People v. Firman CA4/1

Filed 10/20/14 P. v. Firman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064110

Plaintiff and Respondent,

v. (Super. Ct. No. SCD239217)

MARCO ANTONIO FIRMAN et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and

Appellant Marco Firman.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and

Appellant Paul Salinas.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr., and Parag Agrawal, Deputy Attorneys General, for Plaintiff and

Respondent.
 In a four-count amended information, the San Diego County District Attorney

charged Marco Antonio Firman and Paul Salinas (together defendants) in count 1 with

the first degree murder of Tomas Ray (Pen. Code,1 § 187, subd. (a).) Count 1 also

alleged that defendants committed the murder for the benefit of a criminal street gang

(§ 186.22, subd. (b)(1), hereafter section 186.22(b)(1)); that Salinas, in committing the

crime, intentionally and personally discharged a firearm (a handgun) causing the victim's

death (§ 12022.53, subd. (d)); and that Firman was a principal in the commission of the

offense and one of the principals who personally used a firearm (a handgun) causing the

victim's death (§ 12022.53, subds. (d), (e)(1)).

Count 2 of the information charged Firman with possession of a firearm by a felon

(former § 12021, subd. (a)(1)) and alleged he committed the offense for the benefit of a

criminal street gang (§ 186.22(b)(1)).

Count 3 charged Salinas with unlawful possession of a firearm (former § 12021,

subd. (d)) and alleged he committed the offense for the benefit of a criminal street gang

(§ 186.22(b)(1)).

Last, count 4 charged Salinas with robbery (§ 211, victim: Nathaniel Green).

Count 4 also alleged that Salinas committed the offense for the benefit of a criminal street

gang (§ 186.22(b)(1)), was a principal in the commission of the offense, and one of the

principals who personally used a firearm (§ 12022.53, subds. (b), (e)(1)).

1 Statutory references are to the Penal Code unless otherwise specified.
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 The information further alleged that Firman had served five prior prison terms

(§§ 667.5, subd. (b), 668), had been convicted of one prior serious felony (§§ 667, subd.

(a)(1), 668, 1192.7, subd. (c)) and had one prior strike conviction within the meaning of

the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668). It also alleged that Salinas

had a prior juvenile adjudication that qualified as a strike conviction within the meaning

of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668).

A jury found defendants guilty of all the counts charged against them and found

all of the gang and firearm enhancement allegations to be true. Firman admitted the

sentence enhancement allegations pertaining to his prior convictions, and the court found

Salinas's prior juvenile adjudication qualified as a strike conviction within the meaning of

the Three Strikes law.

The court sentenced Firman to an aggregate state prison term of 17 years plus 80

years to life. It sentenced Salinas to an aggregate prison term of 22 years four months

plus 75 years to life.

Contentions

Firman and Salinas appeal their convictions, asserting both joint and separate

contentions. First, Firman (as joined by Salinas) requests that this court independently

review the sealed records of the trial court's in camera review on January 9, 2013, of the

law enforcement interview of informant David Magana for the purpose of determining

whether the trial court "erred, either in procedure or ruling." The Attorney General does

not oppose defendants' joint request.

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 Second, Firman contends his convictions of first degree murder and possession of

a firearm by a felon should be reversed because the court violated his federal

constitutional rights to confront witnesses and to due process by admitting evidence of

Salinas's out-of-court statements to informant Magana, who had been placed in a jail cell

with Salinas and who recorded Salinas's statements, which incriminated not only himself

but also Firman.

Third, Firman contends his convictions of these same two counts also should be

reversed because the court violated his federal and state constitutional rights to due

process, confrontation, effective assistance of counsel, and a jury trial when it

erroneously admitted testimonial hearsay by permitting one criminalist to testify about

the gun residue "test results and opinion" of another criminalist who tested Firman's black

hooded sweatshirt for gunshot residue and did not testify at trial.

Fourth, Salinas contends his count 4 conviction of robbing Nathaniel Green should

be reversed because his trial counsel provided ineffective assistance by failing to request

a jury instruction on voluntary intoxication.

Last, Salinas contends the court erred by not staying under section 654 the

execution of the consecutive prison sentence of two years four months it imposed for his

count 3 conviction of unlawful possession of a firearm for the benefit of a criminal street

gang because he acted with the same objective and intent when he committed this offense

and the murder of the victim.

We grant defendants' request for an independent review of the sealed records of

the in camera hearing and conclude that nothing therein indicates the court committed

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any error. For reasons we shall explain, we reject defendants's claims of error and affirm

the judgments.

FACTUAL BACKGROUND

A. The People's Case

1. Evidence relating to the shooting

On December 28, 2009, around 9:30 p.m., Tomas Ray was shot and killed as he

walked home. Ray was not a member of any gang. He died from two gunshot wounds,

one to the chest and the other to the back of the skull. A third gunshot, which grazed his

back, did not penetrate the skin. The bullets recovered from Ray's body were consistent

with having been fired from a .38-caliber or .357-caliber revolver. Ray was wearing two

silver chains on the night he was shot.

The shooting happened on the corner of Landis Street and Menlo Avenue in the

City Heights area of San Diego. Eimar Resendiz and Christian Garcia were walking in

the area at the time. Resendiz heard three or four gunshots and saw Ray fall to the

ground, but he did not see any suspects. Resendiz asked Hiep Bui, who was nearby, to

call the police. Bui, who had just driven past the corner of Landis and Menlo, had seen

two men wearing black hooded sweatshirts across the street from a man who was alone.

Bui testified he heard three gunshots. He did not know whether the two men he saw on

the corner were the same two men who approached him and asked him to call 911.

At the time of the shooting, four San Diego Police Department officers, including

Officer Lamar Rozsa, Jr., and his partner, Officer Adam Sharki, were at the City Heights

Recreation Center, about eight blocks away from Menlo and Landis. The officers heard

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three gunshots and drove east toward the shots. Officer Rozsa testified he saw an

Hispanic male jump a wall into the alley in the 3800 block of Menlo. The man ran

northbound in the alley and then jumped another wall to go westbound. Officer Rozsa

exited the patrol car and chased the suspect on foot. He observed that the suspect was

wearing a black knit beanie and a black hooded sweatshirt. The suspect ran into a gated

area of an apartment complex and escaped. Police officers searched the common area of

the apartment complex with trained police dogs. Officer Sharki testified they found some

clothes, including a black knit beanie, a black hooded sweatshirt, and a latex glove, all of

which looked like the ones the suspect had been wearing.

At trial, Officer Sharki identified Firman as the suspect he chased that night. DNA

samples taken from the latex glove, the beanie, and the black hooded sweatshirt matched

Firman at a statistical rate of one in 14 quintillion for the glove, one in 40 quintillion for

the sweatshirt, and one in 320 quintillion for the beanie. Criminalist Debra Kowal

testified that gunshot residue was found on the sweatshirt.

An hour after the shooting, at around 10:30 p.m. that night, Firman called

Mauricio Lopez and asked Lopez to pick him up and give him a ride home. Lopez

picked Firman up near Firman's girlfriend's apartment on University and 36th. Lopez

observed that Firman was agitated and, although it was December, he was wearing shorts

and a white tank top. Lopez drove Firman home.

In June 2010, about six months after the shooting, police began to focus their

investigation on Firman and Salinas based on information received from a confidential

informant.

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 David Magana, another informant, began to work with the police in January of

2012, two years after the shooting. Magana signed a formal contract with the district

attorney's office and agreed to act as an informant and join the witness protection

program in exchange for the prosecutor's recommendation that he receive credit for time

served in a pending case.

Magana testified that he was a member of the City Heights Juniors gang at the

time of the shooting. This was the same gang to which Firman and Salinas belonged.

Magana's gang monikers were "Nutty Boy" and "Maniac." Firman's nicknames were

"Midget" and "Cynic." Magana's role in the gang was to acquire guns and dispense them

to fellow gang members.

Magana testified that one and a half weeks after the shooting, he and Firman were

at Magana's house smoking methamphetamine. Firman and Magana talked about the

shooting, and Firman said he and Salinas, whose gang name was "Scrappy," were

walking down the street by "Joker's"2 house. Firman told Magana that he and Salinas

"gang bang[ed]" a guy, meaning they asked him where he was from. The guy said,

"Nowhere." Firman also told Magana he took a swing at the guy and tried to take his

chain, and then Salinas shot him. They then split up and ran in different directions.

Firman said the police chased him, he dumped his clothes, he hid his gun, and ran toward

Joker's (Ortega's) house. Firman told Magana he had a .22-caliber gun that night, and

Salinas had a .38-caliber gun. Firman also said Ortega got both of the guns back.

2 Rosman Ortega, a City Heights Juniors gang member, was known as
Joker.
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 Ortega lived near the scene of the shooting. The prosecution's gang expert opined

that Ortega was one of the leaders of the City Heights Juniors gang. Ortega lived with his

mother in an area predominantly claimed by their rival gang, Eastside San Diego.

Magana testified that he spoke with Salinas a few days after Magana's

conversation with Firman. Salinas told Magana he got his "K" or "QK" ("Ques[e]ro

killer"), which meant he had just committed murder. "Quesero" (or "Cheeser") is a

derogatory term that members of the City Heights Juniors gang used to describe members

of their rival street gang, Eastside San Diego.

a. Salinas's audio-recorded jailhouse statements to Magana

As part of his contract with the district attorney's office, Magana agreed to wear a

recording device and speak with Salinas about the shooting. On February 16, 2012,

Magana and Salinas were placed in the same jail cell and their conversation was

recorded. Portions of the recording of that conversation were played for the jury.

During the recorded jail cell conversation, Salinas indicated to Magana that he was

nervous about the case after a police officer─who the record shows was Detective Javier

Padilla─interviewed him in September 2010 and showed him pictures of Firman and

Magana. Salinas also indicated he had lied to Detective Padilla by saying that he did not

recognize the people in the pictures. Salinas indicated to Magana that he (Salinas) knew

about the murder, but that law enforcement did not have proof he was the perpetrator.

Magana asked Salinas about a letter Salinas wrote from prison in which Magana was

mentioned along with the murder. In response, Salinas assured Magana that he was not

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implicating Magana in the murder, but was just questioning whether Magana or Firman

had been contacted by law enforcement about the murder.

During the recorded conversation, Magana also told Salinas that he had heard

from Firman that Firman's DNA had been found at the murder scene. Salinas replied that

he (Salinas) would just have to "ride it out."

Later during their jail cell conversation, Magana informed Salinas that Firman had

said he (Firman) had wanted to steal "that fool['s]" chain. Salinas asked Magana, "Which

one?" Magana replied, "That day, fool, when you, when [you] guys smoked[3] that one

fool." (Italics added.) Salinas then asked, "What did [Firman] say?" Magana told

Salinas, "Yeah, you guys wanted to get his chain," and then said (referring to Firman),

"That fool's like, 'I just wanted his chain[,] fool . . . ." Also referring to Firman, Salinas

then told Magana, "That fool was telling me [to] let him have it."4 (Italics added.)

Magana then told Salinas that Firman had said he (Firman) had tried to "sock" the victim

because he wanted to take his gold chain. Magana then accused Salinas of killing the

victim, stating, "[Y]ou just smoked that fool." Salinas responded that he thought the

victim was a Quesero. Salinas did not deny his involvement in the murder.

During the recorded conversation with Magana, Salinas repeatedly referred to the

"hot one," a term he used to refer to the murder weapon─the .38-caliber "special"

3 At trial Detective Padilla testified that the term "smoke" somebody means to shoot
and kill somebody.

4 Detective Padilla testified that Salinas's phrase "let him have it" meant to shoot the
victim with a firearm.
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handgun. Salinas talked about "burn[ing]" or "bury[ing]" the "hot one" and told Magana

he had asked Joker (Ortega) to break the gun into pieces and burn it. Detective Padilla

testified at trial that Salinas's comments to Magana were significant because they

indicated Salinas had told Ortega to get rid of the evidence.

2. Evidence relating to Salinas's robbery offense

During Magana's February 2012 recorded conversation with Salinas in the jail cell,

Salinas revealed that he had been involved in a robbery. Specifically, Salinas revealed

that he and his fellow gang members lined up 10 people against a wall and stole various

items from the victims' pockets: an I-Pod Touch, eye drops, cologne, "feria" (money), a

cell phone, and a Black and Mild cigar. Salinas said he "was fucked up" during the

robbery, which meant Salinas was either drunk or "messed up" on drugs.

San Diego Police Department Detective Rudy Castro testified that, based on these

statements by Salinas to Magana, he reactivated an investigation into an unsolved

robbery. That robbery was committed in the City Heights area of San Diego at around

10:00 p.m. on January 14, 2010. A group of 13 or 14 young men who were standing

outside of an apartment complex on 49th Street were approached by four Hispanic men.

Three were wearing dark hooded sweatshirts and had bandanas over their faces. The one

who was not wearing a hooded sweatshirt and did not have a bandana over his face was

wearing a Padres jersey. The Hispanic men said that area was a "Juniors' block" and

ordered the young men to empty their pockets. The Hispanic men carried weapons. One

had a revolver, one had a small chain saw, one had a hammer, and the one who wore a

Padres jersey had a screwdriver. They went through the young men's pockets. They took

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a white lighter and a Black and Mild cigar from Nathaniel Green, and took cash and a cell

phone from another person. From a six-pack photographic lineup, Green identified

Ortega as the man in the Padres jersey.

Five days after the robbery, on January 19, 2010, Officer Carmelin Rivera was on

duty driving his patrol car in City Heights. He drove into an alley and saw a man, later

identified as Salinas, who looked at his patrol car and immediately started running.

Officer Rivera got out of his patrol car and chased Salinas on foot. He saw Salinas throw

a gun under a parked car. Soon thereafter, Salinas stopped running and Officer Rivera

and another officer took him into custody. Salinas had a white lighter, a cell phone, some

cash, and a cell phone in his pockets. The gun was a fully loaded .22-caliber revolver.

3. Gang evidence

The prosecution's gang expert opined that Firman and Salinas were both members

of the City Heights Juniors street gang. Eastside San Diego, which is the largest street

gang in San Diego, is City Heights Juniors's main rival. City Heights Juniors claimed a

small area within the territory claimed by Eastside San Diego. The shooting in this case

occurred a block south of the territory claimed by the City Heights Juniors gang. The day

after the shooting, detectives noticed graffiti about a block away from the crime scene

that depicted a bullseye target around the letters ESD, which meant another gang was

targeting Eastside San Diego.

The primary activities of the City Heights Juniors gang included assaults with

weapons.

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 For purposes of count 2 (which charged Firman with possession of a firearm by a

felon) and count 3 (which charged Salinas with unlawful possession of a firearm), the

parties stipulated that Firman had five prior felony convictions for each of which he had

served a prison commitment and that Salinas was prohibited from possessing firearms by

a court order as an expression condition of probation prior to the shooting in this case.

B. Defense Evidence

Salinas presented no evidence.

Firman testified that he was a member of the City Heights Juniors gang, and on the

night of the murder he was not at the murder scene. He was trying to break into and steal

cars, and he was wearing a black sweatshirt, a beanie, and gloves. He stated he walked

past several cars, but did not break into a car that night. Firman admitted he did not

previously tell officers that he was simply trying to break into cars.

Firman testified that he did not break into any cars because he heard police cars

driving toward him. He stated that he did not remember whether he heard gunshots that

night and that he began running when he heard the sound of police-vehicle tires because

he was on parole. He hopped over a fence, ran into an apartment complex, and hid there

behind some bushes. Firman testified that he took off his sweatshirt, beanie and gloves,

and stated that he did not know why he did that. He hopped over another fence and

walked to his girlfriend's house. Lopez picked him up there and drove him home.

Firman also testified he never talked to Magana about the shooting, he was never

on the corner of Menlo and Landis that night, he was not with Salinas that night, and he

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did not tell anybody to shoot anyone. Firman indicated he had heard of Salinas before

the shooting and had only met him once when they were in Donovan State Prison.

A defense investigator indicated he ran from the location of the shooting to where

Firman was first seen running from police officers. He ran a distance of 430 yards. It

took him 57 seconds to run that distance. Another defense investigator testified that the

world record for the 440-yard dash is 44.58 seconds.

Officer Sharki testified he first saw Firman about 40 seconds after he heard the

gunshots.

DISCUSSION

I. REVIEW OF SEALED RECORDS OF IN CAMERA HEARING

Asserting they are entitled under section 1054.15 to "discovery of more than

merely 'exculpatory" evidence," Firman and Salinas request that this court independently

review the sealed records of the trial court's in camera review on January 9, 2013, of the

law enforcement interview of informant Magana for the purpose of determining whether

5 Section 1054.1 provides: "The prosecuting attorney shall disclose to the defendant
or his or her attorney all of the following materials and information, if it is in the
possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies: [¶] (a) The names and addresses of persons the
prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶] (c)
All relevant real evidence seized or obtained as a part of the investigation of the offenses
charged. [¶] (d) The existence of a felony conviction of any material witness whose
credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory
evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including the results
of physical or mental examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial."
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the trial court "erred, either in procedure or ruling." The Attorney General does not

oppose defendants' joint request.

The sealed record in question consists of a 13-page reporter's transcript of the in

camera hearing. Having read and considered the transcript, we conclude that nothing

therein indicates the court committed any error or that defendants' rights were violated.

II. SALINAS'S RECORDED JAILHOUSE STATEMENTS TO INFORMANT MAGANA
(FIRMAN'S BRUTON/CRAWFORD CLAIM)

Firman contends his convictions of first degree murder and possession of a firearm

by a felon should be reversed because the court violated his federal constitutional rights

to confront witnesses and to due process by admitting evidence of Salinas's out-of-court

statements to informant Magana, who had been placed in a jail cell with Salinas and who

recorded Salinas's statements that incriminated both himself and Firman. We reject that

contention.

A. Background

1. Salinas's recorded jailhouse statements to Magana the implicated Firman

During his recorded jailhouse conversation with Magana (discussed more fully in

the factual background, ante), Salinas implicated Firman in the murder of the victim.

Referring to Firman, Salinas told Magana, "That fool was telling me [to] let him have it."

Detective Padilla testified that Salinas's phrase "let him have it" meant to shoot the victim

with a firearm. Magana then accused Salinas of killing the victim, stating, "[Y]ou just

smoked that fool." Salinas responded that he thought the victim was a Quesero. Salinas

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told Magana that it was Midget (Firman) who told Salinas that the victim was "[c]heesin

it," meaning the victim was a member of the rival Eastside San Diego gang.

2. Firman's severance motion

In a pretrial motion Firman requested that his trial be severed from Salinas's trial.

Citing Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda

(1965) 63 Cal.2d 518 (Aranda), (together Aranda/Bruton), Firman claimed that

admission into evidence of Salinas's recorded jailhouse statements to Magana would

violate Firman's right to confrontation as set forth in Aranda/Bruton because the

extrajudicial statements were "testimonial" within the meaning of Crawford v.

Washington (2004) 541 U.S. 36 (Crawford), they implicated Firman in the murder and it

was unlikely Salinas would testify in a joint trial and be subject to cross-examination.

In support of his motion, Firman also claimed Salinas's statements were not

declarations against Salinas's penal interest, and thus they were inadmissible hearsay,

because Salinas perceived he was talking to another gang member, he had a motivation to

be untruthful about whether he had committed a criminal act, and thus there were

insufficient indicia of reliability for the hearsay exception for declarations against interest

(Evid. Code, § 1230) to apply.

Citing People v. Arceo (2011) 195 Cal.App.4th 556 (Arceo) and People v. Arauz

(2012) 210 Cal.App.4th 1394 (Arauz), the prosecutor opposed Firman's severance

motion, arguing Salinas's statements were not testimonial and the hearsay exception for

declarations against interest applied.

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 a. Ruling

The court denied Firman's severance motion, finding that Salinas's statements to

Magana were not testimonial, and thus the admission of the statements would not violate

Crawford, because a reasonable person in Salinas's position would not have believed the

conversation with Magana was a custodial interrogation, and no other category of

"testimonial" statement applied. The trial court analogized the jailhouse conversation to a

pretextual call that would not be considered testimonial, and noted that the relevant

question was whether a reasonable person in a similar situation would believe he was

being interrogated. The court explained its reasoning:

"To me, [Salinas is] confiding in a friend. His friend is trying to get
him to say things that are incriminating, but this is a trust
relationship. This is . . . a trust relationship because they are
homeboys. They grew up in the same neighborhood. They have
probably had many experiences together, criminal experiences, and
just hanging-out experiences. So he's trusting him with his personal
information and confiding in him about things that are personal."

The court also found the statements were against Salinas's penal interest within the

meaning of the exception to the hearsay rule for declarations against interest (Evid. Code,

§ 1230) because Salinas admitted he had committed a crime. The court further found that

any motivation Salinas may have had to lie could be presented to the jury, but it was not a

basis to exclude his statements.

B. Applicable Legal Principles

1. Aranda/Bruton and the Sixth Amendment right of confrontation

"The confrontation clause of the Sixth Amendment to the federal Constitution,

made applicable to the states through the Fourteenth Amendment, provides that '[i]n all

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criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.' The right of confrontation includes the right of cross-

examination." (People v. Fletcher (1996) 13 Cal.4th 451, 455 (Fletcher).)

A recurring problem in the application of the Sixth Amendment right of

confrontation concerns an out-of-court statement by one defendant that incriminates both

that defendant and a jointly charged codefendant. (Fletcher, supra, 13 Cal.4th at p. 455.)

"Generally, the [out-of-court statement] will be admissible in evidence against the

defendant who made it (the declarant)." (Ibid., citing Evid. Code, § 1220 [hearsay

exception for party admissions].)

In Bruton, supra, 391 U.S. 123, "[t]he United States Supreme Court . . . held that,

because jurors cannot be expected to ignore one defendant's confession that is 'powerfully

incriminating' as to a [codefendant] when determining the latter's guilt, admission of such

a confession at a joint trial generally violates the confrontation rights of the

nondeclarant." (Fletcher, supra, 13 Cal.4th at p. 455, citing Bruton, at pp. 126-137.) In

Aranda,6 supra, 63 Cal.2d 518, the California Supreme Court "reached a similar

conclusion on nonconstitutional grounds." (Fletcher, at p. 455, citing Aranda, at pp. 528-

530.)

6 To the extent the judicially declared rule of practice set forth in Aranda, supra, 63
Cal.2d 518, requires the exclusion of relevant evidence that would not be excluded under
federal constitutional law, it was abrogated in 1982 by Proposition 8. (Cal. Const., art. I,
§ 28, subd. (d); Fletcher, supra, 13 Cal.4th at p. 465.) To the extent Aranda corresponds
with Bruton, supra, 91 U.S. 123, it was not abrogated by Proposition 8. (People v.
Orozco (1993) 20 Cal.App.4th 1554, 1564.)
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 Thus, Aranda/Bruton barred admission, at a joint trial, of a nontestifying

defendant's out-of-court statement that incriminated a codefendant, even if the court

instructed the jury to consider the statement in determining the guilt only of the declarant,

because admission of the statement violated the codefendant's Sixth Amendment right of

confrontation. (Bruton, supra, 391 U.S. at pp. 126, 135-137; Aranda, supra, 63 Cal.2d at

pp. 529-530; Fletcher, supra, 13 Cal.4th at p. 455.)

Crawford, supra, 541 U.S. 36, and its progeny altered the Aranda/Bruton Sixth

Amendment analysis. In Crawford, the United States Supreme Court held that the

confrontation clause bars "admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." (Crawford, at pp. 53-54, italics added.)

The contours of the confrontation clause and the meaning of "testimonial" have

remained elusive because the high federal court has not defined, for purposes of that

clause, precisely who is a witness and what constitutes testimony. (See Melendez-Diaz v.

Massachusetts (2009) 557 U.S. 305, 309-310 (Melendez-Diaz); Davis v. Washington

(2006) 547 U.S. 813, 826-827 (Davis); Crawford, supra, 541 U.S. at pp. 51-52.)

However, the Supreme Court has described a "core class of 'testimonial'

statements" that are covered by the confrontation clause, the various formulations of

which include (1) "'ex parte in-court testimony or its functional equivalent─that is,

material such as affidavits, custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially'[; (2)] 'extrajudicial . . . statements contained

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in formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions'[; and (3)] 'statements that were made under circumstances which would lead

an objective witness reasonably to believe that the statement would be available for use at

a later trial.'" (Crawford, supra, 541 U.S. at pp. 51-52, italics omitted; Melendez-Diaz,

supra, 557 U.S. at pp. 309-310.)

In People v. Dungo (2012) 55 Cal.4th 608 (Dungo), the California Supreme Court

recently reviewed Crawford, supra, 541 U.S. 36, and its progeny─including Williams v.

Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]─and explained that "[a]lthough the high

[federal] court has not agreed on a definition of 'testimonial,' testimonial out-of-court

statements have two critical components. First, to be testimonial the statement must be

made with some degree of formality or solemnity. Second, the statement is testimonial

only if its primary purpose pertains in some fashion to a criminal prosecution. The high

court justices have not, however, agreed on what the statement's primary purpose must

be." (Dungo, at p. 619.)

Crawford altered the Aranda/Bruton Sixth Amendment analysis by implying that

the Sixth Amendment does not bar the admission of nontestimonial hearsay, stating:

"[N]ot all hearsay implicates the Sixth Amendment's core concerns." (Crawford, supra,

541 U.S. at p. 51; People v. Garcia (2008) 168 Cal.App.4th 261, 290.)

In Davis, supra, 547 U.S. 813, the United States Supreme Court directly addressed

the question of "whether the Confrontation Clause applies only to testimonial hearsay"

and held that it does. (Id. at p. 823.) Davis explained that "[o]nly [testimonial

statements] cause the declarant to be a 'witness' within the meaning of the Confrontation

19
Clause. [Citation.] It is the testimonial character of the statement that separates it from

other hearsay that, while subject to traditional limitations upon hearsay evidence, is not

subject to the Confrontation Clause." (Davis, at p. 821.)

Thus, as we explained in People v. Garcia, supra, 168 Cal.App.4th 261, "Davis

expressly held what Crawford suggested─that 'nontestimonial hearsay is not subject to

the Confrontation Clause.'" (People v. Garcia, at p. 291, quoting U.S. v. Tolliver (7th

Cir. 2006) 454 F.3d 660, 665, fn. 2 & citing People v. Cage (2007) 40 Cal.4th 965, 984

["the confrontation clause is concerned solely with hearsay statements that are

testimonial"].) Accordingly, as we further explained in Garcia, "after Davis, the

determination of whether the admission of a hearsay statement violates a defendant's

rights under the confrontation clause turns on whether the statement is testimonial. If the

statement is testimonial, it must be excluded unless the declarant is unavailable as a

witness and the defendant had a prior opportunity to cross-examine the declarant. If the

statement is not testimonial, it does not implicate the confrontation clause, and the issue

is simply whether the statement is admissible under state law as an exception to the

hearsay rule." (People v. Garcia, at p. 291, italics added; People v. Gutierrez (2009) 45

Cal.4th 789, 812 ["Only the admission of testimonial hearsay statements violates the

confrontation clause—unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine the declarant."].)

C. Analysis

Relying primarily on Bruton, supra, 391 U.S. 123, Firman contends the trial court

committed prejudicial evidentiary error by admitting into evidence Salinas's recorded

20
jailhouse statements to Magana. Firman also contends that under Crawford, supra, 541

U.S. 36, the erroneous admission of Salinas's extrajudicial statements violated Firman's

Sixth Amendment right of confrontation and cross-examination because the statements

implicated him in the murder, the statements were testimonial, and he was not able to

cross-examine Salinas about those statements. We reject these contentions and conclude

the evidence of Salinas's jailhouse statements was admissible because the statements

were not testimonial, Salinas made the statements against his own penal interests within

the meaning of the exception to the hearsay rule set forth in Evidence Code section 1230,

and the statements bore sufficient indicia of reliability.

As already discussed, the determination of whether the admission of a hearsay

statement in a criminal case violates a defendant's rights under the confrontation clause

"turns on whether the statement is testimonial." (People v. Garcia, supra, 168

Cal.App.4th at p. 291.) If the statement is not testimonial, it does not implicate the

defendant's Sixth Amendment rights and "the issue is simply whether the statement is

admissible under state law as an exception to the hearsay rule." (Ibid.) To be

testimonial, an out-of-court statement must satisfy two requirements: (1) "the statement

must be made with some degree of formality or solemnity," and (2) the "primary

purpose" of the statement must "pertain[] in some fashion to a criminal prosecution."

(Dungo, supra, 55 Cal.4th at p. 619.)

Here, Salinas's jailhouse statements to Magana were not testimonial within the

meaning of Crawford, supra, 541 U.S. 36, and its progeny. We are guided in our

analysis by Davis, supra, 547 U.S. 813, and the recent decision in Arauz, supra, 210

21
Cal.App.4th 1394. In Davis, the United States Supreme Court gave examples of

extrajudicial statements that were "clearly nontestimonial," including "statements made

unwittingly to a Government informant." (Davis, at p. 825.) The Court of Appeal in

Arauz, following Davis, held that "statements unwittingly made to an informant are not

'testimonial' within the meaning of the confrontation clause." (Arauz, at p. 1402.)

Similarly here, the record (discussed, ante) establishes that Salinas unwittingly

made his recorded jailhouse statements to a government informant, Magana.

Accordingly, we conclude Salinas's extrajudicial statements incriminating Firman were

"clearly nontestimonial" within the meaning of Crawford, supra, 541 U.S. 36 and its

progeny for purposes of Sixth Amendment analysis. (Davis, supra, 547 U.S. at p. 825;

Arauz, supra, 210 Cal.App.4th at p. 1402.)

As Salinas's statements are "not testimonial, [they do] not implicate the

confrontation clause, and the issue is simply whether the statement is admissible under

state law as an exception to the hearsay rule." (Garcia, supra, 168 Cal.App.4th at p.

291.)

Here, the evidence of Salinas's statements to Magana bore sufficient indicia of

reliability to admissible under the hearsay exception for declarations against penal

interest codified in Evidence Code section 1230.7 Our Supreme Court has summarized

7 Evidence Code section 1230 provides in 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."
22
the law applicable to the declaration against penal interest exception to the hearsay rule:

"'Evidence Code section 1230 provides that the out-of-court declaration of an unavailable

witness may be admitted for its truth if the statement, when made, was against the

declarant's penal interest. The proponent of such evidence must show "that the declarant

is unavailable, that the declaration was against the declarant's penal interest, and that

the declaration was sufficiently reliable to warrant admission despite its hearsay

character."' [Citation.] 'The focus of the declaration against interest exception to the

hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining

whether a statement is truly against interest within the meaning of Evidence Code section

1230, and hence is sufficiently trustworthy to be admissible, the 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.'"

(People v. Geier (2007) 41 Cal.4th 555, 584, italics added, disapproved on another point

by Melendez-Diaz, supra, 557 U.S. 305, as acknowledged in People v. Houston (2012)

54 Cal.4th 1186, 1220.) "A trial court's decision to admit or exclude evidence is a matter

committed to its discretion '"and will not be disturbed except on a showing the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted

in a manifest miscarriage of justice."'" (Geier, supra, at p. 585.)

Here, the court did not abuse its discretion in finding that Salinas's challenged

jailhouse statements to Magana were admissible under Evidence Code section 1230 as

declarations against penal interest. First, Salinas was unavailable as a witness because,

consistent with the Fifth Amendment, he refused to testify and the prosecution could not

23
call him to the stand. (People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962 ["A

declarant who asserts his or her Fifth Amendment privilege not to testify is 'unavailable'

within the meaning of [Evidence Code section 1230]."].)

Second, Salinas's statements implicated him as the shooter,8 and thus were against

his penal interest because they showed that he committed first degree murder, that he

personally discharged a firearm causing death, and that he was acting on the behalf of a

criminal street gang for the benefit of that gang.

Last, the statements bore sufficient indicia of reliability. Salinas relies on Lilly v.

Virginia (1999) 527 U.S. 116, a pre-Crawford case. However, as the Arceo court

correctly pointed out, Lilly "observed that '[w]hen a court can be confident . . . "the

declarant's truthfulness is so clear from the surrounding circumstances that the test of

cross-examination would be of marginal utility," the Sixth Amendment's residual

"trustworthiness" test allows the admission of the declarant's statements.'" (Arceo, supra,

195 Cal.App.4th at p. 577, quoting Lilly, supra, at p. 136.)

Here, "[i]n addition to the 'reasonable assurance' of the veracity that ordinarily

flows from a person's interest in not being criminally implicated [citation], the

circumstances surrounding [Salinas's] statements confirm their reliability. [Salinas's]

statements were not made in a custodial context or in any other context remotely close to

8 During the recorded jailhouse conversation, Magana accused Salinas of killing the
victim by telling Salinas, "[Y]ou just smoked that fool." Acknowledging he shot the
victim, Salinas responded that he thought the victim was a Quesero. Salinas did not deny
his involvement in the murder. He also told Magana he had asked Joker (Ortega) to
break the murder weapon (the gun he referred to as the hot one) into pieces and burn it.
24
'an accomplice's statements that shift or spread the blame' to another. [Citation.] Instead,

[his] statements were made in '"the most reliable circumstance,"' that is, '"one in which

the conversation occurs between friends in a noncoercive setting that fosters uninhibited

disclosures."'" (Arceo, supra, 195 Cal.App.4th at p. 577, fn. omitted.) Here, Salinas's

statements did not shift any blame away from him. His statements identified himself as

the shooter and acknowledged he was acting for the benefit of a criminal street gang of

which he, Magana, and Firman all were members.

For all of the foregoing reasons, we conclude the court did not abuse its discretion

or violate Firman's federal constitutional rights to confront witnesses and to due process

by admitting evidence of Salinas's out-of-court statements to informant Magana.

III. EXPERT TESTIMONY OF CRIMINALIST KOWAL
(FIRMAN'S SIXTH AMENDMENT CLAIM)

Firman next contends his convictions of first degree murder and possession of a

firearm by a felon also should be reversed because the court violated his federal and state

constitutional rights to due process, confrontation, effective assistance of counsel, and a

jury trial when it erroneously admitted testimonial hearsay by permitting criminalist

Kowal to testify about the gun residue "test results and opinion" of criminalist Margaret

Kaleuati, who tested Firman's black hooded sweatshirt for gunshot residue and did not

testify at trial. In a related contention, Firman asserts that Kowal "did not form or

express her own opinion" and, after reviewing Kaleuati's analysis, she "agreed" with

Kaleuati's test findings that there were a few "characteristic particles," and many

25
"consistent particles," of gunshot residue on the test sample taken from Firman's

sweatshirt. We reject these contentions.

A. Background

In this case two criminalists at the Los Angeles Department of Coroner tested the

black hooded sweatshirt that belonged to Firman and a navy blue sweatshirt for gunshot

residue. Kowal, the criminalist who testified for the prosecution in this case, personally

tested the navy blue hooded sweatshirt and found "many consistent particles[9] of

gunshot residue." Kowal's nontestifying colleague, Kaleuati, tested Firman's black

hooded sweatshirt.

1. Firman's motion to exclude Kowal's testimony

Prior to Kowal's testimony in this case, Firman's counsel filed a motion seeking an

order "prohibit[ing] Kowal from testifying from the contents of Kaleuati's reports and

tests." In his motion, Firman argued that, if the court permitted Kowal to testify from

Kaleuati's report, the court should "prohibit Kowal from discussing Kaleuati's opinions

and the details of her report." Citing Melendez-Diaz, supra, 557 U.S. 305, Firman

claimed that Kaleuati's "reports" were testimonial, and thus allowing Kowal to testify to

the gunshot residue testing performed by Kaleuati would violate his confrontation rights

9 Kowal indicated there are two categories of particles that are relevant to gunshot
residue testing: "characteristic" particles and "consistent" particles. She explained that a
"characteristic particle" is made up of only "three chemical components, lead, barium,
and antimony," and such a particle comes "from the discharge of a firearm." She also
explained that "consistent particle[s]" are "those other particles that I mentioned, the lead
and barium, the lead and antimony. . . . If I find lead and barium, lead and antimony, or
just lead, those are certainly part of the particles that can be produced in the discharge of
a firearm, but they could also come from an environmental source."
26
under the Sixth and Fourteenth Amendments to the federal Constitution because there

was no showing Kaleuati was unavailable to testify, and he had no prior opportunity to

cross-examine her. Citing Dungo, supra, 55 Cal.4th 608, Firman acknowledged that

"[a]utopsy reports have been found generally to be non-testimonial" because "[t]hey are

mandated by law and have purposes other than criminal prosecution." Citing People v.

Lopez (2012) 55 Cal.4th 569 (Lopez), he also acknowledged that "[p]ortions of DNA

analysis have been found to be non-testimonial," and that "[a] computer[-]produced

document is not testimonial as long as it does not contain an operator's claim of validity

of the data" because "a machine can never be cross-examined."

Citing Lopez, supra, 55 Cal.4th 569 and Dungo, supra, 55 Cal.4th 608, the

prosecutor opposed Firman's motion to exclude Kowal's testimony, arguing that it would

be "burdensome" for the Los Angeles Department of Coroner "to have both Kowal and

Kaleuati come down" to testify in this case, and that the case law allowed Kowal to

testify as to her own conclusions based on another criminalist's (Kaleuati's) notes.

a. Ruling

Following a hearing, the court denied Firman's motion. The court stated it would

allow Kowal "to testify about what [Kaleuati] did" because "[i]t is official record. It is

something [Kowal] can review and comment on, because she has expertise for what the

evidence is" and she could "look at it and say, 'This is something we use in our lab. This

is a procedure we follow [and, u]ltimately, she will say she came to this conclusion."

27
 2. Kowal's expert testimony

Kowal testified that testing for gunshot residue consisted of using a dime-size

aluminum disk with sticky tape on the surface─which was attached to a vile to allow the

tester to hold onto it─to dab the item being tested and lift particulate material from that

item. A carbon coating was added to the sticky disks, each disk was fitted into a larger

disk, placed in a glass container, and then placed in the vacuum chamber for the scanning

electron microscope. She explained that the electron microscope has an energy

dispersive X-ray spectrometer, an instrument that "can run on automation" and allowed

her to determine what elements were in a particular particle. Kowal stated there was a

calibration standard that could tell her whether the energy dispersive X-ray spectrometer

was functioning properly. She further explained that there was a "[gunshot residue]

thread standard sample in there as well" and that sample "ha[d] [gunshot residue]

particles on it" that allowed her to know "it's operating well and it's finding small, lead

particles." Kowal stated she used the instrument "to scan the surface" of the disk to

"search for particles of interest [and] capture a spectra of the particles it found." The

instrument produced a list of the particles it found with an accompanying spectra for each

particle. Kowal indicated she reviewed this list and the spectra to determine whether the

particles were "characteristic" particles of gunshot residue or were "consistent"

particles.10

10 See fn. 9, ante.
28
 Kowal testified that, with respect to the black hooded sweatshirt that Kaleuati

tested, her role was to act as the technical reviewer. Stating that "all of our work has to

be technically reviewed by somebody that is also competent in the same analysis," Kowal

explained that she went "to the instrument where [Kaleuati] performed this analysis and

[she] reviewed the images that [Kaleuati] collected and the spectra she collected for each

of the items─for each of the particles she saved to come to her conclusion. [¶] I

determined whether I agreed with what [Kaleuati] saw and made note of."

Kowal then testified that she "agreed to the conclusion that [Kaleuati] came to"

regarding the black hooded sweatshirt. Stating that she "reviewed all of [Kaleuati's]

notes and paperwork" regarding "the work done" on the sweatshirt, Kowal testified that

Kaleuati "found a few characteristic particles and many consistent particles of gunshot

residue on the black hooded sweatshirt." The prosecutor asked Kowal, "Did you agree

with those findings after looking at the data?" Kowal replied, "Yes, I did."

Regarding the characteristic particles found on the black hooded sweatshirt,

Kowal opined that "it could be that the person wearing this [sweatshirt] discharged a

firearm. Could be that they were standing nearby when a firearm discharged or that this

sweatshirt came in contact with some surface such as a firearm, and it could have

transferred that way." The prosecutor again asked Kowal whether she agreed with the

results of Kaleuati's testing of the black hooded sweatshirt when Kowal looked at the

machine, and Kowal responded that she did.

29
 B. Analysis

In support of his claim of constitutional error in violation of the confrontation

clause of the Sixth Amendment, Firman primarily relies on Melendez-Diaz, supra, 557

U.S. 305, Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705], and Williams

v. Illinois, supra, 132 S.Ct. 2221. However, we must follow Lopez, supra, 55 Cal.4th

569 and Dungo, supra, 55 Cal.4th 608─which the California Supreme Court's decided in

October 2012 after considering Melendez-Diaz, Bullcoming, and Williams (see Dungo, at

p. 616)─because we are bound by California Supreme Court precedent. (Auto Equity

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In Lopez our Supreme Court explained that, under the high federal court's "quartet

of cases"─Crawford, supra, 541 U.S. 36; Melendez-Diaz, supra, 557 U.S. 305;

Bullcoming v. New Mexico, supra, 131 S.Ct. 2705; and Williams v. Illinois, supra, 132

S.Ct. 2221─"the prosecution's use at trial of testimonial out-of-court statements

ordinarily violates the defendant's right to confront the maker of the statements unless the

declarant is unavailable to testify and the defendant had a prior opportunity for cross-

examination." (Lopez, supra, 55 Cal.4th at p. 581; accord, Dungo, supra, 55 Cal.4th at

pp. 616, 619.) Lopez and Dungo also explained that, although the United States Supreme

Court has not agreed on a definition of "testimonial," under its just-mentioned quartet of

cases a testimonial out-of-court statement has two critical components. First, to be

testimonial the out-of-court statement "must [be] made with some degree of formality or

solemnity." (Ibid.) Second, the out-of-court statement is testimonial "only if its primary

30
purpose pertains in some fashion to a criminal prosecution." (Id. at pp. 581-582; Dungo,

at pp. 616, 619.)

Here, with respect to the solemnity component of a testimonial out-of-court

statement, Firman has not shown, and cannot demonstrate, that what he refers to as the

"test results and opinion" contained in the notes of the nontestifying criminalist, on which

the prosecution's criminalist relied and about which she testified, were made with the

requisite degree of formality or solemnity to be considered testimonial for purposes of the

confrontation clause of the Sixth Amendment. We are guided in our analysis by our

Supreme Court's Lopez decision.

In Lopez a jury convicted the defendant of vehicular manslaughter while

intoxicated. (Lopez, supra, 55 Cal.4th at p. 573.) At trial the prosecution's criminalist,

John Willey, testified that he had reviewed a laboratory report prepared by his colleague,

Jorge Peña, who had analyzed defendant's blood sample. (Id. at p. 574.) Peña did not

testify, and the prosecution did not show he was unavailable as a witness. (Ibid.) Willey

testified that he had been employed in the laboratory for more than 17 years, he knew its

procedures for processing blood samples for alcohol analysis, and he had trained Peña

and was intimately familiar with Peña's procedures and how Peña tested blood samples

for alcohol. (Ibid.) Referring to Peña's report, Willey testified that Peña used a gas

chromatograph to analyze the defendant's blood sample, and Peña's analysis showed the

defendant's blood-alcohol concentration was 0.09 percent. (Ibid.) Willey also testified

that, based on his own "separate abilities as a criminal analyst," he too concluded that the

blood-alcohol concentration in defendant's blood sample was 0.09 percent. (Ibid.) At the

31
prosecution's request, the trial court admitted into evidence a copy of Peña's laboratory

report. (Ibid.) Defendant objected to the admission of Peña's report and Willey's

testimony about its contents. (Lopez, supra, at pp. 574, 584.)

This court reversed the Lopez defendant's conviction, and our Supreme Court

reversed our decision, holding that "the critical portions of [Peña's] report were not made

with the requisite degree of formality or solemnity to be considered testimonial." (Lopez,

supra, 55 Cal.4th at p. 582.) The Supreme Court noted that pages 2 through 6 of Peña's

six-page report "consist[ed] entirely of data generated by a gas chromatography machine

to measure calibrations, quality control, and the concentration of alcohol in a blood

sample." (Id. at p. 583.) The court stated that, "[e]ven though nontestifying analyst

Peña's signature appear[ed] on the laboratory report's second page (the printout of the

machine's calibrations) and the remaining pages [bore] the handwritten initials 'JRP'

(presumably Jorge Peña's initials), no statement by Peña, express or implied, appear[ed]

on any of those pages." (Id. at p. 583.) The Lopez court also noted that the report's first

page was a chart containing handwritten information by the testing analyst, including

information filled in by a laboratory assistant (Brian Constantino, whose initials appeared

at the top of the page) that included defendant's name, the laboratory number given to

defendant's blood sample, the date and time the sample was collected, and the date and

time the sample was received at the laboratory. (Ibid.) The Supreme Court further noted

in Lopez that Peña's initials appeared in a box on page 1 that bore the heading

"Ana[lyzed] By," and the chart contained information apparently entered by Peña which

"show[ed] . . . the results of the blood analysis (0.09), indicating that defendant's blood

32
sample had a blood-alcohol concentration of 0.09 percent." (Lopez, supra, 55 Cal.4th at

pp. 583-584.)

In holding that the critical portions of Peña's lab report were not made with the

requisite degree of formality or solemnity to be considered testimonial, the Lopez court

reasoned that "neither [the laboratory assistant] nor Peña signed, certified, or swore to the

truth of the contents of page 1 of the report." (Lopez, supra, 55 Cal.4th at p. 584.) It also

noted that, based on the lab assistant's labeling of defendant's blood sample and the

machine-generated results for that sample, the prosecution expert witness (Willey) "gave

his independent opinion─reflecting his 'separate abilities as a criminal analyst'─that

defendant's blood sample contained 0.09 percent alcohol." (Ibid.)

Here, in light of the Supreme Court's holding and reasoning in Lopez, supra, 55

Cal.4th 569, we conclude that the out-of-court test results contained in what prosecution

criminalist Kowal referred to as the notes and paperwork of nontestifying criminalist

Kaleuati, like the critical portions of the lab report of nontestifying criminalist Peña in

Lopez, lacked the requisite degree of formality or solemnity to be considered testimonial

for purposes of the confrontation clause of the Sixth Amendment. Kowal's testimony

showed that, with respect to Firman's black sweatshirt that Kaleuati tested, Kaleuati's

notes and paperwork contained a list of particles and the accompanying spectra images

produced by the calibrated energy dispersive X-ray spectrometer that Kaleuati used to

analyze the particulate matter lifted from the sweatshirt. The notes also contained

Kaleuati's finding, based on the instrument-generated results, that the instrument had

detected a few characteristic particles of gunshot residue, as well as many consistent

33
particles, on the black sweatshirt. However, nothing in the record indicates that Kaleuati

"signed, certified, or swore to the truth of the contents" (Lopez, supra, 55 Cal.4th at p.

584) of her notes and related paperwork. Unlike the testimonial certificates of analysis

that were sworn to before a notary public by the laboratory analysts in Melendez-Diaz

(supra, 557 U.S. at p. 308), Kaleuati's notes and paperwork lack the requisite degree of

formality or solemnity to be considered testimonial.

We reject Firman's assertions that Kowal did not form or express her own opinion

and that after she reviewed Kaleuati's notes she simply agreed with Kaleuati's test

findings that there were characteristic particles of gunshot residue on the test sample

taken from Firman's black sweatshirt. The record shows that, like the prosecution

criminalist in Lopez who formed his own expert opinion based on the nontestifying

criminalist's lab report (see Lopez, supra, 55 Cal.4th at p. 574), Kowal rendered her own

independent opinion that the black sweatshirt tested positive for gunshot residue.

Specifically, Kowal testified that her role with respect to the black sweatshirt that

Kaleuati tested was to act as the technical reviewer. Kowal stated that she reviewed all of

Kaleuati's notes and paperwork regarding the work done on the sweatshirt. She also

explained that she went to the instrument where [Kaleuati] performed this analysis and

[she] reviewed the images that [Kaleuati] collected and the spectra she collected for each

of the items─for each of the particles she saved to come to her conclusion. When the

prosecutor asked Kowal whether she agreed with Kaleuati's findings after looking at the

data, Kowal replied, "Yes, I did."

34
 Kowal's foregoing substantial testimony shows that she performed her own

analysis based on the scientific data contained in Kaleuati's notes and the instrument-

generated list of particles and related spectra images to reach her independent opinion

that the black sweatshirt tested positive for gunshot residue. We also conclude Kowal

properly relied on those notes and data as the basis for her expert opinion. "Expert

testimony may . . . be premised on material that is not admitted into evidence so long as it

is material of a type that is reasonably relied upon by experts in the particular field in

forming their opinions." (People v. Gardeley (1996) 14 Cal.4th 605, 618, citing Evid.

Code, § 801, subd. (b).) "[A]n expert witness whose opinion is based on such

inadmissible matter can, when testifying, describe the material that forms the basis of the

opinion." (Gardeley, supra, 14 Cal.4th at p. 618.)

For all of the foregoing reasons, we reject Firman's claim of constitutional error.

In light of our determination that Kaleuati's out-of-court statements lack the requisite

degree of formality or solemnity to be considered testimonial, we need not consider the

primary purpose of those statements. (Lopez, supra, 55 Cal.4th at p. 582 ["[W]e need not

consider the primary purpose of [the] nontestifying analyst['s] laboratory report . . .

because . . . the critical portions of that report were not made with the requisite degree of

formality or solemnity to be considered testimonial."].)

IV. SALINAS'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO
REQUEST VOLUNTARY INTOXICATION INSTRUCTION)

Salinas separately contends his count 4 conviction of robbing Nathaniel Green

should be reversed because his trial counsel provided ineffective assistance by

35
prejudicially failing to request a jury instruction on voluntary intoxication as a defense to

this specific intent crime. We reject this contention.

A. Applicable Legal Principles

1. Ineffective assistance of counsel

The law governing Salinas's ineffective-assistance-of-counsel claim is settled. A

criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S.

668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a

denial of the right to effective assistance of counsel, a defendant must show (1) his or her

counsel's performance was below an objective standard of reasonableness under

prevailing professional norms, and (2) the deficient performance prejudiced the

defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.)

To demonstrate prejudice, a defendant asserting an ineffectiveness claim on appeal

must show a reasonable probability he or she would have received a more favorable

result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp.

693-694; People v. Frye, 18 Cal.4th at p. 979.) "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)

Strickland explained that "[j]udicial scrutiny of counsel's performance must be

highly deferential [because] [i]t is all too tempting for a defendant to second-guess

counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,

examining counsel's defense after it has proved unsuccessful, to conclude that a particular

act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689,

36
italics added.) Strickland also explained that reviewing courts "must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound trial strategy.'" (Ibid.)

"Generally, failure to object is a matter of trial tactics as to which we will not

exercise judicial hindsight." (People v. Kelly (1992) 1 Ca1.4th 495, 520 (Kelly).) In

Kelly, the California Supreme Court explained that "'[w]hen a defendant makes an

ineffectiveness claim on appeal, the appellate court must look to see if the record contains

any explanation for the challenged aspects of representation. If the record sheds no light

on why counsel acted or failed to act in the manner challenged, "unless counsel was

asked for an explanation and failed to provide one, or unless there simply could be no

satisfactory explanation" [citation], the contention must be rejected.'" (Ibid.) Thus, "[a]

reviewing court will not second-guess trial counsel's reasonable tactical decisions."

(Ibid.)

B. Analysis

Asserting that the question of whether he formed the specific intent that is an

element of the robbery offense charged in count 4 was "a crucial issue in this case,"

Salinas claims his trial counsel should have requested an instruction on voluntary

intoxication as a defense to this specific intent crime because "there was substantial

evidence [he] was intoxicated at the time of the robbery." He asserts that "the

eyewitnesses on count 4 testified the robbers were intoxicated." Specifically, he points to

one witness's testimony that the robbers' eyes were "glossy or like they were on drugs or

37
something," and he also relies on victim Green's testimony that they were "all wigged,"

their eyes were "bulking out like they were on drugs," and they "looked crazy." Salinas

also relies on the recording of his jailhouse conversation with informant Magana

(discussed, ante), which was played for the jury and shows he told Magana that he

(Salinas) was "'fucked up' during the robbery." In an extremely conclusory manner,

Salinas asserts "[i]t appears reasonably probable that [he] would have achieved a more

favorable result had an intoxication instruction been presented to the jury."

Salinas's claim of ineffective assistance of counsel is meritless. "'Robbery is the

taking of "personal property in the possession of another against the will and from the

person or immediate presence of that person accomplished by means of force or fear and

with the specific intent permanently to deprive such person of such property."'" (People

v. Clark (2011) 52 Cal.4th 856, 943, italics added.)

Section 29.4, subdivision (b), provides in part: "Evidence of voluntary

intoxication is admissible solely on the issue of whether or not the defendant actually

formed a required specific intent . . . ." The California Supreme Court has explained that

a defendant is entitled to an instruction on voluntary intoxication as a defense to a

specific intent crime "only when there is substantial evidence of the defendant's voluntary

intoxication and the intoxication affected the defendant's 'actual formation of specific

intent.'" (People v. Williams (1997) 16 Cal.4th 635, 677, italics added.)

Here, Salinas has failed to meet his burden of showing his counsel's performance

was deficient because he has failed to demonstrate he was entitled to an instruction on

voluntary intoxication as a defense to the specific intent crime of robbery. Salinas cannot

38
meet this burden merely by citing evidence he was voluntarily intoxicated; he must cite

also evidence showing the claimed intoxication affected his "'actual formation of specific

intent.'" (People v. Williams, supra, 16 Cal.4th at p. 677.) Salinas has failed to do so.

Williams is instructive. In that case, a jury convicted the defendant of four counts of first

degree murder. (Id. at p. 647.) On appeal the defendant claimed the trial court erred in

refusing his request for an instruction on voluntary intoxication as a defense to a specific

intent crime. (Id. at p. 677.) In support of his claim, the defendant pointed both to a

witness's testimony that he was "probably spaced out" on the morning of the killings and

to comments the defendant had made in a recorded interview with police that he was

"doped up" and "smokin' pretty tough then" at the time of the killings (Ibid.) The

Supreme Court rejected the defendant's claim of instructional error and stated:

"Assuming this scant evidence of defendant's voluntary intoxication would qualify as

'substantial,' there was no evidence at all that voluntary intoxication had any effect on

defendant's ability to formulate intent." (Id. at pp. 677-678, italics added.)

Here, Salinas cites substantial evidence from which a reasonable trier of fact could

find he was voluntarily intoxicated at the time of the charged robbery. However, like the

defendant in People v. Williams, he has presented "no evidence at all that voluntary

intoxication had any effect on [his] ability to formulate intent." (People v. Williams,

supra, 16 Cal.4th at p. 678.)

Salinas has also failed to overcome the strong presumption that, "under the

circumstances, [his counsel's] challenged action 'might be considered sound trial

strategy.'" (Strickland, supra, 466 U.S. at p. 689.) As already discussed, "[a] reviewing

39
court will not second-guess trial counsel's reasonable tactical decisions." (Kelly, supra, 1

Ca1.4th at p. 520.) Here, the record shows Salinas's failure to request an instruction on

voluntary intoxication as a defense to the specific intent crime of robbery "'might be

considered sound trial strategy.'" (Strickland, at p. 689.) In her closing argument,

Salinas's counsel argued as follows that Salinas was not at the scene of the robbery and

that, even if he was, he was not one of the robbers:

"We certainly don't know anything beyond a reasonable doubt as to
Mr. Salinas's involvement in the robbery─at least from the Lopez
brothers, I don't know if it can be established that Mr. Salinas was
there. They talked about five guys being present: Joker, Downer,
Creeper, Terco, and an old, bald guy in a tank top. [¶] Now, if you
believe Paul Salinas was there for whatever reason beyond a
reasonable doubt, then you have to ask what his participation was
beyond a reasonable doubt, or what his knowledge of what was
going on has been proved beyond a reasonable doubt. We know it
was dark out there. We know everything happened relatively
quickly or fast. From the Lopez brothers' testimony it seems─or it
appears that Creeper and Downer were the two guys doing the
stuff─doing the robbery and maybe the old, bald guy in the tank top.
Okay? None of those are Mr. Salinas." (Italics added.)

Salinas's counsel also argued:

"When you are deciding the robbery and whether or not Mr. Salinas
was there and whether or not he participated, please look at the jury
instruction on aiding and abetting, CALCRIM [No.] 401. It talks
about mere presence not being enough─not being enough to convict
him if he's merely at the robbery. They need facts. They need
evidence beyond a reasonable doubt as to what Mr. Salinas either
did or helped somebody else do."

The foregoing statements by Salinas's counsel during closing argument show that

Salinas's defense theory at trial was that he was not present at the time of the robbery and,

even if he was, he did not participate in the robbery. Under these circumstances, the

40
defense of voluntary intoxication would have been relevant only if Salinas was present at

the time of the robbery and had participated in that crime with the requisite intent to steal

either as a perpetrator or as an aider and abettor. For Salinas's counsel to have claimed,

by requesting an instruction on voluntary intoxication, that Salinas participated in the

robbery but he was too intoxicated to form the specific intent to steal from Nathaniel

Green would have been inconsistent with Salinas's defense theory. Accordingly, "we

cannot say that defense counsel had no rational tactical purpose in not requesting an

instruction on intoxication." (People v. Wader (1993) 5 Cal.4th 610, 643 [rejecting

defendant's claim his counsel provided ineffective assistance by failing to request a

voluntary intoxication instruction because such a request "would have been inconsistent

with defendant's theory of the case"].)

For all of the foregoing reasons, we conclude Salinas has failed to meet his burden

of establishing his trial counsel's performance was deficient. Even if we were to assume

Salinas had met this burden, we would conclude he has failed to meet his additional

burden of showing a reasonable probability he would have received a more favorable

result as to count 4 had his counsel's performance not been deficient. (See Strickland,

supra, 466 U.S. at pp. 693-694.) As already noted, Salinas's attempt in his opening brief

to meet his burden of showing prejudice consists solely of his conclusory statement that

"[i]t appears reasonably probable that [he] would have achieved a more favorable result

had an intoxication instruction been presented to the jury." Such an argument is patently

insufficient, borders on the frivolous, and alone renders meritless his claim of ineffective

assistance of counsel. The absurdity of Salinas's unsupported claim of prejudice is shown

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by the following excerpt from his recorded jailhouse statements to Magana recounting the

details of his participation in the robbery:

"They was trying to get me on the robbery fool. But they had, they
had no, no shit on me you know? But we did a robbery with Tuerco,
fucking Joker and Downer and fucking (unintelligible)[.] Ten
people (unintelligible)[.] I was fucked up. I said all your mutha
fucken Niggas get on the wall right now, they go by the wall one by
one, pocket search sucka. 'What you got?' Came up on a I-Pod
Touch, I-Pod Touch, I came up on eye drops, some cologne, feria, I
came up on all kinds of shit dog. I split the feria with Joker, Tuerco
and Downer . . . . [¶] . . . [¶] It was like fucken fifty something
bucks dog. Petty chump change dog, but we came up on a lot of shit
though umm. I-Pod, cell phone. [¶] . . . [¶] All kinds of shit . . . . I
came up even on a fucken Black and Mild dog. Some bullshit some
petty shit dude. They was some broke ass fools dog, broke ass
niggas dog." (Italics added.)

In his reply brief, Salinas does not challenge the Attorney General's argument that

the foregoing excerpt demonstrates Salinas "cannot show he was prejudiced given his

recorded statements about the robbery."

V. SALINAS'S SECTION 654 SENTENCING ERROR CLAIM
(COUNT 3: UNLAWFUL POSSESSION OF A FIREARM)

Last, Salinas claims the court erred by not staying under section 654 the execution

of the consecutive prison sentence of two years four months it imposed for his count 3

conviction of unlawful possession of a firearm for the benefit of a criminal street gang

(former § 12021, subd. (d); § 186.22(b)(1)) because he acted with the same objective and

intent when he committed this offense and the murder of the victim (count 1). This claim

is unavailing.

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 A. Section 654

Section 654, subdivision (a) provides in part: "An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision."

Section 654 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures

the defendant's punishment will be commensurate with his or her criminal culpability

(People v. Kramer (2002) 29 Cal.4th 720, 723). If a defendant suffers two convictions

and punishment for one is barred by section 654, "that section requires the sentence for

one conviction to be imposed, and the other imposed and then stayed." (Deloza, at pp.

591-592.)

Whether a course of conduct is indivisible for purposes of section 654 depends on

the intent and objective of the defendant, not the temporal proximity of the offenses.

(People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were

incident to one objective, then punishment may be imposed only as to one of the offenses

committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995)

32 Cal.App.4th 1756, 1781.)

1. Standard of review

In reviewing the trial court's determination whether section 654 precludes multiple

punishment, we apply the deferential substantial evidence standard of review. (People v.

Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We must view the evidence in the light

43
most favorable to the sentencing order and presume in support of that order the existence

of every fact that reasonably could be deduced from the evidence. (Id. at pp. 1312-1313.)

B. Analysis

In support of his claim that the court erred by not staying under section 654 the

execution of the sentence it imposed for his count 3 conviction of unlawful possession of

a firearm for the benefit of a criminal street gang, Salinas asserts "it is clear" that Joker

Ortega, a member of the City Heights Juniors gang (see fn. 3, ante), "provided the gun to

[Salinas] and dropped [him] and Firman off" near the scene of the shooting before

Salinas and Firman confronted the murder victim. Also asserting─based primarily on the

prosecutor's closing argument─that Ortega gave him the gun "because Ortega was tired

of the Eastside gang members being in his area and he wanted them taken care of,"

Salinas contends "[t]he commission of the murder and the possession of the firearm are

indivisible because the gun was specifically provided to [him] shortly prior to the

shooting for the purpose of accomplishing or facilitating the shooting." This contention

is unavailing.

"A violation of [former section 12021] is a relatively simple crime to commit[.]

[T]he crime is committed the instant the felon in any way has a firearm within his

control." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, italics omitted.) "After

reviewing the relevant California authorities, Ratcliff distilled the rule . . . that section 654

operates to bar multiple punishment where the evidence shows that the firearm came into

the defendant's possession fortuitously 'at the instant of committing another offense.'"

(People v. Jones (2002) 103 Cal.App.4th 1139, 1145, quoting Ratcliff, supra, at p. 1412.)

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"On the other hand, it is clear that multiple punishment is proper where the evidence

shows that the defendant possessed the firearm before the crime, with an independent

intent." (Jones, at p. 1144.)

"'Whether a violation of [former] section 12021 . . . constitutes a divisible

transaction from the offense in which [the defendant] employs the weapon depends upon

the facts and evidence of each individual case. [W]here the evidence shows a possession

distinctly antecedent and separate from the primary offense, punishment on both crimes

has been approved.'" (People v. Bradford (1976) 17 Cal.3d 8, 22.)

Here, as noted, Salinas acknowledges he obtained possession of the gun before he

and Firman encountered the victim. Thus, his count 3 offense of unlawfully possessing

that firearm was complete before the victim was shot and killed. (See People v. Ratcliff,

supra, 223 Cal.App.3d at p. 1410.) The "evidence" Salinas relies on in support of his

assertion that Ortega gave him the gun "for the purpose of accomplishing or facilitating

the shooting" consists of an argument made by opposing counsel. As Salinas has failed

to meet his burden of showing his intent and objective at the time he took taking

possession of the gun, and he admits he took possession of the gun before he and Firman

encountered the murder victim, we conclude the court did not abuse its discretion in

punishing Salinas for both the firearm possession offense (count 3) and the murder (count

1). (People v. Bradford, supra, 17 Cal.3d at p. 22; People v. Jones, supra, 103

Cal.App.4th at p. 1145.)

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 DISPOSITION

The judgments are affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

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