P. v. Reyes

Filed 4/2/07 P. v. Reyes CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

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Gary V. Crooks, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

_________

A jury convicted Jose Reyes of premeditated attempted murder committed to benefit a gang, during which he personally discharged a firearm causing great bodily injury. (Pen. Code, 664, subd. (a), 187, subd. (a), 189; 186.22, subd. (b)(1); 12022.53, subd. (d); all further undesignated references are to the Penal Code.) In a bifurcated hearing after a jury waiver the court found that Reyes had a strike prior felony conviction. ( 667, subds. (b)-(i), 1170.12.) The court imposed an aggregate 55 years-to-life sentence.

Reyes appeals, contending that (I) his conviction violates section 1111 because insufficient evidence corroborated the accomplices testimony that Reyes shot the victim;^[1](II) the court erred in admitting one portion of his third post-arrest statement to the police but excluding another portion of that same statement (Evid. Code, 356); and (III) the prosecutor committed misconduct during his argument to the jury.

We reject these contentions and affirm the judgment.

FACTS

At about 5:30 p.m. on April 7, 2004, Mario Sanchez was repairing his car in front of his apartment building when a car containing four young Hispanic men stopped near him. Two of the men got out of the car, approached Sanchez, and issued gang challenges, identifying themselves as Blythe Street gang members. Sanchez responded that he was not a gang member and wanted no trouble. As Sanchez walked away toward the gate to his building, a third man exited the car, then reentered to the drivers seat and backed the car up. The cars right rear window rolled down, a voice said move to the side[,] and, after the two men standing outside the car moved, one of the four men fired two or three shots at Sanchez from a dark chrome, shiny gun, hitting him once in the leg. At trial, Sanchez testified that the shots came from inside the car, although earlier he had told police that one of the two men who first got out of the car fired the shots. Neither before nor at trial did Sanchez identify Reyes as one of the four assailants.

Sanchez friend Oscar Gudino, who had been present when the first two assailants got out of the car, entered the building but came out when he heard gunshots. Gudino testified that he saw the last shot being fired from the back seat of the car, although he had earlier told police that the shooter was standing outside the car. Gudino drove Sanchez to a hospital, where Sanchez was treated and released. On the way back from the hospital, Gudino saw the four men and their car at a gas station. He wrote down the license number and provided it to police. Like Sanchez, neither before nor at trial did Gudino identify Reyes as one of the four suspects.

The next day, a probation officer stopped the car identified by Gudino. Juan Landaverde was the driver and Reyes, Jose Carrion, and Antonio Alba were passengers. Police arrested the four men.^[2] In Albas garage the police found a chrome revolver with three live rounds in the six-round capacity cylinder and a box with seven live rounds which fit the revolver. Technicians could not match two bullet fragments recovered from the crime scene with the revolver because they were damaged, and no traceable fingerprints were found on the gun or bullets. Police found no shell casings at the crime scene; revolvers do not eject casings when fired. Police did not test any of the four men or their car for gunshot residue because they believed that the passage of time since the shooting made it highly unlikely that such tests would have disclosed relevant evidence. Police officers testified that all four suspects were active Blythe Street gang members and that they committed the shooting to further the gangs criminal activity.

Both before and at trial Sanchez identified Landaverde as one of the two men who first got out of the car and issued the gang challenges. Both before and at trial Sanchez did not identify Reyes as present at the scene; indeed, at trial, he testified that Reyes was not the shooter. Before trial, Sanchez identified the gun found in Albas garage as the one that fired the shots and the car in which the men were arrested as the one involved in the incident; at trial, however, he was unable to repeat either identification. Gudino identified Alba and Carrion as two of the men he saw outside the car, but said neither was the shooter. Like Sanchez, Gudino never identified Reyes as being present at the shooting. Both Sanchez and Gudino testified that they knew the case involved a gang shooting and that as a result they feared for their safety. A third witness to the incident told police that Landaverde was one of the two men outside the car who challenged Sanchez, but also failed to identify Reyes as being present.

Landaverde testified for the prosecution as part of a plea bargain in which he received a 10-year sentence in exchange for his truthful testimony; if he did not testify truthfully, he would receive a life sentence. Landaverde identified Reyes as the shooter. Landaverde testified that he drove himself and the three others, all active Blythe street gang members, to the crime scene and that he and Carrion got out of the car and challenged Sanchez, who claimed to be a member of a rival gang. Landaverde further testified that Reyes, sitting in the back seat, told him and Carrion to move, whereupon Reyes shot Sanchez with Albas gun. Landaverde claimed he did not intend that a shooting occur. Landaverde acknowledged that he had made three post-arrest statements to the police. In the first statement, Landaverde said Carrion was the shooter; in his second and third statements, Landaverde said that Reyes was the shooter. At trial, Landaverde testified that he lied in his first statement because Carrion was new to the gang and he did not want to implicate Reyes, a more senior member.

Shortly after his arrest, Reyes told the police he was not present at the shooting but was home with his sister and stepfather when it occurred. Later that same day, while being booked, however, Reyes told a detective that he was in the backseat of Landaverdes car during the shooting but was not the shooter. Because the other suspects were nearby, he declined to talk further for fear of appearing to be a snitch and asked the detective to come to juvenile hall the next day. When the detectives partner visited Reyes the next day, inquired about Reyes booking statement, and asked Reyes if he wanted to talk about the shooting, Reyes replied, I never said that[.] Reyes then answered no to the question, Oh, before you walked out, you didnt tell him that you knew who did it or something? He also denied being present at the shooting.

Reyes did not testify. In defense, his 12-year-old sister testified that at the time of the shooting Reyes was home with her and their stepfather. She claimed that she told Reyes probation officer the same thing. In rebuttal, the probation officer testified that the sister never told him about Reyes alibi. Pursuant to CALJIC Nos. 3.10 3.12, 3.16, and 3.18 (Fall 2006 ed.), the court instructed the jury that Landaverde was an accomplice to attempted murder and that his testimony had to be corroborated and should be viewed with caution.^[3] The jury convicted Reyes of premeditated attempted murder committed to benefit a gang during which he personally fired a gun causing great bodily injury.

DISCUSSION

I. Sufficient Evidence Corroborates the Accomplices
Testimony That Reyes Shot the Victim.

Reyes contends that insufficient evidence corroborated the accomplice Landaverdes testimony that Reyes shot the victim, and thus that insufficient evidence supports his conviction. We disagree.

The parties agree that the court correctly instructed the jury that Landaverde was, as a matter of law, an accomplice to the attempted murder (that is, liable to prosecution for the same crime) under an aiding and abetting theory because he had guilty knowledge and intent and actively assisted in its commission. Indeed, he pleaded guilty in this case. ( 1111; People v. Boyer (2006) 38 Cal.4th 412, 466-467; People v.Hill (1998) 17 Cal.4th 800, 851; People v. Campbell (1994) 25 Cal.App.4th 402, 409.)

A conviction can be based on an accomplices testimony only if other evidence tending to connect the defendant with the commission of the offense corroborates that testimony. [Citation.] The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. [Citation.] The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplices testimony, tend to connect the defendant with the crime. The trier of facts determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime. (People v. McDermott (2002) 28 Cal.4th 946, 985-986.) In determining whether there is sufficient evidence to corroborate the accomplices testimony, [a]n appellate court must view the evidence in a light most favorable to the verdict and must uphold the judgment if it is supported by substantial evidence. (People v. Garrison (1989)47 Cal.3d 746, 774.)

Applying these principles to our facts, we conclude that sufficient evidence corroborated Landaverdes testimony that Reyes was guilty of attempting to murder Sanchez. Several facts, all supported by evidence independent of Landaverde, corroborated his testimony that Reyes was the shooter: (1) Sanchez and Gudino testified that four men participated in the attack, the shooter fired from the rear seat, none of the other three perpetrators were in the backseat when the shots were fired, and the attack was gang related; 2) the police testified that Reyes and the other three codefendants were active Blythe Street gang members and that the shooting benefited the gang; 3) the police found Reyes in the same car with the other three suspects a day after the shooting; 4) Reyes probation officer contradicted the sisters alibi testimony; and 5), most importantly, Reyes admitted to the detective during booking that he was in the back seat of the car during the shooting. This evidence was sufficient to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that [Landaverde was] telling the truth[] when he testified that Reyes fired the shots. (People v. Sanders (1995) 11 Cal.4th 475, 535, internal quotations and citations omitted; People v. McDermott, supra, 28 Cal.4th at pp. 985-986 [defendant girlfriends motive to kill boyfriend to gain undisputed ownership of their home and life insurance proceeds, presence at the crime scene, and records of lengthy telephone conversations with another killer before and after the murder sufficient to corroborate accomplice]; People v. Garrison, supra, 47 Cal.3d at p. 774 [defendants admissions sufficient]; People v. Szeto (1981) 29 Cal.3d 20, 25-29 [evidence that defendant was a member of a gang that committed several murders and thus was motivated to assist the gang, was present when the murder weapons were dismantled, and had worked near their disposal site was sufficient to support the accomplices testimony that the defendant possessed the guns and acted as an accessory to the murders by disposing of the weapons]; People v. Vu (2006) 143 Cal.App.4th 1009, 1013 [evidence of defendants gang membership showing motive, presence with codefendants on the night of the murder, and discrediting his alibi sufficient to corroborate accomplice]; People v. Narvaez (2002) 104 Cal.App.4th 1295, 1302-1305 [defendants possession of stolen property and unexplained large amounts of money after the robbery sufficient to corroborate accomplice].)

Reyes contends that this corroborating evidence was contradicted by other evidence, such as his denials of being present at the crime scene and Sanchez and Gudinos pretrial statements that one of the assailants standing outside the car fired the shots. It was for the jury, however, and not the trial or an appellate court, to decide how to weigh the evidence. Reyes also argues that this evidence only connected him to the perpetrators and not to the crime. We disagree. Reyes admission that he was in the back seat when the shots were fired placed him at the crime scene in the shooters position as described by Sanchez and Gudino. The other evidence demonstrated his motive to participate in a gang-related shooting along with his fellow gang members and discredited his alibi.

II. The Court Did Not Err in Excluding a Portion of
Reyes Third Police Statement.

Reyes made three statements to the police after his arrest; the police recorded the first and third, but not the second, statements. Shortly after his arrest, Reyes told police that he was not present during the shooting but was home with his sister and stepfather (first statement). Later that same day during the booking process he told a detective that he was in the back seat of the car during the shooting, but was not the shooter (second statement). The next day, he denied (1) making the second statement, (2) knowing who committed the crime, and (3) being present at the scene of the shooting (third statement).

The court admitted the first and second statements during the prosecutions case in chief without objection from Reyes. During the prosecutions case, however, Reyes also wanted the entire third statement admitted but the prosecution objected on the grounds of self-serving hearsay. Reyes argued that his third statement should be admitted because it impeached the detectives testimony that Reyes had made the unrecorded inculpatory second statement. The court compromised; it agreed to admit only the first two parts of Reyes third statement that purported to impeach the detective, i.e., Reyes denials that he had said anything about his presence at the crime scene to the detective or knew who committed the crime. The court, however, refused to admit the third part of the statement in which Reyes affirmatively said that he was not at the scene of the crime. Thereafter, during the prosecutions case-in-chief, the partial conversation was admitted over Reyes objection that the excluded part should be included.

Reyes contends that pursuant to Evidence Code section 356 the excluded part of the statement should have been admitted because it clarified and explained the admitted portions. The contention lacks merit.^[4]

Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence. (Evid. Code, 356; People v. Arias (1996) 13 Cal.4th 92, 156; People v. Hamilton (1989) 48 Cal.3d 1142, 1174.)

Assuming without deciding that the court properly admitted the first two parts of the third statement, the court either did not err in excluding the third part of the statement, or if it did, the error was harmless, because the excluded portion did not add anything to the admitted statements. Both parties reasonably treated the admitted portions of the third statement as an assertion by Reyes that he was not at the crime scene as well as an unequivocal denial of the second statement. Thus, during his argument, the prosecutor characterized the admitted portion as Reyes stating, I dont know what you are talking about. I wasnt there. (Italics added.) Defense counsel treated this evidence the same way, paraphrasing, I never said that. [] Well, you werent the one that shot or something like that? [] No. I can tell you that I wasnt there. (Italics added.)

We also reject Reyes argument that excluding the additional portion of the third statement made the admitted portions an adoptive admission that he had made the second statement. Reyes bases this contention on the prosecutors paraphrasing Reyess third statement as I dont know what you are talking about[,] but ignores the prosecutors next sentence that Reyes meant I wasnt there. Because we reject Reyes argument that the prosecutor mischaracterized the statement, we need not further discuss any adoptive admission.

III. The Prosecutor Did Not Commit Misconduct
During Argument to the Jury.

In his opening argument, the prosecutor stated: [W]e know the driver of that car, . . . Landaverde, was not the shooter. We know that the front passenger, . . . Alba, was not the shooter. We know that the left rear passenger, . . . Carrion, was not the shooter. [] . . . [T]he shooter is that man right there, . . . Reyes. Also in his opening argument the prosecutor stated, in describing why the jury should accept that Landaverde lied in his first statement, but believe his later statements and testimony that Reyes was the shooter: Does [Landaverde] have a motivation in this case? Of course he does. Consider all that. The man is going to do 10 years in state prison. Do you consider that a sweetheart deal? Did I buy his testimony? I wasnt even involved when he was interviewed by the police.

In the defense argument, Reyes counsel took issue with the prosecutors opening argument that Reyes was guilty either as a principal if the jury believed he was the shooter, or as an aider and abettor if the jury believed he was present at the crime scene but was not the shooter. Reyes counsel argued that Reyes was not present at the crime scene and that the prosecutors entire case rested on Landaverde, an admitted liar. He accused the detective and probation officer of lying as part of an attempt to frame Reyes, and accused the prosecutor of vouching for the credibility of a criminal . . . [and] vouching for the believability of a person who made a deal.

In his rebuttal, the prosecutor challenged defense counsels argument that his entire case rested on Landaverde: [Defense counsel] ignores the other evidence because its so devastating to his case. He ignores the fact that based on eyewitnesses, two eyewitnesses, and the victim to this crime, that three other people in that car, 100 percent, absolutely, no doubt, are eliminated as the shooter in this case. He argued that defense counsel, in asking the jurors to disbelieve the detective and probation officer, suggested the officers were liars and perjurers, and that the jury should reject that argument based on the totality of the evidence.

On appeal, Reyes argues that the above described statements by the prosecutor constituted misconduct by misstating the evidence, using his office to vouch for his case and witnesses, and impugning defense counsels integrity. He also argues that, to the extent his trial counsel failed to object to some of these arguments, counsel was ineffective. Because we conclude that the prosecutor did not commit misconduct, we do not address the ineffective counsel claim.

A prosecutors argument is prejudicial misconduct only if it infects the trial with such unfairness as to make the conviction a denial of due process, or uses deceptive or reprehensible methods to mislead the court or jury. (People v. Hill, supra, 17 Cal.4th at p. 819.) Nonetheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. [Citations.] (People v. Bemore (2000) 22 Cal.4th 809, 846.) [A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.] (People v. Padilla (1995) 11 Cal.4th 891, 945, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at pp. 823, fn. 1.) Although a prosecutor may not vouch for a witness or his case through personal assurances of a witnesss veracity or suggest that information not presented to the jury supports the witnesss testimony, accurately arguing why a plea agreement with a witness should not undermine his credibility is permissible. (People v. Williams (1997) 16 Cal.4th 153, 257.)

Reyes, pointing out contrary evidence in the record, argues that the prosecutor misstated the evidence by arguing that the other three suspects were not the shooter. We disagree. The prosecutor was entitled to argue that the evidence showed that Reyes and not the other suspects shot the victim, based on the eyewitness accounts that the shots came from the cars rear passenger compartment, and that none of the other suspects was in the backseat at that time. The fact that contrary interpretations of the evidence are possible does not make the argument improper.

We also reject Reyes argument that the prosecutor was vouching for Landaverdes testimony by stating that he did not buy it. In context, the prosecutor was arguing that the jury should reject the inference that Landaverde testified favorably to the prosecution in exchange for a light sentence because a 10-year sentence is not light. And the prosecutors assertion that he was not involved when Landaverde first told the police that Reyes was the shooter was factually accurate.

Finally, we reject Reyes contention that the prosecutor impugned defense counsel by arguing that counsel ignored evidence showing Reyes guilt. A review of the record demonstrates that the prosecutors statements were fair comment on defense counsels argument.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

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^[1] Section 1111 provides: A conviction can not [sic] be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.

^[2] On the date of the shooting Landaverde was 18 years old and the other three suspects were juveniles; the three juveniles, however, were prosecuted as adults. Landaverde, Carrion, and Alba were charged as codefendants with Reyes, although only Reyes was charged with personally discharging a firearm; the information also alleged that a principal did so. Although the record does not disclose the precise charges, the three codefendants pleaded guilty before trial; none of the three are parties to this appeal.

^[3] All further CALJIC references are to the Fall 2006 edition.

Regarding the corroboration requirement, the court instructed the jury pursuant to CALJIC No. 3.12 as follows: To corroborate the testimony of an accomplice there must be evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. [] However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplice testifies. [] In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime. [] If there is no independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. [] If there is independent evidence which you believe, then the testimony of the accomplice is corroborated. This instruction correctly states the corroboration requirement. (People v. Jenkins (1973) 34 Cal.App.3d 893, 898-899.)

^[4] We reject the Attorney Generals argument that, although Reyes sought the admission of the excluded portion of the third statement, his objections to its exclusion were not specific enough to preserve the issue.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)