P. v. Castaneda

Filed 10/28/08 P. v. Castaneda CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

On July 21, 2006, Horatio, Vidal and Abraham Guzman were driving home from work. While their vehicle was stopped at a red light, a white Ford Explorer pulled up next to it. The Explorer contained two people who were subsequently identified as appellant Jose Gregorio Castaneda and codefendant Guadalupe Sanchez, Jr. One of the Explorers occupants pointed a shotgun out of a window and fired a blast into the Guzmans vehicle, injuring Horatio and Vidal.^[1]

On September 21, an information was filed jointly charging appellant and Sanchez with three counts of attempted murder (counts 1, 2 & 3), one count of shooting at an occupied motor vehicle (count 4) and three counts of assault with a firearm (counts 5, 6 & 7). (Pen. Code,  187, 664, 246, 245, subd. (a)(2).)^[2] Appellant was charged with the following enhancements and special allegations: (1) a section 186.22, subdivision (b)(4) criminal street gang enhancement attached to counts 1, 2, 3 and 4; (2) a section 186.22, subdivision (b)(1) criminal street gang enhancement attached to counts 5, 6 and 7; (3) a section 12022.53, subdivisions (d) and (e)(1) enhancement for personally using a firearm and proximately causing great bodily injury attached to count 1, 2 and 3; (4) a section 12022.5, subdivision (a) enhancement for personally using a firearm attached to counts 5, 6 and 7; (5) a section 12022.7, subdivision (a) enhancement for inflicting great bodily injury and a section 12022.7, subdivision (c)(8) serious felony allegation attached to counts 1, 2, 5, 6, and 7; (6) two section 12022.7, subdivision (a) enhancements for inflicting great bodily injury and a section 12022.7, subdivision (c)(8) serious felony allegation attached to count 4; (7) a section 189 premeditation allegation attached to counts 1, 2, and 3; and (8) a section 1192.7 serious felony allegation attached to all counts.

Sanchez accepted a negotiated plea agreement and pled guilty to offenses that were not specified in the appellate record. On or about December 12, Sanchez was sentenced to 15 years to life imprisonment. Appellant refused a plea offer of 19 years imprisonment.

Jury trial was held. Appellant was found guilty on all counts and all the special allegations were found to be true. Appellant was sentenced to an aggregate term of 40 years to life imprisonment.

Appellant argues that the trial court infringed his federal constitutional compulsory process right by excluding Sanchez as a defense witness. Also, he argues that the trial court abused its discretion and constitutionally erred by permitting a gang expert to testify about hearsay statements Sanchez made to the expert as one of the bases for the experts opinion that the drive-by shooting was gang-related. Furthermore, appellant argues that the section 12022.53, subdivision (d) enhancement attached to count 3 is not supported by substantial evidence and that the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2 should have been stricken. None of appellants arguments are convincing. Respondent correctly points out two clerical errors in the abstract of judgment. We will affirm and order preparation of a corrected abstract of judgment.

FACTS

I. Prosecution Evidence

Abraham, Horatio and Vidal drove to work together on the morning of July 21 in Abrahams car. They left work together around 1:30 p.m. Abraham drove; Vidal sat in the front passenger seat and Horatio sat in the back seat behind Abraham. They stopped on the way home at Keg Liquors in Delano. Vidal got out of the car and went into the store. He was wearing blue shorts, a white shirt and a blue bandanna. Just before Vidal got back into the car, two young men got into a white Ford Explorer that was parked nearby. One of the men was wearing a black hat. The Explorer left the parking lot before Abrahams car did. Vidal saw the men in the Explorer make hand signs when they left the parking lot.

While Abrahams car was stopped at a red light at the intersection of Norwalk and Cecil Streets in Delano, the Explorer pulled up next to their vehicle. One of the occupants of the Explorer pointed a shotgun out of a window and fired a blast into the closed rear window on the passengers side of Abrahams car.^[3] Vidal and Horatio were struck by shotgun pellets. The Explorer quickly sped through the red light.

Vidal testified that at the time the shot was fired he did not see who was in the Explorer because the Explorer passed their vehicle very quickly. Horatio testified that he heard a shot and then fainted. Abraham testified he heard a sound that he thought was a firecracker. Then he saw that one of the cars windows was shattered and noticed that his brothers were bleeding.

Abraham drove directly to the hospital. Vidal was treated and released. Horatio was hospitalized for three days. Shotgun pellets were removed from Vidals shoulder and from Horatios neck. Shotgun pellets remain in Horatios neck and face and in Vidals shoulder; both brothers experience residual pain.

After the shooting, Delano Police Officer Ruben Campos reviewed a surveillance tape from Keg Liquors. It showed that one of the occupants of the Explorer wore a distinctive dark colored baseball cap.

About two or three hours after the initial police report was taken, Campos saw appellant and Sanchez riding together on a single bicycle in the area of Cecil and Norwalk Streets. Campos told them to stop. A fellow officer detained Sanchez, but appellant fled on the bicycle. Campos followed appellant in his patrol vehicle and detained him after a short chase.

Delano Police Sergeant Donald Flores arrived and took custody of appellant. Appellant told Flores that he fled because he was scared. Appellant initially denied that he had been at Keg Liquors earlier that day. After Flores told him that there was a surveillance videotape, appellant admitted that he had been at Keg Liquors. Appellant denied any involvement in the drive-by shooting. Appellant told Flores that he and Sanchez had been involved in a gang-related crime in the McFarland area the night before and were in a white Ford Explorer at the time of that crime. Appellant told Flores that he was a Norteno and backed the North. Appellant indicated to Flores that he knew the color affiliations, numbers and identifying tattoos used by the rival Norteno and Sureno gangs.

Flores interviewed Abraham and Vidal at the police station. He separately showed Abraham and Vidal a photographic lineup consisting of several sets of six photographs each; one of the sets contained appellants photograph and another set contained Sanchezs photograph. Abraham identified appellants photograph as one of the people he saw get into the Explorer at Keg Liquors. Vidal did not select anyones photograph.

Next, Flores conducted an in-field lineup. Abraham identified appellant and Sanchez as the two men who got into the Explorer at Keg Liquors. Then Flores showed appellant and Sanchez to Vidal. Vidal became very excited and he identified them as the two men he saw get into the Explorer. Vidal told Flores that appellant was the person who fired the shot at their car. Both Abraham and Vidal told Flores that appellant and Sanchez were wearing different clothing when they saw them earlier in the day.

At trial, Abraham identified appellant as the man who got into the Explorers front passenger seat. Vidal initially did not identify appellant as one of the men he saw get into the Explorer. However, after looking around the courtroom a second time, Vidal identified appellant [m]ore or less as the man who got into the Explorers front passenger seat.^[4]

Flores also gave expert gang testimony. He opined that the Nortenos are a criminal street gang, that appellant and Sanchez were Norteno gang members on the day of the drive-by shooting, and that this crime was committed to benefit the Nortenos.

II. Defense evidence.

Appellant presented an alibi defense. He testified that he stayed home and took care of his siblings until 3:00 or 3:30 p.m. When his stepmother, Laura J., returned home, he mailed a letter for her and then rode his bicycle to Sanchezs house sometime before 4:00 p.m. Sanchez was not home. He and Sanchezs 13-year-old brother rode together on appellants bicycle to look for Sanchez. They went to a house where a person named Chris lived. Around 4:00 or 4:30, he and Sanchezs brother bicycled to Keg Liquors. They were at the store for about five minutes and then they returned to Chriss house. Sanchez was at Chriss house. Appellant and Sanchez rode together on his bicycle to get something to eat at a donut shop. After eating, they were riding on appellants bicycle when the police pulled them over. One of the officers pulled Sanchez off the bike. Appellant was scared and fled. Appellant had no idea why police officers were contacting Sanchez or him. He did not know that a drive-by shooting had occurred that day until he talked to Flores. When Sanchez and he were transported to juvenile hall^[5]later that evening, Sanchez told appellant that he and someone named George were involved in a shooting.

Appellant denied any involvement in the shooting and said that he was not in the surveillance footage taken at Keg Liquors near the time of the shooting. Appellant testified that he was not in the Explorer at any time on July 21. Appellant admitted that he socializes with Norteno gang members.

During cross examination, appellant admitted that he lied to Flores when he said that he was not at the Keg Liquors store any time on July 21. Appellant agreed with the prosecutors assertion that he lied when he told Flores that he was involved in a drive-by shooting on the night of July 20 because he would [d]o whatever [he could] to distance [himself] from the shooting on Cecil Avenue.

Laura J. testified that she left for work at 5:00 or 5:30 a.m. on the morning of June 21. Appellant was supposed to stay home and care for his two younger siblings, a five-year-old boy and a 14-year-old girl who suffers from muscular dystrophy and is mentally like a little girl of five years old. Laura returned home at 3:30 p.m. Appellant was present and his demeanor was normal. Appellant left the house to mail a letter for her. He returned home and, after receiving permission to go to the lake with some friends, left again around 4:00 or 4:30 p.m.

Sanchezs brother testified that he saw Sanchez around 10:00 a.m. on the morning of July 21. Sanchez drove off in the white Explorer. Around 5:00 or 6:00 p.m., appellant came to his house looking for Sanchez. He and appellant rode together on appellants bike to Chriss house. Then they bicycled to Keg Liquors, bought some snacks and returned to Chriss house.

DISCUSSION

I. Exclusion of Sanchez as a defense witness was not an abuse of discretion and did not infringe any of appellants constitutional rights. Furthermore, appellant was not prejudiced by exclusion of this witness.

A. Facts

Prior to jury selection, an Evidence Code section 402 hearing was conducted to determine whether Sanchez would be permitted to testify as a defense witness (the evidentiary hearing).

During this hearing Sanchez testified that appellant was not the second person in the Explorer during the drive-by shooting. He and some other guy committed the drive-by shooting. Sanchez also testified that on the day of the drive-by shooting, he went to a party at Chris Torress house. Defense counsel asked, Can you tell us what Chris looks like? Sanchez replied, I cant answer that. Defense counsel asked, Does he look anything like [appellant]? Sanchez testified, No, sir. Counsel for Sanchez stated on the record that Sanchez would refuse to answer if he were asked to identify the person who was in the Explorer with him during the drive-by shooting.

Counsel for Sanchez interposed the following objection,

Your Honor, I would like to register an objection on my clients behalf. Hes just been sentenced a couple months ago to 15 years in prison, and it is my belief that if he does answer those questions that they will take retribution against him in prison, and they would either physically harm him or even possibly kill him; and for that reason, I would join in his objection to answering those questions.

The court asked Sanchezs counsel for the legal basis of his objection. Sanchezs counsel replied:

Well, on self-preservation, I guess. I know thats not incriminatory in the legal sense, but I feel that under due process, he has a right not to put his life in reasonable jeopardy, and I believe its reasonable to believe he would put his life into jeopardy if he answered those questions.

The court stated that fear of retribution or retaliation is not a legal basis to refuse to answer questions.

After a conference with Sanchez, his counsel stated:

All right, your Honor. I dont have a legal objection, although I would like to make an objection under the Fifth of the U.S. Constitution, also, and the due process under the California since I dont think it falls strictly under the judicial process. So, therefore, I cant make whats traditionally considered a legal objection. I just feel that the reality of the situation is that my client would put his life into jeopardy if he answered that question, and that is my objection. Be it legal or not, thats the objection, and I will submit it on that.

Following his counsels direction, Sanchez stated that he refused to answer questions on the basis that it would incriminate him under the Fifth Amendment of the United States Constitution.

At this point, the prosecutor stated that Sanchez should be excluded as a witness. The court responded,

Its true. If Mr. Sanchez is going to be asserting his Fifth Amendment privilege against self-incrimination, thereby refusing to testify, he cannot do so on a selective basis. He either testifies and be subject to cross-examination on that testimony, or he doesnt testify.

Appellants defense counsel asked the prosecutor to grant Sanchez use immunity for anything he says in testimony in this case.

The prosecutor replied that he was not sure if he was in a position to do so because Sanchez had already entered a plea and been sentenced for his involvement in the crimes before the court. The prosecutor explained, So I dont know how I can use anything that he would say in this matter, and I dont know that thats his concern that I would be using it against him.

The court stated that Sanchezs assertion of the protection against self-incrimination may open the door to other charges or other prosecution against him.

The prosecutor stated that [t]here was mention of an incident that may or may not have occurred at or about the same time as this particular incident, but he was not aware of any other pending investigations that relate[d] to any conduct by Mr. Sanchez and he does not have any evidence that Sanchez is a suspect or person of interest in connection with this other incident.

The court asked the prosecutor, In other words, youre not prepared to suggest to the Court that use immunity be granted in the blind as it were?

The prosecutor replied that this was correct because Sanchez could confess to several other crimes that Im unaware of. Therefore, he was not prepared to offer Sanchez some blanket immunity at this time when I have no idea what I might be creating immunity for. The prosecutor stated that he was willing to offer Sanchez transactional immunity as it relates to specifically the charges he faced and has already been sentenced on in this case .

Appellants defense counsel stated that he would go along with transactional immunity and argued that if Sanchez was given immunity then he doesnt have a constitutional right not to testify.

Sanchezs counsel stated, My client will not accept that, your Honor, no.

The court stated that it was not certain if Sanchez could be exposed to further criminal liability because it did not know the exact nature of Sanchezs proposed testimony.

Sanchezs counsel stated that based upon Sanchezs statement to the police, he did not think that Sanchez would testify that he was involved in any incidents on the night before the drive-by shooting.

Appellants defense counsel stated that he would not ask Sanchez about anything else except what happened on July 21st, 2006. Citing People v. Kellett (1982) 134 Cal.App.3d 949, appellants defense counsel asserted that Sanchez could not be tried for anything arising out of the drive-by shooting. The prosecutor and Sanchezs counsel briefly disputed this legal proposition. Then, the prosecutor stated,

But lets pull the veil back for a moment, if you will, and realize that this has less to do with Mr. Sanchez further incriminating himself than it does with potentially endangering himself as a result of his involvement in this and his plea.

If the Court ordered Mr. Sanchez to answer [questions posed by appellants defense counsel] and subsequently my questions and the witness, Mr. Sanchez, refused to answer any number of questions that were posed to him, the Courts remedy would then be to find him in violation of a court order. This is my interpretation of what we would be doing here. Hes doing 15 years at 85 percent. Im not certain that a contempt finding is weighing that heavily in his decisions in the big picture, and so Im not sure if were spinning our wheels going about the Fifth Amendment analysis that were trying to make here.

The court stated that the contempt process would not be effective because Sanchez currently is incarcerated for a lengthy term. The court was not prepared, quite frankly, to allow Mr. Sanchez the luxury or Mr. Castaneda or his counsel the luxury of having Mr. Sanchez provide testimony -- exculpatory testimony for Mr. Castaneda and then not be prepared to answer questions in legitimate cross-examination. The court stated that if Sanchez was prepared to testify that appellant was not in the car at the time of the incident in question but was not prepared to answer the question about who was in the car at that time, then it would not allow Sanchez to testify at all. The court stated that, in any event, [i]t would make [Sanchezs] testimony subject to being stricken in any event for failing or refusing to submit to cross-examination on his direct testimony.

The court also observed [a]s a practical matter that if it permitted Sanchez to testify and Sanchez says, Well, it wasnt [appellant], but Im not going to tell you who it was, Im not sure that this would be particularly effective testimony to the trier of fact. Appellants counsel replied to this observation, That could be, your Honor.

The court and counsel discussed whether Sanchez could be protected from retaliation. The court observed that regardless of all the promises and so forth of governmental protection, Sanchezs position probably would not change. The court asked Sanchezs counsel, Am I correct in that, to which counsel replied, You are, your honor.

Thereupon, the court ruled as follows,

So it is the determination of this court for both the reasons that Mr. Sanchez has made it very clear that he would not be answering legitimate areas -- questions on legitimate areas of cross-examination on the one hand; and, secondly, that he has asserted a Fifth Amendment privilege against self-incrimination that isnt overcome by the transactional immunity that either he would be granted or would as a practical matter have is my ruling. Mr. Sanchez will not be able to testify under those circumstances.

B. Sanchez was properly excluded as a defense witness.

The Sixth Amendment of the United States Constitution guarantees the right to compulsory process. Appellant argues the trial court infringed this right when it excluded Sanchez as a defense witness. As will be explained, Sanchez did not have a valid privilege against self-incrimination with respect to testimony concerning the drive-by shooting. Yet, the trial courts decision to exclude Sanchez was not an abuse of discretion and did not infringe appellants compulsory process right because Sanchez refused to submit to cross-examination on material issues directly related to the testimony he was willing to give during direct examination. The trial court reasonably concluded that in this case less severe alternatives to exclusion of the witness would not be effective. Furthermore, appellant was not prejudiced by Sanchezs exclusion, even when prejudice is assessed under the Chapman^[6]standard of harmless beyond a reasonable doubt.

i. Sanchez did not have a valid privilege against self-incrimination with respect to the drive-by shooting.

A person has a privilege to refuse to disclose any matter that may incriminate him or her under the Fifth Amendment to the United States Constitution. This same right is guaranteed under the California Constitution and by state statute. (Cal. Const., art. I,  15; Evid. Code,  940.) A prospective witness claiming a privilege against self-incrimination bears the burden of showing that the proffered testimony might tend to be incriminatory. (Evid. Code,  404.) A witness does not have a Fifth Amendment privilege concerning information that will not criminally incriminate him or her. (See United States v. Balsys (1998) 524 U.S. 666, 692.) The appellate court deferentially reviews the trial courts resolution of any factual disputes. When, as here, the relevant facts are undisputed, an appellate court should review independently the trial courts ruling permitting the witness to assert the privilege. (People v. Seijas (2005) 36 Cal.4th 291, 304.)

During his testimony Sanchez described Chris Torres and revealed the identity of the person who was with him in the Explorer during the drive by shooting . Defense counsel did not articulate any basis on which this testimony could be incriminatory.

Instead, counsel for Sanchez focused on the danger of retaliation Sanchez faced if he testified. Fear of retaliation from other gang members is not a valid basis to refuse to testify. As the United States Supreme Court has observed, A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give. [Citation.] (People v. Lopez (1999) 71 Cal.App.4th 1550, 1556 (Lopez).) Sanchez was not entitled to give exculpatory testimony as a defense witness but then selectively invoke the privilege against self-incrimination to avoid cross-examination on this same topic out of fear of retaliation from fellow gang members. (Cf. People v. Reynolds (1984) 152 Cal.App.3d 42, 46 (Reynolds).)

During the evidentiary hearing appellants counsel stated that he did not intend to ask Sanchez about anything other than the drive-by shooting. Sanchez was charged with the same crimes as defendant in connection with this shooting. He entered into a negotiated plea agreement and was sentenced before appellants trial commenced. Sanchezs guilty plea removed him from the protection afforded by the Fifth Amendment insofar as it related to the offenses for which he pled guilty and he could not be tried for the offenses that were dismissed as part of the plea bargain. (People v. Stewart (1969) 1 Cal.App.3d 339, 343.) When a defendant has already pled guilty to a charge, and time to appeal the conviction has run without an appeal being filed, the defendants privilege to avoid compelled self-incrimination with regard to the facts underlying the conviction no longer exists. (Lopez, supra, 71 Cal.App.4th at p. 1554.)

In addition, the prosecutor offered Sanchez transactional immunity for testimony related to the drive-by shooting. The prosecutor informed the court that he did not know of any investigation concerning any other crimes involving Sanchez and he said that Sanchez was not a suspect in any other crime. The district attorney has inherent power to grant general or limited immunity without complying with the formalities of section 1324. (People v. Superior Court(Crook) (1978) 83 Cal.App.3d 335, 339.) A court must compel the testimony of a witness granted transactional immunity. ( 1324.) Even use immunity is sufficient protection to overcome a Fifth Amendment claim of protection. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.)

For these reasons, we conclude that Sanchez did not have a valid privilege against self-incrimination for testimony relating to the drive-by shooting.

ii. Sanchezs refusal to submit to cross-examination on material issues justified exclusion of his testimony.

Appellant claims that his right of compulsory process is entitled to primacy over the Peoples right to cross-examine witnesses and therefore he was entitled to elicit exculpatory testimony from Sanchez despite Sanchezs refusal to submit to cross-examination on material issues. We disagree. A trial courts ruling on this issue is reviewed for an abuse of discretion. (People v. Reynolds, supra, 152 Cal.App.3d at p. 47.) As will be explained, Sanchezs refusal to submit to cross-examination on the single most important issue in this case -- the identity of the second person in the Explorer during the drive-by shooting -- justified exclusion of Sanchez as a defense witness.

Cross-examination is central to our justice system and is a necessary component of a fair trial. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733 (Fost).)^[7] The right to cross-examine witnesses is enjoyed by both parties in a criminal prosecution, not just the accused. (Ibid.; Evid. Code,  733; People v. Hecker (1990) 219 Cal.App.3d 1238, 1247 (Hecker).) Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an absolute right, not merely a privilege [citations], and denial or undue restriction thereof may be reversible error. (Fost, supra, 80 Cal.App.4th at p. 733; see also Pointer v. Texas (1965) 380 U.S. 400, 405.)

The refusal of a witness to submit to cross-examination may corrupt the factfinding process just as much as when it is the defendant who is refusing to submit to cross-examination. (Fost, supra, 80 Cal.App.4th at p. 736.) Fost explains,

A criminal defendants federal constitutional right to a fair trial, and specifically the Sixth Amendment right to have compulsory process for obtaining witnesses in his favor, cannot be deemed to include the right to call a witness who cannot be subjected to proper cross-examination, either because of protections the witness enjoys under the shield law or for any other reason. [Citation.] (Fost, supra, 80 Cal.App.4th at p. 736.)

Fost also sets forth the accepted remedies when a witness refuses to submit to cross-examination:

Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witnesss testimony on direct. As stated in Witkin: In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.] [Citation.] Striking a witnesss entire testimony is, of course, a drastic solution, only to be employed after less severe means are considered. [Citations.] (Fost, supra, 80 Cal.App.4th at pp. 735-736.)

In this case, the court considered other options available to it and determined that they would be inadequate. The court reasonably concluded that due to the lengthy prison sentence that Sanchez is serving, the contempt process would not be effective. It also ascertained from Sanchezs counsel that governmental assurances of protection would not be persuasive. It is obvious from the record that partially striking out Sanchezs testimony on direct examination would not have been effective because it would have resulted in striking Sanchezs testimony exculpating defendant, which was the key evidence defendant wanted to elicit from Sanchez.

Also, the trial courts decision to conduct an evidentiary hearing and rule on the admissibility of Sanchezs testimony outside the presence of the jury was proper. The court was not required to allow Sanchez to testify and then strike his testimony if he refused to submit to cross-examination as he did during the evidentiary hearing; such a procedure would negate the purpose of Evidence Code section 402 hearings. (See, e.g., Hecker, supra, 219 Cal.App.3d at pp. 1247-1248.)

This case is analogous in certain respects to Reynolds, supra, 152 Cal.App.3d 42. There, defendant was charged with attempted escape from a county jail. He testified that he did not try to escape. He said that a group of inmates forced him to throw a sheet rope outside the window so that some people who were standing below the window could place drugs inside a sock that was tied to the sheets and the drugs could be pulled back through the window and into the jail. On cross-examination, defendant refused to name the persons who were involved in smuggling the drugs because he feared retaliation. The appellate court affirmed the trial courts decision to strike all of the defendants testimony, explaining, Defendants refusal to answer relevant questions about the other inmates deprived the prosecution its right to subject that claim to the greatest legal engine ever invented for the discovery of truth, cross examination. [Citation.] (Id. at p. 46.) Although the matter before us involves the right of compulsory process rather than the right to testify on ones own behalf because it was a defense witness and not the defendant himself who refused to submit to cross-examination, Reynoldss essential reasoning concerning the centrality of cross-examination to the fairness of a trial is fully applicable.

Appellant relies on Lopez, supra, 71 Cal.App.4th 1550 to support his argument. Appellants reliance on Lopez is misplaced. There, the prosecution called a fellow gang member to give testimony about a gang-related assault. Outside the jurys presence, this witness asserted his protection against self-incrimination. Since the witness had already pled guilty to the assault, the trial court determined that the gang member did not have valid Fifth Amendment protection against self-incrimination. The court allowed the prosecutor to call the witness, who still refused to testify. The court then found the witness in contempt of court in the presence of the jury. The appellate court rejected defendants argument that the court committed reversible error by permitting the prosecution to call this witness and by making its contempt finding in front of the jury. Lopez did not hold that exclusion of testimony of the prosecution witness would have been erroneous. The court only held that admitting the witness did not result in constitutional error. Cases are not authority for propositions that are not discussed or considered therein. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66; People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) Trial courts possess the power to exercise their discretion in fashioning an appropriate remedy when a witness refuses to submit to cross-examination and several options are available. (See, e.g., Hecker, supra, 219 Cal.App.3d at p. 1248.) Thus, Lopez does not advance appellants argument.

Accordingly, we conclude that exclusion of Sanchez as a defense witness was not an abuse of discretion and the ruling did not infringe appellants constitutional rights to compulsory process, due process or to a fair trial.

C. Appellant was not prejudiced by Sanchezs exclusion as a defense witness.

Although we have concluded that the trial court did not err by excluding Sanchez, we also find that the alleged error was harmless even when exclusion of this witness is assessed under the stringent Chapman standard of harmless beyond a reasonable doubt.^[8]

Hecker, supra, 219 Cal.App.3d 1238 is directly on point. In Hecker, the defendant was charged with molesting his stepdaughter. The matter proceeded to a jury trial. During an Evidence Code section 402 hearing a prospective defense witness named Monroe Brittingham testified that the victims mother asked him about pursuing a romantic relationship if defendant was out of the picture. (Id. at p. 1246.) The court ruled that this testimony was relevant and admissible. However, the prosecutor subsequently advised the court that Brittingham admitted to an investigator that he offered to pay money to the mother if she would drop the charges against the defendant. A second Evidence Code section 402 hearing was held. During this hearing, Brittingham invoked the privilege against self-incrimination and refused to answer any questions concerning the alleged offer of money. The trial court excluded Brittinghams testimony. The appellate court impliedly upheld this ruling, although it explained that it might have been appropriate for the court to have permitted Brittingham to testify, and then to allow the jury to draw negative inferences from Brittinghams invocation of the protection against self-incrimination or to have admitted Brittinghams statements to the investigator as impeachment evidence. (Id. at p. 1248.) Then the appellate court determined that even if the court erred in totally excluding Brittinghams testimony, the error was harmless. (Ibid.) It explained that the defendant was not entitled to place Brittinghams testimony before the jury free from any threat of impeachment. Either of the less restrictive alternatives available would have resulted in serious damage to Brittinghams credibility. (Id. at p. 1248.) Also, it is unlikely the jury would have found Brittinghams testimony believable. (Ibid.)

Likewise, in this case appellant was not prejudiced by exclusion of Sanchez as a defense witness. Sanchez had substantial credibility problems. He was identified at trial as a Norteno gang member. Appellant testified that he associated with Nortenos and Flores opined that appellant was a Norteno gang member. Thus, Sanchez had an obvious motive to give false testimony attempting to exonerate appellant. If the court had elected to pursue a less restrictive alternative such as permitting Sanchez to testify on direct examination and then instructing the jury that it was entitled to draw a negative inference from Sanchezs refusal to answer relevant questions on cross-examination, it would have further damaged Sanchezs credibility. It is highly unlikely that reasonable jurors would have given any weight to Sanchezs testimony that an unidentified third party committed the drive-by shooting with him.

Furthermore, the prosecutions case against appellant was strong. Vidal and Abraham unequivocally identified appellant during an in-field show-up as one of the two people who got into the Explorer shortly before the drive-by shooting. Vidal told Flores that appellant was the person who shot at their car. Vidal and Abraham reiterated these identifications at trial, although with less assurance.^[9] Appellant fled from the police and, when detained, lied to Flores. Appellant even invented a fictitious crime in McFarland on the night before the drive-by shooting and told Flores that he committed this crime with Sanchez in the Explorer. Appellant agreed with the prosecutors assertion that appellant invented this pretty detailed lie to do whatever he could to distance himself from the drive-by shooting.

Finally, appellants alibi defense was weak. Appellant testified that he was babysitting his younger siblings during the time the drive-by shooting took place. However, no witnesses were presented corroborating defendants claim to have been in his house during the crucial time in the afternoon when the drive-by shooting occurred. Neither of appellants siblings was called as a defense witness. Appellants stepmother left early in the morning. She did not return to the house until 3:30 p.m., which is about two hours after the shooting occurred. She admitted on cross-examination that appellant was left unattended from the time [she] left in the morning until [she] returned at around 3:30. Sanchezs brother testified that appellant came to his house around 5:00 or 6:00 p.m.; he did not testify that he saw appellant during the early afternoon.

For all these reasons, we conclude that it is not reasonably possible that the exclusion of Sanchez as a defense witness evidence affected the verdict. Thus, the asserted error is harmless. (Hecker, supra, 219 Cal.App.3d at p. 1248.)

II. The trial court properly allowed Flores to testify about Sanchezs hearsay statements to him.

A. Facts

Flores testified during his direct examination that he interviewed Sanchez. The prosecutor asked, And did [Sanchez] provide you information relating to your overall investigation of this particular crime? Defense counsels hearsay and confrontation objections were overruled. Flores answered, Yes, sir.

Later, the prosecutor asked Flores if Sanchez provided him with information about the circumstances of this crime that helped [him] formulate an opinion that it was gang related[.] Flores answered affirmatively. Defense counsel objected on hearsay and confrontation clause grounds. The prosecutor responded, Your Honor, Im not offering this for the truth of the matter that will be asserted. Its for the basis of this officers opinion. I think its settled that an expert such as Detective Flores can rely on hearsay to formulate his opinion. The court ruled as follows:

Okay. Your objection is noted. To the extent that Mr. Sanchezs information to this officer is relied upon to formulate the officers opinion with regard to Mr. Castanedas gang affiliation and the circumstances of the offense as being gang related, he can rely on hearsay information, which is not offered to prove the truth of the matter stated as to any issue in this case.

Defense counsel asked for and was granted the opportunity to make a record outside the hearing of the jury. The court stated that it would consider defense counsels objection as continuing.

Thereafter, the prosecutor asked, What did Mr. Sanchez tell you that was important to you formulating your opinion in this case? Flores answered, That this was a retaliation shooting for some disrespect that had been offered by the victims. The prosecutor asked, Was it significant that one of the victims was in blue? Flores responded, Yes, sir, it was. The prosecutor asked, And Mr. Sanchez told you that was part of the reasoning, correct? Flores answered, Yes, sir, thats correct. Defense counsel reiterated his continuing objection, which was noted by the court. Flores testified that he could not recall anything else Sanchez told him that influenced his opinion as it related to determining whether or not appellant was a Norteno gang member.

At the conclusion of the prosecutors direct examination, the court gave the following limiting instruction to the jury:

You heard some testimony moments ago and an objection to that testimony by [defense counsel] with regard to what Mr. Sanchez told Detective Flores and how Detective Flores relied on that information in forming his opinions with regard to the gang elements of this particular incident. That is admitted for the limited purpose of establishing a basis on which Detective Flores formed and rendered to you his opinions. You are not to consider it for the truth of what Mr. Sanchez said as to the incident in question, but rather that that is a bit of information that Detective Flores has and relied upon in forming his opinions with regard to the gang relationship to this particular incident and Mr. Castanedas potential involvement in that gang -- in gang activities generally. So it is admitted only for that limited purpose.

During Floress cross-examination, defense counsel asked, Now, in your testimony about what Mr. Sanchez told you, you are not making an assertion one way or the other that Mr. Sanchez told you whether or not my client was involved? Flores responded, That is correct.

At the end of the court day, the court stated that defense counsel could make a record as he had requested earlier concerning his hearsay objection as far as the materials on which Detective Flores relied in rendering his opinion. Defense counsel replied, Thats correct. I think I took care of that to my satisfaction when [Flores] answered that he was not asserting one way or another that Mr. Sanchez said that my client was involved or not involved. He wasnt making such an assertion. Thats all I wanted to get out.^[10]

B. Sanchezs statements are the type of evidence a gang expert would reasonably rely on and they are not inherently unreliable.

Appellant argues that Sanchezs hearsay statements to Flores should have been excluded because they are not the type of information on which an expert reasonably would rely in forming an opinion that a crime was gang-related. Also, he argues that the statements are inherently unreliable and therefore are inadmissible as a basis for an experts opinion. Neither contention is persuasive.

A trial courts admission of evidence, including the testimony of a gang expert, is reviewed for an abuse of discretion. (People v. Page (1991) 2 Cal.App.4th 161, 187.)

An expert is permitted to rely on hearsay in formulating opinions used to prove gang enhancement allegations. (People v. Gardeley (1996) 14 Cal.4th 605, 618-620 (Gardeley).) An expert whose opinion is based on otherwise inadmissible matter can, when testifying, describe the material that forms the basis of his opinion. (Id. at p. 618.) The culture and habits of gangs are matters which are sufficiently beyond the common experience that the opinion of an expert would assist the trier of fact. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 10.) Also, it is well established that in forming his or her opinions, a gang expert may rely upon conversations with gang members. (Ibid.; People v. Duran (2002) 97 Cal.App.4th 1448, 1463; Gardeley, supra, 14 Cal.4th at p. 620.) Therefore, we find that Sanchezs statements to Flores are the type of evidence upon which a gang expert would reasonably rely in forming his opinion whether or not the drive-by shooting was a gang-related crime.

Material forming the basis for an experts opinion must be reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) Appellants assertion that Sanchezs statements to Flores should have been excluded as inherently unreliable is meritless. As his sole support for this contention, appellant cites People v. Anderson, supra, 43 Cal.3d 1104 (Anderson). Anderson is factually and legally inapposite. Anderson involved admission of a codefendants statements to an expert that plainly and directly implicated the defendant in two charged murders in order to shift the blame for the crimes away from herself. (Id. at p. 1122.) Furthermore, it was not entirely accurate to say that [the] statements were not introduced for their truth. (Id. at p. 1225.) It was in this specific factual context that our Supreme Court determined that the codefendants statements were inherently unreliable, that their admission violated the Aranda-Bruton rule,^[11]and that the error was harmless. In contrast here, Sanchezs statements to Flores did not implicate appellant in the drive-by shooting, they did not attempt to shift blame away from Sanchez, and they were not introduced or used for their truth. Andersondid not address the inherent reliability of a codefendants statements that do not implicate the defendant and are not intended to shift blame away from the codefendant. Therefore, appellants reliance on Anderson is misplaced and his argument fails.

C. Admission of Sanchezs statements did not result in Crawford error because they were not offered to establish the truth of the matters asserted therein.

Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford), appellant argues that admission of Sanchezs statements infringed his federal constitutional confrontation right. We are not convinced.

This same argument was rejected in People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas). In Thomas, the appellate court upheld admission of hearsay evidence in the form of the gang experts conversations with other gang members in which they identified defendant as a gang member. The court determined that because the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witnesss opinion, the confrontation clause, as interpreted in Crawford, does not apply. (Id. at p. 1210.) It explained:

Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the experts opinion. Crawford itself states that the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Citations.] (Thomas, supra, 130 Cal.App.4th at p. 1210.)

Recently, in People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez), the appellate court affirmatively cited Thomas.Ramirez succinctly observed, Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned. (Id. at p. 1427.)

In his reply brief, appellant cites People v. Song (2004) 124 Cal.App.4th 973 (Song) and asserts that this case is closer to Song than to Thomas. We disagree. Song held that where there is both Aranda-Bruton error and Crawford error, a limiting instruction is insufficient to eliminate Crawford error. (Id. at p. 984.) Unlike this case, the statements at issue in Song directly incriminated the defendant and they were admitted as direct proof of the matters asserted therein and not as a basis for an expert opinion. (Id. at pp. 979-980, 984.) Thus, Song is inapposite.

We find Thomas to be well-reasoned and will adopt its reasoning and result. Accordingly, we conclude that admission of Sanchezs statements did not infringe appellants confrontation right.

D. Sanchezs statements did not implicate the Aranda-Bruton rule because they did not incriminate appellant in the drive-by shooting.

As previously noted, the Aranda-Bruton rule forbids admission of statements made by a non-testifying codefendant that incriminate the defendant. (Bruton, supra, 391 U.S. at pp. 126, 135-136; Aranda, supra, 63 Cal.2d at pp. 529-530.) Appellant argues that admission of Sanchezs hearsay statements violated this rule. We disagree. Sanchezs hearsay statements formed part of the basis for Floress opinion that the drive-by shooting was gang-related; they did not directly or impliedly implicate appellant in the commission of this crime. Sanchezs statements concerned the retaliatory nature of the shooting. They did not indicate that appellant was one of the perpetrators. During cross-examination, Flores agreed with defense counsel that he was not making an assertion one way or the other that Mr. Sanchez told you whether or not my client was involved in the drive-by shooting. Appellants theory that the jury could have somehow inferred his involvement in the drive-by shooting from Sanchezs statements is unreasonably attenuated. Sanchezs statements did not implicate appellant in the drive-by shooting. Accordingly, the Aranda-Bruton argument fails.

III. The firearm enhancement attached to count 3 is supported by substantial evidence.

Appellant was sentenced on count 3 (attempted murder of Abraham) to a concurrent term of 15 years to life plus a stayed term of 25 years to life pursuant to section 12022.53, subdivision (d).

Appellant argues that the section 12022.53, subdivision (d) firearm enhancement attached to count 3 lacks substantial evidence because Abraham was not personally injured during the drive-by shooting. People v. Oates (2004) 32 Cal.4th 1048 (Oates) resolved this issue adverse to appellants position. (Id. at pp. 1055-1062.) In Oates, the defendant discharged a gun into a group of five people, injuring one of the people. The defendant was convicted of five counts of attempted murder and a section 12022.53, subdivision (d) enhancement allegation was found true as to each count. The court imposed all of the section 12022.53, subdivision (d) enhancements. Our Supreme Court rejected the argument that the trial court should have imposed only one section 12022.53, subdivision (d) enhancement. It determined that based on the single injury to one of the people in the group, the requirements of a section 12022.53 subdivision (d) enhancement were met as to each of the five attempted murder convictions. We are bound to follow the decisions of our California Supreme Court. (Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.) It is undisputed that Vidal and Horatio were injured during the drive-by shooting. Therefore, appellants challenge to the sufficiency of the evidence fails.^[12]

IV. The section 12022.7, subdivision (a) enhancements attached to counts 1 and 2 were correctly stayed.

In relevant part, the jury found true section 12022.7, subdivision (a) enhancement allegations that were attached to counts 1 and 2. It also found true section 12022.53, subdivision (d) enhancement allegations that were attached to these same counts. On count 1, the court imposed a term of 25 years to life for the section 12022.53, subdivision (d) enhancement. On Count 2, the court imposed and stayed a term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court imposed and stayed three-year terms for the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2.

Relying on People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte), appellant contends that the section 12022.7, subdivision (a) enhancements attached to counts 1 and 2 should have been stricken. However, our Supreme Court recently disapproved of Bracamonte in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8 (Gonzales). The Supreme Courts reasoning in Gonzales and other precedents supports the trial courts decision to stay the section 12022.7 enhancements.

Section 12022.53, subdivision (f) provides that where multiple enhancements under the section are found true, only the one resulting in the lengthiest enhanced term shall be imposed, and additional firearm and bodily injury enhancements found true under other sections, including sections 12022.5 and 12022.7, shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). Bracamonte determined that this language required the trial court to strike the additional subordinate enhancements. In Gonzales, our high court disapproved of Bracamonte and concluded that additional subordinate enhancements should be imposed and then stayed. (Gonzalez, supra, 43 Cal.4th at pp. 1129-1130.)

Appellant bases his argument on the shall not be imposed language in section 12022.53, subdivision (f). Gonzales construed this language to mean that enhancements under sections 12022.53 and 12022.5 shall not be imposed and executed but instead must be imposed and stayed. We discern no basis to reach a different result with respect to subordinate section 12022.7 enhancements. (See Walker v. Superior Court (1988) 47 Cal.3d 112, 132 [[i]dentical language appearing in separate provisions dealing with the same subject matter should be accorded the same interpretation].)

When an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition, the trial court should stay the enhancement. (Cal. Rules of Court, rule 4.447; People v. Lopez (2004) 119 Cal.App.4th 355, 365.) Consequently, we conclude that the trial did not err in staying the terms imposed for the section 12022.7 enhancements attached to counts 1 and 2.

V. Two clerical errors in the abstract of judgment must be corrected.

Respondent correctly points out two clerical errors in the abstract of judgment. First, the abstract of judgment inaccurately reflects that an unspecified term was imposed and stayed for a section 12022.7, subdivision (a) enhancement attached to count 3. No section 12022.7 enhancement attached to count 3 was alleged or found true by the jury and the court did not impose or stay a term for a section 12022.7 enhancement attached to count 3. Second, the abstract of judgment fails to reflect that fees totaling $60 were imposed pursuant to section 1465.8. The proper remedy is to order prepara