P. v. Ramirez

Filed 9/27/06 P. v. Ramirez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, David Mintz, Judge. Affirmed as modified.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

INTRODUCTION

A jury convicted defendant and appellant Raymond Ramirez of, among other things, murder, attempted murder, and assault with a firearm, and the jury also found true gang allegations. The main issue at trial was identification. Before trial, the defense moved for discovery of a gang book to challenge the People’s gang expert’s credibility and expertise and to question eyewitnesses on third party culpability. The trial court denied the motion. On appeal, defendant contends that the trial court’s order denying the discovery request violated his federal and state constitutional rights to due process and to confront witnesses. He also contends that the trial court improperly imposed a sentence enhancement and that his consecutive sentence violates Blakely v. Washington (2004) 542 U.S. 296. We agree that the sentence enhancement was improperly imposed, and we therefore modify the judgment to correct that sentencing error, but we otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The shooting.

Around 11:00 p.m. on July 20, 2002, a group of young friends drove to a party in downtown Los Angeles. The group consisted of: Jose, Sandra, and Rocio^[1] Florentino (siblings); Jose Ortega; Anthony Negrete; Eddie Santana; Raymond Reta; Erick De La Pena; Joel Arroyo; Phillip and Joseph Corona (brothers); Ricardo Llosa; and Daniel Perea. The group traveled in two cars to the party.

Unable to find parking in the lot where the party was being held, the two cars parked on Firmin Street, which had a hill. Walking down the hill were two-to-three men. One of the men yelled, “[W]here are you from?” Joseph Corona yelled back that they were from “nowhere.” One or two of the men walking down the hill then repeatedly fired a shotgun or rifle. Rocio Florentino was shot in her torso, and she died. Phillip Corona’s head was injured. Raymond Reta was shot in his left shoulder, and his finger was grazed.

After the shooting started, Phillip Corona called the police. An officer put out a call describing the suspects as “two male Hispanics, one with short hair wearing a white shirt.”

About 10 minutes after the call went out, defendant, who lived on Firmin Street and was walking on Firmin Street, was detained. Defendant was wearing a brown shirt with a dog and “Rude Dogs” on it, a white shirt underneath the brown shirt, green shorts, white socks, and white shoes. He had short hair (a quarter to a half-inch in length), a thin mustache, and a goatee. He had a tattoo identifying him as a member of the Diamond Street gang. Defendant admitted he belonged to the gang and that his moniker is “Nesio.” Defendant did not have a gun or ammunition on him, and a gunshot residue test found no residue on his hands. Ammunition casings found at the scene matched ammunition later found at defendant’s house.

B. Eyewitness testimony.

1. Jose Florentino

At trial, Jose identified defendant as the shooter. He had also previously identified him at a field show-up.^[2] He identified defendant as the shooter because he had the same clothes (except that defendant was wearing a shirt different than the one the shooter had worn) and facial structure. Jose recognized defendant as the shooter because of his bone structure and the bridge of his nose.^[3]

2. Joseph Corona

In court, Joseph said defendant was familiar, but he could not identify him as the shooter.^[4] But Joseph had identified defendant as the shooter at the police station on the night of the incident.

3. Phillip Corona

In court, Phillip was “almost certain“ that defendant might be the shooter, but he was not 100 percent certain.

After the shooting, and while still at the scene, police officers showed Phillip two men. Phillip said one of the men was not involved, but that it was possible the other man, defendant, was involved. He was uncertain because defendant was wearing a shirt that was different than the one he remembered the shooter wearing.

4. Joel Arroyo

Joel could not identify defendant as the shooter at trial. But, on April 14, 2003, he had identified defendant from a photographic six-pack as the person who had or appeared to have a gun.^[5] He selected defendant because he seemed to resemble a person he had been shown at the police station on the night of the shooting.

5. Raymond Reta

Raymond could not make any identification at trial. He also could not identify defendant from a photographic six-pack, which was shown to him while he was at the hospital.

He testified that he, Jose Florentino, Sandra Florentino, and Anthony Negrete had been drinking on the night of the shooting. He testified that he did not really see faces, but that the shooter was a male Hispanic, had brown-to-tan skin, and was wearing a white “wife-beater” t-shirt, dark blue or black plaid shorts, white socks, and white shoes.

C. Expert Eyewitness Testimony.

Dr. Kathy Pezdek, a psychologist, testified as an expert on memory for the defense. She said that people tend to remember a person’s general, rather than specific, characteristics. Psychological factors affect the memory process. For example, people tend to exaggerate the duration of a stressful event, and memory is less reliable in life threatening, stressful situations. Witnesses tend to focus on any weapon used during the crime, and the presence of more than one perpetrator can lead to a greater likelihood of misidentification. Alcohol slows down the ability to focus on and take in information, and lighting and distance also affect eyewitness memory. Eyewitnesses who only have a few seconds to look at a face are less accurate and more likely to make a misidentification. An identification becomes less reliable the longer the passage of time between when an individual makes an observation and when they are asked to make an identification. There is no correlation between a witnesses’ certainty when they make an identification and the accuracy of the identification.

Field show-ups can influence subsequent identifications because the person from the field show-up is in the witness’s memory and because the witness has had more time to observe that person than the actual perpetrator. Six-packs can be suggestive if the person administering the six-pack knows who is the suspect. In-court identifications are also biased because the witness has now seen the defendant numerous times before and therefore looks familiar.

D. Gang testimony.

Officer Justin Stewart testified as the People’s gang expert. He testified, among other things, that defendant is a member of the Diamond Street gang and that the shooting was committed for the benefit of the gang.

II. Procedural background.

A first trial by jury ended in a mistrial after the jury was unable to reach a verdict.

A second trial was also by jury. The jury found defendant guilty of: Count 1 for first degree murder (Pen. Code,^[6] § 187, subd. (a)) and found true gang (§ 186.22, subd. (b)), gun use (§ 12022.53, subds. (b), (c), (d)), and principal gun use (§ 12022.53, subds. (b), (c), (d), and (e)) allegations; count 2 for attempted murder (§§ 664, 187, subd. (a)) and found true gang (§ 186.22, subd. (b)), gun use (§ 12022.53, subds. (b), (c), (d)), principal gun use (§ 12022.53, subds. (b), (c), (d), and (e)), and personal infliction of great bodily injury on the victim (§ 12022.7 subd. (a)) allegations; counts 3-13 for assault with a firearm (§ 245, subd. (a)(2)), and found true gang (§ 186.22, subd. (b)) and gun use (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)) allegations; count 14 for shooting at an occupied motor vehicle (§ 246), and found true gang (§ 186.22, subd. (b)) and gun use (§ 12022.5, subd. (a)) allegations; and count 15 for shooting at an occupied motor vehicle (§ 246), and found true gang (§ 186.22, subd. (b)), gun use (§§ 12022.5, subd. (a), 12022.53 subd. (d)), and principal gun use (§ 12022.53 subds. (d), (e)) allegations.

On June 23, 2005, the trial court sentenced defendant on count 1 to 25 years to life plus a consecutive 25 years under section 12022.53, subdivision (d). On count 2, the court also sentenced defendant to life plus a consecutive 25 years under 12022.53, subdivision (d). On counts 3-13, the court sentenced defendant to 3 years on each of those counts plus a consecutive 10 years under section 186.22 plus 4 years under section 12022.5, subdivision (a)(1). On count 14, defendant was sentenced to 5 years plus 10 years under section 186.22 plus 4 years under section 12022.5, subdivision (a). On count 15, defendant was sentenced to 5 years plus a consecutive 10 years under section 186.22 plus a consecutive 25 years to life under section 12022.53, subdivision (d).^[7] The court stayed the sentences on counts 6 and 9. The sentences imposed on counts 1, 2, and 15 were consecutive. The sentences imposed on counts 3-14 were ordered to run concurrent to the terms imposed on counts 1, 2, and 15.

Defendant appealed.

DISCUSSION

I. Defendant was not deprived of his federal and state constitutional rights to confront witnesses and to due process of law based on the denial of his discovery request.

The trial court denied defendant’s discovery request for a copy of the Diamond Street gang books. Defendant now contends that the court’s order deprived him of his federal and state constitutional rights to confront witnesses and to due process of law under the Fourth, Sixth, and Fourteenth Amendments of the United States Constitution and under article I, section 15 of the California Constitution. We disagree.

A. Additional facts.

Before the first trial, the defense requested “color copies of all the photos in the two LAPD Diamond Street Gang books, along with the names of the individual gang members portrayed in them.” The motion filed in support of the request noted that the People’s gang expert, Officer Justin Stewart, testified at the preliminary hearing that he personally recognized some Diamond Street gang members, including defendant. The defense argued that the discovery was necessary, first, to test Officer Stewart’s credibility and expertise by showing him pictures of Diamond Street gang members to see if he recognizes them. Second, the discovery was necessary to test the victims’ ability to recollect defendant versus other Diamond Street gang members who live in that area. The defense argued that defendant’s right to confront and cross-examine witnesses outweighed any public safety concerns, and that the photos are not privileged. Defense counsel also stated he had no intention of contacting any of the people in the pictures.

The People opposed the discovery request by arguing that use of the photos would “be a dog and pony show on some other dude did it” and that it would be improper cross-examination to use the gang books to say there are other people that may fit the description of the shooter. The People also argued that the gang books were privileged official information under Evidence Code section 1040^[8] and that the requested discovery violated the privacy rights of the individuals pictured in the gang books.

The trial court agreed with the People that the gang books were not a proper subject of discovery. The court pointed out that there was no allegation that anyone looked at the gang books to identify the defendant, and therefore to use the books would be to engage in “speculation and obfuscation.” The court also found that the discovery request implicated the privacy concerns of the people featured in the gang books and that it “opens up literally [a] Pandora’s box of issues which are not relevant or germane in this case. . . . So the [] lateral and speculative nature of this type of discovery substantially outweighs any possible reasonable and adequate basis for having it provided. So as I evaluate all factors, I will deny the defense from this type of discovery in the case and uphold [the] People’s position.”

B. The trial court did not abuse its discretion in refusing to allow the defense to use the gang books.

A defendant generally is entitled to discovery of information that will assist in his or her defense or be useful for impeachment or cross-examination of adverse witnesses. (People v. Jenkins (2000) 22 Cal.4th 900, 953-954; People v. Memro (1985) 38 Cal.3d 658, 677.) “Under the due process clause of the federal Constitution, the government has the obligation to disclose to the defendant evidence in its possession that is favorable to the accused and material to the issues of guilt or punishment. [Citations.] Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. [Citations.]” (Jenkins, at p. 954.)^[9] We review a trial court’s ruling on a discovery motion for an abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d 932, 979.)

Here, the trial court did not abuse its discretion in denying defendant’s discovery request. Defendant’s first justification for the discovery--to impeach the People’s gang expert--was not, in the trial court’s words, “reasonable and sufficient for purposes of discovery.” Although defendant argued that he needed the gang books to ask the People’s gang expert whether he recognized the gang members pictured in the books, such a tactic would have been of very limited use in attacking the expert’s credibility and expertise. Instead, the gang books constitute precisely the type of evidence that a court, in its discretion, may determine is excludable because its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) In any event, the defense, as the trial court further noted, had “plenty of opportunity” to cross-examine the expert.

Nor did the trial court abuse its discretion in finding that defendant’s second reason for requesting the gang books failed to justify their admission into evidence. Defendant argued that he needed the gang books to impeach eyewitnesses or, in other words, to show that a third person or persons committed the crime. Although a “criminal defendant has a right to present evidence of third party culpability where such evidence is capable of raising a reasonable doubt as to his guilt of the charged crime,” evidence that is remote or of mere “ ‘motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ [Citation.]” (People v. Jackson, supra, 110 Cal.App.4th at p. 286.)

The gang books constitute the type of evidence that is so remote to establishing third party culpability as to justify its exclusion from evidence. It is certainly likely that there were individuals in the gang book (as well as individuals not in the gang books) who fit the general description of the suspect or suspects involved in the shooting and who “resembled” defendant. But other than the fact that the shooting occurred in Diamond Street gang’s territory, there was no evidence linking such individuals in the gang books to the crime charged. In contrast, defendant was detained while he was walking in the general area not long after the shooting, and ammunition matching the caliber and brand of casings found at the scene of the shooting were found at defendant’s home.

Therefore, the prosecutor’s charge that to allow the defense to use the gang books to see if eyewitnesses might be able to identify someone else as the shooter was the equivalent of a “dog and pony show” seems apt. Defense counsel was able to make the point that the witnesses misidentified defendant and that the description of the suspects was so general as to include many men without the gang books. Using the gang books would have not helped to make those points, especially since there was no evidence detectives ever showed any of the witnesses the Diamond Street gang books. To the contrary, Detective Jeff Breur, who showed Joel Arroyo a photographic six-pack, said he did not show him the gang books. Moreover, defendant had ample opportunity to attack eyewitness testimony by having an eyewitness memory expert testify and by cross-examining witnesses about discrepancies in their descriptions and identifications of the shooter.

We therefore conclude that the trial court did not abuse its discretion in denying the defendant’s request for discovery of the Diamond Street gang books.^[10]

II. The firearm enhancement imposed on count 14 must be stricken.

Defendant was charged in counts 14 and 15 with shooting at an occupied vehicle. (§ 246.) The jury convicted defendant on both counts and also found true, under section 12022.5, subdivision (a),^[11] that he personally used a firearm. The court imposed a term of 4 years on count 14 under section 12022.5, subdivision (a), which provides that “any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” (Italics added.)

Defendant contends, the People concede, and we agree that because an element of the offense of shooting at an occupied vehicle involves the use of a firearm, the four-year enhancement imposed under section 12022.5, subdivision (a), on count 14 must be stricken.

III. The imposition of consecutive sentences did not deprive defendant of his constitutional right to a jury.

Relying on Blakely v. Washington, supra, 542 U.S. 296, defendant contends that the imposition of consecutive sentences on counts 1, 2, and 15 violates his federal constitutional right to a trial by jury. Our California Supreme Court, however, rejected that contention in People v. Black (2005) 35 Cal.4th 1238, 1261-1264.

DISPOSITION

The four-year enhancement imposed under Penal Code section 12022.5, subdivision (a), on count 14 is stricken. The clerk of the Superior Court is directed to forward a corrected amended abstract of judgment to the Department of Corrections. The judgment is affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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^[1] Rocio is also referred to as Rosie in the record.

^[2] The police conducted two field show-ups, one with defendant and one with Mario Vasquez, on the night of the shooting. The witnesses who were shown Vasquez could not positively identify him. During the field show-up, defendant was handcuffed with an officer standing on each side of him.

^[3] At the preliminary hearing, Jose said the shooter was wearing a blue or black shirt, light blue jean shorts, and socks up to the knee, and that he had brown eyes. The day after the shooting, Jose told Detective Silva he could not remember what the shooter was wearing. He also told him he only saw one person.

^[4] Joseph also could not identify defendant at the first trial.

^[5] Joel was not taken to a field show-up on the night of the shooting. When he was taken to the police station later that night, he was shown one man, but he could not identify him.

^[6] All further statutory references are to the Penal Code.

^[7] The trial court also imposed additional terms on each of the counts, but they were either stayed or stricken.

^[8] Evidence Code section 1040 provides in part: “(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. (b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

^[9] Although defendant cites authority analyzing discovery requests under section 1054, the request at issue was not made under that section. Under section 1054 et seq., a “ ‘trial court has discretion “ ‘to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest,’ “or when there is an “ ‘absence of a showing which specifies the material sought and furnishes a “plausible justification” for inspection . . . . ‘ “ [Citation.] Although policy may favor granting liberal discovery to criminal defendants, courts may nevertheless refuse to grant discovery if the burdens placed on government and on third parties substantially outweigh the demonstrated need for discovery. [Citations.]’ [Citation.]” (People v. Jackson (2003) 110 Cal.App.4th 280, 286.)

^[10] Because we have decided this issue on limited grounds, it is unnecessary to reach defendant’s other arguments that the discovery would not have violated either Evidence Code section 1040 or the privacy rights of the individuals pictured in the book.

^[11] The amended information did not allege a violation of section 12022.5, subdivision (a).