P. v. Huerta

Filed 6/26/08 P. v. Huerta CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

Moises Huerta appeals from the judgment following his jury trial and conviction of four counts of attempted willful, deliberate, premeditated murder; assault with a firearm; and possession of an assault weapon. (Pen. Code,  664, 187, subd. (a), 245, subd. (a)(2), 12280, subd. (b).)[1] The jury found several gun use allegations to be true. ( 12022.53, subds. (b), (c), 12022, subd. (a)(1), 12022.53, subd. (d), 12022.5, subd. (a).) The court sentenced appellant to serve life plus one hundred years in prison, including four consecutive life terms for the attempted murders, with a consecutive 25-year-to-life section 12022.53, subdivision (d) enhancement for each murder. Appellant contends that the trial court erred by admitting the preliminary hearing testimony of a prosecution witness and by imposing a five-year term for a section 12022.5, subdivision (a) gun use enhancement. We reduce that gun use enhancement to a four-year term and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Wicked Kings is a tagging group in Compton. Juan M., one of the victims, belonged to the Wicked Kings in September 2006. FME is another tagging crew or "little gang" in Compton. FME stands for "fuck my enemies." Antonio Zavala, who was known as "Exso," belonged to FME.[2]

Jorge U., Juan L., Omar, Arnoldo, and Juan M. (Arnoldo's brother) attended Dominguez High School in Compton in September 2006. On September 7, 2006, between 3:00 and 3:15 p.m., they walked home together and headed west across the I-710 freeway bridge, which leads onto Compton Boulevard. Zavala drove eastbound on the bridge in a black Honda Civic with two or three passengers. Zavala briefly stopped the car near the boys and said, "What's up with the FME life?" before continuing east.

The boys continued heading west, crossed the bridge, on the south side of Compton Boulevard, and reached the corner of Compton and Williams Avenue. The same black car stopped in an alley, near the corner. Appellant left the car's front passenger seat, walked a few steps toward Jorge, crouched down on his knee, pointed a gun at the boys, and started firing. The boys heard between four and six gunshots.

Bullets hit and injured Juan L., Jorge, Arnoldo, and Juan M. All five boys ran away. Juan M. dove into some nearby bushes. A driver in the area picked up Juan M. and took him to a hospital. Omar, Jorge, Juan L. and Arnoldo ran across Compton Boulevard, to the north side of the street. While running, Juan L. screamed that the shooter was FME, and said something like, "FME, Exso," and "some other stuff."[3]

Los Angeles sheriff deputies found Juan L., Jorge, and Arnoldo lying on the ground, bleeding from gunshot wounds, in front of an apartment complex on the north side of Compton Boulevard between South Williams and South Gibson Avenues. A deputy found a bullet fragment on the pavement at the northeast corner of Williams and Compton Boulevard, approximately 40 yards from the injured boys. He also found four .40-caliber Smith and Wesson shell casings in an east-west alley 30 yards south of Compton Boulevard.

Deputies arrested appellant on September 7, 2006, at his grandmother's residence on Lime Avenue in Compton. They located a .40-caliber Glock pistol in a file cabinet in her backyard. Firearms testing established that the four shell casings recovered from the crime scene were ejected from that Glock pistol.

When detectives questioned him about the boys who were shot "near Gibson," appellant admitted that he shot at them. He said that he used to attend their school, and he guessed "they just [didn't] like [him because he was] from a rival crew or something." They "flipped [him] off" as he walked to his grandmother's house. He said that the boy who flipped him off had shot at his grandmother's house in the past. Appellant ran to retrieve his Glock pistol, returned and shot at that boy from the alley near Gibson while the boys were on Compton, on the south sidewalk. After shooting at the boys, appellant ran back to his grandmother's house.

Deputies also searched appellant's house. One of its bedrooms contained a photo album. Pictures from the album showed Hispanic males holding weapons and making gang signs. In one picture, appellant held a gun like the .40-caliber Glock pistol recovered from his grandmother's yard. Another photo showed appellant and Zavala, with the letters "FME" on a wall behind them. Deputies later located a black Honda Civic at Zavala's residence. It contained paperwork with gang graffiti, including a paper that said "Exso."

During trial, the prosecution presented the preliminary hearing testimony of Juan Zepeda regarding the following facts: Shortly before the shooting, Zepeda was driving on Compton Boulevard, toward Williams Avenue. A black Honda Civic stopped and blocked his car. Appellant sat in its passenger seat holding a gun as he looked at "the boys . . . coming out of the school." Appellant fired four or five shots. Zepeda drove about a block and a half away and parked at a liquor store. The black Civic entered an alley behind the store. Its driver handed appellant two guns. Appellant jumped over a fence. Zepeda later directed sheriff deputies to the alley behind the liquor store and a gate behind 15120 South Lime. After the deputies found appellant at 15120 South Lime, Zepeda identified him as the shooter.

DISCUSSION

As a prerequisite to the introduction of preliminary hearing testimony under the prior testimony exception of Evidence Code section 1291, subdivision (a), the trial court declared Zepeda to be unavailable as a witness. Evidence Code section 240, subdivision (a)(5) provides that a person is unavailable when he or she is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." Appellant argues that the trial court erred when it determined that the prosecution had exercised due diligence to find Zepeda, and that consequently his preliminary hearing testimony was not admissible. We reject the claim.

When the underlying facts concerning a search for a witness are undisputed, we independently review the trial court's determination of due diligence. (People v. Cromer (2001) 24 Cal.4th 889, 901.) The term "due diligence" is "'incapable of a mechanical definition,' but it 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'" (Id. at p. 904.) The determination is dependent on the facts of the individual case and includes such factors as the proponent's efforts to make the witness appear, whether the witness was likely to appear, whether the search for the missing witness was timely begun, and whether the witness would have been produced with reasonable diligence. (People v. Sanders (1995) 11 Cal.4th 475, 523.)

The trial court held the Evidence Code section 402 hearing on the unavailability issue on Friday, May 4, 2007, the day before jury selection began. Larry Dimmick, a prosecution investigator, testified that another investigator had started searching for Zepeda on March 22. Dimmick started searching on April 11 and initially tried to locate Zepeda at the address he had given law enforcement. Upon finding that Zepeda was living at his sister's residence, Dimmick went there, but Zepeda was at work. He left a copy of a subpoena, a business card, and instructions for Zepeda to call him. Zepeda called Dimmick and confirmed his receipt of the subpoena.

On April 12, 2007, at 5:45 p.m., Dimmick returned to Zepeda's current residence to serve him with a subpoena to appear in court on April 13. Zepeda explained that, despite his wish to help and do the right thing, he feared retaliation against his brothers and nephews. When Dimmick proposed relocating them, Zepeda said they would be unwilling to relocate. He explained that he had moved his immediate family to Mexico because of fear after the shooting. Zepeda had heard that two young men with guns had been looking for him, and that someone overheard them saying that they should have killed him after he talked the first time. Zepeda believed that this was true and did not want to take any chances. He had already moved to his sister's house to get away from the area where he lived in Compton; he also had left his job.

Dimmick further tried to persuade Zepeda to do the right thing and testify. Zepeda acknowledged that crime flourishes if people will not say anything but said that he felt an obligation to preserve his family's safety. Dimmick said he would take Zepeda to court and bring him in through a secure entry. Zepeda said he would think about it. Dimmick thought that he might have persuaded Zepeda to testify. Despite his power to arrest Zepeda, Dimmick did not do so because Zepeda had not yet been declared a material witness by a court order and the courts were closed for the day. The following morning at 6:30 a.m., Dimmick returned to Zepeda's residence, but he was not there. His sister said that he had gone to Mexico.

The court issued a warrant for Zepeda. Dimmick tried to serve the warrant several times between April 24 and May 4, 2007. Zepeda's relatives informed Dimmick that Zepeda was in Mexico but they did not know exactly where. They provided the name of a town where Zepeda might be living. The name of the town sounded something like "Kintinaro." They also mentioned Vera Cruz as a possibility but they had no address or telephone number for Zepeda.

This record shows that the prosecution began to search for Zepeda several weeks before trial, located and met with him, and made reasonable efforts to assure his attendance until the time of trial. Appellant complains that the prosecution failed to take the additional steps of obtaining a material witness order from a magistrate or a court, checking whether Zepeda was hospitalized or incarcerated, or checking his previous workplace. When the record reveals that the prosecution undertook sustained and substantial good faith efforts to locate a witness, the defendant's ability to suggest additional steps does not establish the prosecution's failure to exercise due diligence. (People v. McElroy (1989) 208 Cal.App.3d 1415, 1428, disapproved on other grounds in People v. Cromer, supra, 24 Cal.4th 889, 901, fn. 3.)

We reject appellant's related claim that the admission of Zepeda's testimony violated his right to confront prosecution witnesses under the federal and state constitutions. (See U.S. Const., 6th Amend; Cal. Const., art. I,  15; Crawford v. Washington (2004) 541 U.S. 36, 68 [the admission of a "testimonial" hearsay statement violates the confrontation clause unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination].)

The admission of former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clause "not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution." (People v. Zapien (1993) 4 Cal.4th 929, 975.) A defendant's motive for cross-examination at the preliminary hearing "need not be identical, only 'similar'" to the motives of the defense at trial. (Ibid.) In this case, Zepeda's preliminary hearing testimony corroborated other evidence against appellant. The defense interest in cross-examining Zepeda at the preliminary hearing was to discredit his testimony. This motive is closely similar, if not identical, to the defense's motives at trial. (See People v. Carter (2005) 36 Cal.4th 1114, 1173.) When the requirements of Evidence Code section 1291 are met, the defendant has been given the opportunity for prior cross-examination and there is no confrontation clause issue. (People v. Harris (2005) 37 Cal.4th 310, 333; People v. Wilson (2005) 36 Cal.4th 309, 340-341.)

In this case, even if the court had erred in finding that the prosecution had exercised due diligence, reversal would not be required. In the face of other highly incriminating evidence against appellant, any error in admitting Zepeda's preliminary hearing testimony would have been harmless beyond a reasonable doubt. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140 [applying standard of Chapman v. California (1967) 386 U.S. 18, 24, to confrontation clause violation that arose from admission of hearsay evidence]; People v. Houston (2005) 130 Cal.App.4th 279, 295-296.) Appellant confessed to the shooting. It is difficult to find "evidence more damaging to a criminal defendant's plea of innocence." (Arizona v. Fulminante (1991) 499 U.S. 279, 313 (conc. opn. of Kennedy, J.).) Further, substantial physical evidence tied appellant to the shootings. He was arrested at his grandmother's residence where deputies recovered a Glock pistol. Testing established it was the same Glock pistol that was used to shoot the victims. In addition, the statements of other witnesses, including the victims, while equivocal, corroborated appellant's confession and the physical evidence. While Zepeda's testimony provided very incriminating corroboration of other evidence against appellant, any error in its admission was harmless beyond a reasonable doubt. (See People v. Zapien, supra, 4 Cal.4th 929, 980.)

Appellant also raises one sentencing issue. Respondent agrees that because section 12022.5, subdivision (a) provides for an enhancement of three, four, or 10 years, the court erred by imposing a five-year sentence for appellant's count 6 section 12022.5, subdivision (a) gun-use enhancement. The trial court expressed its intention to impose the middle term for count 6. The parties further agree that the sentence should be modified to impose a middle term of four years for the count 6 gun use enhancement. We reduce that enhancement to a four-year term. (See People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4h 1403, 1415-1416.)

The judgment is modified to reduce the count 6 gun use enhancement to a four-year term. The trial court shall correct the abstract of judgment and forward the amended abstract to the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Gary R. Hahn, Judge

Superior Court County of Los Angeles

______________________________

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory references are to the Penal Code unless otherwise stated.

[2] Zavala was charged, as appellant's codefendant, with five counts of attempted murder. The jury could not reach a verdict on the charges against Zavala.

[3] Each of the victims testified at trial, along with Omar, their sole unwounded companion. Because the young witnesses provided somewhat equivocal testimony, the prosecution also introduced tapes of their prior inconsistent statements and testimony of other witnesses regarding their prior inconsistent statements.