P. v. Aguirre

Filed 3/8/07 P. v. Aguirre CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEALS from judgments of the Superior Court of Los Angeles County.

Larry P. Fidler, Judge. Affirmed as modified.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Richard Aguirre.

Kathy M. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant Scott Gleason.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

Richard Aguirre and Scott Gleason appeal from judgments imposed after a joint trial in which Aguirre was convicted of the first degree murders of Joseph Torres, Alan Downey, and Raul Rodriguez, with a finding of personal firearm use in Downeys murder, and Gleason was convicted of the first degree murder of Rodriguez, with a finding of personal firearm use and a special circumstance finding that Rodriguez was intentionally killed because he was a witness to a crime (see Pen. Code,  190.2, subd. (a)(10); undesignated section references are to that code).^[1] Aguirre was sentenced to a term of 79 years to life, and Gleason was sentenced to a term of life without possibility of parole, plus 10 years.

The parties raise the following contentions: (1) Testimony by the principal prosecution witness as to hearsay statements by appellants infringed their constitutional rights to confrontation; (2) It was error not to strike a gang experts opinion that Aguirre was a shot-caller, because the defense lacked access to surveillance transcripts on which the opinion was based; (3) There was insufficient evidence to establish the special circumstance; (4) Due process required that the prosecutions chief witness be corroborated; (5) The parole revocation fine imposed on Gleason was unauthorized; and (6) appellants are entitled to presentence conduct credit.

We find merit only in the two sentencing-related contentions. After modifying the judgments accordingly, we affirm them.

FACTS

Viewed in accordance with the governing rules of appellate review (Peoplev. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that during the mid-1990s, appellants were members of the Avenues gang, a large street gang with territory bordered in part by the 134 and Harbor Freeways. The gang had a close relationship with the Mexican Mafia, a major prison gang consisting principally of Southern California Hispanic gang members. The Mexican Mafia dominated Hispanic street gangs by requiring that they pay over, as taxes, a portion of their proceeds from narcotics sales, thefts, and other criminal activities. Associates of the Mexican Mafia enforced taxation and other requirements. Failure to pay such taxes was punishable by death, as was collecting taxes outside ones territory.

Appellant Aguirres older brother, Alex, was a member of the Mexican Mafia, responsible for taxation of a certain area. In 1995, Alex Aguirre was indicted in a federal racketeering case and taken into federal custody. Convicted, he received a life sentence. According to the prosecutions prison gang expert, retired Los Angeles County Sheriffs Sergeant Richard Valdemar, appellant Aguirre, although age 14 in 1995, took over his brothers accounts and responsibilities, as an associate of the Mexican Mafia. Valdemar opined that appellant in fact was a shot-caller, meaning one who represented the Mexican Mafia and directed gang activities in a neighborhood. Appellant Gleason was also an associate of the Mexican Mafia.

1. Joseph Torres.

Joseph Torres was an Avenues gang member who collected taxes for an individual named Salinas. At about 10 p.m. on July 22, 1995, Torres left home, telling his partner Marta Ramirez that he was going to get the pink slip to her recently purchased car, from the seller. The boyfriend of Ramirezs cousin drove Torres, who directed him to an area that a Los Angeles police detective opined was Drew Street, controlled by the Avenues gang. About half an hour later, Torress body was found on Isabel Street in Glassel Park (about one and one-half to two miles from Drew Street). He had been shot seven times, four of the wounds being fatal.^[2] Five .45 caliber casings were retrieved at the scene, and two .45 caliber bullets were recovered from the body. The casings and bullets each had been fired from one gun.

Aguirres involvement in this murder was testified to by Witness No. 1, one of several witnesses whose names the trial court redacted from the record, and the most significant witness on the issue of appellants connection to the offenses. Witness No. 1 had a long criminal record, and was an Avenues member and an associate of the Mexican Mafia, with a longtime relationship with Aguirres brother Alex.^[3] In 1999 Witness No. 1 was arrested on federal racketeering and drug charges, and faced two potential life sentences. He agreed to plead guilty, and to cooperate with federal and California authorities. The agreement included immunity with respect to offenses he testified to, but not for perjury, and it provided for relocation. The agreement also provided that false statements would breach it. In light of his cooperation, Witness No. 1 received a 42-month federal term, and was on supervised release at the time of the present trial.

After release from another prison term in 1996, Witness No. 1 lived with appellant Aguirre and their respective girlfriends. When he heard from someone else how Torres had been killed, Witness No. 1 asked Aguirre whether Torres had spit on him before being shot by Javier Marquez, another Avenues and Mexican Mafia individual. According to Witness No. 1, Aguirre said no, that Torres had lunged towards him, and Marquez had shot Torres with a big gun (cuete). Aguirre further said that he and Marquez had met Torres on Drew Street and had lured him to where he was killed. Torres had to go, because he was collecting taxes on Drew for Salinas, whereas Drew was Alex Aguirres territory, existing or intended.

2. Alan Downey.

Testimony regarding the background of Aguirres killing of Alan Downey was provided by Witness No. 4, another Mexican Mafia associate who testified under immunity. A longtime Avenues member, Witness No. 4 underwent several juvenile and adult incarcerations for violent offenses. After being paroled in 2001, he obtained an immunity agreement similar to Witness No. 1s. Witness No. 4 had previously enjoyed fluctuating relationships with Alex Aguirre and appellant Aguirre.

In 1995, Witness No. 4 first undertook to collect taxes for Alex Aguirre. No. 4 was introduced to Alan Downey, who was one of Alexs superior collectors. Downey himself sold drugs, from a bar where he worked. After Alex Aguirre was arrested in mid-1995, Witness No. 4 agreed to sell drugs to Downey, at cost.^[4] Appellant Aguirre then collected taxes from Downey.

Later that summer, Witness No. 4 complained to Aguirre that, as Downey apparently had said, Downey was giving No. 4s drugs to Aguirre, who was smoking them. Aguirre denied this, and responded that Downey had told him that Witness No. 4 was selling drugs to Downey very expensively, so that Downey could not resell or give away any. Witness No. 4 denied this, and there followed a physical altercation between him and one of Aguirres cohorts. No. 4 retrieved a gun from his car. Aguirre then said that it shouldnt go down that way, that the person who was responsible was Downey, and Lets go kill him. No. 4 replied that he didnt want to, because Downey owed him money, and was worth more to him alive.^[5]

In the early hours of August 14, 1995, Downey went out. At about 2:00 a.m., he called his girlfriend (Witness No. 6) and said he would be back in five minutes. When he hadnt returned at 3:15, she contacted Ron Flores, of the bar where Downey worked. He called back shortly, and informed Witness No. 6 he had seen a car like the one Downey was driving on Eagle Rock Boulevard, displaying evidence of a shooting. Flores and Witness No. 6 drove to the car, but did not get out.^[6]

Witness No. 9, a motorist, noticed Downeys Camry against a wall on Eagle Rock. He and his companion drove to it. Witness No. 9 found the engine running, and Downey, slumped in the front seat. While phoning 911 from a street phone, No. 9 saw a car drive into the wrong lane, near him. The driver stared at him, and a rear-seat passenger pointed a gun in No. 9s direction. Witness No. 9 later identified the driver as Javier Marquez.

Police found Downey dead, of three individually fatal gunshots, two to the head and one to the neck, all on the left side. The bullets, discharged by the same gun, were found in the car or the victims body. The drivers side window of the car was down, and there were bullet holes in the right rear window, the drivers side mirror, and the adjacent pillar. Aguirres fingerprints were present, on the front passenger window and the roof of the car.

Interviewed by police in the morning, Witness No. 6 recounted that Downey had recently said he had been told he had to pay taxes. He had rejoined to her, Fuck that. I dont pay rent to anybody. Witness No. 6 also stated that Downey was supposed to collect money, but all of it was staying with him.

In early 1997, Witness No. 1 spoke on the phone to Marquez, who was in county jail on murder charges. Marquez said he needed more money for his defense. Witness No. 1 thought, erroneously, that the case involved Downeys murder. He told appellant Aguirre about Marquezs call, and referred to Downey. Aguirre responded that Marquez should stop crying, in that He is not the one that shot Alan Downey. I am the one that shot Alan Downey. Aguirre explained that he had done so because Downey was selling a lot of drugs from the bar but was not paying taxes; he had been told several times that he had to pay, but he wouldnt. Aguirre also told Witness No. 1 that Marquez had driven and Aguirre had shot Downey.

3. Raul Rodriguez.

Another rule of the Mexican Mafia bearing a penalty of death was not to cooperate with law enforcement. However, before the sanction could be invoked, there had to be documentation, or paperwork, reflecting the violation.

Early on New Years Day of 1995, Jose Arroyo was shot and killed by Richard Ramirez, who was attending a party at the residence of Raul Rodriguez, in Cypress Park.^[7] Later that morning, Los Angeles homicide detectives interviewed Rodriguez. He told them that numerous gang members had attended his party; that Arroyo had come from an adjacent party; and after Arroyo and Ramirez started fighting, he had escorted them off the property. Rodriguez soon heard a gunshot, and was told that Ramirez had shot Arroyo and had left. Police tape-recorded Rodriguezs statement, and reduced it to a written report, which was included in the murder book for Ramirezs juvenile court proceeding for murder. A copy of that book was made available to defense counsel. The petition was sustained and Ramirez was committed to the Youth Authority.

Rodriguez was killed on April 11, 1996, at Montecito Heights Recreation Center, a location frequented by the 43d Street clique of the Avenues. A female acquaintance first saw him there, in the company of five to 10 cholo-looking guys. Later, the woman heard several gunshots. Arriving at the park, Los Angeles police officers discovered Rodriguez lying between two cars in the parking lot, about six parking spaces from his own car. Five .22 caliber casings, later determined to have been discharged from the same gun, were found in the vicinity. Rodriguez had been shot four times in the head, once in the neck, and once across the shoulder. Stippling indicated that the fatal shot to his temple had been fired from an inch to an inch and a half away.

The following month, Witness No. 1 testified, he and appellants were talking when appellant Gleason asked if Aguirre had told Witness No. 1 of the work Gleason had put in in No. 1s absence. No. 1 stated he had not heard, and Gleason said he had taken out Rodriguez. Aguirre than said, Yeah. Two days later, in his car, Witness No. 1 asked Gleason what had transpired with Rodriguez. Gleason responded that Rodriguez had been a snitch (rata) and had to go. Gleason explained that an Avenues member, Johnny Martinez, had seen paperwork on Rodriguez. Gleason went on that he and Aguirre had been at the park with some young Avenues members, having lured Rodriguez there supposedly for marijuana. Aguirre gave Gleason a gun, and Gleason got into Rodriguezs car to go get the drugs. After doing so, they returned, and Gleason shot Rodriguez as he rolled a joint. In a subsequent conversation, Witness No. 1 told Aguirre what Gleason had said, and Aguirre responded that he had given Gleason the gun to take care of the matter.^[8]

DISCUSSION

1. Hearsay Statements.

Aguirre contends that he was denied his state and federal rights to confrontation (U.S. Const., 6th & 14th Amends.; Cal. Const, art. I,  15) by the admission of testimony by Witness No. 1 relating statements by Aguirre and Gleason. Aguirre argues that these statements did not qualify for admission under the hearsay exception for declarations against penal interest (Evid. Code,  1230). This contention is unavailing for several reasons.

First, no consideration of penal interest statements is required to validate the introduction against Aguirre of Witness No. 1s testimony about Aguirres own statements regarding the killings. (People v. Horning (2004) 34 Cal.4th 871, 898.) These statements qualified for admission, as against Aguirre, as statements (or admissions) of a party (Evid. Code,  1220). Their admission under this hearsay exception involved no confrontation clause impediment. (See Crawford v. Washington (2004) 541 U.S. 36, 68; Horning, supra, 34 Cal.4th at p. 898; People v. Castille (2005) 129 Cal.App.4th 863, 878.) And the same holds true with respect to Witness No. 1s recounting of Gleasons statements, to the extent they were admitted as against Gleason (who has joined in Aguirres contention).

Remaining for consideration are the following statements to which Witness No. 1 testified: (1) as to Aguirre, Gleasons statements that he and Aguirre lured Rodriguez to the park, where Aguirre gave Gleason a gun; and (2) as to Gleason, Aguirres subsequent reiteration that he had given Gleason a gun, to take care of Rodriguez. Prima facie, these statements by appellants were admissible as declarations against penal interest. Under Evidence Code section 1230, if the declarant is unavailable, his or her statement is not inadmissible hearsay if, when made, it so far risked criminal liability that a reasonable person in the declarants position would not have made the statement unless he or she believed it to be true. Both Aguirre and Gleason were unavailable as witnesses. And the statements paraphrased above were of the statutory type, respectively exposing the declarants to liability for the killing of Rodriguez. (Cf. People v. Frutos (1984) 158 Cal.App.3d 979, 983-984, 986.) Moreover, from the standpoint of trustworthiness or reliability, both statements ascribed criminal responsibility to the declarant, as well as to the other appellant, and neither appellant sought to shift blame to the other (See People v.Brown (2003) 31 Cal.4th 518, 537.)^[9]

Aguirre contends, however, that the trustworthiness of the statements is defeated because they were made in a gang context, in which gang members would be eager to claim responsibility for a killing, whether or not the claim was true, to increase their status. Without any showing that gang members actually and generally are inclined to lie to each other about killings, this claim fails. Moreover, the three individuals involved in these conversations were already of particularly high gang rank, and in the case of Aguirre and Witness No. 1, they were future roommates. Their intimations to each other about Rodriguezs killing (cf. People v. Greenberger (1997) 58 Cal.App.4th 298, 335) cannot readily be characterized and dismissed as idle boasts. We agree with the trial courts implicit finding of their trustworthiness.

Aguirre further argues that the statements should not be deemed against appellants penal interests, because they were spoken under the shadow of a draconian anti-snitching rule, because of which the statements would never be expected to find their way to law enforcement. But this very case proves that expectation fallacious. Moreover, it is the quality of the statement that is primarily determinative of whether it is against the declarants penal interest. And being potentially subject to the Mexican Mafias strictures about snitching would not have inclined appellants to make untrue claims regarding Rodriguez.

Admission of Witness No. 1s testimony about appellants statements regarding themselves and each other did not involve a denial of the right to confrontation.

2. Refusal to Strike Expert Opinion About Aguirre.

Aguirre next complains that he was denied Sixth Amendment rights by the trial courts refusal to strike Sergeant Valdemars opinion that Aguirre was a shot caller in his neighborhood, after certain evidence on which that opinion was based became unavailable for production because of time constraints. Once more we disagree.

On direct examination, Valdemar testified that Aguirre was a Mexican Mafia associate, and identified some of his tattoos as Mexican Mafia symbols. On cross-examination, Valdemar explained that he had monitored approximately 120 hours of audio and videotape of Mexican Mafia members during each of two federal investigations, of 1993-1995 and 1997-1999. Asked on redirect for his opinion about Aguirres connection to the Mexican Mafia, Valdemar reiterated an opinion he had previously expressed in writing to the California Youth Authority, that Aguirre was a close associate and was handling his brothers business, despite being younger than a Mafia member or a shot caller even would be involved. The basis for this opinion, Valdemar stated, was the information collected by all members of the investigating task force, and the electronic surveillance. He then opined that Aguirre was a shot caller, which he defined as a person in a neighborhood that represents the Mexican Mafia and directs the activities of the gang.

On recross, Valdemar was asked if there were recordings reflecting Aguirre being designated as a shot caller[.] He replied, I believe there are tape recordings where he acts as a shot caller. I dont think they have one where hes actually designated. These recordings, Valdemar explained, were from the early part of the 1997-1999 investigation. Asked, how many were made of Aguirre, Valdemar responded, I dont remember. I know at least one. He assumed the recording took place at the Aguirre family residence, which had been under surveillance. But the recordings, and their synopses which he had read, were federal evidence which Valdemar did not possess.

Neither the prosecution nor the defense possessed the tapes either. To assist with Valdemars cross-examination, the court directed the prosecutor to obtain the relevant tapes, or at least their synopses. Several days later, the prosecutor reported, from conversations with the United States Attorneys office and FBI, that the tapes were not indexed by computer, and to retrieve a segment would require its date, and would take several weeks. The court stated it would not continue the trial, because we dont know whether anything does or does not exist. [] We have heard Sergeant Valdemars testimony that he thought he heard it. The court suggested a stipulation to the stated facts, with the defense free to argue that we dont have a way of checking that. Aguirres lawyer then said, I was going to say, why cant we strike Valdemars testimony as it relates to that issue? The court responded negatively, because Valdemar had testified to his recollection, and the unavailability of evidence to corroborate or not corroborate a statement was not grounds for striking it. Again, however, counsel was free to argue to the jury that Valdemars recollection could not be checked. And frankly, his recollection wasnt overly strong, which could be argued conjunctively.

Ultimately the court read to the jury a stipulation, with Aguirre objecting to certain wording, describing the obstacles to obtaining the wiretap summaries, and stating that the summaries therefore were not available for review by the parties, and counsel will argue their view of this stipulation during final argument.

Aguirre contends that the trial court should have stricken Valdemars opinion that Aguirre was a shot caller because the inaccessibility of the recording or recordings which Valdemar said reflected that status deprived Aguirre of a fair trial and of the right to confront Valdemar through cross-examination. We disagree.

Aguirre had ample opportunity to cross-examine Valdemar about his shot caller opinion and the reasons for it. Valdemar had based his evaluation of Aguirre not only on the absent tape or tapes but on the entire federal investigation, and its electronic surveillance, to which he was privy. Indeed, the recollected recordings of Aguirre acting as a shot-caller were not truly advanced as reasons for Valdemars opinion. But as for these tapes themselves, Aguirre was free to question Valdemar about both their contents (see Evid. Code,  1523, subd. (c)(1)) and his recollection that they had even existed. The net effect of such examination might well have been to deflate the absent evidence.

Aguirre emphasizes that an experts opinion is only as good as the facts and reasons on which it is based. But the jury was told exactly that, by CALJIC No. 2.80,^[10]and it was open to Aguirre to urge weakness in both the opinion that he had been a shot caller, and the claim that he had been overheard acting as one.

There was no violation of Aguirres Sixth Amendment rights in declining to strike Valdemars opinion testimony, while allowing cross-examination and comment about both it and the absence of the recordings Valdemar had mentioned.

3. Sufficiency of Evidence of Special Circumstance.

Gleasons first separate contention concerns the special circumstance that was found true as to him, namely that of killing a witness ( 190.2, subd. (a)(10)). Contending that there was insufficient evidence to sustain the finding, Gleason postulates that the elements of the special circumstance include factors that were not proven. However, the factors that Gleason cites are not components of the special circumstance, and hence his contention lacks merit.

Section 190.2, subdivision (a)(10) defines the special circumstance as: The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding . . . ; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. . . . The circumstance thus embraces both preventive and retaliatory killings. Gleason argues that neither was proven.

With respective to preventive killing, Gleason relies on People v. Weidert (1985) 39 Cal.3d 836 (Weidert). The defendant there was convicted of murdering an accomplice and prospective witness to a burglary that the defendant had committed at age 17. Section 190.2, subdivision (a)(10) then referred only to testimony in criminal proceedings, and the court first held that defendants eligibility for a juvenile proceeding did not qualify. But the court also concluded that the statutes reference to killing for the purpose of preventing the victim from testifying in a criminal proceeding referred to the defendants subjective intent, so that if the defendant acted with a belief the victim could testify in a criminal proceeding, the circumstance could be established, even were that not so. (Weidert, supra, at pp. 853-854.)

In this connection, Gleason argues that the courts language, if an accused believes himself to be exposed to criminal prosecution (Weidert, supra, 39 Cal.3d at p. 853), imposes a requirement that the defendant so believe in order to be eligible for the special circumstance. The quoted language, however, responded to the facts of Weidert, in which the defendant was the putative accused in the prospective proceeding. The court did not intend to impose that qualification on all cases, such as one in which a gang member killed a witness to prevent him from testifying against another gang member. Neither the special circumstance statute nor Weidert itself suggests that an apprehension of prosecution on the part of the special circumstance defendant is a necessary element of the circumstance.

Gleason presents a similar claim with respect to retaliatory witness-killing. He quotes People v. San Nicolas (2004) 34 Cal.4th 614, to the effect that although it is unnecessary to show that a criminal proceeding against defendant was pending, the absence of one deprives the prosecution of an inference regarding the purpose of the witness killing. As with Weidert, supra, which it paraphrases, this summary reflects the factual situation in San Nicolas, of the defendant having been the subject of prosecution. It does not lay down a general rule that only with regard to prosecutions of the defendant may a witness-killing special circumstance be charged and proven. Once more, to hold otherwise would exclude from the penalty a person who killed a witness who had testified against the killers close relative, to retaliate for that testimony. The Supreme Court has not so narrowed the special circumstance.^[11]

4. Corroboration of Witness No. 1.

Gleason next contends that his conviction of special circumstance murder should be held, as a matter of due process, to have required corroboration of Witness No. 1s incriminating testimony, and because the jury was not so instructed the conviction should be reversed.^[12] We do not agree.

Gleason argues that corroboration should be required with respect to the testimony of a witness who, like Witness No. 1, has been granted immunity and spared a life sentence in exchange for cooperation with the prosecution. Gleason so argues against the backdrop of studies of erroneous murder convictions, and studies indicating that a leading cause of wrongful convictions is false testimony from accomplices and jailhouse informants (neither of which Witness No. 1 was).

Provision of corroboration requirements is generally a legislative function. Evidence Code section 411 states that Except where additional evidence is required by statute, the direct evidence of one witness entitled to full credit is sufficient for proof of any fact. The Law Revision Commissions comment identifies numerous statutory corroboration requirements. (Cal. Law Revision Com. com., 29B Wests Ann. Evid. Code (1995 ed.) foll.  411, p. 388.)

We are unpersuaded that constitutional imperatives require we disregard the statutory scheme here. As noted above, Witness No. 1 was not of the type that has been identified as a prominent cause of wrongful convictions. Nor do the due process cases Gleason cites impose corroboration requirements for convictions. (See also Jacobs v. Redman (3d Cir. 1980) 616 F.2d 1251, 1255 [due process not violated by conviction solely on uncorroborated accomplice testimony].) Moreover, the jury was instructed it could consider Witness No. 1s testifying under a grant of immunity in determining his credibility. (CALJIC No. 2.20.) Finally, Gleason did not face the death penalty, which many of his secondary authorities concern, and which evokes their calls for heightened protections. We are unconvinced that Witness No. 1s testimony against Gleason called for a requirement of corroboration as a matter of due process.

5. Sentencing.

Appellants raise two defects in their sentences, both of which respondent agrees should be corrected as requested.

First, the trial court imposed on Gleason a $10,000 parole revocation fine, under section 1202.45. Gleason correctly asserts that this was improper, because such fines apply only when the sentence includes a period of parole (ibid.), whereas Gleasons life-without-possibility-of-parole sentence does not. Accordingly, we shall strike the parole revocation fine.

Second, both appellants claim that they should receive presentence conduct credits of 15 percent of their presentence custody, under section 2933.1. The trial court denied such credit, apparently under section 2933.2, which bars it for murder convictions. But the offenses in this case were committed after the effective date of section 2333.1 and before that of section 2333.2. The former statute therefore applies, and appellants are entitled to credit under it. ( 2933.1, subd. (d), 2933.2, subd. (d).) We shall modify the judgments accordingly.

DISPOSITION

The judgment with respect to Aguirre is modified by adding 280 days of presentence custody conduct credit under Penal Code section 2933.1, for total presentence credit of 2148 days. As modified, the judgment is affirmed.

The judgment with respect to Gleason is modified by (a) striking the parole revocation fine under Penal Code section 1202.45 and (b) adding 222 days presentence custody conduct credit under Penal Code section 2933.1, for total presentence credit of 1708 days. As modified, the judgment is affirmed.

The superior court shall prepare and transmit to the appropriate authorities amended abstracts of judgment, reflecting the foregoing modifications of the judgments.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] The special circumstance finding was not pursued against Aguirre because he was under age 16 at the time of Rodriguezs murder.(See  190.5, subd. (b).)

^[2] Sergeant Valdemar testified that the Mexican Mafia often engaged in overkill of its targets, because failure to complete a mission was itself punishable by death.

^[3] Witness No. 1 testified that he turned over to Alex the taxes he collected from drug dealers, but when Alex was in custody he paid the taxes to appellant Aguirre, or another individual.

^[4] Witness No. 4 testified that following Alexs arrest, appellant Aguirre announced that he would be running the situation for Alex, and whatever he [appellant Aguirre] said was it.

^[5] Soon after, Witness No. 4 got into another altercation with Aguirre and a consort, about whether Aguirre was truly acting on the directions of his brother. Aguirre stated, in part, Whats it going to take for you to believe that Im the one calling the shots here.

^[6] Downey was driving a green Toyota Camry, which he had recovered a few days earlier for a repossession firm for which he also worked.

^[7] Rodriguez belonged to the Alpine gang, which associated with the 43d Street clique of the Avenues gang.

^[8] Witness No. 1 further testified that it was not unusual for him and Aguirre to talk about Rodriguezs killing in that context.

^[9] Appellants acknowledge that these statements were not testimonial under Crawford v. Washington, supra, 541 U.S. 36, requiring prior opportunity for cross-examination.

^[10] The instruction states in part: An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved, or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. (CALJIC No. 2.80.)

^[11] Gleason avers that People v. Allen (1986) 42 Cal.3d 1222 suggests that retaliatory witness-killing must involve retaliation for testifying against the special circumstance defendant. But Gleason does not identify how Allen does so, other than its having involved such a situation.

^[12] Gleason does not clearly state whether he contends that his entire conviction should have required corroboration or that only that the special circumstance finding should have. But the thrust of his argument appears directed at exposure to life imprisonment without possibility of parole.