Filed 8/27/14 P. v. Esiquio CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B242389
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA074215)
v.
LUIS A. ESIQUIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Cynthia Rayvis, Judge. Affirmed with modifications.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
******
Appellant Luis Esiquio appeals the judgment following his conviction for murder,
attempted murder, and being a felon in possession of a firearm, contending the trial court
erred in several respects. We reject his contentions, but find the court erred in failing to
impose a mandatory $30 criminal conviction assessment for each count, so we modify the
judgment to reflect the correct assessment. We affirm the judgment as modified.
PROCEDURAL HISTORY
Following trial, a jury convicted appellant of murder (Pen. Code, § 187, subd.
(a))1; attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a)); and
possession of a firearm by a felon with one prior, which the parties stipulated was a
felony for vandalism (former § 12021, subd. (a)(1)). For the murder and attempted
murder counts, the jury found true allegations that a principal personally and intentionally
used and discharged a firearm, a shotgun, which proximately caused great bodily injury
and death. (§ 12022.53, subds. (b)-(e).) For all counts, the jury found true allegations
that the crimes were committed for the benefit of, at the direction of, and in association
with a criminal street gang. (§ 186.22, subd. (b)(1)(C) & (b)(4).) The trial court
sentenced appellant to a total prison term of 85 years to life, and imposed various fines,
fees, and credits. Appellant timely appealed.
Codefendant Jose Tavares was tried alongside appellant before a separate jury.
His jury deadlocked, and the trial court declared a mistrial.
STATEMENT OF FACTS
Quincy Tillett, the murder victim, and Cesar Olmedo, the attempted murder
victim, were members of the Hawthorne Little Watts gang.2 Appellant was a member of
the Inglewood 13 gang, a rival of Hawthorne Little Watts.
On March 6, 2010, around 10:00 p.m., Olmedo was attending a party on
Kornblum Avenue in the City of Hawthorne. A fight broke out between six Hawthorne
1 All further statutory references are to the Penal Code unless otherwise noted.
2 Olmedo was in custody at the time of trial because he failed to appear to testify.
He had been previously convicted of vandalism and possession of a firearm.
2
Little Watts gang members and about 11 members of the Inglewood 13 gang. The fight
began after the Inglewood 13 members shouted out, “We’re Inglewood,” and the
Hawthorne Little Watts gang members responded, “Little Watts.” According to Olmedo,
both he and appellant were part of the fight and he was “pretty sure” they fought each
other. Olmedo did not see any guns or hear gunfire. When the fight ended, the
Inglewood 13 members drove off in a gold Yukon or Explorer.
Tillett was not involved in the fight and only arrived at the party about 20 minutes
later. At some point, he left to return his mother’s car, and Olmedo followed him on his
bike. Tillett retrieved his own bike and he and Olmedo met up and rode their bikes
together back to the party. As Tillett rode in front of Olmedo, Olmedo noticed a brown
or beige Honda or Toyota driving close to them in the same direction they were traveling.
When the car reached Olmedo, he saw the person in the passenger seat, whom he
identified as appellant, pull out a shotgun or long-barreled gun and fire. Olmedo jumped
off his bike. Appellant fired again, hitting Tillett. Olmedo did not hear appellant claim
his gang, which he viewed as cowardly in gang culture. Olmedo called 911 but left the
scene before police arrived.
The shooting occurred between 11:00 p.m. and midnight about a half a block away
from the party. Julio Cesar Rosas, a host of the party, was in a friend’s house nearby
when he heard someone shout, “Fuck Little Watts” and then heard gunshots. He went
over to Tillett and observed him trying to breathe, and he told his friend’s mother to call
the police.
A Hawthorne police officer arrived at the scene at 11:35 p.m. and discovered
Tillett having difficulty breathing. He interviewed nearby witnesses claiming their
apartments had been struck by objects and found a screen door that had been struck by a
projectile. A small pellet was recovered. Los Angeles County Sheriff’s Department
Detective Mitchell Robinson also arrived at the scene and recovered two cell phones,
Tillett’s clothing, a shotgun wad, a shotgun shell, some pellets, and a beer can. He
observed a shotgun strike mark on the wooden fence nearby.
3
Appellant was arrested on March 13, 2010. At the time, a car near him contained
two Inglewood 13 gang members, including one member named Anthony Castillo.
On March 18, 2010, Detective Robinson and a sergeant interviewed Olmedo, a
portion of which was recorded and played for the jury. Olmedo was reluctant and
uncooperative. Olmedo was not asked for and did not give a description of the shooter,
but he stated before the recording began that the shooter was an Inglewood 13 gang
member. He was shown a six-pack photographic lineup and immediately identified
appellant as the shooter. He recognized him from the party, and he remembered him
wearing the same white sweater at the party and at the shooting. Detective Robinson did
not have Olmedo sign a form admonition for fear Olmedo would not cooperate, although
he convinced Olmedo to initial his selection of appellant’s photograph.
At the time, Detective Robinson was unaware that what he believed were moles or
birthmarks on appellant’s face near his eyes were actually tattoos. As part of the six-pack
photographic lineup, Detective Robinson had selected two other individuals who had
moles or birthmarks on their faces. Olmedo did not see tattoos on appellant’s face during
the shooting because the interior lights of the car were not on. Olmedo also told officers
the shooter was not at the party, although he admitted at trial he lied about that.3
Adriana Leon, codefendant Tavares’s girlfriend at the time of the shooting,
testified at trial she knew appellant through Tavares and knew appellant’s gang moniker
was “Loco.” She recalled attending the party with Tavares and his friends and recalled
no one was armed, but during trial she claimed to remember very little of what happened
because she was drunk. She testified she did not want to be at the trial and had no reason
to be there.
She had given an interview to police on April 22, 2010, and a recording of the
interview was played for the jury. She told police she attended the party with Tavares,
3 Olmedo testified he saw appellant twice while appellant was in custody. The first
time appellant asked Olmedo why his name came up in appellant’s case. The second
time, which occurred the day before Olmedo testified, appellant told Olmedo he did not
commit the crime, he loved Olmedo, and he would never want to hurt him.
4
appellant, two other Inglewood 13 gang members named Miguel Garcia and Anthony
Castillo, and a girl named Janet. They arrived in a khaki-colored Tahoe belonging to
Tavares’s mother. She noticed gang members at the party, and appellant said, “Hey,
where you from?” Someone responded, “Oh, this Hawthorne Little Watts [sic].”
Appellant said, “Oh, this is Westside Inglewood Trece.” Then they started fighting.
Someone hit Leon and she hit them back. Tavares saw her get hit and started hitting the
person who did it. Leon and her friend Janet ran to the car. The men in their group
joined them and said they wanted to go back into the party. Leon told them not to, and
Tavares agreed. Tavares dropped Leon and Janet at Castillo’s house, and Tavares,
appellant, Castillo, and Garcia drove away. They returned to Castillo’s house about 10
minutes later, around 11:00 p.m.
At the preliminary hearing, Leon added some detail to the account she gave at her
interview. She said the Hawthorne Little Watts group approached appellant, saying they
were going to kill him, and Garcia defended him. She claimed the Hawthorne Little
Watts called out their name, but her group did not respond; instead, members of
Hawthorne Little Watts hit appellant. During the fight, Tavares told Leon to run to the
car, and as she did, she was punched. At the time, she saw a gun pointed at her and a
Hawthorne Little Watts member shot four or five shots at her and Janet, but she could not
identify the shooter. She tried to hide in the car as she heard more gunshots. Leon’s
male companions entered the car without appellant, and drove around the block looking
for him. They called him on his cell phone, and a few minutes later picked him up. At
the time, his shirt was ripped and he was bleeding from his hand. He told everyone in the
car that he had returned to the party and had gotten shot at. When Leon told appellant
and the others she had been hit, they got angry and appellant and Castillo said no one
should hit or shoot Leon because she was a girl. Castillo said they wanted to go back and
beat “them” up. They dropped her and Janet off at Castillo’s house and returned 20
minutes later.
Officers executed search warrants for several locations. At the residence of Daniel
McEntee, an Inglewood 13 gang member with the moniker “Danny Boy” and a friend of
5
appellant, Tavares, and Castillo, officers recovered several guns, including an unloaded
Mossberg pump-action shotgun; gang paraphernalia consisting of a jersey with
“Inglewood” and “13” on the front and “13” on the back; envelopes containing letters
from Inglewood 13 gang members in jail or prison, including one with appellant’s name
and address on it; a belt with an “I” on the buckle; and a cell phone containing three
photographs of McEntee, appellant, and other gang members showing gang tattoos and
displaying gang hand signals.
At Tavares’s residence, officers recovered identification for Tavares and a cell
phone with a screen saver showing a cartoon drawing of an Inglewood 13 gang sign.
Officers also observed a gold GMC Yukon in the driveway, which they believed was
similar to a car involved in the shooting. At appellant’s residence, officers recovered 11
pieces of mail dated March 5, 2010, that bore appellant’s name.
Parole compliance searches of the residences of Inglewood 13 gang members Raul
Guillan and Yeshua Diaz yielded cell phones containing McEntee’s moniker “D Boy”
and “D Boi” listed next to the same phone number as the cell phone found in McEntee’s
residence. Appellant’s moniker of “Loco” also appeared in the phone found in Diaz’s
residence next to the phone number attributed to appellant.
A forensic analysis of Tillett’s body revealed he suffered a shotgun wound to the
left side of his back, which caused his death. It was estimated the gun was fired one to
three feet from him and the trajectory of the bullet was consistent with the shooter firing
from a vehicle traveling on Tillett’s left side and behind him. A forensic comparison of
the Mossberg shotgun recovered at McEntee’s residence and the shotgun shell, wad, and
pellets recovered both at the scene and from Tillett’s body revealed the shots came from
that shotgun. The shotgun weighed five to seven pounds and it would be difficult to hold
the gun steady while firing it with one hand and riding a bicycle (which was one possible
defense theory). It could not be fired repeatedly while being held straight out.
During trial, the prosecution introduced evidence of cell phone calls made on the
night of the shooting to and from numbers attributed to appellant, including two phone
calls to the number attributed to McEntee, one made at 10:55 p.m. (before the shooting)
6
and one made at 11:47 p.m. (after the shooting). The calls reflected a pattern of travel
from the area near the party to McEntee’s house before the shooting, back to the area
near the party at the time of the shooting, and then back to McEntee’s house afterward.
The prosecution also presented evidence of nine contacts law enforcement made
with appellant between January 2008 and February 2010, documented on field
identification cards. During the contacts, appellant admitted he was a member of the
Inglewood 13 Hyde Park clique, showed his gang tattoos, and gave the moniker
“Moreno.” During some contacts, he was with other Inglewood 13 members or affiliates,
including Tavares on one occasion.
Detective Daniel Milchovich, the prosecution’s gang expert, testified generally
about joining a gang; gang culture; the use of monikers; gang hierarchy; the significance
of reputation, respect, and fear; retaliation when a gang feels disrespected; the importance
of territory; and use of hand signals and tattoos. He opined it was common for a gang
member to have more than one moniker so a fictitious one can be given to law
enforcement to avoid linking the gang member to a crime. With respect to hierarchy,
there are usually nonmember affiliates, gang member “soldiers,” and “original
gangsters,” or older tenured members who might decide discipline in the gang. Respect
and reputation are important in gang culture and members will commit crimes to garner
respect. The crimes instill fear in other gangs and in the community, which would allow
gang members to commit crimes without law enforcement intervention. Once one gang
disrespects another by, for example, entering rival territory, the disrespected gang can
retaliate with assault and murder. Cooperating with law enforcement, or “snitching,” is
not condoned, and a “snitch” can be ostracized, beaten, or killed.
Detective Milchovich had extensive contacts with Inglewood 13 members and was
familiar with the gang, which had been around since 1976 and currently had 300 to 350
members. He testified to the various cliques within the gang, and the clothing, tattoos,
and hand signals associated with the gang. The gang’s primary criminal activities
included felony vandalism, graffiti, assaults, robberies, weapons violations, narcotic
sales, murder, attempted murder, and shootings. Two gang members’ convictions were
7
offered into evidence, one for assault with a deadly weapon with a gang enhancement,
and one for shooting at an inhabited dwelling. One of the gang’s rivals is Hawthorne
Little Watts, and members of Inglewood 13 have committed other shootings against
Hawthorne Little Watts members. The area where the shooting took place in this case
was Hawthorne Little Watts territory.
Detective Milchovich had known appellant since 2008 and, based on appellant’s
tattoos, self-admissions, and association with other gang members, Detective Milchovich
opined appellant was an active member of Inglewood 13 and had been since 2005 or
2006. He knew appellant went by the monikers “Moreno” and “Loco.” He opined
appellant and McEntee were good friends. Like Detective Robinson, Detective
Milchovich did not know appellant had tattoos on his face until shortly before trial.
Detective Milchovich opined that Tavares was a close affiliate of Inglewood 13.
He had numerous contacts with Tavares, including one contact two days after the
shooting when Tavares and Castillo were stopped in a Honda four blocks from
McEntee’s house.
Given a hypothetical that tracked the facts of the case, Detective Milchovich
opined the charges against appellant were committed for the benefit of Inglewood 13. By
attending the party in a rival gang’s territory and announcing their name, the Inglewood
13 members showed disrespect that prompted the Hawthorne Little Watts to announce
themselves in response. That led to the fight and shooting, and when the Inglewood 13
members were forced to leave the area, they essentially lost the confrontation and would
have been perceived as weaker than Hawthorne Little Watts. Returning with the shotgun
and shooting at Tillett and Olmedo was an act of retaliation designed to regain respect
after the fight. The shooting also reinforced fear in the community about reporting gang
crimes.
In his defense, Tavares called Kelly Bautista, who testified in front of both juries
that she heard gunshots while she was in her home. She looked out the window and saw
a man on a bicycle with his face covered. She saw his hand pointed upward and two
flashes of light coming out, but she did not see a gun. She saw a young man get
8
“thrown,” but did not see Tillett’s body until paramedics arrived. The shooter rode his
bike away. She did not get a good view of the shooter, but described him as having a
“medium” build. In a police interview, Bautista marked on a map where she saw the
shooter riding his bike at the time of the shooting and drew an arrow in the direction of
his retreat. But there was 130 or 140 feet between where she placed the shooter and
where Tillett’s body was found, and no casings or shells were found in the area Bautista
saw the shooter fire his gun.
In his defense, appellant called an eyewitness identification expert, who testified
to the low level of reliability of eyewitness identification and the factors that affect it,
such as the resemblance among people, stress of the event, the passage of time between
the event and the identification, and the identification procedure itself. Delay between
the event and the identification can affect the witness’s memory because the witness may
have acquired more information in the interim and memory can change to support the
identification made. Further, there is no correlation between confidence and accuracy,
and the passage of time actually causes confidence to increase and accuracy to decrease.
In responding to a hypothetical mirroring the facts of this case, the expert opined
the presence of a weapon and the death of someone close to a witness significantly
lessens the accuracy of the identification of the shooter. Given a second hypothetical in
which the witness did not give a physical description of the shooter, the expert opined
that without a description there was no benchmark to compare against subsequent
identifications, so those identifications would be based on the witness’s assumptions of
what he or she perceived.
With regard to photographic lineups, the expert testified the process should be
double-blind, instructions should be clear, nothing unusual should appear in the
photographs, and the session should be recorded. He opined that, when facial tattoos are
present, the tattoos on the suspect should be covered and all other individuals in the
lineup should be marked in the same area so no individual stands out. He believed
appellant’s facial tattoos should have been covered in the photographic lineup.
9
DISCUSSION
A. Gang Evidence
Appellant argues the trial court abused its discretion in admitting cumulative and
prejudicial gang evidence of his nine contacts with police, the envelopes for five of the
letters from gang members found in McEntee’s house, and the three photographs found in
the phone recovered from McEntee’s house showing appellant, McEntee, and other gang
members. We disagree.
1. Legal Standard
“Evidence Code section 352[4] provides the trial court discretion to exclude
otherwise relevant evidence when its probative value is substantially outweighed by the
probability that admitting the evidence will unduly prolong the proceeding, prejudice the
opposing party, confuse the issues, or mislead the jury. [Citation.] ‘We apply the
deferential abuse of discretion standard when reviewing a trial court’s ruling under
Evidence Code section 352. [Citation.] [For purposes of the statute,] “prejudicial” is not
synonymous with “damaging,” but refers instead to evidence that “‘uniquely tends to
evoke an emotional bias against defendant’” without regard to its relevance on material
issues. [Citations.]’ [Citation.]” (People v. Zepeda (2008) 167 Cal.App.4th 25, 34-35.)
Gang evidence is relevant and admissible both to prove a gang enhancement under
section 186.22, subdivision (b)5 and to prove gang-related substantive offenses because
“[e]vidence of the defendant’s gang affiliation -- including evidence of the gang’s
4 Evidence Code section 352 states, “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
5 Section 186.22, subdivision (b)(1) provides in relevant part, “[A]ny person who is
convicted of a felony committed 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, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished” with an additional term of imprisonment.
10
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like -- can help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to the guilt of the charged
crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) In admitting gang
evidence, the trial court must be mindful of the “risk the jury will improperly infer the
defendant has a criminal disposition and is therefore guilty of the offense charged,” but
such evidence nevertheless remains admissible when relevant to prove identity or motive,
if its probative value is not substantially outweighed by its prejudicial effect. (People v.
Carter (2003) 30 Cal.4th 1166, 1194.)
2. Procedural Background
Gang Contacts
The prosecution presented testimony from six officers regarding nine contacts they
had with appellant. At sidebar during the first officer’s testimony, appellant objected that
the evidence was cumulative because appellant conceded he was a gang member and
there was going to be other gang evidence. The prosecutor disagreed, arguing the
prosecution still had to prove appellant’s gang membership beyond a reasonable doubt
and she was trying to show a pattern of appellant’s admissions of gang membership and
his frequent association with other gang members. The prosecutor assured the court she
would not talk about the reasons appellant was stopped, if there were weapons, or
anything of that nature. The court implicitly overruled appellant’s objection and allowed
the testimony to go forward.
Gang Letters
During the testimony of the officer who conducted the search on McEntee’s
residence, the prosecution intended to introduce 16 letters from gang members found
during the search, including one from appellant, arguing they were relevant to show
McEntee was an Inglewood 13 gang member, he had contact with other gang members,
and the letter from appellant created a connection between appellant and McEntee, which
would show appellant went to pick up the shotgun from McEntee’s house where it was
eventually found. The court suggested the letters were more prejudicial than probative,
11
and appellant objected that they were cumulative, highly prejudicial, not probative, and a
waste of the jury’s time because appellant’s gang membership was not contested. The
prosecution conceded the content of the letters was not relevant. The court excluded the
letters but allowed five envelopes to be introduced and allowed the prosecution to say
there were letters inside, the five senders were documented gang members, and they were
found at McEntee’s residence. The court denied the prosecution’s request to say there
was a “stack” of letters found because it was unnecessary in light of the gang-related
jersey and photographs also found at McEntee’s residence. Also, the court ruled that
admitting any more than five would be misleading, confusing, and time consuming under
Evidence Code section 352.
In front of the jury, the prosecution showed the five envelopes to the officer who
conducted the search, who testified those were “some” of the letters recovered. Detective
Milchovich also based his opinion of McEntee’s gang status in part on those letters.
Gang Photographs
Prior to opening statements, appellant argued the prosecution failed to lay
foundation for the three photographs found in McEntee’s residence, which the
prosecution intended to introduce depicting about 15 men with diagrams and boxes
indicating their names and monikers. While appellant conceded the prosecution was
permitted to introduce some evidence of gang membership and could introduce evidence
of appellant’s gang tattoos, he objected to overloading the jury with too much gang
evidence. The prosecutor responded that, even though appellant conceded he was gang
member, she still had to prove the gang allegations and the evidence was relevant to
prove appellant’s retaliatory motive and to show a connection between appellant and the
shotgun found at McEntee’s residence. The court admitted the photographs but ordered
the names and monikers be redacted for opening statements.
During Detective Milchovich’s testimony, appellant renewed his objection that the
photographs with the names and monikers were unduly prejudicial, cumulative, and
would consume too much time to lay foundation. The prosecutor reiterated the
photographs and names were relevant to show the relationship between appellant and
12
McEntee, in addition to proving the gang allegation. The court overruled appellant’s
objection, finding the photos relevant to show appellant’s involvement in the gang and
they would not consume an undue amount of time. Detective Milchovich identified each
gang member in the photographs and labeled them with their names and monikers.
Appellant appeared in all three photos and McEntee appeared in two. One showed the
gang members throwing gang hand signals.
3. Analysis
The trial court properly exercised its discretion in admitting the various items of
gang evidence under Evidence Code section 352. All of the gang evidence was highly
probative of appellant’s membership in Inglewood 13 and corroborated Detective
Milchovich’s expert opinion that appellant committed the crimes for the benefit of the
gang. The evidence was also relevant to prove the underlying crimes. During appellant’s
contacts with officers, he provided two phone numbers, and officers were able to obtain
the cell phone records for those numbers to track appellant’s movements the night of the
shooting. Also, the field identification cards provided an evidentiary link to appellant’s
moniker of “Loco” because officers had not previously documented appellant’s moniker
as “Loco,” but one of his documented phone numbers was the same as the number for the
cell phone subscriber “Loco Loco.” The five envelopes and the photos recovered from
McEntee’s residence showed appellant had a relationship with McEntee. That evidence,
the evidence of the cell phone records tracking appellant’s movements to and from
McEntee’s residence the night of the shooting, and the recovery of the shotgun at
McEntee’s residence, supported the prosecution’s theory that appellant retrieved the
shotgun from McEntee’s residence and returned it after the shooting. And all the
evidence tended to establish appellant’s retaliatory motive and intent for the shooting.
The trial court also properly assessed the risk of unfair prejudice and undue
consumption of time in admitting the evidence. While the prosecution may not have
needed to introduce all nine contacts with appellant, the prosecutor assured the court she
would not talk about the reason appellant was stopped or if any weapons were found, and
she adhered to that assurance at trial. The testimony from the six officers regarding the
13
contacts also did not take an inordinate amount of trial time. For the letters, the trial
court carefully limited the prosecution to five envelopes and excluded the letters entirely.
And for the photos, there were only three of them and the trial court ordered the
prosecution to remove the names and monikers during opening statements and only
allowed Detective Milchovich to identify them during his testimony. Any remaining
unfair prejudice was minimized by the trial court’s instruction preventing the jury from
“conclud[ing] from this evidence that the defendant is a person of bad character or that he
has a disposition to commit crime.” We presume the jury followed the court’s
instructions. (People v. Williams (2009) 170 Cal.App.4th 587, 613 (Williams).)
Appellant relies on several cases to argue the court erred, but those cases are
distinguishable. In People v. Albarran (2007) 149 Cal.App.4th 214, the court found the
admission of gang evidence inflammatory and prejudicial because the trial court had
dismissed the gang allegations following a new trial motion and the prosecution failed to
present evidence the underlying crimes were gang-motivated, circumstances not present
here. (Id. at pp. 227-228.) In Williams, the court found error but no prejudice from the
prosecution’s cumulative and repetitive evidence of at least eight crimes and several other
incidents committed by other gang members. (Williams, supra, 170 Cal.App.4th at
pp. 609-611.) The court was particularly concerned with the trial court’s view that the
prosecution could “over-prove” its case without regard to the burden on the court system
and jurors. (Id. at pp. 610-611.) Here, the prosecution did not “over-prove” this case
with unduly cumulative and repetitive evidence, but instead offered gang evidence
specific to appellant to prove the gang allegations as well as appellant’s identity, motive,
and intent. Finally, in United States v. Irvin (7th Cir. 1996) 87 F.3d 860, the court found
gang evidence offered to prove two defendants were members of the same gang and
jointly possessed drugs with the intent to sell them was irrelevant because there was no
evidence the underlying crimes were gang-related and was prejudicial because the gang
insignias incorporated satanic imagery. (Id. at pp. 864-865.) Here, in contrast, there was
significant evidence the crimes were gang-motivated and the gang evidence was relevant
for other purposes. There was also nothing particularly inflammatory about the evidence.
14
B. Leon Interview
Appellant contends the trial court violated his due process and fair trial rights by
playing Leon’s recorded interview during trial and again during the jury’s deliberations.
We disagree.
1. Procedural Background
At trial, Leon acknowledged she was interviewed by police on April 22, 2010, and
gave a statement. When asked what she remembered, she said she did not “remember
much.” The following exchange then took place:
“Q But you gave a statement on April 22, 2010; right?
“A Yes.
“Q And in that statement, that statement was made about a month, month and a
half after the party; right?
“A Yes.
“Q Okay. And you were truthful in that statement?
“A I should have been, yes.
“Q Did you tell the cops the truth?
“A Well, I was -- basically I just said what they wanted to hear.
“Q Ms. Leon, did you tell them what you remember happening in March 2010?
“A Well, yes. Somewhat. Because I told you, I don’t remember much.
“Q I’m asking you about on April 22nd. I’m not asking you about today. I’m
asking you about on April 22nd, 2010, when you talked to them, did you give them your
statement?
“A Yes.
“Q Okay. Was it what happened at the party?
“A Yes.”
She was then asked if she went to the party with Tavares, and she responded she
did. She was asked who else was at the party, and she said Tavares’s friends, three guys
and a girl. When asked their names, she stated, “I mean like I told you, I don’t remember
the names. From what I read today morning, because I don’t remember much, I guess I
15
said Luis, Jose, Anthony and Miguel.” The trial court sustained defense counsel’s
objection and struck this response from the record. The prosecutor asked if listening to
the recording of her police interview would refresh her recollection, and she said, “Well,
I just told you the names of the guys.” The prosecutor suggested playing it anyway.
Appellant objected and the trial court refused to allow it to be played at that time.
The prosecutor asked Leon about her testimony at the preliminary hearing
regarding the people who had gone with her to the party, and appellant objected. At
sidebar, the prosecutor argued Leon’s prior statement was admissible as past recollection
recorded. Appellant argued the prosecutor had not laid a proper foundation for the
statements to be admitted as past recollection recorded. The prosecutor disagreed,
arguing Leon stated she had no independent recollection of her prior statements and she
said listening to the recording would not refresh her recollection. The court expressed
doubt Leon actually said that, and appellant claimed Leon had not testified that her prior
statements were true. The prosecutor responded, “I asked her again did you tell
everything that happened, and she said yes. After she said and went ‘somewhat,’ and I
asked her another question because I knew it would be an issue.”
Appellant cited Evidence Code section 1237 (past recollection recorded), arguing
the audio recording was not a “writing” and Leon’s statement did not satisfy the statute.
The court disagreed but ruled that because the recording was not offered by an adverse
party, the jury could hear the interview but it would not be admitted as evidence. The
jury would also be given the transcript, but it would not have a copy in the jury room.
The recording was then played for the jury. Leon acknowledged it was her voice on it.
During the course of Leon’s cross-examination, the court found there was a
“reasonable basis for believing that the forgetfulness expressed by the witness is feigned.
The witness seems to remember everything that happened in March and again at the
preliminary hearing in 2010. [¶] Her protestations about being under the influence at
various times in her life rang pretty hollow to this Court. This Court had the benefit of
observing the demeanor of the witness in court, and the Court finds it improbable that she
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would not recall at age 19 being shot at a party in 2010. [¶] And her prior interview is
properly admissible as an inconsistent statement.”
Later, during a discussion of trial exhibits, the prosecutor indicated the recording
of Leon’s interview was not being admitted into evidence because the prosecution was
not an adverse party. The court agreed the interview was played for the jury but was not
introduced.
During deliberations, Tavares’s jury asked for Leon’s interview, but the court
declined the request because the recording was not in evidence. Appellant’s jury also
asked for Leon’s “full testimony,” including her preliminary hearing testimony and the
recording of her interview with officers. The prosecutor argued Evidence Code section
1237 permitted the jury to hear the recording of the interview in open court even though
the recording itself was not admitted into evidence. Appellant disagreed, arguing the
recording was not in evidence because it was not offered by the adverse party. The court
held the interview could be played for the jury but not admitted as evidence.
The issue arose again when the prosecutor requested the interview also be played
for Tavares’s jury. Tavares’s counsel objected and the court resisted playing it because
Tavares’s jury did not ask to have all of Leon’s testimony reread. The prosecutor argued
Tavares’s jury was entitled to hear the recording because it was still considered evidence
even though it could not itself be admitted. When the court agreed, appellant argued it
was the same as if the jury asked to see something else not in evidence, which was not
proper. The prosecutor believed appellant was taking a “very narrow position” on the
issue and if the jury needed to rehear the recording, it should rehear it. The court
indicated it would further consider the issue.
Later, the prosecutor reiterated the recording was testimony the jury heard via a
recording, which should be treated like any other testimony. Appellant believed the
recording was not received as evidence and it was used to essentially refresh Leon’s
recollection, so it should not be replayed. The trial court disagreed and maintained its
prior ruling that the recording could be replayed. It was played for the jury as part of the
readback of Leon’s testimony. The next day, Tavares’s jury requested the transcript of
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Leon’s interview be reread, and Tavares’s counsel withdrew any objection to the
readback. The court marked the recording for reference but did not admit it into
evidence. Although his jury already heard the recording, appellant later filed a written
motion asking the court to revisit the ruling reiterating his arguments. The court denied
it.
2. Analysis
Appellant contends the recording of Leon’s interview was improperly played for
the jury both during trial and during deliberations because it did not satisfy the
requirements for past recollection recorded, a prior inconsistent statement, or
impeachment. Because we find it was properly admitted as past recollection recorded,
we need not address the other grounds. (People v. Cowan (2010) 50 Cal.4th 401, 465
(Cowan).)
Evidence Code section 1237 states, “(a) Evidence of a statement previously made
by a witness is not made inadmissible by the hearsay rule if the statement would have
been admissible if made by him while testifying, the statement concerns a matter as to
which the witness has insufficient present recollection to enable him to testify fully and
accurately, and the statement is contained in a writing which: [¶] (1) Was made at a
time when the fact recorded in the writing actually occurred or was fresh in the witness’
memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by
some other person for the purpose of recording the witness’ statement at the time it was
made; [¶] (3) Is offered after the witness testifies that the statement he made was a true
statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an
accurate record of the statement. [¶] (b) The writing may be read into evidence, but the
writing itself may not be received in evidence unless offered by an adverse party.” An
audio recording is considered a “writing.” (Evid. Code, § 250.) We review the trial
court’s admission of evidence for abuse of discretion. (Cowan, supra, 50 Cal.4th at
p. 462.)
Appellant argues Leon did not testify to a lack of recollection or testify her
statements during the interview were true, so they did not qualify as a past recollection
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recorded. But the record belies his assertions. Leon generally claimed she did not
“remember much” from the night of the party and in response to most of the specific
questions she was asked at trial, she testified she did not remember. She therefore had
“insufficient present recollection to enable [her] to testify fully and accurately.” (Evid.
Code, § 1237, subd. (a); Cowan, supra, 50 Cal.4th at p. 465.) Further, although she
initially equivocated, she sufficiently testified her statements from the interview were
true. She also did not disavow any of the statements she made during the interview and
was extensively cross-examined on her recollection.6
The trial court also did not abuse its discretion in allowing the recording of Leon’s
interview to be replayed for the jury during deliberations. As the trial court correctly
recognized, Evidence Code section 1237, subdivision (b) allows the writing to be “read
into evidence” but could not itself be introduced because it was not offered by appellant,
the adverse party. When the recording was played for the jury during trial, it was
effectively “read into evidence” and therefore became like any other testimony that could
have been read back to the jury during deliberations.
C. Confidential Informant
Appellant asks us to review the transcript of the in camera proceedings related to
his motion to quash and traverse the search warrant and for discovery and disclosure of
the identity of any confidential informants to determine whether the trial court’s denial of
those motions was proper.
6 Appellant’s citation of Hodges v. Severns (1962) 201 Cal.App.2d 99 is inapposite.
That case arose under Code of Civil Procedure former section 2047, which allowed a
witness to testify from a prior writing only if he or she retained “no recollection of the
particular facts,” whereas Evidence Code section 1237 requires that the witness merely
retain “insufficient present recollection to enable him to testify fully and accurately.”
(Hodges, at p. 106, fn. 2.) Moreover, in that case there was no showing the prior writing
accurately produced the witness’s original written notes. (Id. at p. 107.) Here, by
contrast, Leon acknowledged it was her voice on the recording and the interview set out
the events she observed the night of the party.
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We decline appellant’s request with regard to his motion to quash and traverse
because he did not have standing to bring that motion. A motion to quash and traverse a
search warrant attacks the validity of the warrant. (People v. Heslington (2011)
195 Cal.App.4th 947, 957, fn. 7 [“A defendant moving to quash a warrant asserts the
warrant on its face lacks probable cause,” and “[a] defendant moving to traverse a
warrant ‘mount[s] a subfacial challenge, i.e., attack[s] the underlying veracity of
statements made on the face of the search warrant application.’”]) Although the warrant
here covered 16 different addresses, appellant’s motion concerned the evidence found at
McEntee’s residence. Appellant has not attempted to demonstrate a privacy interest in
that location, so he cannot challenge the validity of the search warrant. (In re Rudy F.
(2004) 117 Cal.App.4th 1124, 1131-1132.) Indeed, the trial court denied his motion to
suppress for that reason, although it did not recognize the same problem with the motion
to quash and traverse.
With regard to appellant’s motion to disclose, Evidence Code section 1041,
subdivision (a) protects the identity of an informant when “‘[d]isclosure of the identity of
the informer is against the public interest because there is a necessity for preserving the
confidentiality of [her] identity that outweighs the necessity for disclosure in the interest
of justice. . . .’” (People v. Hobbs (1994) 7 Cal.4th 948, 960.) Nonetheless, “the
prosecution must disclose the name of an informant who is a material witness in a
criminal case or suffer dismissal of the charges against the defendant. [Citation.] An
informant is a material witness if there appears, from the evidence presented, a
reasonable possibility that he or she could give evidence on the issue of guilt that might
exonerate the defendant. [Citation.] The defendant bears the burden of adducing
‘“‘“some evidence”’”’ on this score.” (People v. Lawley (2002) 27 Cal.4th 102, 159
(Lawley).) This standard does not mandate disclosure of a percipient witness unless the
defendant “makes an adequate showing that the informant can give exculpatory
evidence.” (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277.) We review
the trial court’s denial of appellant’s motion for abuse of discretion. (Ibid.)
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Evidence Code section 1042, subdivision (d) sets forth the procedure when a
defendant demands disclosure of an informant’s identity as a material witness: “When, in
any such criminal proceeding, a party demands disclosure of the identity of the informant
on the ground the informant is a material witness on the issue of guilt, the court shall
conduct a hearing at which all parties may present evidence on the issue of disclosure.
Such hearing shall be conducted outside the presence of the jury, if any. During the
hearing, if the privilege provided for in [Evidence Code] Section 1041 is claimed by a
person authorized to do so or if a person who is authorized to claim such privilege refuses
to answer any question on the ground that the answer would tend to disclose the identity
of the informant, the prosecuting attorney may request that the court hold an in camera
hearing. If such a request is made, the court shall hold such a hearing outside the
presence of the defendant and his counsel. At the in camera hearing, the prosecutor may
offer evidence which would tend to disclose or which discloses the identity of the
informant to aid the court in its determination whether there is a reasonable possibility
that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present
at the in camera hearing. Any transcription of the proceedings at the in camera hearing,
as well as any physical evidence presented at the hearing, shall be ordered sealed by the
court, and only a court may have access to its contents. The court shall not order
disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss
the criminal proceeding, if the party offering the witness refuses to disclose the identity
of the informant, unless, based upon the evidence presented at the hearing held in the
presence of the defendant and his counsel and the evidence presented at the in camera
hearing, the court concludes there is a reasonably possibility that nondisclosure might
deprive the defendant of a fair trial.”
As required by Evidence Code section 1042, subdivision (d), the court held an
open hearing on appellant’s motion. The court preliminarily found appellant failed to
demonstrate there was a “reasonable possibility” the informant gave evidence on the
issue of guilt which might result in appellant’s exoneration. The court then held in
camera proceedings, but it did not review the sealed portions of the search warrant in
21
camera for the purpose of the disclosure motion. Instead, the court noted at the outset of
the in camera hearing that it had already found appellant failed to present a “substantial
preliminary showing” for releasing the name of the informant. It then reviewed in
camera the sealed portions of the warrant for the purpose of determining whether the
sealed material supported appellant’s motions to quash and traverse.
The trial court erred in not holding an in camera hearing on appellant’s disclosure
motion because appellant presented at least “some evidence” the informant or informants
might have provided exonerating evidence. Appellant’s theory of materiality was that
Olmedo was purportedly the only percipient witness to the shooting, but by the time
officers interviewed Olmedo almost two weeks after the shooting, they already knew to
include appellant’s picture in the six-pack photographic lineup they showed to Olmedo.
From this, appellant infers one or more of the informants must have been percipient
witnesses who provided information to officers implicating appellant in the shooting.
This theory is certainly plausible -- there is no other explanation for how officers knew to
place appellant’s photograph in the lineup shown to Olmedo. Had the trial court held the
in camera hearing prescribed by Evidence Code section 1042, subdivision (d), it would
have been able to determine whether the informant or informants actually had any
information that might have led to appellant’s exoneration.
But any error was harmless. We have obtained and reviewed the sealed portions
of the search warrant. If the trial court had conducted an in camera review, the court
would have confirmed there was no reasonable possibility any informant, even a
percipient witness, would have given evidence on the issue of appellant’s guilt that might
have exonerated him.
D. Criminal Conviction Assessment
For count 1, the court imposed a mandatory $30 criminal conviction assessment.
(Gov. Code, § 70373, subd. (a)(1).) The court was also required but failed to impose $30
assessments for each of counts 2 and 3. (People v. Sencion (2012) 211 Cal.App.4th 480,
483-484.) Therefore, we will modify the judgment to reflect the proper criminal
conviction assessment of $30 for each of counts 2 and 3.
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DISPOSITION
The judgment is modified to impose a $30 criminal conviction assessment for each
of counts 2 and 3. The trial court is ordered to issue an amended abstract of judgment
reflecting the corrected criminal conviction assessment and forward a copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment is affirmed as modified.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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