P. v. Reyes

Filed 4/19/07 P. v. Reyes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Larry P. Fidler, Judge. Reversed.

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

Gerardo Reyes appeals from the judgment imposed after a jury convicted him of first degree murder (Pen. Code,  187; undesignated section references are to that code), and found that the murder was committed to prevent the victim from testifying ( 190.2, subd. (a)(1)), and that appellant personally used a firearm ( 12022.5, subd. (a)(1)). Appellant was sentenced to a term of life without possibility of parole, plus four years. He contends that (1) the plea agreement of his co-defendant, under which he testified against appellant, was coercive of that testimony and denied appellant due process and a fair trial; (2) the court erred in allowing an opinion that vouched for the testimony of a prosecution witness; and (3) appellant is entitled to pretrial custody conduct credits.

We have concluded that appellants codefendants plea agreement was unduly coercive of the content of his testimony, depriving appellant of a fair trial. We accordingly reverse the judgment. We also explain that appellant was entitled to pretrial conduct credits.

FACTS

Appellant was convicted at a third trial, during which his co-defendant, George Vidales, pled guilty and testified against him. The juries in the first two trials had hung, and the first had acquitted another co-defendant. As shown by the evidence, the murder had occurred in the context of the Mexican Mafia, a prison gang that dominated Hispanic street gangs, principally by enforcing the payment of taxes, or exactions from narcotics sales and other criminal activity. The Avenues gang in Northeast Los Angeles was involved with the Mexican Mafia, and the Avenues membership included actual Mafia members, and also associates and subordinate soldiers, which included appellant and Vidales.

A known rule of the Mexican Mafia was that cooperation with law enforcement was punishable by death. The penalty was not imposed, however, without documentation verifying the violation, referred to as paperwork.

In August 1995, Los Angeles police investigated the murder of two brothers, members of the Highland Park gang. Officers spoke to Randy Morales, an Avenues member who was in juvenile hall. He told them that Javier Marquez, another Avenues member for whom he worked, and who also was a Mexican Mafia associate and near-member, had shot the brothers and other members of Highland Park. A copy of the interview report became part of the murder book, of which Marquezs prosecutor received two copies, one for defense counsel. The prosecutor did not redact Moraless name, because redaction had already been made. The book was turned over to the defense about April 1996. The references to Morales remaining in it sufficed as paperwork.

Morales, then age 16, was killed on the night of October 5, 1996. At his request, a woman friend dropped him off at Drew Street, a prominent Avenues location, near which he attended a party. According to Vidaless testimony, at the party appellant and Carlos Caldera, another Avenues-Mexican Mafia individual, approached him. Caldera asked Vidales for a favor, and explained about the paperwork and that Marquez wanted Morales killed, before he could testify against him. Caldera stated that appellant would be taking care of it. Appellant confirmed this, but stated he wanted to do it away from Drew Street. Caldera suggested that Vidales speak to Morales about a .25 caliber handgun Vidales had borrowed and Morales wanted back, and tell him that they would drive with appellant and Caldera to Vidaless house to get it. Vidales actually had the gun with him, and Caldera told him to give it to appellant, which he did.

Morales approached Vidales and asked about the gun, and Vidales told him the prescribed story. Morales said he would go with them. Vidales reported this to appellant and Caldera, and appellant said he would get his girlfriends van. He did so, but told the group he first had to get some food for her. Morales and Vidales accompanied him.^[1] When they returned to where Caldera was, appellant left for his girlfriends, and Caldera informed Vidales that in the interim he had encountered Marvin Ponce, another Avenues member. Caldera had told Ponce what was impending, and Ponce would accompany them.

When appellant returned, he told Vidales to drive. Appellant sat in the passenger seat, with Caldera, Ponce, and Morales in the back of the van. Vidales drove through back streets to a secluded one, where he stopped and announced he had to urinate. He left the van and did so. Vidales then saw Morales, crouched down outside the van, and appellant approaching him. Using Vidaless gun, appellant shot Morales in the top of the head, then came closer and shot him several more times. Appellant and Vidales resumed their seats in the van, and Vidales drove to his nearby apartment, where appellant wrapped up the gun and put it in the buildings dumpster. The group then returned to Drew Street.

Moraless body was found by a paramedic at about 11:30 p.m., shortly after a neighbor heard shots and saw a van carrying four Hispanic men drive away. At the scene, Los Angeles Police Detective Peterson recovered six cartridge casings and two expended bullets from the bodys vicinity. Three more bullets were extracted at the victims autopsy. The detective opined that the murder weapon was a .25 caliber semiautomatic handgun, while a firearms analyst found all casings and bullets respectively had been discharged from a single gun.

The autopsy disclosed that Morales had suffered five fatal head wounds, and a potentially fatal one in the mouth. The quantity was consistent with a Mexican Mafia killing, and the shot to the mouth signified that the victim was one who had talked too much.

Further testimony regarding appellants complicity came from Witness No. 1, whose name (along with several others) the court redacted from the record. An Avenues member and a Mexican Mafia associate, Witness No. 1 had been convicted of several offenses before his 1999 indictment on federal charges. Facing a sentence of two life terms, he agreed to plead guilty and cooperate with federal and state authorities, in exchange for a 42-month sentence, immunity for numerous crimes, and relocation. Witness No. 1s informational and testimonial obligations included this case.

Witness No. 1 recounted his encounter with Vidales the night of the shooting. (See ante, fn. 1.) The next day, Witness No. 1 learned at Richard Aguirres home that Morales had been killed. Soon Witness No. 1 spoke to Vidales, who claimed he hadnt known Morales was going to be killed. Witness No. 1 then spoke to appellant, on Drew Street. During their meeting, appellant kept his hand on a gun in his back waistband. Witness No. 1 told him he knew appellant had killed Morales, and appellant admitted he had. He said Morales was a rata and had to go, and that the order had come from Marquez.

In his defense, appellant called several witnesses who contradicted various aspects of Vidales account of the events. Among them was Witness No. 2, a former Avenues member and Mexican Mafia tax collector who had cooperated with the prosecution, and whom it had called at appellants first two trials, but not at this one. In prior testimony that was read after he invoked his privilege against self-incrimination, Witness No. 2 recounted different aspects of the offense that either Vidales had told him, or that he had witnessed when, he claimed, he was originally solicited to be part of the group to kill Morales. For example, Witness No. 2 testified that Vidales had told him that only appellant, Vidales, and Morales had driven to the scene of the shooting, and that Morales had been lured there by being told they were going to another party.

In rebuttal, Vidales adhered to several contradicted elements of his account. The prosecution also read part of Witness No. 2s former testimony, particularly concerning how he had left gang activity after becoming threatened and targeted.

DISCUSSION

1. Vidaless Plea Agreement.

Appellant contends that a portion of Vidaless plea agreement rendered his testimony improper, and its admission a deprivation of due process. We first review the context and content of the agreement.

Facing a special circumstance sentence if convicted, Vidales approached the prosecution team after the end of the second trial, in 2004. He had three meetings with Los Angeles Police detectives. The first did not involve discussion of the facts of the case, but the second and third did. In the second interview, Vidales consistently attributed the murder to appellant. But he also either misstated or understated the truth in several respects, significantly omitting to name Caldera and Ponce as participants. Vidales corrected that omission in his third interview, which the prosecution understood to be truthful and inclusive.^[2]

The prosecution nevertheless began the third trial with Vidales still a defendant. However, after Witness No. 1 testified, the prosecutor informed the court that because of Witness No. 1s poor demeanor on the stand, the prosecution had reached an agreement with Vidales, whom they perceived as less culpable than appellant, to permit Vidales to testify.

Vidaless plea agreement provided, in essence, that he would testify truthfully and completely at any proceedings concerning Moraless death. In that connection he also would plead guilty to second degree murder. But if he performed all his obligations under the agreement, then after the last proceeding at which he was called to testify, the prosecution would join in a motion to withdraw the plea, and instead enter a plea to manslaughter, for which Vidales would receive a six-year midterm sentence. On the other hand, he would be bound to a 15 years to life sentence if he failed to perform all his obligations, and if he were in violation he could not withdraw his plea without court consent. Vidales would also receive immunity for past crimes, but not including the killing of Morales, or for perjury or future crimes.

Near the end of the agreement was the provision about which appellant complains. As recited by the prosecutor in court, without the jury present,^[3]it stated: If we discover that you did not tell us the truth already, that you have already not told us the truth about a material significant matter in your . . . third interview at NCCF conducted by Detective[s] . . . you will be in breach of this agreement and will be sentenced to 15 years to life in prison on your plea today of second degree murder.

Appellants challenge to this provision, to Vidales testimony, and ultimately to his conviction, stems from doctrine that the Supreme Court has often restated as follows: [A] defendant is denied a fair trial if the prosecutions case depends substantially upon accomplice testimony and the accomplice witness is placed, either by the prosecution or the court, under a strong compulsion to testify in a particular fashion. [Citation.] Thus, when the acccomplice is granted immunity subject to the condition that his testimony substantially conform to an earlier statement given to police [citation], or that his testimony result in the defendants conviction [citation], the accomplices testimony is tainted beyond redemption [citation] and its admission denies the defendant a fair trial. On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. [Citations.] (People v. Allen (1986) 42 Cal.3d 1222, 1251-1252, fn. omitted; see People v. Medina (1974) 41 Cal.App.3d 438, 449-456.)

Appellant contends that the interview provision of the plea bargain, quoted above, placed Vidales under a strong compulsion to testify in accordance with his third police interview, and thus ran afoul of the foregoing doctrine. We first confront respondents position that appellant has waived this contention, by not asserting it in the trial court. Several California Supreme Court cases have held that failure to challenge at trial testimony under a plea agreement, by objection, motion, or otherwise, waives the claim for appellate purposes. (People v. Hillhouse (2002) 27 Cal.4th 469, 489; People v. Riel (2000) 22 Cal.4th 1153, 1178-1179; People v. Sully (1991) 53 Cal.3d 1195, 1216.) However, all of these cases proceeded to weigh the merits of the objection, sometimes in response to a present claim of ineffectiveness of counsel in not objecting. We deem the same appropriate here. Appellant has declared his intention to assert a postconviction ineffective assistance claim. We decide the present issue in order to forestall that subsequent claim. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

The interview provision of of Vidaless plea agreement poses this problem. Although the remainder of the agreement calls upon Vidales to testify fully and truthfully, the interview provision threatens him with loss of his bargain, and a life sentence, if his third interview is discover[ed] to have been untrue in any material respect. Although the provision does not literally bind Vidales to testify in accord with his interview, its threat exerts overwhelming pressure on him to do so to adhere to his third interview account even if the truth is otherwise. Although there may be no conflict between the interview provision and the obligation to testify truthfully (if the interview was fully truthful), the provision yet pressures Vidales to testify in accordance with the interview.

Respondent cites other cases in which the accomplice who pled agreed only to tell the truth, and in which negligible compulsion was held exerted by other agreements or circumstances. Examination of some of these cases proves them distinguishable, and underscores the fault with the interview provision.

In People v. Sully, supra, 53 Cal.3d 1199, the plea agreement called for truthful testimony, including in response to a polygraph examination, but also required the witness to pass such an exam showing she had had no involvement in several deaths. The defendant asserted this provision compelled the witness so to testify in court. The Supreme Court disagreed, because the agreement only required responses to the polygraph, while leaving the witness free to testify as she desired. (Id. at pp 1216-1217.) Presently, however, the interview provision directly compelled Vidales to testify in accord with his third interview, under pain of losing his entire bargain and suffering a second degree murder sentence.

The Sully court quoted People v. Fields (1983) 35 Cal.3d 329, in which the ageement was for truthful testimony, but the witness also testified that the deal was for her to testify in accordance with her interview statement, and if she did not there would be no more deal. The Supreme Court first opined that there was not necessarily a conflict, because if the witnesss police statement was true, her agreement to testify truthfully covered it. The court then expounded: We recognize that a witness in Gail Fields position is under some compulsion to testify in accord with statements given to the police or the prosecution. The district attorney  . . . obviously believed that Gails last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold [citation] that an agreement which requires only that the witness testify fully and truthfully is valid . . . . We believe the requirements of due process . . . are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account. (Id.. at p. 361.)

Fieldss measure of due process could not, however, be satisfied by the present agreement. Under it, were Vidales to testify to what he believed the truth, but not in accord with his third interview, he would be chargeable with breach of the agreement, despite his affirmation of truth.

In operation, the plea agreement equated Vidaless third interview with the truth, so that the complusion to tell one meant adhering to the other. That was plainly demonstrated after Vidales agreed to each provision of the agreement in open court. Vidales attorney then offered, and the court accepted as a special exhibit, a copy of the tape recording of the third interview, which, counsel explained, the prosecutor believed to be a truthful recitation of the facts. Counsel presented the exhibit for the courts benefit if the court ever has to make an assessment or when the court makes an assessment as to whether Mr. Vidales is testifying truthfully.

In sum, as a matter of both understanding and compulsion through the terms of the agreement, to perform the agreement Vidales was bound to testify in conformity with his third police interview. That was the version of the truth that was contemplated. Testimony given under this compulsion denied appellant due process and a fair trial.

The error cannot be held harmless, as respondent would have it. First, it appears contradictory to deem harmless a constitutional violation so substantial as to deny a fair trial. Second, Vidaless testimony was critical. It was the only percipient testimony about the murder, and previous efforts to convict appellant without it had failed. The error in admitting the testimony was prejudicial, and the judgment must be reversed. In view of this conclusion, we need not address appellants second contention, regarding certain opinion testimony.

2. Presentence Conduct Credit.

Because it is not technically moot, we briefly resolve appellants contention that he was improperly denied conduct credit for his time in presentence custody. Respondent agrees with appellant that because the murder occurred on October 5, 1996, it was not subject to section 2933.2, effective June 3, 1998, which thereafter deprived murder defendants of presentence conduct credits. Rather, appellant was entitled to credits of 15 percent of his presentence custody, under section 2933.1, subdivision (a).

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] During this ride, Vidales spoke with Witness No. 1 (described below), telling him that Morales was going to be checked, or disciplined, because of paperwork. Witness No. 1 advised him not to participate, because gang leader Richard Aguirre was close to Morales, and would become angry if he were killed.

^[2] Vidaless naming of Ponce and Caldera provided the prosecution with two further potential subjects of prosecution for the murder.

^[3] When Vidales later testified before the jury about the agreement, this provision was not mentioned.