blame. At the time Diaz made the statements, he had no motive to lie, and it appears that he was not aware that his statements were being recorded. After independently reviewing the record, we find that the statements Diaz made to Ramirez were against his penal interest and bear a particularized guarantee of trustworthiness. Accordingly, admission of the statements did not violate the federal or state constitutions or state law.
The statements Diaz and Samaro made to each other were also properly admitted. Diaz and Samaro acknowledged each other's participation in the robbery for which they were being held by discussing the guns they used and the methamphetamine the police found. They had no reason to lie to each other about their conduct, and they did not attempt to mitigate their own conduct while shifting the blame to others. "[T]he most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]" (Greenberger, supra, 58 Cal.App.4th at p. 335; Cervantes, supra, 118 Cal.App.4th at p. 175.) After independently reviewing the record, we find that the statements Diaz and Samaro made to each other were against their penal interests and bear a particular guarantee of trustworthiness. The court did not err in admitting evidence of the statements against Samaro, Rodriguez and Herrera at their joint trial.
Evidence of the Olinder Park Murder
Rodriguez objected in the trial court to the introduction of evidence of the Olinder Park murder, arguing "that under [Evidence Code section] 352 that offense should come out because of the brutal nature of the killing." Herrera argued that the evidence was "way too inflammatory," and that its "prejudicial value far outweighs a probative value, especially since we're not disputing these other incidents that occurred." "They have plenty to go with." The prosecutor argued that the Olinder Park murder was the only offense he had that was committed by members of both VNC and VMF, as the offenses at issue were, so it was "concrete evidence that VNC and VMF work together" as well as an offense that the prosecution's gang expert relied upon. Herrera stated that defendants "offered to stipulate that these two organizations are criminal street gangs." He acknowledged that the court did not have the authority to order the prosecutor to "participate in a stipulation," but he argued that the court did have the authority under Evidence Code section 352 to rule that a particular predicate offense could not be used. The court overruled defendants' Evidence Code section 352 objection to admission of the evidence, and instructed the jury on the limited purpose of the evidence of gang activity. (CALJIC No. 17.24.3.)
On appeal, Rodriguez contends that the trial court deprived him of due process and a fair trial when it admitted "an overwhelming amount of gang evidence pertaining to Diaz and the murder . . . in Olinder Park." "This evidence was more prejudicial than probative, and cumulative to other gang evidence. As such, it should have been excluded." Rodriguez further argues that "the court erred in not forcing the prosecution to accept the defense-proposed stipulation that VNC and VMF were criminal street gangs." "A fair reading of [the] record reveals that evidence of the Olinder Park homicide and the brutal nature of that killing dominated [the] trial. The jury heard as much evidence about Diaz and the murder as it did about the offenses involving Martinez. The jury here would have felt compelled to convict Rodriguez based on his association with Diaz and the criminal street gang responsible for that murder. Because of the profoundly prejudicial nature of this evidence, it was very likely the jury convicted [Rodriguez] on the basis of guilt by association." Samaro and Herrera join in Rodriguez's argument.
Evidence Code section 352 gives the trial court discretion to exclude evidence that is otherwise admissible if the court determines that the probative value of the evidence is "substantially outweighed" by the probability that its admission will "necessitate undue consumption of time" or "create substantial danger of undue prejudice." (Evid. Code, § 352.) "The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason." (People v. Valdez (1997) 58 Cal.App.4th 494, 511.)
Evidence of gang membership, and the conduct associated with that membership, is relevant if such evidence tends logically, naturally, and by reasonable inference to establish a motive in a gang-related crime or to fortify the testimony of witnesses who have identified the defendant as a participant in the crime. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) In addition, testimony that a witness is fearful of gang retaliation is admissible evidence relating to the witness's credibility. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.)
Here, the evidence of the Olinder Park murder was relevant to show that VMF and VNC were criminal street gangs whose members committed predicate crimes together, just as they committed the crimes against Martinez together. The evidence of the Olinder Park murder was relevant to show Martinez's fear of retaliation and a possible motive for the crimes against Martinez, as Martinez testified that he told Diaz's mother that he did not want Diaz around because of the murder, that he had informed Diaz's parole officer and the police that Diaz might have been involved in the murder, and that Diaz told him that he and his cohorts came to Martinez's apartment to teach Martinez a lesson. The evidence of the Olinder Park murder was relevant to show why the police were conducting surveillance on Diaz and thus why they were able to locate and arrest defendants shortly after Martinez reported the assault and robbery in his apartment. The evidence of the Olinder Park murder was also relevant to Martinez's credibility as to why he was testifying against defendants even though he claimed that Rodriguez threatened him just prior to the preliminary hearing in this case. Thus, the evidence of the Olinder Park murder was highly relevant and defendants have not shown that the probative value of this evidence was "substantially outweighed" by its prejudice. The trial court did not abuse its Evidence Code section 352 discretion in this case by admitting the evidence.
The prosecutor stipulated that there was no evidence that defendants were present during the Olinder Park murder. However, defendants contend that the court erred in not forcing the prosecution to accept their proposed broader stipulation that VNC and VMF were criminal street gangs. "The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state's case of its persuasiveness and forcefulness. [Citations.]" (People v. Edelbacher (1989) 47 Cal.3d 983, 1007; accord, People v. Sakarias (2000) 22 Cal.4th 596, 629; People v. Arias (1996) 13 Cal.4th 92, 131.) The United States Supreme Court also recognizes the "familiar, standard rule . . . that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." (Old Chief v. United States (1997) 519 U.S. 172, 186-187.) That court observed that the rule "is unquestionably true as a general matter. The `fair and legitimate weight' of conventional evidence . . . tells a colorful story with descriptive richness." (Id. at p. 187.) In that case, however, the court found the rule inapplicable since only the defendant's status as a felon was at issue. (Id. at pp. 190-192; see also People v. Bonin (1989) 47 Cal.3d 808, 849 [if a defendant offers to admit his status as a felon, the prosecutor must accept the offer and refrain from introducing evidence of the other crimes to prove that element of a charged offense].) In this case, the prosecutor showed the relevancy of the evidence of the Olinder Park murder to its presentation of its entire case against defendants. It needed to show that VMF and VNC were criminal street gangs whose members commit offenses together, and the evidence of the Olinder Park murder was highly relevant on this point. Thus, the court did not err in not forcing the prosecutor to accept defendants' stipulation that VMF and VNC were criminal street gangs.
The Gang Enhancement
Rodriguez and Samaro contend that the true finding on the gang enhancements is based on insufficient evidence. Specifically, they contend that the evidence is insufficient to establish that the substantive offenses were committed for the benefit of the gang. Rodriguez argues that "nothing in the circumstances of the instant offenses substantiate[s] Lombardo's expert opinion that these crimes were gang-related. None of the defendants called out gang names, displayed gang signs, or engaged in gang graffiti while committing the instant offenses." Samaro argues that "there are no outward indicia that the offenses were gang related," and that the only evidence to support a gang motive was the fact of his gang affiliation. Herrera joins in Rodriguez's and Samaro's arguments.
The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as for a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Leon (2008) 161 Cal.App.4th 149, 161.) "A reviewing court faced with such a claim determines `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.' [Citations.] We examine the record to determine `whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, `the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 139 (Catlin).) "`A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 891.)
"This standard applies whether direct or circumstantial evidence is involved." (Catlin, supra, 26 Cal.4th at p. 139.) The element of intent is generally proved with circumstantial evidence. "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]" (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Evidence to support the element of specific intent may be shown by a defendant's conduct, including any words spoken, and by all the circumstances surrounding the commission of the acts. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Section 186.22, subdivision (b)(4)(B) provides for punishment of life imprisonment with a minimum of 15 years when a defendant is convicted of "a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of section 213," "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(4).) The essential elements of an allegation under this subdivision are: (1) the crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang; and (2) these crimes were committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales).) The jury was so instructed. (See CALJIC No. 17.24.2.) Defendants contend that the prosecution failed to establish that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang.
The record discloses that in early May 2003, Martinez informed Diaz's parole officer and a San Jose police officer that Diaz may have been involved in a recent gang-related murder. He had already told Diaz's mother that he did not want Diaz around anymore. Around 12:40 p.m. on May 9, 2003, defendants, who are VMF and VNC gang members, left a gang hangout with Diaz, a founding VNC gang member. They drove to Martinez's apartment, where they suspected they would find methamphetamine, and defendants Rodriguez and Samaro entered the apartment while Herrera parked the car nearby, leaving the engine running, and watched the apartment. Samaro entered the apartment holding a shotgun and then cocked it and pointed it at Martinez, and Rodriguez pointed a pellet gun at Martinez. Diaz told Martinez to lie on the floor, and said that they were not there for Martinez's money but to teach him a lesson. When Martinez escaped, Diaz and Rodriguez took a safe that may have belonged to Diaz's mother and 55.8 grams, or around two ounces, of methamphetamine from the apartment and returned with their loot to Herrera's car. The methamphetamine was worth between $600 and $2000. When Samaro joined them in the car, they all drove back to their gang hangout and took the safe and methamphetamine inside. Shortly thereafter, Samaro and Herrera left the gang hangout with the methamphetamine. Diaz later claimed that, if Martinez had not escaped, he would have been shot. Diaz also said that he was hoping to sell the methamphetamine that they took from Martinez.
Officer Lombardo testified that gang members perceive "snitching" as an ultimate insult, and that it puts the life of the "snitch" in danger. Officer Lombardo further testified that, in his opinion, the offenses defendants committed against Martinez were committed for the benefit of VMF and VNC because Diaz went to Martinez's apartment with VMF and VNC gang members, they did not take anything belonging to Diaz's mother, and they took the safe and methamphetamine they confiscated back to their gang hangout. Entering the apartment using a show of force and threatening Martinez benefited the gangs because it showed that defendants retaliate against any disrespect shown toward a gang member or his family. Taking the safe and methamphetamine would benefit the gangs because defendants could use the items in the safe or sell them, they could then use the money to buy drugs or guns, and they could use the safe itself. Professor Sanchez-Jankowski testified that, if gang members took a safe belonging to a gang member's mother, carried the safe back to a gang hangout, and distributed its contents to other gang members, the offense could have been committed for the benefit of the gang. He further testified that it benefits a gang when witnesses are dissuaded from testifying against its members.
We conclude that this is sufficient evidence to support the section 186.22, subdivision (b) element that the burglary, robbery, assault, and possession of methamphetamine in this case were "committed for the benefit of, at the direction of, or in association with any criminal street gang." In our limited role of evaluating a sufficiency-of-the-evidence claim, we do not reweigh the evidence, redetermine issues of credibility, or second-guess whether we would have reached a conclusion different from that reached by the trier of fact. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) Thus, as another appellate court reasoned in rejecting a similar challenge to a gang enhancement finding: "Here a qualified expert testified the participation of a Southside gang member in a Townsend Street retaliation killing would benefit Southside by enhancing its `respect.' It was for the jury to assess the weight of that testimony in the first instance, and since we believe a `rational juror' could have been convinced by it, we cannot deem it insufficient." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.) We find substantial evidence supports the jury's finding that defendants committed the offenses for the benefit of, or in association with, a criminal street gang.
Defendants contend that the court committed prejudicial error by failing to give the jury a unanimity instruction, such as CALJIC No. 17.01, which would require them to agree beyond a reasonable doubt on which act constituted the aggravated assault. Rodriguez argues that the error was prejudicial as "[t]he evidence here arguably established that Rodriguez committed an assault with a deadly weapon when he entered Martinez's apartment and put what Martinez described as a `pistol' in his face. There was also evidence to arguably establish that Rodriguez committed an assault with force likely to produce great bodily injury when Rodriguez and Martinez allegedly engaged in a fist-fight outside the apartment complex. Thus, there were two different acts on which the jury could have predicated its verdict on count 3. The jury was instructed on both theories of aggravated assault." Rodriguez further argues that "the prosecutor's argument is not sufficient to constitute an election for unanimity purposes."
Samaro argues that "[t]he evidence here arguably established at least three assaults on Martinez which could have satisfied the requirements of section 245(a)(1). First, according to Martinez, while [defendants] were in his apartment Diaz drew a knife and held it near him while telling him to [lie] on the ground so he could teach him a lesson." "Second, when speaking with Ramirez, Diaz said `Sharkie [Rodriguez] fucked him up bad. . . . Sharkie kicked him and he ran for the back door. And if he woulda laid on the ground, . . . he was gonna take him out.' ""Third, after Martinez fled from the apartment, Rodriguez or Samaro according to the officer who was outside the apartment, chased him around the back of the building. According to Martinez, when Rodriguez caught up to him Rodriguez `clipped' him in the face and engaged him in a fist fight . . . . While Martinez testified he did not see a gun during this encounter, police found broken pieces from a pellet gun in the area, so Rodriguez may have struck Martinez with the gun or otherwise broken it during the struggle." Samaro further argues that "[t]he prosecutor's argument further confused the issue."
Herrera joins in Rodriguez's and Samaro's arguments.
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Unless the prosecutor makes an election, the jury "must be instructed along the lines of CALJIC No. 17.01 that it must unanimously agree upon the act or acts constituting the crime. [Citations.] The instruction must be given sua sponte if not requested. [Citations.]" (People v. Moore (1986) 185 Cal.App.3d 1005, 1014, fn. omitted.) "This requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Russo, supra, 25 Cal.4th at p. 1132.) However, "the jury need not agree on whether the defendant was guilty as the direct perpetrator or as an aider and abettor as long as it agree[s] on a specific crime [citation]." (Id. at p. 1133.)
In this case, the court instructed the jury on the presumption of innocence (CALJIC No. 2.90), on the requirement that its verdicts must be unanimous (CALJIC No. 17.50), and on aiding and abetting liability (CALJIC Nos. 3.00 and 3.01). The trial court was not required to instruct the jury along the lines of CALJIC No. 17.01, as the prosecutor made an election in his opening argument to the jury as to which acts were alleged to have constituted the charged assault. The prosecutor argued in part: "Here we have that pellet gun, the piece of the pellet gun that was found where Martinez was assaulted, and then we have the pellet gun actually found at Longacre. And the fact that those two pieces of evidence match, you can circumstantially put together a fact that gun was used in the assault. Martinez didn't say the gun was used when he got hit out there, but you can put together the fact you believe, the fact that [the crime scene investigator] said she found that plastic piece of evidence." "Well, all those facts circumstantially prove another fact and that is the pellet gun was used to hit Martinez or was somehow involved in that assault, whether he fell on it or whatever." "What about Count 3? The assault. This happens when Martinez is confronted in his parking lot and he's hit. And I would submit that he was hit with that, that plastic gun. But you saw the injuries inflicted on him. Defense may argue, you know, he's not guilty with assault with force likely, he's guilty of simple battery. But that's not the facts here. This was an assault where if he didn't run we're going to kill him. He would be dead right now. You know the kind of force that was used out there. You don't have to injure someone and cause great bodily injury for it to be an assault with intent to cause great bodily injury."
In his closing argument, the prosecutor further explained his election to the jury: "The Count 3 which is the assault, and again I had all those elements up there in terms of how to prove these things. But I wanted to talk about the assault for a second. And that's because the defendants are not charged with assault with a firearm in Count 3 when they ran around the back and hit Thomas Martinez, and so this pellet gun issue, whether it's operable or not, is not charged as a firearm, it's assault with force likely. Or using any instrument as a deadly weapon. But it's specifically not charged as a firearm. And you can use a variety of things as a deadly weapon. You can do all kinds of things with a knife, with a pencil, you know, forks, anything can be charged as a deadly weapon. So I wanted to make clear that he's simply not being charged with possession of a firearm in that count."
The prosecutor's argument made it clear what acts the jury had to find in order to find any of the defendants guilty of the charged crime of assault with a deadly weapon or with force likely to produce great bodily injury. Those acts occurred when Martinez was hit in the face behind the apartment complex and continued to be hit while he and his assailant fell over a short fence. Pieces of a plastic gun were found near where the assault occurred, which indicated that the plastic gun found at the Longacre house may have been used in the assault. Martinez sustained a bruise on his face as a result of the assault. No matter which defendant the jury found actually committed the assault, the jury could properly find all three defendants guilty of the assault as a principal under the court's instructions.
Defendants separately contend that their respective counsels rendered ineffective assistance by failing to request an instruction that would have precluded the jury from relying on a legally inadequate theory to convict them of the assault charge in count 3. Rodriguez argues that his "defense counsel should have requested an instruction precluding the jury from relying on the brandishing theory" argued by the prosecutor to support the aggravated assault conviction. Rodriguez argues that the prosecutor's argument "could have misled the jury into believing that Rodriguez committed an assault with a deadly weapon, other than a firearm, when he brandished the pellet gun inside the apartment. . . . [N]othing in the instructions or the prosecutor's argument disabused the jury of the notion that it could not rely on the brandishing theory in convicting Rodriguez of aggravated assault." Samaro and Herrera have joined in Rodriguez's argument.
To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) "counsel's performance fell below a standard of reasonable competence" and (2) "prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A defendant establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 218; People v. Anderson, supra, 25 Cal.4th at p. 569.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
In this case, the record on appeal sheds no light on why defendants' counsels did not request an instruction that defendants assert here should have been requested, nor does it disclose that any counsel was asked for an explanation and failed to provide one. However, we have found that the prosecutor's argument made it clear which acts the jury had to find in order to convict defendants of aggravated assault in count 3. Those acts occurred outside and behind the apartment after Martinez escaped from his apartment, and may or may not have included the use of the pellet gun. The acts did not include the brandishing of the pellet gun inside the apartment before Martinez escaped. Therefore, defendants' counsels cannot be faulted for failing to request an instruction that the jury could not convict defendants of the charged assault based in part on any finding that Rodriguez brandished the pellet gun at Martinez inside the apartment. Defendants have not carried their burden of demonstrating ineffective assistance of counsel.
Aiding and Abetting Liability
Herrera contends that the evidence is insufficient to support his conviction on count 3 (aggravated assault) and for the firearm use enhancements on count 1 (robbery).
Alternatively, Herrera contends that his aggravated assault conviction and the firearm use enhancement on the robbery count must be reversed as the court prejudicially erred by failing to instruct the jury along the lines of CALJIC No. 3.02 on the natural and probable consequences doctrine. "An aider and abettor is not liable for each and every crime committed by a principal, but only those crimes that are a natural and probable consequence of the commission of the known crimes; i.e., `what a person of reasonable and ordinary prudence would have expected likely to occur.' (CALJIC No. 3.02.)" "The trial court should have instructed that [Herrera] could be convicted of the gun use enhancement and assault with a deadly weapon only if the jurors were satisfied beyond a reasonable doubt that the crime and/or enhancement were a natural and probable consequence of the commission of burglary or robbery."
In considering the sufficiency of the evidence to support a conviction based upon aider and abettor liability, we recognize that "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed" (§ 31; see also CALJIC No. 3.00, CALCRIM No. 400), and that an aider and abettor "shares the guilt of the actual perpetrator." (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).)
The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. "The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must `act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find `the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
"Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense. [Citation.]" (People v. Morante (1999) 20 Cal.4th 403, 433, fn. omitted.) "[I]f the aider and abettor undertakes acts `with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense.' [Citations.]" (People v. Sanchez (1995) 12 Cal.4th 1, 33, disapproved of on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) "Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citations.]" (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095; In re Juan G. (2003) 112 Cal.App.4th 1, 5.) "Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime . . . . Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.)
"[I]f a person in fact aids, promotes, encourages or instigates commission of a crime, the requisite intent to render such aid must be formed prior to or during `commission' of that offense. [Citations.] It is legally and logically impossible to both form the requisite intent and in fact aid, promote, encourage, or facilitate commission of a crime after the commission of that crime has ended." (People v. Cooper (1991) 53 Cal.3d 1158, 1164, see p. 1168.) "Whether a person has aided and abetted in the commission of a crime is a question of fact, and on appeal all conflicts in the evidence and attendant reasonable inferences are resolved in favor of the judgment." (In re Juan G., supra, 112 Cal.App.4th at p. 5, fn. omitted; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Under the natural and probable consequences doctrine, "an aider and abettor `is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-107.) The trial court has a sua sponte duty to instruct the jury on the natural and probable consequences doctrine "whenever uncharged target offenses form a part of the prosecution's theory of criminal liability and substantial evidence supports the theory." (Prettyman, supra, 14 Cal.4th at pp. 266-267.)
In this case, the record does not show that the prosecutor elected to rely in part on the "natural and probable consequences" theory of accomplice liability. Rather, the prosecutor argued to the jury that it should find Herrera guilty of all the charges against him as an aider and abettor of the offenses charged. The prosecutor argued that all the defendants knew they were going to Martinez's apartment to "rip [him] off," because they all went to the apartment together from the gang hangout, three of them entered the apartment with a shotgun while Herrera parked the car and waited with the engine running, they all left together with the safe and methamphetamine and shotgun and went back to the gang hangout, and then Herrera left the gang hangout with Samaro and was with him when he was caught with the methamphetamine. Accordingly, the trial court did not err by not instructing the jury on the natural and probable consequences doctrine.
Herrera does not dispute that the evidence is sufficient to support his conviction on the robbery count as an aider and abettor of that offense, but he does dispute the firearm use enhancement as to that count. He argues that "there was no evidence that Herrera was aware that a firearm or any weapon was being taken into the apartment by any of the three men who entered it." He recognizes that section 12022.53, subdivision (e)(1), provides that the section 12022.53, subdivision (b) firearm use enhancement applies to "any person who is a principal in the commission of an offense" if it is pled and proved that the person "violated subdivision (b) of Section 186.22" and "[a]ny principal in the offense committed any act specified in subdivision (b) . . . ." (§ 12022.53, subd. (e)(1)(B).) He claims, however, that the statute "still requires that it be reasonably foreseeable that he knew that the perpetrators intended to use a firearm." He cites no authority supporting this claim, and we have found none.
The jury was instructed that, in order to find any of the defendants personally used a firearm during the commission of the robbery, it had to find "that the defendant or a principal . . . intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." Martinez testified that Samaro entered his apartment with a sawed-off shotgun, and then cocked it and pointed it at him. Martinez's testimony is sufficient evidence to support the true finding on the firearm use enhancement as to all three defendants, even though no officer testified to seeing any of the three men who entered Martinez's apartment carry a firearm to it from Herrera's car.
Although Herrera contends that the evidence is insufficient to support a conviction for assault with a deadly weapon, the jury found Herrera guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury and the prosecutor did not claim that a firearm was used during the assault. The prosecutor elected to use the assault outside the back of the apartment as the acts constituting the charged assault. This assault occurred while Martinez was trying to escape from the three men who had entered his apartment with a sawed-off shotgun and a plastic pellet gun with the intent to assault and rob him. The record shows that Herrera drove three fellow gang members to Martinez's apartment, parked and waited in the car with the engine running while the three men went to the apartment with the weapons, and quickly drove off when all three of the men returned with the weapons, safe and methamphetamine after Martinez was assaulted outside the apartment. Diaz told Ramirez that, if Martinez had not run from the apartment, they intended to shoot him there. Pieces of the plastic pellet gun were found outside near where the actual assault occurred, so the pellet gun may have been used during the assault. From this evidence, the jury could reasonably infer that Herrera intended to encourage or facilitate, that is, aid and abet, the criminal conduct constituting the actual assault. Substantial evidence supports Herrera's conviction on count 3.
Defendants request that the court review the sealed transcript of the April 26, 2006 in camera hearing. The in camera hearing was held by stipulation of the parties. Rodriquez asks the court "to determine if any relevant (Evid. Code, § 1045(a)-(c)) non-privileged material (Evid. Code, §§ 1040-1047) should have been turned over to the defense." Samaro and Herrera join in Rodriguez's request.
Pursuant to Brady, the prosecution must disclose "evidence favorable to an accused . . . where the evidence is material either to guilt or punishment." (Brady, supra, 373 U.S. at p. 87.) Pursuant to section 832.7 and 832.8, and Evidence Code sections 1043 through 1046, a defendant may seek discovery of information in the personnel files of police officers by showing how the information would support a defense to the charges against the defendant. After reviewing documents in camera, the court may only disclose that information falling within the statutorily defined standards of relevance. "The trial court may not disclose complaints more than five years old, the `conclusions of any officer' who investigates a citizen complaint of police misconduct, or facts `so remote as to make [their] disclosure of little or no practical benefit.'" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)
The material the court reviewed related to an incident that occurred in 2000, six years before the trial, involving the officer who testified as an expert witness regarding gang activities. No complaint by any person or entity had been filed against the officer as a result of the incident. The trial court found that, "under existing legal criteria . . . there is no information which is exculpatory and/or in the Court's opinion and according to current case law would justify its disclosure for the purposes of impeachment of the witness. No issues regarding honesty and/or fraud are presented and no other issues that are currently by law required by this Court to provide to the Defense for purposes of either impeachment or substantive evidence. [¶] Therefore, . . . the Court finds no reason to disclose" the material submitted by the prosecutor. We agree with the trial court.
As stated above, the trial court imposed consecutive terms on the assault and robbery counts when it sentenced Samaro, and concurrent terms on the two counts when it sentenced Rodriguez and Herrera, but stayed punishment on the burglary counts as to all defendants pursuant to section 654. Defendants contend that the trial court erred when it imposed sentence for both the robbery and assault counts. Rodriguez argues that the punishment on the assault count should have been stayed under section 654 "because the facts of this case demonstrate that the burglary, robbery, and assault were all committed incidental to one single objective." Samaro argues that "the robbery, burglary and assault were all part of a course of conduct with a single objective." Herrera joins in Rodriguez's and Samaro's arguments.
"The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he [or she] may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Deloza (1998) 18 Cal.4th 585, 591.) "`The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he [or she] was sentenced. [Citation.]' [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162 (Coleman); see also People v. Saffle (1992) 4 Cal.App.4th 434, 438; People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.)
A needless or vicious assault committed after a robbery, whether gratuitous or to facilitate escape or avoid prosecution, may be found not to be incidental to the robbery for purposes of section 654. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191; Coleman, supra, 48 Cal.3d at pp. 162-163; see also People v. Foster (1988) 201 Cal.App.3d 20, 27-28.) In this case there is ample evidence to support the trial court's implicit rejection of defendants' arguments below that their intent and objective for the assault of Martinez outside the back of Martinez's apartment complex was incidental to defendants' intent and objective in committing the robbery inside the apartment. Prior to the assault, Martinez fled the apartment after defendants had displayed weapons and told him to lie on the floor. The safe and methamphetamine were removed from the apartment after Martinez fled, so either the assault on Martinez outside the apartment was a gratuitous act to intimidate Martinez or it was committed to facilitate the escape of those robbers left behind in the apartment. (Compare People v. Miller (1977) 18 Cal.3d 873; People v. Donohoe (1962) 200 Cal.App.2d 17 [assault was the means to accomplish the robbery]; People v. Medina (1972) 26 Cal.App.3d 809 [same]; People v. Flowers (1982) 132 Cal.App.3d 584 [same].) Thus, separate punishment for the assault and the robbery in this case does not violate section 654.
The judgments are affirmed.
I concur in the judgment but I write separately because I cannot agree that all of Diaz's statements inculpating defendant were admissible as declarations against penal interest. However, I find that any error was not prejudicial.
Declarations Against Penal Interest
Evidence Code section 1230 provides in relevant part: "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, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
In People v. Brown (2003) 31 Cal.4th 518, our Supreme Court reiterated that it had "addressed the procedural prerequisites for the declaration-against-penal-interest exception to the hearsay rule in People v. Duarte  24 Cal.4th 603 [(Duarte)]. [I]n order to qualify for admission, `[t]he proponent of such 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.'" (Id. at p. 535, citing Duarte, at pp. 610-611.)
At issue here is whether Diaz's hearsay statements to his mother were truly "against the declarant's penal interest," and "whether the declaration was sufficiently reliable to warrant admission despite its hearsay character." Relying in large part on the United States Supreme Court's interpretation of Evidence Code section 1230's cognate Federal Rule of Evidence
Duarte also teaches that even when redaction ensures that "only the `specifically disserving' [citation] and, hence, most reliable, portions of a particular hearsay declaration are actually admitted into evidence, redaction cannot enhance the underlying or general trustworthiness of a declaration as a whole. . . . [¶] Thus, even when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission." (Duarte, supra, 24 Cal.4th at p. 614.) To determine whether a declaration is sufficiently trustworthy, the trial court "`"may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant."'" (Ibid.)
Having reviewed "the full, unredacted version" (Duarte, supra, 24 Cal.4th at p. 614) of Diaz's statement to his mother, with the rules articulated in Duarte in mind, I am convinced that the trial court abused its discretion in admitting statements made by Diaz about the actions of "Sharkey" and "Silent" alone, from which Diaz repeatedly distanced himself . The actions which Diaz ascribed to Sharkey and Silent were the actions which made the simple robbery of a small amount of drugs from a drug dealer more aggravated: the use of guns (which Diaz specifically disavowed) and actual violence.
Although the trial court erred in admitting some statements which did not specifically disserve Diaz's interest, I agree with the majority that the trial court did not abuse its discretion in admitting those of Diaz' statements in which he inculpated himself (along with the others) in the Martinez robbery, because in my view, too, the totality of the circumstances tend to show that those statements were sufficiently trustworthy to be admitted.
However, I do not find the error prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cudjo (1993) 6 Cal.4th 585, 612; Duarte, supra, 24 Cal.4th at pp. 618-619.) Given the portions of Diaz's statements properly admitted; the testimony of Martinez; the testimony of the surveillance team, arresting officers, and investigators; and the physical evidence observed and gathered at the Martinez residence, the Longacre house, and from the Honda, I am satisfied that it is not reasonably probable that the jury would have reached a more favorable result if the statements made by Diaz which were not specifically disserving to his penal interests had been excised. Therefore, I concur in the judgment of affirmance.