P. v. Jimenez

Filed 1/29/07 P. v. Jimenez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

On the evening of June 27, 2002, defendant Dennis Jimenez was at the home of Jose Ramos engaged in a brief conversation, later described as heated or hostile by family observers. A few hours later, Ramos was shot and killed outside his house. Defendant was eventually charged with murder, although there were no eyewitnesses and no direct evidence. Following his conviction, defendant claims prejudicial trial court errors, including (1) error in jury selection, (2) error in admission of testimony concerning cell phone records, and (3) several evidentiary errors. We find no errors and affirm the judgment.

STATEMENT OF FACTS

In the early morning hours of June 28, 2002, Jose Ramos (also known as Mongo) was shot and killed outside his home in Sunnyvale by a shotgun wound to the face. On his body, Jose had gang tattoos associated with a Sunnyvale Norteo gang and his blood tested positive for methamphetamine. Fragments of pellets and wadding found on Joses body came from a 20-gauge shotgun and a shell estimated to be 10-20 years old. No witnesses saw the shooting or any cars or people leaving the scene. Several family members and neighbors heard one gunshot. One neighbor heard a car with a loud engine drive fast past her house after she heard the gunshot.

Jose lived in his family home on Santa Susana Street with many family members, including his mother, several brothers, their wives or girlfriends and their young children. Jose stayed in a shed in the backyard. He was known to sell and use drugs (methamphetamine and marijuana). Jose as well as his brothers Eric Ramos (known as Eddie) and Sergio Ramos had associations with the Sunnyvale Norteo gang known as Varrio Via Sol (VVS).

Many of the Ramos family members and several neighbors testified that a man known as Dennis (later identified as defendant) had come to the house to see Jose at least once and possibly twice earlier that evening. These witnesses had seen defendant visit Jose several different times recently, usually staying only briefly. The details of each witnesss testimony differed from each other and from their first statements to the police. But all agreed that defendant, driving a green Cadillac, had visited Jose that evening. Most witnesses said the visit was around 10:30 or 11:00 p.m. and that Jose and defendant seemed to be having an argument, with defendant behaving angrily.[1]

The police received a 911 call from Sergio Ramos at 2:19 a.m., but a caller a few minutes earlier identified a possible suspect as Dennis in a green Cadillac. Several days later, police were informed that the green Cadillac was at the home of defendants brother. The car was clean when the police picked it up and it contained no evidence of blood, DNA or gunshot residue.

Several people testified to seeing defendant between the time he left the Ramos house and the time Jose was shot. Defendants former wife Gloria Jimenez testified that about 1 a.m. on June 28, 2002, defendant called her, saying he was on the front porch of her house where he had stayed some weeks prior. Defendant said he had a job the next morning and he wanted to retrieve some tools from her garage where he had stored them. Gloria heard the gate close behind defendant about five or 10 minutes after he went to the garage. Around 7:00 a.m., Gloria received a phone call from her sister Margie Serna[2] who told her that defendant was a suspect in a shooting. Gloria called their son John to come over. When he arrived, she told him the news and they both cried. Later that day, when Gloria was not home, the police broke into her home and searched it. They had information from defendants parole officer that he lived at that address (which was a mile or two from the Ramos home), so they did a parole search. When Gloria was interviewed later by the police, she told them that defendant had kept a gun in their closet in Modesto in 1994. She described the weapon as long and said that it opened in the middle to load. She asked defendant to get rid of the gun then and she never saw it again. She did not see the gun when she packed their belongings in the Modesto house to move to San Jose while defendant was in prison.

Vanessa Danilloff, a friend of the Ramoss, testified that she had been at the Ramos home in the evening and had seen a person who might have been defendant with Jose. She described Jose as yelling at the person in the green Cadillac, but she admitted she was under the influence of drugs and wasnt sure if the person in the car was defendant (whom she knew). Vanessa lived two blocks away from the Ramos house with her mother Margie Cerna and her brother Anthony, who was involved with gangs as was Vanessa. Around 1 a.m., Vanessa walked back to her house. Around 1:30 p.m., as she was making herself something to eat, defendant knocked on the door and asked for Anthony. Defendant was wearing black jeans, a Pendleton shirt and a black stocking capdifferent clothes than the person at the Ramos house had been wearing. Vanessa saw a small red car in the driveway. When defendant left (without Anthony), she saw him get into the car but she could not tell which side. When Vanessa was first interviewed by Detective Tim Ahearn of the Sunnyvale Public Safety Department soon after the shooting, she told him defendant got in the passenger side of the red car, which she identified as a red Plymouth Neon.

Defendants son John Jimenez (age 22 at the time of trial) testified to receiving a phone call from defendant around 2:42 a.m. on June 28. Defendant said he was at Johns mothers house; he loved him and was okay but could not talk then. Both men were drug users at that time so late night calls were not unusual. In his initial interview with the police, John did not report this call, but told the police that he had not seen his father. John received several phone calls from defendant in the next few days and he eventually reported this to the police. John told the police his father said he was innocent. At the request of the police, John agreed to make pretext calls to defendant, but defendant never answered his phone. John also remembered his father having a shotgun which opened in the middle, but he had not seen the gun since the family lived in Modesto 10 years earlier. In the afternoon of June 28, John and his cousin went to the home of Ramona Goytia,[3] where his father had been staying off and on, to pick up defendants truck and saw.

Defendant surrendered to the police on July 6 and was held on a parole violation. He was not charged with Joses murder until March 2003.

In investigating the murder and defendant as a suspect, the police reviewed defendants cell phone records during that period of time. These records showed phone calls to a cell phone connected to Harvey Fletcher, who was then on probation for drug possession. In October 2002, the police conducted a probation search of Fletchers trailer home and arrested him. The search revealed a bag in the garage with defendants clothes and cell phone. The search also revealed forged documents from a residential drug treatment program stating that Fletcher was currently in the program. Olivia Ruiz, Fletchers girlfriend, also went to the police station to be interviewed. Following a private conversation with Ruiz (secretly taped by the police) about giving the police information on defendant in exchange for lenient treatment, Fletcher told the police the following: in June 2002, defendant had been doing work on Fletchers kitchen. The two were friendly and used drugs together. Fletcher knew defendant was involved with Norteos. Early in the morning of June 29, defendant arrived at Fletchers house and stayed for a couple of nights. The day before the shooting defendant had told Fletcher that he was looking for someone who owed him money for marijuana. (Defendant kept a pound of marijuana at Fletchers house.) When defendant showed up on June 29, he told Fletcher that the guy who owed him money was dead and that he did not do it, but he knew who did. He said he sent three people to get the money owed and something went wrong.

According to Fletcher, defendant said he went to talk to the person who owed him money. That person said, If I was going to burn you, Id just burn you. Defendant replied, No, you aint gonna burn me, homeboy. You dont know who I am. XIV, homeboy. Norteo. Okay. Thats who I am. Defendant said he sent some younger Norteos over to collect the money but something went wrong. Defendant described one of these people as an older guy who reported back to defendant that the victim was there and then he was gone. This person told defendant the victims name and said they shot him with a shotgun at the side of his parents house. Defendant was sorry this happened.

Defendant had driven to Fletchers house in his green Cadillac which he washed and cleaned. The car was then picked up by someone else and defendant borrowed Fletchers Bronco. Defendant used Fletchers phone to make several calls, then left his own phone and clothes in a bag in the garage. Several days later, defendant called to say he was in custody on a parole violation, but had not been charged with murder.

At the time of the police search of his home, Fletcher was on probation and supposedly attending a drug program. In fact, he had purchased and forged documents from a residential drug treatment program stating that he was attending. These forged documents had been sent to the court and to his probation officer. Fletcher had a criminal history and could have received six to eight years in prison when he was originally sentenced on drug possession charges in 2001. Instead, the trial court imposed a 16-month sentence and suspended it in order to allow Fletcher to enter a residential drug treatment program. When Fletcher was arrested following the search of his home, the suspended sentence was imposed and he served 16 months. He insisted at trial that he received no favorable treatment for his information about defendant.

Fletchers girlfriend Olivia Ruiz testified that defendant was in hiding at their house for a few days after the shooting. She said defendant denied committing the crime. She knew defendant was selling marijuana to earn money to buy a motorcycle. After defendant went to prison on the parole violation, he wanted Fletcher to sell the drugs for him and use the money for the motorcycle. Ruiz wanted Fletcher to stay away from drugs and his former lifestyle.

During the police investigation into defendants cell phone calls near the time of the shooting, they discovered two other people: David Cornejo (originally charged with defendant) and Francisco Dominguez. Defendants phone records showed calls to a phone registered to Manuel Cadena III. Cadena said that the phone was used by many friends and family members at his house and that he actually lost the phone in a game of darts to David Cornejo, a long-time friend of his son Manuel Cadena IV (who lived in Sacramento). Cell phone records showed the Cadena phone was involved in some 350 calls in the 48-hour period beginning at midnight on June 28, many of which were to defendants cell phone.[4]Location records showed the phone was in Sunnyvale near the Ramos house around the time of the shooting. The Cadenas denied knowing defendant, although one of their relatives (Carlos Alvarez) had been working with and living with defendant around that time.

Phone records also showed the Cadena phone was involved around the time of the shooting in a series of 18 calls with a phone associated with Francisco Dominguez. At that time, Dominguez lived with his girlfriend and her sister, who had a red Neon car. Both women denied that Dominguez drove the car often. At trial, Dominguez testified under a grant of immunity. He was then in prison for robbery. Dominguez denied driving the red Neon, ever seeing defendant or Cornejo or telling the police his phone number.

In connection with the records of the cell phone calls, Russell Bentson, a radio engineer with Verizon, testified about the way cell phones work, in transmitting radio signals to cell sites or towers. Bentson explained that the majority of the time a cell phone connects with the geographically closest cell tower. Records are then automatically generated showing which tower transmitted each call. The records also show the number connected to, whether the call was incoming or outgoing, and how long the call was.

Both Detective Ahearn and Jesse Rodriguez testified as gang experts. Ahearn was familiar with the Ramos family and their gang associations. VVS is a Norteo gang operating in Sunnyvale. The neighborhood was relatively quiet at the time, but some Norteo/Sureo tension was present. Ahearn noted that in gang culture it was disrespectful to be a snitch and snitches were dealt with harshly. He also described gang structure and rules and observed that violence between Norteos is not allowed unless a young member disrespected an older member. Rodriquez was a former gang member who was cooperating with law enforcement in exchange for help on his current sentence. He also said that a gang member disrespecting another gang member would be physically harmed. Rodriguez had been in San Quentin with defendant in 2002 and knew he identified himself as Norteo.

STATEMENT OF PROCEDURE

The consolidated amended information filed on June 2, 2005, charged defendant and David Cornejo with the murder of Jose Ramos on or about June 28, 2002. (Pen. Code,  187.) A second count charged Cornejo as an accessory after the fact. (Pen. Code,  32.) The information also alleged that defendant had suffered two prison prior felony convictions. (Pen. Code,  667.5, subd. (b).)

A 28-day jury trial began on June 2, 2005, with several days of pretrial motions and jury voir dire. During the presentation of defense evidence, the trial court granted codefendant Cornejos motion pursuant to Penal Code section 1118.1 and dismissed the charges against him. On August 5, 2002, a first amended information was filed, with additional allegations against defendant. These allegations included: (1) defendant was a principal in the offense and at least one principal intentionally and personally discharged a firearm, a shotgun, proximately causing Ramoss death (Pen. Code,  12022.53, subds. (d), (e)(1)); (2) defendant committed the offense for the benefit of a criminal street gang (Pen. Code,  186.22, subd. (b)(1)(C)); and (3) defendant was armed with a firearm, a shotgun. (Pen. Code,  12022, subd. (a)(1)).

The jury deliberated for approximately one day before finding defendant guilty as charged.

On September 16, 2005, the trial court sentenced defendant to 50 years to life in state prison (terms of 25 years to life on the first degree murder count and the gun use enhancement) plus a consecutive two year term for the prison prior felony convictions. Defendant timely appeals.

DISCUSSION

I. Wheeler/Batson[5]Error

Defendant first contends that the prosecutors peremptory challenge of an African-American prospective juror violated his federal constitutional right to equal protection and his state constitutional right to a jury chosen from a representative cross-section of the community.

A. Legal Principles

A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group biasthat is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar groundsviolates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Griffin (2004) 33 Cal.4th 536, 553.) Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 88; see also People v. Cleveland (2004) 32 Cal.4th 704, 732.) (People v. Avila (2006) 38 Cal.4th 491, 541.)

In People v. Gray (2005) 37 Cal.4th 168, 186, our Supreme Court quoted from a recent United States Supreme Court case in reviewing the format that has developed to evaluate a Wheeler/Batson claim: The United States Supreme Court recently reiterated the applicable legal standards. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. (Johnson v. California (2005) 545 U.S. 162, ___ [125 S.Ct. 2410, 2416]; see People v Cornwell (2005) 37 Cal.4th 50, [67-68] (Cornwell).) [] In order to make a prima facie showing, a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class. (People v. Boyette (2002) 29 Cal.4th 381, 422.) The high court recently explained that a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2417].) An inference is generally understood to be a conclusion reached by considering other facts and deducing a logical consequence from them. (Id. at p. ___, fn. 4 [125 S.Ct. at p. 2416, fn. 4].) [] We explained in People v. Howard (1992) 1 Cal.4th 1132, 1155, that when a trial court denies a Wheeler motion finding the objector failed to make a prima facie case of group bias, the reviewing court should consider the entire record of voir dire of the challenged jurors. (See People v. Davenport (1995) 11 Cal.4th 1171, 1201.) That view is consistent with the high courts recent reiteration of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the totality of the relevant facts. (Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2416].)[6]

We review the trial courts ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the courts ability to distinguish bona fide reasons from sham excuses. [Citation.] (People v. Avila, supra, 38 Cal.4th at p. 541.)

B. Factual Background

On the second day of jury selection, after the prosecutor used a peremptory challenge to excuse an African-American juror (Juror No. 3) from the jury panel, defense counsel raised a Batson/Wheeler objection. After releasing the potential jurors for the day, the trial court conducted a brief hearing and denied defendants motion to quash the jury panel, stating I dont think you have come close to a prima facie showing . . . .

At the time of defendants objection, several potential jurors from a second jury venire of 75 people had been seated in addition to those from the first venire. Defense counsel pointed to Juror No. 3 as well as an earlier-challenged Juror No. 1 as the only African-Americans to have been seated on the jury, both peremptorily challenged by the prosecutor. The trial court disagreed that Juror No. 1 was African-American and no further evidence was offered. The prosecutor had already peremptorily challenged 13 seated jurors when he challenged Juror No. 3. This juror began as Juror No. 14 and told the court that she was a single mother of a young child, lived in San Jose and worked in client services of a testing lab. Her mother was a pharmacist and her stepfather was a truck driver. She had no further responses to any of the trial courts general voir dire and she was asked no specific questions by any counsel. In raising his objection, defendant noted that there was nothing unique about this juror except her race which would have caused her to be challenged.

The trial court explained: I dont think you have come close to a prima facie showing as it relates to this motion. Believe me there are few things that I detest more than discrimination. Let me say that at the very outset. And if I even thought you were close to a prima facie showing I would require the district attorney to justify his exercise of the last peremptory challenge. As I pointed out, I keep track of these things in the anticipation of a possible motion being brought so that I have some idea of what the record is. But you havent made the prima facie showing; therefore, I am not going to ask the People why they exercised the last peremptory challenge. I am not going to quash the jury panel.

C. Analysis

In defendants view, the trial court must have based its decision that a prima facie case of discrimination had not been made on the fact that only one African-American juror had been challenged. Defendant emphasizes that the exclusion of even one potential juror can give rise to an inference of discriminatory purpose. (See People v. Silva (2001) 25 Cal.4th 345, 386; see also Batson v. Kentucky, supra, 476 U.S. at pp. 95-96; J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 142, fn. 13.) He asserts that there was no possible nondiscriminatory reason for the juror to be peremptorily challenged because the prosecutor had asked no questions of the challenged juror. Defendant requests that his conviction be reversed or in the alternative, that the case be remanded for a further hearing on this issue. (See People v. Garcia (2000) 77 Cal.App.4th 1269, 1282-1283.)

A presumption exists that a prosecutor has exercised his or her peremptory challenges in a constitutional manner. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 114-115.) In addition, when a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling. Because Wheeler motions call upon trial judges personal observations, we view their rulings with considerable deference on appeal. [Citations.] If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. [Citation.] (People v. Howard (1992) 1 Cal.4th 1132, 1155.)

The Attorney General first points out that defendant failed to make a complete record in that the second venire contained at least one African-American who might have been a final juror, and nothing was on the record about the third venire in terms of ethnic background of the potential jurors. While this later evidence may indicate the prosecutors good faith (see People v. Snow (1987) 44 Cal.3d 216, 225), the trial court was evaluating whether in challenging the only African-American juror seated on the panel at the time, the prosecutor had shown by inference a discriminatory purpose. But there is no complete record of the ethnic background of all other potential jurors even in the first venire. In addition, the prosecutor had used 13 peremptory challenges before challenging Juror No. 3, 11 of these challenges occurred after Juror No. 3 was seated on the jury panel.

As our Supreme Court noted in People v. Crittenden, supra, 9 Cal.4th at p. 119, that [a]lthough the prosecutors excusal of all members of a particular group may give rise to an inference of impropriety, especially if the defendant belongs to the same group, that inference, as we have observed, is not dispositive. [Citations.] Moreover, in the present case the inference is of less weight, because the prosecutor excused only a single member of that group. The court went on to comment that the trial judge had presided over voir dire and thus was in a good position to determine from all the relevant circumstances whether the prosecutor might have challenged the juror solely by reason of group association. This factor was also noted in the case of People v. Box (2000) 23 Cal.4th 1153, 1189, that the trial judge had performed much of voir dire and observed the remainder so was in the best position to determine under  all the relevant circumstances  whether a prima facie showing existed.

Here, the trial judge was similarly situated and obviously observed voir dire closely in anticipation of any possible challenges. In fact, the judge conducted the majority of the general voir dire. (See Code Civ. Proc.,  223.)

Defendant points to the fact that the prosecutor failed to further question Juror No. 3 and thus had no possible ground for challenging her. Although a peremptory challenge cannot be based on group bias, a party may exercise a peremptory challenge for any permissible reason or for no reason at all. (People v. Huggins (2006) 38 Cal.4th 175, 227.) Moreover, the Attorney General points to one other peremptorily challenged juror that the prosecutor declined to question. Only if an inference of discrimination is raised by considering all relevant circumstances does the prosecutor need to justify peremptory challenges. The mere fact that the only sitting African-American juror was challenged does not, by law, raise an inference of discrimination when the trial court has carefully considered the matter in light of all relevant circumstances. Various cases have held that no inference of discrimination was raised when the prosecutor used several peremptory challenges to strike all sitting jurors of a particular identifiable group. (See, for example, People v. Box, supra, 23 Cal.4th at p. 1189 [no prima facie case established when defense counsel stated that prosecutor challenged the only two blacks on the panel]; People v. Jones (1998) 17 Cal.4th 279, 293 [no prima facie case where prosecutor challenged four black jurors, leaving none on panel]; see also U.S. v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, cert. den. 513 U.S. 891 [fact that the challenged juror was the one Black member of the venire does not in itself raise an inference of discrimination].)

In raising his Batson-Wheeler objection, defense counsel also claimed the prosecutor earlier had peremptorily challenged another woman, whom defense counsel asserted was African-American. She was the first juror No. 1, whose husband was a workers compensation lawyer with a last name of Castro who may have practiced criminal law at some point in the past. The trial court stated that juror No. 1 was not African-American and the record contains no further information on her heritage. On appeal, defendant argues that either this juror was Latin American or African American or a mixture of the two, and thus the prosecutor struck both of the two minority jurors (100 [percent]) who had made it to the jury box, clearly a sufficient statistical showing of discrimination to make out a prima facie case. But the record does not disclose what the ethnic heritage of juror No. 1 was nor does it disclose the heritage of the rest of the jury panel or venire.

Our review of the record finds substantial evidence in support of the trial courts ruling that no prima facie case of impermissible discrimination was made.

II. Reliance on Evidence of Acquitted Codefendants Culpability

Next, defendant argues that the trial court violated his rights to due process and a fair trial by permitting the prosecutor to argue defendants guilt based on evidence of a codefendants culpability after granting the codefendants motion for acquittal.

A. Factual Background

Codefendant David Cornejo was charged and tried jointly with defendant Jimenez. Cornejo was charged with the crimes of murder and accessory after the fact. The prosecutors theory was that defendant and Cornejo were in frequent cell phone contact around the time of the murder and that Cornejo, who knew both defendant and Francisco Dominguez (the alleged driver of the red Neon), was the connection between these two men. During the defense presentation at trial, the court granted Cornejos motion to dismiss the charges under Penal Code section 1118.1. The court denied defendants request to prohibit the prosecutor from arguing to the jury that Cornejo knowingly participated in any sort of criminal conduct related to the homicide. In closing argument, the prosecutor asserted that the jury did not have to make a finding that either Cornejo or Dominguez was involved in the murder, but that the evidence showed that Cornejo was sent by defendant to be involved in the crime and that he was the link between defendant and Dominguez and communicated with both of them before and after the crime.

B. Legal Analysis

In People v. Crittenden, supra, 9 Cal.4th 83, the Supreme Court explained, The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (Id., at p. 139, fn. 13; see also People v. Huggins (1997) 51 Cal.App.4th 1654, 1656.)

Defendant interprets this standard to mean that the evidence was such that no reasonable trier of fact could have found Cornejo guilty and thus his rights to due process and a fair trial were violated by the trial court allowing the prosecutor to make the argument that Cornejo was intimately involved in the murder, i.e. guilty in some way. Defendant has no direct support for this proposition that the prosecutors argument in some way violated his constitutional rights. He relies on the case of People v. Grant (2003) 113 Cal.App.4th 579, where the reviewing court reversed a conviction when the prosecutor urged the jury to draw impermissible inferences in closing argument. But in that case, the prosecutors reference was to evidence on one count that was not legally cross-admissible on a second count. The trial court here did not find that any evidence concerning Cornejo was legally inadmissible nor did the court find that he was factually innocent. Rather, the court simply found that the evidence presented was not sufficient to support a guilty verdict against Cornejo on the charged counts.

The Attorney General suggests that this position is consistent with the well-established rule in the area of issue estoppel, that an adverse factual finding will foreclose the prosecution from proving a given fact only if the adverse finding necessarily decided the fact-to-be proved, among other things. He points to the cases of Standefer v. United States (1980) 447 U.S. 10 [the fact that a revenue official has been acquitted of improperly accepting compensation does not estop the government from prosecuting a defendant for aiding and abetting that crime based on the same factual theory that the jury rejected in acquitting the official] and Dowling v. United States (1990) 493 U.S. 342 [in prosecution for robbery, state may introduce evidence that defendant committed burglary, notwithstanding defendants prior acquittal on that charge, because the issue of burglary was not an ultimate issue in the robbery prosecution], and contrasts the case of Ashe v. Swenson (1970) 397 U.S. 436 [defendant charged with robbing one of six poker players; only issue at trial is identity of robber; defendants acquittal bars prosecution from trying defendant for robbing another poker player].

Defendant raises no claim that the evidence concerning Cornejo was somehow wrongly admitted or violated his rights to due process and a fair trial. The prosecutor was entitled to refer to that evidence in making his case to the jury. The jury itself was charged and instructed with finding the requisite evidence to conclude that defendant was guilty of murder beyond a reasonable doubt. We see no error.

III. Evidence of Cell Phone Calls

Defendant also asserts that the trial court erred in admitting the cell phone records and expert evidence based on those records because the prosecution failed to qualify that evidence under the Kelly-Frye standard concerning the reliability of scientific evidence. (People v. Kelly (1976) 17 Cal.3d 24, Frye v. United States (D.C. Cir. 1923) 293 F. 1013.)[7] These records were used to show the locations and connections of specific cell phones near the time of the shooting.

A. Background

Prior to trial, defendant filed an in limine motion objecting to the admission of this evidence of cell phone calls.[8] At a hearing to determine the admissibility of the evidence, Verizon radio engineer Russell Bentson testified. Bentson was responsible for the design of the wireless systems in San Mateo and Santa Clara Counties, including some 280 cell sites or towers. He explained that a cell tower is basically a radio antenna constantly sending out a signal in the form of radio waves. The cell tower functions as a conduit, connecting a cell phones radio waves into the normal telephone system. In order to provide moving calls with the best quality, the system is designed so that a call connects to the tower with the strongest signal, the closest tower. As a phone moves during a call, the system automatically switches the call to the tower that is closest. Structures (both natural and manmade) can affect the movement of radio waves, as can severe weather. When a cell tower is malfunctioning, it sends an alarm to the main computers.

Bentson described what happens when a cell phone user places a call: the system uses a switch and a computer to record which cell tower is being used. The information from the tower is gathered from the connection switch and run into a separate computer system which keeps track of the records for billing purposes. In order to test the service provided, Verizon used a van equipped with receivers, recorders and antennas to drive throughout the system area at least once a month to record the connections of test calls. These records were maintained for a year. Bentson stated that he knew of but could not name independent studies showing that the cellular telephone process works by a call connecting to the closest tower. He was not familiar with how the company maintained its records, but he knew the system worked properly in 2002. When he was given the specific cell phone records offered by the prosecution, he opined that any given call in the flat part of Santa Clara County connected to the closest cell tower the majority of the time. He based this opinion on his practical experience and on the Verizon test drive results.

Over defense counsels objection that maintenance records were no longer available and that the issue was whether cell technology required the callers signal to connect to the nearest tower, the trial court ruled that Bentsons testimony was admissible. I think many of the objections go to the weight of the evidence, not its admissibility. [] Im satisfied that the witness is qualified to offer opinions, the anticipated opinions, and that the nature of this testimony, although calling for expert testimony, is not something that is not commonly recognized in the scientific community since its based as I understand it in large part on physics.

B. Analysis

Defendant now argues that there was no expert testimony on the scientific mechanism used to generate cell phone records identifying which cell tower a call connected through in violation of the admissibility standards of Kelly-Frye. He also argues that the experts opinion as to the location of a caller in relation to a cell tower was not shown to be reliable or based on reliable data. Defendant concludes that the admission of this testimony prejudiced him because the cell phone testimony showing the locations of the callers was a major part of the prosecutions case and the jury reviewed this evidence as scientifically reliable.

Initially, the Attorney General raises a challenge to the cognizability of defendants arguments here because they differ from the Kelly-Frye issue actually raised below. A defendants failure at trial to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 Cal.4th 428, 434.) And our review of the record demonstrates that defendant has changed the focus of his objections now on appeal. Below he requested a Kelly-Frye hearing on whether cell technology required a callers signal to connect with the nearest geographic cell site. This was the thrust of the testimony presented at the foundational hearing. In any event, we consider the issue as raised in general.

As defendant points out, the Kelly-Frye rule governs the admissibility of expert testimony regarding new scientific methodology. (People v. Leahy (1994) 8 Cal.4th 587, 591.) Admissible scientific evidence must meet a three-prong test: (1) the proponent of such evidence must establish that the scientific principle or technique at issue is sufficiently established so as to be generally accepted as reliable in the relevant scientific community; (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject; and (3) it must be shown that correct scientific procedures were used in the case at issue. (Id. at p. 594.) In addition, the court must examine whether the scientific evidence is accepted as reliable in its forensic application. (People v. Brown (1985) 40 Cal.3d 512, 533.)

However, as the Attorney General points out, this rule of admissibility applies only to new scientific techniques or methodologies, not to new devices that carry out these methodologies. (People v. Nolan (2002) 95 Cal.App.4th 1210, 1215; see also People v. Leahy, supra, 8 Cal.4th at p. 605.) As the trial court aptly noted, this scientific technology of transmitting radio signals between two locations (cell phone and tower) is not a new technology. Certainly expert witness testimony about the way the system was designed and how the information was gathered was appropriate. But defendants objections as to maintenance of records of reliability or evidence of connection to closest tower go to the weight of the experts opinion. Bentson testified that the connection goes to the physically closest tower the majority of the time. The jury was capable of weighing this opinion when evaluating the cell phone records indicating geographic location of defendant and other alleged participants the night of the shooting.

A trial courts decision to admit or exclude evidence is reviewed for an abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) On this question, we find no abuse of discretion.

IV. Testimony of Harvey Fletcher

Finally, defendant raises three challenges to the testimony of Harvey Fletcher: (1) trial court error in excluding certain impeachment evidence; (2) trial court error in allowing Fletcher to give an opinion that defendant personally shot the victim; and (3) trial court error in allowing reference to certain statements by Fletcher that Norteos readily kill people. Defendant phrases each challenge as error violating his constitutional rights to due process, to a fair trial and to present a defense. We conclude that each alleged error is in fact a ruling by the trial court on the admission or exclusion of evidence and, essentially, is a decision subject to the trial courts discretion. (See, inter alia, People v. Rodriguez (1999) 20 Cal.4th 1, 9.)

A. Impeachment Evidence

The prosecutor questioned witness Harvey Fletcher about his 1978 conviction for unarmed bank robbery and his sentence to a drug program. On cross-examination, defense counsel asked Fletcher about his conversations with the police and whether he had told them he understood defendants sale of drugs to be related to the purchase of a motorcycle. Fletcher agreed. Defense counsel then asked: Is it a coincidence that the proceeds from your bank robbery conviction were used to buy a motorcycle? The trial court sustained the prosecutors objection on the grounds of relevance. Later, defense counsel explained that the proffered evidence was relevant because it was not coincidental that Fletchers prior criminal conduct was related to the purchase of the motorcycle while he gave the police that same story regarding defendant. In other words, defendant is arguing that such evidence would have had a significant bearing on Fletchers credibility. Defendant maintains that the trial court violated his right to due process and to present a defense by excluding this evidence.

First, we observe that our Supreme Court has repeatedly stated that excluded evidence does not usually deprive a defendant of his constitutional right to present a defense. Application of the ordinary rules of evidence, as the trial court did here, does not impermissibly infringe on a defendants right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.) (People v. Mincey (1992) 2 Cal.4th 408, 440; see also, People v Rodriguez, supra, 20 Cal.4th at p. 10, fn. 2.)

Furthermore, as defendant acknowledges, Fletchers credibility had been thoroughly attacked with his criminal history and associations, his many contradictory statements, and his recent forgeries perpetrating fraud on the court and the probation department. More important, the jury was presented with other credible evidence that defendant was interested in buying a motorcycle with the help of Fletcher and Olivia Ruiz. Ruiz testified that sometime before the murder, defendant rode Fletchers motorcycle and decided he wanted to buy one like it. She also testified that when she found marijuana in their garage after defendant had been arrested, Fletcher told her it was defendants and she knew defendant was selling drugs in order to buy a motorcycle.

Other evidence was presented that defendant wrote one or more letters from jail to Fletcher and Ruiz in which he asked about putting money down on the motorcycle he wanted to buy, requested pictures of the motorcycle and drew a picture of a motorcycle on the letter.

We see no abuse of discretion.

B. Fletchers Testimony about the Shooting

During Fletchers testimony, he was questioned about his interview with Detective Melchert. When codefendants counsel asked if he remembered telling the detective that he (Fletcher) didnt believe defendant when defendant said he sent other people to kill Mongo, Fletcher said he didnt remember and he didnt know if he believed defendant. He did remember saying that he didnt think defendant had the ability to send others to do something. The prosecutors objection to this testimony was overruled. Later, when Detective Melchert was testifying about Fletchers interview, codefendants counsel established that according to the transcript of the interview, Fletcher stated that he didnt believe what defendant was telling him because he didnt believe defendant had the juice to send the Norteos. Detective Melchert said he did not recall being in the room for this part of the interview. When defendants counsel then objected to the prosecutor eliciting evidence that in Fletchers opinion defendant did the shooting alone, noting that Melchert was not in the room, the trial court ruled that Melchert could not comment on what Fletcher said if Melchert was not present at the time. The court also stated that pursuant to Evidence Code section 356, all counsel would be allowed to go into Fletchers statement in its entirety because they had virtually the entire statement. The prosecutor then established through Melchert that, according to the transcript of the interview, Fletcher said he was only giving his personal opinion and didnt know who was involved in the crime beyond what defendant had told him. During a later discussion about admitting a redacted version of the tape and transcript of the interview, defendants counsel called Fletchers opinion irrelevant and inadmissible speculation. The trial court explained that it was somewhat relevant to Fletchers credibility, and the prosecutor noted that defendants counsel had not objected to the evidence when it was originally adduced by codefendants counsel.

Defendant now asserts that Fletchers opinion statements should not have been admitted because they were not relevant and thus Evidence Code section 356 should not protect their admission. (See People v. Williams (1975) 13 Cal.3d 559, 565.) Defendant further argues that this type of lay opinion testimony about the veracity of certain statements by another person is inadmissible, especially on the ultimate question of guilt or innocence. (See People v. Melton (1988) 44 Cal.3d 713, 744; People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)

The Attorney General points out that defendant did not raise a timely or specific objection when testimony of Fletchers statements was first admitted. Defendant maintains that he relied on the prosecutors objection. Defendant objected to subsequent evidence from the prosecutor that Fletcher was merely offering his opinion. At that point, the jury had already heard about most of Fletchers statements to the police without this objection being raised by defendant. Fletcher himself had been impeached with inconsistent or changing statements and could not be viewed as a reliable witness. Moreover, the prosecutor did not argue to the jury that defendant had by himself shot the victim.

The trial court did not abuse its discretion in admitting this evidence.

C. Fletchers Statements about Norteos

During Harvey Fletchers testimony, he acknowledged that he could have said to the police, Yeah, its dangerous, [Norteos] will kill you just as soon as look at you, they will kill your whole family. The trial court overruled defendants objection on grounds of relevance and undue prejudice under Evidence Code section 352. Defendant now claims that the trial court had no discretion to admit the evidence because it was irrelevant (see People v. Crittenden, supra, 9 Cal.4th at p. 132) and that this wrongful admission of prejudicial evidence in addition to other trial court errors violated his federal right to due process. (See Estelle v. McGuire (1991) 502 U.S. 62; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) We disagree.

Although the record is unclear, it appears the trial court did order that specific comment redacted from the tape of the interview admitted into evidence. However, as the Attorney General points out, other statements critical of Norteos and their violent behavior remained in the tape of the interview.[9] The Attorney General further points out that Fletcher said only that he could have made the statement in question. Apparently, when the jury heard the tape of the interview, that statement had been redacted, so the jury did not hear Fletcher make the statement during the interview. In addition, two expert witnesses (one police officer and one gang member) testified at trial about gang culture and why one member of a gang, like defendant, might have killed another member of the same gang.

A trial courts ruling on evidentiary objections of relevance and undue prejudice is within its discretion. (See People v. Mincey, supra, 2 Cal.4th at p. 439.) This ruling was not an abuse of discretion.

As we have concluded that the record reflects no erroneous evidentiary rulings by the trial court, we need not discuss defendants claim of cumulative prejudice.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1]One witness said Jose got into defendants car briefly; others said he did not. Joses fingerprints were found on the side passenger seat of defendants car.

[2] Another witness in the case is named Margie Cerna.

[3] Ramona Goytia testified that in June 2002 defendant stayed in her garage for a few days. She testified that on the night of June 27-28, defendant had been at her home since 9:30 p.m. and spent the entire night there. She did not tell the police this when they interviewed her in July 2002.

[4] Many of these phone calls were to phone numbers associated with Cornejo.

[5]People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler), Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

[6] Although as the Attorney General notes, Johnson v. California was issued a few days after the jury voir dire in this case, the record does not reflect any use of an incorrect standard of evaluation by the trial court. In Johnson, the high court held that one particular wording of the California standard to assess a prima facie case of discriminationmore likely than notis an inappropriate yardstick by which to measure the sufficiency of a prima facie case. The proper standard is whether the objector has presented facts that give rise to an inference of discriminatory purpose. (Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2416].) As this is a legal issue, we review the record to resolve whether it supports an inference that the prosecutor excused a juror on the basis of race. (People v. Cornwell, supra, 37 Cal.4th at p. 73.)

[7]Due to changes in federal law that supersede the Frye case, the rule is now referred to in California as the Kelly test or rule. (See People v. Willis (2004) 115 Cal.App.4th 379, 385, fn. 1.)

[8]The motion stated two issues: 1. Does cell technology require a callers signal to connect with the nearest geographic cell site (tower)? [Kelly-Frye Issue] [] 2. Are the records reliable recordings of cell site (tower) information? [Foundation fact issue pursuant to Evidence Code section 403]

[9]These kids are young and they dont care about life, okay? They dont care about your life, my life, anybodys life, okay? This is Norteos, okay? But anything outside of the family, they have nototal disregard for your life, okay? They would shoot you just like they shot that kid.