People v. Firman CA4/1 ( 2014 )

Filed 10/20/14 P. v. Firman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064110
Plaintiff and Respondent,
v. (Super. Ct. No. SCD239217)
MARCO ANTONIO FIRMAN et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County, Peter C.
Deddeh, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant Marco Firman.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant Paul Salinas.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
In a four-count amended information, the San Diego County District Attorney
charged Marco Antonio Firman and Paul Salinas (together defendants) in count 1 with
the first degree murder of Tomas Ray (Pen. Code,1 § 187, subd. (a).) Count 1 also
alleged that defendants committed the murder for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1), hereafter section 186.22(b)(1)); that Salinas, in committing the
crime, intentionally and personally discharged a firearm (a handgun) causing the victim's
death (§ 12022.53, subd. (d)); and that Firman was a principal in the commission of the
offense and one of the principals who personally used a firearm (a handgun) causing the
victim's death (§ 12022.53, subds. (d), (e)(1)).
Count 2 of the information charged Firman with possession of a firearm by a felon
(former § 12021, subd. (a)(1)) and alleged he committed the offense for the benefit of a
criminal street gang (§ 186.22(b)(1)).
Count 3 charged Salinas with unlawful possession of a firearm (former § 12021,
subd. (d)) and alleged he committed the offense for the benefit of a criminal street gang
(§ 186.22(b)(1)).
Last, count 4 charged Salinas with robbery (§ 211, victim: Nathaniel Green).
Count 4 also alleged that Salinas committed the offense for the benefit of a criminal street
gang (§ 186.22(b)(1)), was a principal in the commission of the offense, and one of the
principals who personally used a firearm (§ 12022.53, subds. (b), (e)(1)).
1 Statutory references are to the Penal Code unless otherwise specified.
2
The information further alleged that Firman had served five prior prison terms
(§§ 667.5, subd. (b), 668), had been convicted of one prior serious felony (§§ 667, subd.
(a)(1), 668, 1192.7, subd. (c)) and had one prior strike conviction within the meaning of
the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668). It also alleged that Salinas
had a prior juvenile adjudication that qualified as a strike conviction within the meaning
of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, 668).
A jury found defendants guilty of all the counts charged against them and found
all of the gang and firearm enhancement allegations to be true. Firman admitted the
sentence enhancement allegations pertaining to his prior convictions, and the court found
Salinas's prior juvenile adjudication qualified as a strike conviction within the meaning of
the Three Strikes law.
The court sentenced Firman to an aggregate state prison term of 17 years plus 80
years to life. It sentenced Salinas to an aggregate prison term of 22 years four months
plus 75 years to life.
Contentions
Firman and Salinas appeal their convictions, asserting both joint and separate
contentions. First, Firman (as joined by Salinas) requests that this court independently
review the sealed records of the trial court's in camera review on January 9, 2013, of the
law enforcement interview of informant David Magana for the purpose of determining
whether the trial court "erred, either in procedure or ruling." The Attorney General does
not oppose defendants' joint request.
3
Second, Firman contends his convictions of first degree murder and possession of
a firearm by a felon should be reversed because the court violated his federal
constitutional rights to confront witnesses and to due process by admitting evidence of
Salinas's out-of-court statements to informant Magana, who had been placed in a jail cell
with Salinas and who recorded Salinas's statements, which incriminated not only himself
but also Firman.
Third, Firman contends his convictions of these same two counts also should be
reversed because the court violated his federal and state constitutional rights to due
process, confrontation, effective assistance of counsel, and a jury trial when it
erroneously admitted testimonial hearsay by permitting one criminalist to testify about
the gun residue "test results and opinion" of another criminalist who tested Firman's black
hooded sweatshirt for gunshot residue and did not testify at trial.
Fourth, Salinas contends his count 4 conviction of robbing Nathaniel Green should
be reversed because his trial counsel provided ineffective assistance by failing to request
a jury instruction on voluntary intoxication.
Last, Salinas contends the court erred by not staying under section 654 the
execution of the consecutive prison sentence of two years four months it imposed for his
count 3 conviction of unlawful possession of a firearm for the benefit of a criminal street
gang because he acted with the same objective and intent when he committed this offense
and the murder of the victim.
We grant defendants' request for an independent review of the sealed records of
the in camera hearing and conclude that nothing therein indicates the court committed
4
any error. For reasons we shall explain, we reject defendants's claims of error and affirm
the judgments.
FACTUAL BACKGROUND
A. The People's Case
1. Evidence relating to the shooting
On December 28, 2009, around 9:30 p.m., Tomas Ray was shot and killed as he
walked home. Ray was not a member of any gang. He died from two gunshot wounds,
one to the chest and the other to the back of the skull. A third gunshot, which grazed his
back, did not penetrate the skin. The bullets recovered from Ray's body were consistent
with having been fired from a .38-caliber or .357-caliber revolver. Ray was wearing two
silver chains on the night he was shot.
The shooting happened on the corner of Landis Street and Menlo Avenue in the
City Heights area of San Diego. Eimar Resendiz and Christian Garcia were walking in
the area at the time. Resendiz heard three or four gunshots and saw Ray fall to the
ground, but he did not see any suspects. Resendiz asked Hiep Bui, who was nearby, to
call the police. Bui, who had just driven past the corner of Landis and Menlo, had seen
two men wearing black hooded sweatshirts across the street from a man who was alone.
Bui testified he heard three gunshots. He did not know whether the two men he saw on
the corner were the same two men who approached him and asked him to call 911.
At the time of the shooting, four San Diego Police Department officers, including
Officer Lamar Rozsa, Jr., and his partner, Officer Adam Sharki, were at the City Heights
Recreation Center, about eight blocks away from Menlo and Landis. The officers heard
5
three gunshots and drove east toward the shots. Officer Rozsa testified he saw an
Hispanic male jump a wall into the alley in the 3800 block of Menlo. The man ran
northbound in the alley and then jumped another wall to go westbound. Officer Rozsa
exited the patrol car and chased the suspect on foot. He observed that the suspect was
wearing a black knit beanie and a black hooded sweatshirt. The suspect ran into a gated
area of an apartment complex and escaped. Police officers searched the common area of
the apartment complex with trained police dogs. Officer Sharki testified they found some
clothes, including a black knit beanie, a black hooded sweatshirt, and a latex glove, all of
which looked like the ones the suspect had been wearing.
At trial, Officer Sharki identified Firman as the suspect he chased that night. DNA
samples taken from the latex glove, the beanie, and the black hooded sweatshirt matched
Firman at a statistical rate of one in 14 quintillion for the glove, one in 40 quintillion for
the sweatshirt, and one in 320 quintillion for the beanie. Criminalist Debra Kowal
testified that gunshot residue was found on the sweatshirt.
An hour after the shooting, at around 10:30 p.m. that night, Firman called
Mauricio Lopez and asked Lopez to pick him up and give him a ride home. Lopez
picked Firman up near Firman's girlfriend's apartment on University and 36th. Lopez
observed that Firman was agitated and, although it was December, he was wearing shorts
and a white tank top. Lopez drove Firman home.
In June 2010, about six months after the shooting, police began to focus their
investigation on Firman and Salinas based on information received from a confidential
informant.
6
David Magana, another informant, began to work with the police in January of
2012, two years after the shooting. Magana signed a formal contract with the district
attorney's office and agreed to act as an informant and join the witness protection
program in exchange for the prosecutor's recommendation that he receive credit for time
served in a pending case.
Magana testified that he was a member of the City Heights Juniors gang at the
time of the shooting. This was the same gang to which Firman and Salinas belonged.
Magana's gang monikers were "Nutty Boy" and "Maniac." Firman's nicknames were
"Midget" and "Cynic." Magana's role in the gang was to acquire guns and dispense them
to fellow gang members.
Magana testified that one and a half weeks after the shooting, he and Firman were
at Magana's house smoking methamphetamine. Firman and Magana talked about the
shooting, and Firman said he and Salinas, whose gang name was "Scrappy," were
walking down the street by "Joker's"2 house. Firman told Magana that he and Salinas
"gang bang[ed]" a guy, meaning they asked him where he was from. The guy said,
"Nowhere." Firman also told Magana he took a swing at the guy and tried to take his
chain, and then Salinas shot him. They then split up and ran in different directions.
Firman said the police chased him, he dumped his clothes, he hid his gun, and ran toward
Joker's (Ortega's) house. Firman told Magana he had a .22-caliber gun that night, and
Salinas had a .38-caliber gun. Firman also said Ortega got both of the guns back.
2 Rosman Ortega, a City Heights Juniors gang member, was known as
Joker.
7
Ortega lived near the scene of the shooting. The prosecution's gang expert opined
that Ortega was one of the leaders of the City Heights Juniors gang. Ortega lived with his
mother in an area predominantly claimed by their rival gang, Eastside San Diego.
Magana testified that he spoke with Salinas a few days after Magana's
conversation with Firman. Salinas told Magana he got his "K" or "QK" ("Ques[e]ro
killer"), which meant he had just committed murder. "Quesero" (or "Cheeser") is a
derogatory term that members of the City Heights Juniors gang used to describe members
of their rival street gang, Eastside San Diego.
a. Salinas's audio-recorded jailhouse statements to Magana
As part of his contract with the district attorney's office, Magana agreed to wear a
recording device and speak with Salinas about the shooting. On February 16, 2012,
Magana and Salinas were placed in the same jail cell and their conversation was
recorded. Portions of the recording of that conversation were played for the jury.
During the recorded jail cell conversation, Salinas indicated to Magana that he was
nervous about the case after a police officer─who the record shows was Detective Javier
Padilla─interviewed him in September 2010 and showed him pictures of Firman and
Magana. Salinas also indicated he had lied to Detective Padilla by saying that he did not
recognize the people in the pictures. Salinas indicated to Magana that he (Salinas) knew
about the murder, but that law enforcement did not have proof he was the perpetrator.
Magana asked Salinas about a letter Salinas wrote from prison in which Magana was
mentioned along with the murder. In response, Salinas assured Magana that he was not
8
implicating Magana in the murder, but was just questioning whether Magana or Firman
had been contacted by law enforcement about the murder.
During the recorded conversation, Magana also told Salinas that he had heard
from Firman that Firman's DNA had been found at the murder scene. Salinas replied that
he (Salinas) would just have to "ride it out."
Later during their jail cell conversation, Magana informed Salinas that Firman had
said he (Firman) had wanted to steal "that fool['s]" chain. Salinas asked Magana, "Which
one?" Magana replied, "That day, fool, when you, when [you] guys smoked[3] that one
fool." (Italics added.) Salinas then asked, "What did [Firman] say?" Magana told
Salinas, "Yeah, you guys wanted to get his chain," and then said (referring to Firman),
"That fool's like, 'I just wanted his chain[,] fool . . . ." Also referring to Firman, Salinas
then told Magana, "That fool was telling me [to] let him have it."4 (Italics added.)
Magana then told Salinas that Firman had said he (Firman) had tried to "sock" the victim
because he wanted to take his gold chain. Magana then accused Salinas of killing the
victim, stating, "[Y]ou just smoked that fool." Salinas responded that he thought the
victim was a Quesero. Salinas did not deny his involvement in the murder.
During the recorded conversation with Magana, Salinas repeatedly referred to the
"hot one," a term he used to refer to the murder weapon─the .38-caliber "special"
3 At trial Detective Padilla testified that the term "smoke" somebody means to shoot
and kill somebody.
4 Detective Padilla testified that Salinas's phrase "let him have it" meant to shoot the
victim with a firearm.
9
handgun. Salinas talked about "burn[ing]" or "bury[ing]" the "hot one" and told Magana
he had asked Joker (Ortega) to break the gun into pieces and burn it. Detective Padilla
testified at trial that Salinas's comments to Magana were significant because they
indicated Salinas had told Ortega to get rid of the evidence.
2. Evidence relating to Salinas's robbery offense
During Magana's February 2012 recorded conversation with Salinas in the jail cell,
Salinas revealed that he had been involved in a robbery. Specifically, Salinas revealed
that he and his fellow gang members lined up 10 people against a wall and stole various
items from the victims' pockets: an I-Pod Touch, eye drops, cologne, "feria" (money), a
cell phone, and a Black and Mild cigar. Salinas said he "was fucked up" during the
robbery, which meant Salinas was either drunk or "messed up" on drugs.
San Diego Police Department Detective Rudy Castro testified that, based on these
statements by Salinas to Magana, he reactivated an investigation into an unsolved
robbery. That robbery was committed in the City Heights area of San Diego at around
10:00 p.m. on January 14, 2010. A group of 13 or 14 young men who were standing
outside of an apartment complex on 49th Street were approached by four Hispanic men.
Three were wearing dark hooded sweatshirts and had bandanas over their faces. The one
who was not wearing a hooded sweatshirt and did not have a bandana over his face was
wearing a Padres jersey. The Hispanic men said that area was a "Juniors' block" and
ordered the young men to empty their pockets. The Hispanic men carried weapons. One
had a revolver, one had a small chain saw, one had a hammer, and the one who wore a
Padres jersey had a screwdriver. They went through the young men's pockets. They took
10
a white lighter and a Black and Mild cigar from Nathaniel Green, and took cash and a cell
phone from another person. From a six-pack photographic lineup, Green identified
Ortega as the man in the Padres jersey.
Five days after the robbery, on January 19, 2010, Officer Carmelin Rivera was on
duty driving his patrol car in City Heights. He drove into an alley and saw a man, later
identified as Salinas, who looked at his patrol car and immediately started running.
Officer Rivera got out of his patrol car and chased Salinas on foot. He saw Salinas throw
a gun under a parked car. Soon thereafter, Salinas stopped running and Officer Rivera
and another officer took him into custody. Salinas had a white lighter, a cell phone, some
cash, and a cell phone in his pockets. The gun was a fully loaded .22-caliber revolver.
3. Gang evidence
The prosecution's gang expert opined that Firman and Salinas were both members
of the City Heights Juniors street gang. Eastside San Diego, which is the largest street
gang in San Diego, is City Heights Juniors's main rival. City Heights Juniors claimed a
small area within the territory claimed by Eastside San Diego. The shooting in this case
occurred a block south of the territory claimed by the City Heights Juniors gang. The day
after the shooting, detectives noticed graffiti about a block away from the crime scene
that depicted a bullseye target around the letters ESD, which meant another gang was
targeting Eastside San Diego.
The primary activities of the City Heights Juniors gang included assaults with
weapons.
11
For purposes of count 2 (which charged Firman with possession of a firearm by a
felon) and count 3 (which charged Salinas with unlawful possession of a firearm), the
parties stipulated that Firman had five prior felony convictions for each of which he had
served a prison commitment and that Salinas was prohibited from possessing firearms by
a court order as an expression condition of probation prior to the shooting in this case.
B. Defense Evidence
Salinas presented no evidence.
Firman testified that he was a member of the City Heights Juniors gang, and on the
night of the murder he was not at the murder scene. He was trying to break into and steal
cars, and he was wearing a black sweatshirt, a beanie, and gloves. He stated he walked
past several cars, but did not break into a car that night. Firman admitted he did not
previously tell officers that he was simply trying to break into cars.
Firman testified that he did not break into any cars because he heard police cars
driving toward him. He stated that he did not remember whether he heard gunshots that
night and that he began running when he heard the sound of police-vehicle tires because
he was on parole. He hopped over a fence, ran into an apartment complex, and hid there
behind some bushes. Firman testified that he took off his sweatshirt, beanie and gloves,
and stated that he did not know why he did that. He hopped over another fence and
walked to his girlfriend's house. Lopez picked him up there and drove him home.
Firman also testified he never talked to Magana about the shooting, he was never
on the corner of Menlo and Landis that night, he was not with Salinas that night, and he
12
did not tell anybody to shoot anyone. Firman indicated he had heard of Salinas before
the shooting and had only met him once when they were in Donovan State Prison.
A defense investigator indicated he ran from the location of the shooting to where
Firman was first seen running from police officers. He ran a distance of 430 yards. It
took him 57 seconds to run that distance. Another defense investigator testified that the
world record for the 440-yard dash is 44.58 seconds.
Officer Sharki testified he first saw Firman about 40 seconds after he heard the
gunshots.
DISCUSSION
I. REVIEW OF SEALED RECORDS OF IN CAMERA HEARING
Asserting they are entitled under section 1054.15 to "discovery of more than
merely 'exculpatory" evidence," Firman and Salinas request that this court independently
review the sealed records of the trial court's in camera review on January 9, 2013, of the
law enforcement interview of informant Magana for the purpose of determining whether
5 Section 1054.1 provides: "The prosecuting attorney shall disclose to the defendant
or his or her attorney all of the following materials and information, if it is in the
possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies: [¶] (a) The names and addresses of persons the
prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶] (c)
All relevant real evidence seized or obtained as a part of the investigation of the offenses
charged. [¶] (d) The existence of a felony conviction of any material witness whose
credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory
evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including the results
of physical or mental examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial."
13
the trial court "erred, either in procedure or ruling." The Attorney General does not
oppose defendants' joint request.
The sealed record in question consists of a 13-page reporter's transcript of the in
camera hearing. Having read and considered the transcript, we conclude that nothing
therein indicates the court committed any error or that defendants' rights were violated.
II. SALINAS'S RECORDED JAILHOUSE STATEMENTS TO INFORMANT MAGANA
(FIRMAN'S BRUTON/CRAWFORD CLAIM)
Firman contends his convictions of first degree murder and possession of a firearm
by a felon should be reversed because the court violated his federal constitutional rights
to confront witnesses and to due process by admitting evidence of Salinas's out-of-court
statements to informant Magana, who had been placed in a jail cell with Salinas and who
recorded Salinas's statements that incriminated both himself and Firman. We reject that
contention.
A. Background
1. Salinas's recorded jailhouse statements to Magana the implicated Firman
During his recorded jailhouse conversation with Magana (discussed more fully in
the factual background, ante), Salinas implicated Firman in the murder of the victim.
Referring to Firman, Salinas told Magana, "That fool was telling me [to] let him have it."
Detective Padilla testified that Salinas's phrase "let him have it" meant to shoot the victim
with a firearm. Magana then accused Salinas of killing the victim, stating, "[Y]ou just
smoked that fool." Salinas responded that he thought the victim was a Quesero. Salinas
14
told Magana that it was Midget (Firman) who told Salinas that the victim was "[c]heesin
it," meaning the victim was a member of the rival Eastside San Diego gang.
2. Firman's severance motion
In a pretrial motion Firman requested that his trial be severed from Salinas's trial.
Citing Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda
(1965) 63 Cal. 2d 518 (Aranda), (together Aranda/Bruton), Firman claimed that
admission into evidence of Salinas's recorded jailhouse statements to Magana would
violate Firman's right to confrontation as set forth in Aranda/Bruton because the
extrajudicial statements were "testimonial" within the meaning of Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), they implicated Firman in the murder and it
was unlikely Salinas would testify in a joint trial and be subject to cross-examination.
In support of his motion, Firman also claimed Salinas's statements were not
declarations against Salinas's penal interest, and thus they were inadmissible hearsay,
because Salinas perceived he was talking to another gang member, he had a motivation to
be untruthful about whether he had committed a criminal act, and thus there were
insufficient indicia of reliability for the hearsay exception for declarations against interest
(Evid. Code, § 1230) to apply.
Citing People v. Arceo (2011) 195 Cal. App. 4th 556 (Arceo) and People v. Arauz
(2012) 210 Cal. App. 4th 1394 (Arauz), the prosecutor opposed Firman's severance
motion, arguing Salinas's statements were not testimonial and the hearsay exception for
declarations against interest applied.
15
a. Ruling
The court denied Firman's severance motion, finding that Salinas's statements to
Magana were not testimonial, and thus the admission of the statements would not violate
Crawford, because a reasonable person in Salinas's position would not have believed the
conversation with Magana was a custodial interrogation, and no other category of
"testimonial" statement applied. The trial court analogized the jailhouse conversation to a
pretextual call that would not be considered testimonial, and noted that the relevant
question was whether a reasonable person in a similar situation would believe he was
being interrogated. The court explained its reasoning:
"To me, [Salinas is] confiding in a friend. His friend is trying to get
him to say things that are incriminating, but this is a trust
relationship. This is . . . a trust relationship because they are
homeboys. They grew up in the same neighborhood. They have
probably had many experiences together, criminal experiences, and
just hanging-out experiences. So he's trusting him with his personal
information and confiding in him about things that are personal."
The court also found the statements were against Salinas's penal interest within the
meaning of the exception to the hearsay rule for declarations against interest (Evid. Code,
§ 1230) because Salinas admitted he had committed a crime. The court further found that
any motivation Salinas may have had to lie could be presented to the jury, but it was not a
basis to exclude his statements.
B. Applicable Legal Principles
1. Aranda/Bruton and the Sixth Amendment right of confrontation
"The confrontation clause of the Sixth Amendment to the federal Constitution,
made applicable to the states through the Fourteenth Amendment, provides that '[i]n all
16
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.' The right of confrontation includes the right of cross-
examination." (People v. Fletcher (1996) 13 Cal. 4th 451, 455 (Fletcher).)
A recurring problem in the application of the Sixth Amendment right of
confrontation concerns an out-of-court statement by one defendant that incriminates both
that defendant and a jointly charged codefendant. (Fletcher, supra, 13 Cal.4th at p. 455.)
"Generally, the [out-of-court statement] will be admissible in evidence against the
defendant who made it (the declarant)." (Ibid., citing Evid. Code, § 1220 [hearsay
exception for party admissions].)
In Bruton, supra, 391 U.S. 123, "[t]he United States Supreme Court . . . held that,
because jurors cannot be expected to ignore one defendant's confession that is 'powerfully
incriminating' as to a [codefendant] when determining the latter's guilt, admission of such
a confession at a joint trial generally violates the confrontation rights of the
nondeclarant." (Fletcher, supra, 13 Cal.4th at p. 455, citing Bruton, at pp. 126-137.) In
Aranda,6 supra, 63 Cal. 2d 518, the California Supreme Court "reached a similar
conclusion on nonconstitutional grounds." (Fletcher, at p. 455, citing Aranda, at pp. 528-
530.)
6 To the extent the judicially declared rule of practice set forth in Aranda, supra, 63
Cal. 2d 518, requires the exclusion of relevant evidence that would not be excluded under
federal constitutional law, it was abrogated in 1982 by Proposition 8. (Cal. Const., art. I,
§ 28, subd. (d); Fletcher, supra, 13 Cal.4th at p. 465.) To the extent Aranda corresponds
with Bruton, supra, 91 U.S. 123, it was not abrogated by Proposition 8. (People v.
Orozco (1993) 20 Cal. App. 4th 1554, 1564.)
17
Thus, Aranda/Bruton barred admission, at a joint trial, of a nontestifying
defendant's out-of-court statement that incriminated a codefendant, even if the court
instructed the jury to consider the statement in determining the guilt only of the declarant,
because admission of the statement violated the codefendant's Sixth Amendment right of
confrontation. (Bruton, supra, 391 U.S. at pp. 126, 135-137; Aranda, supra, 63 Cal.2d at
pp. 529-530; Fletcher, supra, 13 Cal.4th at p. 455.)
Crawford, supra, 541 U.S. 36, and its progeny altered the Aranda/Bruton Sixth
Amendment analysis. In Crawford, the United States Supreme Court held that the
confrontation clause bars "admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination." (Crawford, at pp. 53-54, italics added.)
The contours of the confrontation clause and the meaning of "testimonial" have
remained elusive because the high federal court has not defined, for purposes of that
clause, precisely who is a witness and what constitutes testimony. (See Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305, 309-310 (Melendez-Diaz); Davis v. Washington
(2006) 547 U.S. 813, 826-827 (Davis); Crawford, supra, 541 U.S. at pp. 51-52.)
However, the Supreme Court has described a "core class of 'testimonial'
statements" that are covered by the confrontation clause, the various formulations of
which include (1) "'ex parte in-court testimony or its functional equivalent─that is,
material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially'[; (2)] 'extrajudicial . . . statements contained
18
in formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions'[; and (3)] 'statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be available for use at
a later trial.'" (Crawford, supra, 541 U.S. at pp. 51-52, italics omitted; Melendez-Diaz,
supra, 557 U.S. at pp. 309-310.)
In People v. Dungo (2012) 55 Cal. 4th 608 (Dungo), the California Supreme Court
recently reviewed Crawford, supra, 541 U.S. 36, and its progeny─including Williams v.
Illinois (2012) 567 U.S. ___ [132 S. Ct. 2221]─and explained that "[a]lthough the high
[federal] court has not agreed on a definition of 'testimonial,' testimonial out-of-court
statements have two critical components. First, to be testimonial the statement must be
made with some degree of formality or solemnity. Second, the statement is testimonial
only if its primary purpose pertains in some fashion to a criminal prosecution. The high
court justices have not, however, agreed on what the statement's primary purpose must
be." (Dungo, at p. 619.)
Crawford altered the Aranda/Bruton Sixth Amendment analysis by implying that
the Sixth Amendment does not bar the admission of nontestimonial hearsay, stating:
"[N]ot all hearsay implicates the Sixth Amendment's core concerns." (Crawford, supra,
541 U.S. at p. 51; People v. Garcia (2008) 168 Cal. App. 4th 261, 290.)
In Davis, supra, 547 U.S. 813, the United States Supreme Court directly addressed
the question of "whether the Confrontation Clause applies only to testimonial hearsay"
and held that it does. (Id. at p. 823.) Davis explained that "[o]nly [testimonial
statements] cause the declarant to be a 'witness' within the meaning of the Confrontation
19
Clause. [Citation.] It is the testimonial character of the statement that separates it from
other hearsay that, while subject to traditional limitations upon hearsay evidence, is not
subject to the Confrontation Clause." (Davis, at p. 821.)
Thus, as we explained in People v. Garcia, supra, 168 Cal. App. 4th 261, "Davis
expressly held what Crawford suggested─that 'nontestimonial hearsay is not subject to
the Confrontation Clause.'" (People v. Garcia, at p. 291, quoting U.S. v. Tolliver (7th
Cir. 2006) 454 F.3d 660, 665, fn. 2 & citing People v. Cage (2007) 40 Cal. 4th 965, 984
["the confrontation clause is concerned solely with hearsay statements that are
testimonial"].) Accordingly, as we further explained in Garcia, "after Davis, the
determination of whether the admission of a hearsay statement violates a defendant's
rights under the confrontation clause turns on whether the statement is testimonial. If the
statement is testimonial, it must be excluded unless the declarant is unavailable as a
witness and the defendant had a prior opportunity to cross-examine the declarant. If the
statement is not testimonial, it does not implicate the confrontation clause, and the issue
is simply whether the statement is admissible under state law as an exception to the
hearsay rule." (People v. Garcia, at p. 291, italics added; People v. Gutierrez (2009) 45
Cal. 4th 789, 812 ["Only the admission of testimonial hearsay statements violates the
confrontation clause—unless the declarant is unavailable and the defendant had a prior
opportunity to cross-examine the declarant."].)
C. Analysis
Relying primarily on Bruton, supra, 391 U.S. 123, Firman contends the trial court
committed prejudicial evidentiary error by admitting into evidence Salinas's recorded
20
jailhouse statements to Magana. Firman also contends that under Crawford, supra, 541
U.S. 36, the erroneous admission of Salinas's extrajudicial statements violated Firman's
Sixth Amendment right of confrontation and cross-examination because the statements
implicated him in the murder, the statements were testimonial, and he was not able to
cross-examine Salinas about those statements. We reject these contentions and conclude
the evidence of Salinas's jailhouse statements was admissible because the statements
were not testimonial, Salinas made the statements against his own penal interests within
the meaning of the exception to the hearsay rule set forth in Evidence Code section 1230,
and the statements bore sufficient indicia of reliability.
As already discussed, the determination of whether the admission of a hearsay
statement in a criminal case violates a defendant's rights under the confrontation clause
"turns on whether the statement is testimonial." (People v. Garcia, supra, 168
Cal.App.4th at p. 291.) If the statement is not testimonial, it does not implicate the
defendant's Sixth Amendment rights and "the issue is simply whether the statement is
admissible under state law as an exception to the hearsay rule." (Ibid.) To be
testimonial, an out-of-court statement must satisfy two requirements: (1) "the statement
must be made with some degree of formality or solemnity," and (2) the "primary
purpose" of the statement must "pertain[] in some fashion to a criminal prosecution."
(Dungo, supra, 55 Cal.4th at p. 619.)
Here, Salinas's jailhouse statements to Magana were not testimonial within the
meaning of Crawford, supra, 541 U.S. 36, and its progeny. We are guided in our
analysis by Davis, supra, 547 U.S. 813, and the recent decision in Arauz, supra, 210
21
Cal. App. 4th 1394. In Davis, the United States Supreme Court gave examples of
extrajudicial statements that were "clearly nontestimonial," including "statements made
unwittingly to a Government informant." (Davis, at p. 825.) The Court of Appeal in
Arauz, following Davis, held that "statements unwittingly made to an informant are not
'testimonial' within the meaning of the confrontation clause." (Arauz, at p. 1402.)
Similarly here, the record (discussed, ante) establishes that Salinas unwittingly
made his recorded jailhouse statements to a government informant, Magana.
Accordingly, we conclude Salinas's extrajudicial statements incriminating Firman were
"clearly nontestimonial" within the meaning of Crawford, supra, 541 U.S. 36 and its
progeny for purposes of Sixth Amendment analysis. (Davis, supra, 547 U.S. at p. 825;
Arauz, supra, 210 Cal.App.4th at p. 1402.)
As Salinas's statements are "not testimonial, [they do] not implicate the
confrontation clause, and the issue is simply whether the statement is admissible under
state law as an exception to the hearsay rule." (Garcia, supra, 168 Cal.App.4th at p.
291.)
Here, the evidence of Salinas's statements to Magana bore sufficient indicia of
reliability to admissible under the hearsay exception for declarations against penal
interest codified in Evidence Code section 1230.7 Our Supreme Court has summarized
7 Evidence Code section 1230 provides in part: "Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of . . . criminal liability, . . . that a reasonable
man in his position would not have made the statement unless he believed it to be true."
22
the law applicable to the declaration against penal interest exception to the hearsay rule:
"'Evidence Code section 1230 provides that the out-of-court declaration of an unavailable
witness may be admitted for its truth if the statement, when made, was against the
declarant's penal interest. The proponent of such evidence must show "that the declarant
is unavailable, that the declaration was against the declarant's penal interest, and that
the declaration was sufficiently reliable to warrant admission despite its hearsay
character."' [Citation.] 'The focus of the declaration against interest exception to the
hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining
whether a statement is truly against interest within the meaning of Evidence Code section
1230, and hence is sufficiently trustworthy to be admissible, the court may take into
account not just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant's relationship to the defendant.'"
(People v. Geier (2007) 41 Cal. 4th 555, 584, italics added, disapproved on another point
by Melendez-Diaz, supra, 557 U.S. 305, as acknowledged in People v. Houston (2012)
54 Cal. 4th 1186, 1220.) "A trial court's decision to admit or exclude evidence is a matter
committed to its discretion '"and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice."'" (Geier, supra, at p. 585.)
Here, the court did not abuse its discretion in finding that Salinas's challenged
jailhouse statements to Magana were admissible under Evidence Code section 1230 as
declarations against penal interest. First, Salinas was unavailable as a witness because,
consistent with the Fifth Amendment, he refused to testify and the prosecution could not
23
call him to the stand. (People v. Fuentes (1998) 61 Cal. App. 4th 956, 961-962 ["A
declarant who asserts his or her Fifth Amendment privilege not to testify is 'unavailable'
within the meaning of [Evidence Code section 1230]."].)
Second, Salinas's statements implicated him as the shooter,8 and thus were against
his penal interest because they showed that he committed first degree murder, that he
personally discharged a firearm causing death, and that he was acting on the behalf of a
criminal street gang for the benefit of that gang.
Last, the statements bore sufficient indicia of reliability. Salinas relies on Lilly v.
Virginia (1999) 527 U.S. 116, a pre-Crawford case. However, as the Arceo court
correctly pointed out, Lilly "observed that '[w]hen a court can be confident . . . "the
declarant's truthfulness is so clear from the surrounding circumstances that the test of
cross-examination would be of marginal utility," the Sixth Amendment's residual
"trustworthiness" test allows the admission of the declarant's statements.'" (Arceo, supra,
195 Cal.App.4th at p. 577, quoting Lilly, supra, at p. 136.)
Here, "[i]n addition to the 'reasonable assurance' of the veracity that ordinarily
flows from a person's interest in not being criminally implicated [citation], the
circumstances surrounding [Salinas's] statements confirm their reliability. [Salinas's]
statements were not made in a custodial context or in any other context remotely close to
8 During the recorded jailhouse conversation, Magana accused Salinas of killing the
victim by telling Salinas, "[Y]ou just smoked that fool." Acknowledging he shot the
victim, Salinas responded that he thought the victim was a Quesero. Salinas did not deny
his involvement in the murder. He also told Magana he had asked Joker (Ortega) to
break the murder weapon (the gun he referred to as the hot one) into pieces and burn it.
24
'an accomplice's statements that shift or spread the blame' to another. [Citation.] Instead,
[his] statements were made in '"the most reliable circumstance,"' that is, '"one in which
the conversation occurs between friends in a noncoercive setting that fosters uninhibited
disclosures."'" (Arceo, supra, 195 Cal.App.4th at p. 577, fn. omitted.) Here, Salinas's
statements did not shift any blame away from him. His statements identified himself as
the shooter and acknowledged he was acting for the benefit of a criminal street gang of
which he, Magana, and Firman all were members.
For all of the foregoing reasons, we conclude the court did not abuse its discretion
or violate Firman's federal constitutional rights to confront witnesses and to due process
by admitting evidence of Salinas's out-of-court statements to informant Magana.
III. EXPERT TESTIMONY OF CRIMINALIST KOWAL
(FIRMAN'S SIXTH AMENDMENT CLAIM)
Firman next contends his convictions of first degree murder and possession of a
firearm by a felon also should be reversed because the court violated his federal and state
constitutional rights to due process, confrontation, effective assistance of counsel, and a
jury trial when it erroneously admitted testimonial hearsay by permitting criminalist
Kowal to testify about the gun residue "test results and opinion" of criminalist Margaret
Kaleuati, who tested Firman's black hooded sweatshirt for gunshot residue and did not
testify at trial. In a related contention, Firman asserts that Kowal "did not form or
express her own opinion" and, after reviewing Kaleuati's analysis, she "agreed" with
Kaleuati's test findings that there were a few "characteristic particles," and many
25
"consistent particles," of gunshot residue on the test sample taken from Firman's
sweatshirt. We reject these contentions.
A. Background
In this case two criminalists at the Los Angeles Department of Coroner tested the
black hooded sweatshirt that belonged to Firman and a navy blue sweatshirt for gunshot
residue. Kowal, the criminalist who testified for the prosecution in this case, personally
tested the navy blue hooded sweatshirt and found "many consistent particles[9] of
gunshot residue." Kowal's nontestifying colleague, Kaleuati, tested Firman's black
hooded sweatshirt.
1. Firman's motion to exclude Kowal's testimony
Prior to Kowal's testimony in this case, Firman's counsel filed a motion seeking an
order "prohibit[ing] Kowal from testifying from the contents of Kaleuati's reports and
tests." In his motion, Firman argued that, if the court permitted Kowal to testify from
Kaleuati's report, the court should "prohibit Kowal from discussing Kaleuati's opinions
and the details of her report." Citing Melendez-Diaz, supra, 557 U.S. 305, Firman
claimed that Kaleuati's "reports" were testimonial, and thus allowing Kowal to testify to
the gunshot residue testing performed by Kaleuati would violate his confrontation rights
9 Kowal indicated there are two categories of particles that are relevant to gunshot
residue testing: "characteristic" particles and "consistent" particles. She explained that a
"characteristic particle" is made up of only "three chemical components, lead, barium,
and antimony," and such a particle comes "from the discharge of a firearm." She also
explained that "consistent particle[s]" are "those other particles that I mentioned, the lead
and barium, the lead and antimony. . . . If I find lead and barium, lead and antimony, or
just lead, those are certainly part of the particles that can be produced in the discharge of
a firearm, but they could also come from an environmental source."
26
under the Sixth and Fourteenth Amendments to the federal Constitution because there
was no showing Kaleuati was unavailable to testify, and he had no prior opportunity to
cross-examine her. Citing Dungo, supra, 55 Cal. 4th 608, Firman acknowledged that
"[a]utopsy reports have been found generally to be non-testimonial" because "[t]hey are
mandated by law and have purposes other than criminal prosecution." Citing People v.
Lopez (2012) 55 Cal. 4th 569 (Lopez), he also acknowledged that "[p]ortions of DNA
analysis have been found to be non-testimonial," and that "[a] computer[-]produced
document is not testimonial as long as it does not contain an operator's claim of validity
of the data" because "a machine can never be cross-examined."
Citing Lopez, supra, 55 Cal. 4th 569 and Dungo, supra, 55 Cal. 4th 608, the
prosecutor opposed Firman's motion to exclude Kowal's testimony, arguing that it would
be "burdensome" for the Los Angeles Department of Coroner "to have both Kowal and
Kaleuati come down" to testify in this case, and that the case law allowed Kowal to
testify as to her own conclusions based on another criminalist's (Kaleuati's) notes.
a. Ruling
Following a hearing, the court denied Firman's motion. The court stated it would
allow Kowal "to testify about what [Kaleuati] did" because "[i]t is official record. It is
something [Kowal] can review and comment on, because she has expertise for what the
evidence is" and she could "look at it and say, 'This is something we use in our lab. This
is a procedure we follow [and, u]ltimately, she will say she came to this conclusion."
27
2. Kowal's expert testimony
Kowal testified that testing for gunshot residue consisted of using a dime-size
aluminum disk with sticky tape on the surface─which was attached to a vile to allow the
tester to hold onto it─to dab the item being tested and lift particulate material from that
item. A carbon coating was added to the sticky disks, each disk was fitted into a larger
disk, placed in a glass container, and then placed in the vacuum chamber for the scanning
electron microscope. She explained that the electron microscope has an energy
dispersive X-ray spectrometer, an instrument that "can run on automation" and allowed
her to determine what elements were in a particular particle. Kowal stated there was a
calibration standard that could tell her whether the energy dispersive X-ray spectrometer
was functioning properly. She further explained that there was a "[gunshot residue]
thread standard sample in there as well" and that sample "ha[d] [gunshot residue]
particles on it" that allowed her to know "it's operating well and it's finding small, lead
particles." Kowal stated she used the instrument "to scan the surface" of the disk to
"search for particles of interest [and] capture a spectra of the particles it found." The
instrument produced a list of the particles it found with an accompanying spectra for each
particle. Kowal indicated she reviewed this list and the spectra to determine whether the
particles were "characteristic" particles of gunshot residue or were "consistent"
particles.10
10 See fn. 9, ante.
28
Kowal testified that, with respect to the black hooded sweatshirt that Kaleuati
tested, her role was to act as the technical reviewer. Stating that "all of our work has to
be technically reviewed by somebody that is also competent in the same analysis," Kowal
explained that she went "to the instrument where [Kaleuati] performed this analysis and
[she] reviewed the images that [Kaleuati] collected and the spectra she collected for each
of the items─for each of the particles she saved to come to her conclusion. [¶] I
determined whether I agreed with what [Kaleuati] saw and made note of."
Kowal then testified that she "agreed to the conclusion that [Kaleuati] came to"
regarding the black hooded sweatshirt. Stating that she "reviewed all of [Kaleuati's]
notes and paperwork" regarding "the work done" on the sweatshirt, Kowal testified that
Kaleuati "found a few characteristic particles and many consistent particles of gunshot
residue on the black hooded sweatshirt." The prosecutor asked Kowal, "Did you agree
with those findings after looking at the data?" Kowal replied, "Yes, I did."
Regarding the characteristic particles found on the black hooded sweatshirt,
Kowal opined that "it could be that the person wearing this [sweatshirt] discharged a
firearm. Could be that they were standing nearby when a firearm discharged or that this
sweatshirt came in contact with some surface such as a firearm, and it could have
transferred that way." The prosecutor again asked Kowal whether she agreed with the
results of Kaleuati's testing of the black hooded sweatshirt when Kowal looked at the
machine, and Kowal responded that she did.
29
B. Analysis
In support of his claim of constitutional error in violation of the confrontation
clause of the Sixth Amendment, Firman primarily relies on Melendez-Diaz, supra, 557
U.S. 305, Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S. Ct. 2705], and Williams
v. Illinois, supra, 132 S. Ct. 2221. However, we must follow Lopez, supra, 55 Cal. 4th
569 and Dungo, supra, 55 Cal. 4th 608─which the California Supreme Court's decided in
October 2012 after considering Melendez-Diaz, Bullcoming, and Williams (see Dungo, at
p. 616)─because we are bound by California Supreme Court precedent. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.)
In Lopez our Supreme Court explained that, under the high federal court's "quartet
of cases"─Crawford, supra, 541 U.S. 36; Melendez-Diaz, supra, 557 U.S. 305;
Bullcoming v. New Mexico, supra, 131 S. Ct. 2705; and Williams v. Illinois, supra, 132
S. Ct. 2221─"the prosecution's use at trial of testimonial out-of-court statements
ordinarily violates the defendant's right to confront the maker of the statements unless the
declarant is unavailable to testify and the defendant had a prior opportunity for cross-
examination." (Lopez, supra, 55 Cal.4th at p. 581; accord, Dungo, supra, 55 Cal.4th at
pp. 616, 619.) Lopez and Dungo also explained that, although the United States Supreme
Court has not agreed on a definition of "testimonial," under its just-mentioned quartet of
cases a testimonial out-of-court statement has two critical components. First, to be
testimonial the out-of-court statement "must [be] made with some degree of formality or
solemnity." (Ibid.) Second, the out-of-court statement is testimonial "only if its primary
30
purpose pertains in some fashion to a criminal prosecution." (Id. at pp. 581-582; Dungo,
at pp. 616, 619.)
Here, with respect to the solemnity component of a testimonial out-of-court
statement, Firman has not shown, and cannot demonstrate, that what he refers to as the
"test results and opinion" contained in the notes of the nontestifying criminalist, on which
the prosecution's criminalist relied and about which she testified, were made with the
requisite degree of formality or solemnity to be considered testimonial for purposes of the
confrontation clause of the Sixth Amendment. We are guided in our analysis by our
Supreme Court's Lopez decision.
In Lopez a jury convicted the defendant of vehicular manslaughter while
intoxicated. (Lopez, supra, 55 Cal.4th at p. 573.) At trial the prosecution's criminalist,
John Willey, testified that he had reviewed a laboratory report prepared by his colleague,
Jorge Peña, who had analyzed defendant's blood sample. (Id. at p. 574.) Peña did not
testify, and the prosecution did not show he was unavailable as a witness. (Ibid.) Willey
testified that he had been employed in the laboratory for more than 17 years, he knew its
procedures for processing blood samples for alcohol analysis, and he had trained Peña
and was intimately familiar with Peña's procedures and how Peña tested blood samples
for alcohol. (Ibid.) Referring to Peña's report, Willey testified that Peña used a gas
chromatograph to analyze the defendant's blood sample, and Peña's analysis showed the
defendant's blood-alcohol concentration was 0.09 percent. (Ibid.) Willey also testified
that, based on his own "separate abilities as a criminal analyst," he too concluded that the
blood-alcohol concentration in defendant's blood sample was 0.09 percent. (Ibid.) At the
31
prosecution's request, the trial court admitted into evidence a copy of Peña's laboratory
report. (Ibid.) Defendant objected to the admission of Peña's report and Willey's
testimony about its contents. (Lopez, supra, at pp. 574, 584.)
This court reversed the Lopez defendant's conviction, and our Supreme Court
reversed our decision, holding that "the critical portions of [Peña's] report were not made
with the requisite degree of formality or solemnity to be considered testimonial." (Lopez,
supra, 55 Cal.4th at p. 582.) The Supreme Court noted that pages 2 through 6 of Peña's
six-page report "consist[ed] entirely of data generated by a gas chromatography machine
to measure calibrations, quality control, and the concentration of alcohol in a blood
sample." (Id. at p. 583.) The court stated that, "[e]ven though nontestifying analyst
Peña's signature appear[ed] on the laboratory report's second page (the printout of the
machine's calibrations) and the remaining pages [bore] the handwritten initials 'JRP'
(presumably Jorge Peña's initials), no statement by Peña, express or implied, appear[ed]
on any of those pages." (Id. at p. 583.) The Lopez court also noted that the report's first
page was a chart containing handwritten information by the testing analyst, including
information filled in by a laboratory assistant (Brian Constantino, whose initials appeared
at the top of the page) that included defendant's name, the laboratory number given to
defendant's blood sample, the date and time the sample was collected, and the date and
time the sample was received at the laboratory. (Ibid.) The Supreme Court further noted
in Lopez that Peña's initials appeared in a box on page 1 that bore the heading
"Ana[lyzed] By," and the chart contained information apparently entered by Peña which
"show[ed] . . . the results of the blood analysis (0.09), indicating that defendant's blood
32
sample had a blood-alcohol concentration of 0.09 percent." (Lopez, supra, 55 Cal.4th at
pp. 583-584.)
In holding that the critical portions of Peña's lab report were not made with the
requisite degree of formality or solemnity to be considered testimonial, the Lopez court
reasoned that "neither [the laboratory assistant] nor Peña signed, certified, or swore to the
truth of the contents of page 1 of the report." (Lopez, supra, 55 Cal.4th at p. 584.) It also
noted that, based on the lab assistant's labeling of defendant's blood sample and the
machine-generated results for that sample, the prosecution expert witness (Willey) "gave
his independent opinion─reflecting his 'separate abilities as a criminal analyst'─that
defendant's blood sample contained 0.09 percent alcohol." (Ibid.)
Here, in light of the Supreme Court's holding and reasoning in Lopez, supra, 55
Cal. 4th 569, we conclude that the out-of-court test results contained in what prosecution
criminalist Kowal referred to as the notes and paperwork of nontestifying criminalist
Kaleuati, like the critical portions of the lab report of nontestifying criminalist Peña in
Lopez, lacked the requisite degree of formality or solemnity to be considered testimonial
for purposes of the confrontation clause of the Sixth Amendment. Kowal's testimony
showed that, with respect to Firman's black sweatshirt that Kaleuati tested, Kaleuati's
notes and paperwork contained a list of particles and the accompanying spectra images
produced by the calibrated energy dispersive X-ray spectrometer that Kaleuati used to
analyze the particulate matter lifted from the sweatshirt. The notes also contained
Kaleuati's finding, based on the instrument-generated results, that the instrument had
detected a few characteristic particles of gunshot residue, as well as many consistent
33
particles, on the black sweatshirt. However, nothing in the record indicates that Kaleuati
"signed, certified, or swore to the truth of the contents" (Lopez, supra, 55 Cal.4th at p.
584) of her notes and related paperwork. Unlike the testimonial certificates of analysis
that were sworn to before a notary public by the laboratory analysts in Melendez-Diaz
(supra, 557 U.S. at p. 308), Kaleuati's notes and paperwork lack the requisite degree of
formality or solemnity to be considered testimonial.
We reject Firman's assertions that Kowal did not form or express her own opinion
and that after she reviewed Kaleuati's notes she simply agreed with Kaleuati's test
findings that there were characteristic particles of gunshot residue on the test sample
taken from Firman's black sweatshirt. The record shows that, like the prosecution
criminalist in Lopez who formed his own expert opinion based on the nontestifying
criminalist's lab report (see Lopez, supra, 55 Cal.4th at p. 574), Kowal rendered her own
independent opinion that the black sweatshirt tested positive for gunshot residue.
Specifically, Kowal testified that her role with respect to the black sweatshirt that
Kaleuati tested was to act as the technical reviewer. Kowal stated that she reviewed all of
Kaleuati's notes and paperwork regarding the work done on the sweatshirt. She also
explained that she went to the instrument where [Kaleuati] performed this analysis and
[she] reviewed the images that [Kaleuati] collected and the spectra she collected for each
of the items─for each of the particles she saved to come to her conclusion. When the
prosecutor asked Kowal whether she agreed with Kaleuati's findings after looking at the
data, Kowal replied, "Yes, I did."
34
Kowal's foregoing substantial testimony shows that she performed her own
analysis based on the scientific data contained in Kaleuati's notes and the instrument-
generated list of particles and related spectra images to reach her independent opinion
that the black sweatshirt tested positive for gunshot residue. We also conclude Kowal
properly relied on those notes and data as the basis for her expert opinion. "Expert
testimony may . . . be premised on material that is not admitted into evidence so long as it
is material of a type that is reasonably relied upon by experts in the particular field in
forming their opinions." (People v. Gardeley (1996) 14 Cal. 4th 605, 618, citing Evid.
Code, § 801, subd. (b).) "[A]n expert witness whose opinion is based on such
inadmissible matter can, when testifying, describe the material that forms the basis of the
opinion." (Gardeley, supra, 14 Cal.4th at p. 618.)
For all of the foregoing reasons, we reject Firman's claim of constitutional error.
In light of our determination that Kaleuati's out-of-court statements lack the requisite
degree of formality or solemnity to be considered testimonial, we need not consider the
primary purpose of those statements. (Lopez, supra, 55 Cal.4th at p. 582 ["[W]e need not
consider the primary purpose of [the] nontestifying analyst['s] laboratory report . . .
because . . . the critical portions of that report were not made with the requisite degree of
formality or solemnity to be considered testimonial."].)
IV. SALINAS'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO
REQUEST VOLUNTARY INTOXICATION INSTRUCTION)
Salinas separately contends his count 4 conviction of robbing Nathaniel Green
should be reversed because his trial counsel provided ineffective assistance by
35
prejudicially failing to request a jury instruction on voluntary intoxication as a defense to
this specific intent crime. We reject this contention.
A. Applicable Legal Principles
1. Ineffective assistance of counsel
The law governing Salinas's ineffective-assistance-of-counsel claim is settled. A
criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S.
668, 684-685 (Strickland); People v. Frye (1998) 18 Cal. 4th 894, 979.) To establish a
denial of the right to effective assistance of counsel, a defendant must show (1) his or her
counsel's performance was below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced the
defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.)
To demonstrate prejudice, a defendant asserting an ineffectiveness claim on appeal
must show a reasonable probability he or she would have received a more favorable
result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp.
693-694; People v. Frye, 18 Cal.4th at p. 979.) "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
Strickland explained that "[j]udicial scrutiny of counsel's performance must be
highly deferential [because] [i]t is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689,
36
italics added.) Strickland also explained that reviewing courts "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.'" (Ibid.)
"Generally, failure to object is a matter of trial tactics as to which we will not
exercise judicial hindsight." (People v. Kelly (1992) 1 Ca1.4th 495, 520 (Kelly).) In
Kelly, the California Supreme Court explained that "'[w]hen a defendant makes an
ineffectiveness claim on appeal, the appellate court must look to see if the record contains
any explanation for the challenged aspects of representation. If the record sheds no light
on why counsel acted or failed to act in the manner challenged, "unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation" [citation], the contention must be rejected.'" (Ibid.) Thus, "[a]
reviewing court will not second-guess trial counsel's reasonable tactical decisions."
(Ibid.)
B. Analysis
Asserting that the question of whether he formed the specific intent that is an
element of the robbery offense charged in count 4 was "a crucial issue in this case,"
Salinas claims his trial counsel should have requested an instruction on voluntary
intoxication as a defense to this specific intent crime because "there was substantial
evidence [he] was intoxicated at the time of the robbery." He asserts that "the
eyewitnesses on count 4 testified the robbers were intoxicated." Specifically, he points to
one witness's testimony that the robbers' eyes were "glossy or like they were on drugs or
37
something," and he also relies on victim Green's testimony that they were "all wigged,"
their eyes were "bulking out like they were on drugs," and they "looked crazy." Salinas
also relies on the recording of his jailhouse conversation with informant Magana
(discussed, ante), which was played for the jury and shows he told Magana that he
(Salinas) was "'fucked up' during the robbery." In an extremely conclusory manner,
Salinas asserts "[i]t appears reasonably probable that [he] would have achieved a more
favorable result had an intoxication instruction been presented to the jury."
Salinas's claim of ineffective assistance of counsel is meritless. "'Robbery is the
taking of "personal property in the possession of another against the will and from the
person or immediate presence of that person accomplished by means of force or fear and
with the specific intent permanently to deprive such person of such property."'" (People
v. Clark (2011) 52 Cal. 4th 856, 943, italics added.)
Section 29.4, subdivision (b), provides in part: "Evidence of voluntary
intoxication is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent . . . ." The California Supreme Court has explained that
a defendant is entitled to an instruction on voluntary intoxication as a defense to a
specific intent crime "only when there is substantial evidence of the defendant's voluntary
intoxication and the intoxication affected the defendant's 'actual formation of specific
intent.'" (People v. Williams (1997) 16 Cal. 4th 635, 677, italics added.)
Here, Salinas has failed to meet his burden of showing his counsel's performance
was deficient because he has failed to demonstrate he was entitled to an instruction on
voluntary intoxication as a defense to the specific intent crime of robbery. Salinas cannot
38
meet this burden merely by citing evidence he was voluntarily intoxicated; he must cite
also evidence showing the claimed intoxication affected his "'actual formation of specific
intent.'" (People v. Williams, supra, 16 Cal.4th at p. 677.) Salinas has failed to do so.
Williams is instructive. In that case, a jury convicted the defendant of four counts of first
degree murder. (Id. at p. 647.) On appeal the defendant claimed the trial court erred in
refusing his request for an instruction on voluntary intoxication as a defense to a specific
intent crime. (Id. at p. 677.) In support of his claim, the defendant pointed both to a
witness's testimony that he was "probably spaced out" on the morning of the killings and
to comments the defendant had made in a recorded interview with police that he was
"doped up" and "smokin' pretty tough then" at the time of the killings (Ibid.) The
Supreme Court rejected the defendant's claim of instructional error and stated:
"Assuming this scant evidence of defendant's voluntary intoxication would qualify as
'substantial,' there was no evidence at all that voluntary intoxication had any effect on
defendant's ability to formulate intent." (Id. at pp. 677-678, italics added.)
Here, Salinas cites substantial evidence from which a reasonable trier of fact could
find he was voluntarily intoxicated at the time of the charged robbery. However, like the
defendant in People v. Williams, he has presented "no evidence at all that voluntary
intoxication had any effect on [his] ability to formulate intent." (People v. Williams,
supra, 16 Cal.4th at p. 678.)
Salinas has also failed to overcome the strong presumption that, "under the
circumstances, [his counsel's] challenged action 'might be considered sound trial
strategy.'" (Strickland, supra, 466 U.S. at p. 689.) As already discussed, "[a] reviewing
39
court will not second-guess trial counsel's reasonable tactical decisions." (Kelly, supra, 1
Ca1.4th at p. 520.) Here, the record shows Salinas's failure to request an instruction on
voluntary intoxication as a defense to the specific intent crime of robbery "'might be
considered sound trial strategy.'" (Strickland, at p. 689.) In her closing argument,
Salinas's counsel argued as follows that Salinas was not at the scene of the robbery and
that, even if he was, he was not one of the robbers:
"We certainly don't know anything beyond a reasonable doubt as to
Mr. Salinas's involvement in the robbery─at least from the Lopez
brothers, I don't know if it can be established that Mr. Salinas was
there. They talked about five guys being present: Joker, Downer,
Creeper, Terco, and an old, bald guy in a tank top. [¶] Now, if you
believe Paul Salinas was there for whatever reason beyond a
reasonable doubt, then you have to ask what his participation was
beyond a reasonable doubt, or what his knowledge of what was
going on has been proved beyond a reasonable doubt. We know it
was dark out there. We know everything happened relatively
quickly or fast. From the Lopez brothers' testimony it seems─or it
appears that Creeper and Downer were the two guys doing the
stuff─doing the robbery and maybe the old, bald guy in the tank top.
Okay? None of those are Mr. Salinas." (Italics added.)
Salinas's counsel also argued:
"When you are deciding the robbery and whether or not Mr. Salinas
was there and whether or not he participated, please look at the jury
instruction on aiding and abetting, CALCRIM [No.] 401. It talks
about mere presence not being enough─not being enough to convict
him if he's merely at the robbery. They need facts. They need
evidence beyond a reasonable doubt as to what Mr. Salinas either
did or helped somebody else do."
The foregoing statements by Salinas's counsel during closing argument show that
Salinas's defense theory at trial was that he was not present at the time of the robbery and,
even if he was, he did not participate in the robbery. Under these circumstances, the
40
defense of voluntary intoxication would have been relevant only if Salinas was present at
the time of the robbery and had participated in that crime with the requisite intent to steal
either as a perpetrator or as an aider and abettor. For Salinas's counsel to have claimed,
by requesting an instruction on voluntary intoxication, that Salinas participated in the
robbery but he was too intoxicated to form the specific intent to steal from Nathaniel
Green would have been inconsistent with Salinas's defense theory. Accordingly, "we
cannot say that defense counsel had no rational tactical purpose in not requesting an
instruction on intoxication." (People v. Wader (1993) 5 Cal. 4th 610, 643 [rejecting
defendant's claim his counsel provided ineffective assistance by failing to request a
voluntary intoxication instruction because such a request "would have been inconsistent
with defendant's theory of the case"].)
For all of the foregoing reasons, we conclude Salinas has failed to meet his burden
of establishing his trial counsel's performance was deficient. Even if we were to assume
Salinas had met this burden, we would conclude he has failed to meet his additional
burden of showing a reasonable probability he would have received a more favorable
result as to count 4 had his counsel's performance not been deficient. (See Strickland,
supra, 466 U.S. at pp. 693-694.) As already noted, Salinas's attempt in his opening brief
to meet his burden of showing prejudice consists solely of his conclusory statement that
"[i]t appears reasonably probable that [he] would have achieved a more favorable result
had an intoxication instruction been presented to the jury." Such an argument is patently
insufficient, borders on the frivolous, and alone renders meritless his claim of ineffective
assistance of counsel. The absurdity of Salinas's unsupported claim of prejudice is shown
41
by the following excerpt from his recorded jailhouse statements to Magana recounting the
details of his participation in the robbery:
"They was trying to get me on the robbery fool. But they had, they
had no, no shit on me you know? But we did a robbery with Tuerco,
fucking Joker and Downer and fucking (unintelligible)[.] Ten
people (unintelligible)[.] I was fucked up. I said all your mutha
fucken Niggas get on the wall right now, they go by the wall one by
one, pocket search sucka. 'What you got?' Came up on a I-Pod
Touch, I-Pod Touch, I came up on eye drops, some cologne, feria, I
came up on all kinds of shit dog. I split the feria with Joker, Tuerco
and Downer . . . . [¶] . . . [¶] It was like fucken fifty something
bucks dog. Petty chump change dog, but we came up on a lot of shit
though umm. I-Pod, cell phone. [¶] . . . [¶] All kinds of shit . . . . I
came up even on a fucken Black and Mild dog. Some bullshit some
petty shit dude. They was some broke ass fools dog, broke ass
niggas dog." (Italics added.)
In his reply brief, Salinas does not challenge the Attorney General's argument that
the foregoing excerpt demonstrates Salinas "cannot show he was prejudiced given his
recorded statements about the robbery."
V. SALINAS'S SECTION 654 SENTENCING ERROR CLAIM
(COUNT 3: UNLAWFUL POSSESSION OF A FIREARM)
Last, Salinas claims the court erred by not staying under section 654 the execution
of the consecutive prison sentence of two years four months it imposed for his count 3
conviction of unlawful possession of a firearm for the benefit of a criminal street gang
(former § 12021, subd. (d); § 186.22(b)(1)) because he acted with the same objective and
intent when he committed this offense and the murder of the victim (count 1). This claim
is unavailing.
42
A. Section 654
Section 654, subdivision (a) provides in part: "An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an
indivisible course of conduct" (People v. Deloza (1998) 18 Cal. 4th 585, 591) and ensures
the defendant's punishment will be commensurate with his or her criminal culpability
(People v. Kramer (2002) 29 Cal. 4th 720, 723). If a defendant suffers two convictions
and punishment for one is barred by section 654, "that section requires the sentence for
one conviction to be imposed, and the other imposed and then stayed." (Deloza, at pp.
591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on
the intent and objective of the defendant, not the temporal proximity of the offenses.
(People v. Hicks (1993) 6 Cal. 4th 784, 789.) Generally, if all the criminal acts were
incident to one objective, then punishment may be imposed only as to one of the offenses
committed. (People v. Rodriguez (2009) 47 Cal. 4th 501, 507; People v. Garcia (1995)
32 Cal. App. 4th 1756, 1781.)
1. Standard of review
In reviewing the trial court's determination whether section 654 precludes multiple
punishment, we apply the deferential substantial evidence standard of review. (People v.
Hutchins (2001) 90 Cal. App. 4th 1308, 1312.) We must view the evidence in the light
43
most favorable to the sentencing order and presume in support of that order the existence
of every fact that reasonably could be deduced from the evidence. (Id. at pp. 1312-1313.)
B. Analysis
In support of his claim that the court erred by not staying under section 654 the
execution of the sentence it imposed for his count 3 conviction of unlawful possession of
a firearm for the benefit of a criminal street gang, Salinas asserts "it is clear" that Joker
Ortega, a member of the City Heights Juniors gang (see fn. 3, ante), "provided the gun to
[Salinas] and dropped [him] and Firman off" near the scene of the shooting before
Salinas and Firman confronted the murder victim. Also asserting─based primarily on the
prosecutor's closing argument─that Ortega gave him the gun "because Ortega was tired
of the Eastside gang members being in his area and he wanted them taken care of,"
Salinas contends "[t]he commission of the murder and the possession of the firearm are
indivisible because the gun was specifically provided to [him] shortly prior to the
shooting for the purpose of accomplishing or facilitating the shooting." This contention
is unavailing.
"A violation of [former section 12021] is a relatively simple crime to commit[.]
[T]he crime is committed the instant the felon in any way has a firearm within his
control." (People v. Ratcliff (1990) 223 Cal. App. 3d 1401, 1410, italics omitted.) "After
reviewing the relevant California authorities, Ratcliff distilled the rule . . . that section 654
operates to bar multiple punishment where the evidence shows that the firearm came into
the defendant's possession fortuitously 'at the instant of committing another offense.'"
(People v. Jones (2002) 103 Cal. App. 4th 1139, 1145, quoting Ratcliff, supra, at p. 1412.)
44
"On the other hand, it is clear that multiple punishment is proper where the evidence
shows that the defendant possessed the firearm before the crime, with an independent
intent." (Jones, at p. 1144.)
"'Whether a violation of [former] section 12021 . . . constitutes a divisible
transaction from the offense in which [the defendant] employs the weapon depends upon
the facts and evidence of each individual case. [W]here the evidence shows a possession
distinctly antecedent and separate from the primary offense, punishment on both crimes
has been approved.'" (People v. Bradford (1976) 17 Cal. 3d 8, 22.)
Here, as noted, Salinas acknowledges he obtained possession of the gun before he
and Firman encountered the victim. Thus, his count 3 offense of unlawfully possessing
that firearm was complete before the victim was shot and killed. (See People v. Ratcliff,
supra, 223 Cal.App.3d at p. 1410.) The "evidence" Salinas relies on in support of his
assertion that Ortega gave him the gun "for the purpose of accomplishing or facilitating
the shooting" consists of an argument made by opposing counsel. As Salinas has failed
to meet his burden of showing his intent and objective at the time he took taking
possession of the gun, and he admits he took possession of the gun before he and Firman
encountered the murder victim, we conclude the court did not abuse its discretion in
punishing Salinas for both the firearm possession offense (count 3) and the murder (count
1). (People v. Bradford, supra, 17 Cal.3d at p. 22; People v. Jones, supra, 103
Cal.App.4th at p. 1145.)
45
DISPOSITION
The judgments are affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
46