The People v. Valdez CA2/8

Filed 9/12/13 P. v. Valdez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B243014
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA114479)
v.
BRANDON J. VALDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Philip H. Hickok, Judge. Affirmed as modified.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Connie
H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Brandon J. Valdez appeals from his conviction of first degree murder
and possession of a firearm by a felon. He contends it was error: (1) to admit into
evidence an identification based on an impermissibly suggestive photographic lineup; and
(2) to fail to instruct that a prosecution witness was an accomplice. We modify the
judgment and otherwise affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence established that in May 2009, defendant was a
member of the criminal street gang known as Whittier Varrio Locos (WVL). Murder
victim Danny Quijada was a member of a rival gang known as Rivera 13. Quijada lived
in an apartment complex on the 6300 block of Milton Avenue in Whittier, a location
claimed by WVL as its territory. There were rumors that Quijada was selling drugs from
his apartment and that he had quarreled with WVL member Joshua Poore. At about
5:30 p.m. on May 16, defendant fatally shot Quijada while Quijada was standing on the
sidewalk in front of his apartment complex. Defendant maintained that he was not the
shooter and was at a birthday party in Rancho Cucamonga at the time.
1 Defendant was charged with first degree murder and possession of a firearm by a
felon; prior prison term, gun use and gang enhancements were also alleged. A jury
convicted defendant on both counts and found true the gun use and gang enhancements.
He was sentenced to 50 years to life in prison on the murder charge, comprised of 25
years to life for first degree murder, plus a consecutive 25 years for the gun use
enhancement. The trial court stayed imposition of sentence on the felon in possession
charge and the gang enhancement pursuant to Penal Code section 654 (all future
undesignated statutory references are to the Penal Code). Defendant timely appealed.
In addition to defendant’s principal contentions on appeal, he also argues, and the
People concede, that the abstract of judgment incorrectly reflects a $240 restitution fine
(§ 1202.4, subd. (b)) and a $240 parole revocation restitution fine (§ 1202.45). We agree
and direct the superior court to correct the abstract of judgment to reflect a $200
restitution fine and $200 parole revocation restitution fine.
2
A. The People’s Case
Witness Frank Orozco was 29 years old at the time of the January 2012 trial. He
lived in the same neighborhood as Quijada and was a former gang member. Orozco was
arrested but not charged in this case after witness Joseph B. identified Orozco as the
person standing next to the shooter. Orozco’s audio-recorded interview with police, in
which he identified defendant as the shooter, was played for the jury. In that interview,
Orozco stated that he and defendant were childhood friends, but went their separate ways
when defendant became more involved in his gang. Orozco met Quijada once and knew
he was a member of the Rivera 13 gang, a rival to WVL. Several months before the
shooting, Orozco heard that Quijada had pulled a shotgun on WVL member “Josh,” but
that they later resolved their differences. The afternoon of the shooting, Orozco walked
alone to the apartment complex where Quijada lived to buy some marijuana from another
resident. When Orozco arrived, he saw defendant enter a gate leading into the courtyard.
Orozco saw defendant go upstairs. Orozco left almost immediately after some children
playing in the courtyard told him that the seller was not home. As Orozco was walking
out of the gate, he noticed defendant right behind him. Defendant looked like he was
under the influence of something, possibly methamphetamine. Orozco said to defendant,
“What’s up?” to which defendant responded, “Get out of here.” Sensing something was
going to happen, Orozco walked away. Glancing back, Orozco saw Quijada come out of
the gate. Defendant pointed a gun at Quijada and pulled the trigger. Fearful he might be
shot next, Orozco ran home. Orozco later heard that the reason defendant had shot
Quijada was that Quijada was selling methamphetamine in WVL territory. Orozco
identified defendant from a photographic lineup (People’s Exhibit No. 23) but said he
was afraid he would be killed by other WVL members if he had to testify against
defendant in court. Orozco was released from custody that day and was not charged with
Quijada’s murder.
At trial, Orozco again said he knew defendant from school, but denied they were
friends. Orozco did not know who shot Quijada, but knew it was not defendant. Orozco
3
had named defendant as the shooter only after the officers mentioned defendant; he did so
because they were threatening to charge him with the murder.2 Orozco was not aware of
anyone walking behind him as he left the apartment courtyard, but he saw someone, not
defendant, walking from the alley towards the apartment complex. As he was walking
away, the sound of gunshots caused Orozco to glance back and he saw someone running
away.
Joseph B. lived in Quijada’s apartment complex and knew Orozco from the
neighborhood. The afternoon of the shooting, while skateboarding in front of the
complex, Joseph noticed Orozco and a light skinned Hispanic man wearing a baseball cap
enter the gate into the apartment complex. Both men were wearing baggy, gang-like
attire but the man in the baseball cap was shorter and thinner than Orozco. Alarmed by
the gang-like appearance of Orozco and the other man, Joseph skateboarded away.
Joseph saw Orozco and the man in the baseball cap exit the apartment complex a few
moments later. About a minute after that, Joseph saw Quijada come through the gate.
When Joseph saw Quijada calmly speaking to the man in the baseball cap, Joseph felt it
was safe to move back towards them.3 Joseph was about 10 feet away when he saw the
man in the baseball cap pull out a gun and shoot Quijada. When the shooting started,
Orozco looked shocked and ran away. The shooter did not look shocked. The shooter
then ran toward the alley, in the opposite direction from Orozco. After the shooter turned
2 Lead investigator Detective Chad Hoeppner, who interviewed Orozco, testified
that no one told Orozco to identify defendant as the shooter; the police knew nothing
about defendant until Orozco identified him. Defendant’s mother testified that, on more
than one court date, Orozco apologized to her for all the grief he had caused her family.
3 Joseph testified that he heard the man in the baseball cap and Quijada speaking in
a foreign language, possibly Spanish. Defendant’s mother testified that defendant could
not speak Spanish.
4
to run, Joseph noticed the letters WVL tattooed on the back of his head, partially hidden
by the baseball cap. Joseph could not identify defendant as the shooter.4
The sound of gunshots drew the attention of Rebecca Martinez who lived in the
same building as Quijada, and Robert D., who lived in a building across the alley. From
their respective apartments, Martinez and Robert could see the T-intersection where the
north/south alley dead-ended into an east/west alley. From her window, Martinez saw a
young, skinny, light-skinned, not very tall man wearing oversize baggy shorts, a long
short-sleeve t-shirt and a baseball cap, run south on Milton Avenue, turn right (west) into
the alley that runs between Milton and Newlin Avenues, then turn right (north) into the
alley that runs behind Milton and Newlin Avenues. Martinez could not identify the
person from a photographic lineup.
Looking out his front door, Robert expected to see a car zooming past. At first he
saw nothing unusual but kept looking until, about 35 feet away, he saw a tall, thin,
medium-skinned man wearing shorts, a t-shirt and a baseball cap running west in the
alley, toward Newlin. As the man turned north at the intersection of the two alleys, he
stumbled and his cap slipped off, revealing a tattoo on the back of his head. Robert told
police at the scene that he saw someone running in the alley after hearing shots. That
night, Robert helped police retrieve video from his building’s surveillance cameras but no
4 Danny M. who was skateboarding with Joseph, also testified at trial, but claimed
to remember only hearing gunshots. He did not recall testifying at the preliminary
hearing that he saw on the street Orozco and another tall, light-skinned man with a tattoo
when Quijada was shot. Or that, after the shooting, he saw the man with the tattoo
running towards the alley. Detective Hoeppner testified that Danny was cooperative
during his initial interviews, but when Hoeppner served Danny with a subpoena to testify
at the preliminary hearing, Danny said he was afraid he would be killed if he testified.
Danny had to be arrested and brought to the preliminary hearing. After he was
subpoenaed to testify at trial, Danny claimed to not remember anything about the
shooting.
5
one asked him about the person he saw running in the alley.5 Some months later, Robert
saw defendant’s photograph as part of a newspaper article about defendant’s arrest.
Some two years later, in the summer of 2011, Robert was contacted by police and
shown a photographic lineup (Defense Exhibit No. W) from which he identified
defendant as the person he saw running in the alley on May 16, 2009. Robert identified
defendant a second time from a photographic lineup shown to him just before he testified
in January 2012 (People’s Exhibit No. 43), and a third time in the courtroom.
The murder weapon was never found. Three shell casings were found on the
sidewalk near Quijada’s body, two spent rounds were found near the gate leading into the
apartment complex and two bullets were recovered from Quijada’s body. A few days
after the murder (before Orozco identified defendant as the shooter) defendant was one of
several WVL members present when officers executed a search warrant at a house in the
City of Rowland Heights looking for Joshua Poore, the WVL member with whom
Quijada was rumored to have quarreled.6 Police recovered 26 live rounds of .44 caliber
ammunition, 87 live rounds of .380 caliber ammunition and an empty .380 magazine clip.
A criminalist determined that the three cartridge cases and one bullet found at the scene
of the shooting, as well as the two bullets recovered from Quijada’s body, were all fired
from the same weapon. All of the bullets and cartridges could have been fired from a
.380 AMT semiautomatic which matched the type of magazine found at the Rowland
Heights home. The criminalist could not determine whether or not the analyzed bullets
and/or cartridges were fired from this particular magazine.
5 Detective Hoeppner initially testified that Robert’s name was not in any of the
police reports. But he conceded that one of the officers tasked with obtaining the video
wrote a report according to which Robert stated he heard four pops and then saw a male
Hispanic driving a Ford Taurus at a high rate of speed southbound through the alley. The
report does not state that Robert mentioned someone running in the alley.
6 Police concluded that Poore was not a suspect because witnesses said the shooter
had a tattoo on his head and Poore had no tattoo.
6
B. Defense Case
Defendant’s sister, Jessica Valdez, testified that in May 2009, she and defendant
lived together. Defendant was present when she returned home from work at about noon
on May 16. They were together until defendant left later that day, but Valdez did not
know what time or where he went. Valdez never gave this information to the police, but
told defendant’s lawyer a few days after the trial started.
Valerie Machado and defendant had been romantically involved “off and on”
since 1997. On May 16, Machado lived in an apartment in Rancho Cucamonga with her
cousin, Destiny Salinas, and Salinas’s boyfriend, Ricardo Alvarado. At about 4:00 p.m.
that day, defendant arrived at Machado’s apartment to attend a birthday party for
Alvarado. A little after midnight, Machado’s sister took pictures of defendant and
Machado with her cell phone. Defendant remained at Machado’s apartment for two or
three days.
Salinas recalled that on the day of Alvarado’s birthday party, she was looking out
the front window when a big, black truck or SUV pulled up outside the apartment.
Salinas went into the kitchen and a moment later defendant entered the apartment, from
which Salinas deduced he had arrived in the SUV. Defendant was at the apartment until
about midnight, when he went with Alvarado to pick up someone who lived down the
street; they were gone 20 minutes. The party ended about 2:00 a.m. when everyone went
to sleep. Salinas could not recall if defendant was still there when she got up in the
morning.
Adrianna Thompkins was friendly with several members of WVL, including
defendant. She could not remember the exact date, but sometime around May 16, she
recalled driving defendant in her truck to his girlfriend’s apartment in Rancho
Cucamonga.
7
DISCUSSION
A. Robert D.’s Identification Was Not the Result of an Impermissibly Suggestive
Procedure
Defendant contends he was denied a fair trial and due process under the state and
federal constitutions as a result of the trial court allowing into evidence, over defense
objection, Robert’s identification of defendant based on the photographic lineup shown to
him in September 2011 (Defense Exhibit No. W).7 He contends this is so because Robert
told police that the person he saw running down the alley had a thin face and a tattoo on
his head, and defendant has the thinnest face and is the only person with a tattoo in the
lineup. We are not persuaded.
Generally, we review for abuse of discretion a trial court’s decision on the
admissibility of evidence. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) But a
trial court’s ruling that a pretrial identification procedure was not impermissibly
suggestive is subject to our independent review. (People v. Avila (2009) 46 Cal.4th 680,
700 (Avila).) It is the defendant’s burden to show that the identification procedure was so
unfair as to abridge his right to due process. (Ibid.)
“ ‘Due process requires the exclusion of identification testimony only if the
identification procedures used were unnecessarily suggestive and, if so, the resulting
identification was also unreliable.’ [Citation.]” (Avila, supra, 46 Cal.4th at p. 698; see
also People v. Cook (2007) 40 Cal.4th 1334, 1355 [due process violation occurs only if
the identification procedure is so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification].) Thus, determination of whether
an identification procedure violated due process is a two-step analysis. First, we consider
whether the identification procedure was unduly suggestive. “[T]here is no requirement
that a defendant in a lineup, either in person or by photo, be surrounded by others nearly
7 Defendant did not include copies of the challenged photographic lineup in the
record on appeal. We take judicial notice of Defense Exhibit W, People’s Exhibit No. 23
and People’s Exhibit No. 43. (Evid. Code, § 452, subd. (d)(1); § 459, subd. (a).)
8
identical in appearance. [Citation.] Nor is the validity of a photographic lineup
considered unconstitutional simply where one suspect’s photograph is much more
distinguishable from the others in the lineup. [Citations.]” (People v. Brandon (1995)
32 Cal.App.4th 1033, 1052.) “ ‘Because human beings do not look exactly alike,
differences are inevitable. The question is whether anything caused defendant to “stand
out” from the others in a way that would suggest the witness should select him.’
[Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 943 (Gonzalez).)
Only if we determine that the identification procedure was unduly suggestive,
need we address the second prong of the test: “whether the identification itself was
nevertheless reliable under the totality of the circumstances . . . .” (People v.
Cunningham (2001) 25 Cal.4th 926, 989.) In People v. Kennedy (2005) 36 Cal.4th 595,
the court explained, “ ‘In order to determine whether the admission of identification
evidence violates a defendant’s right to due process of law, we consider (1) whether the
identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether
the identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.’ ” (Id. at p. 608, overruled on another ground in People v. Williams (2010)
49 Cal.4th 405, 459.)
Applying these factors, the Gonzalez court concluded that a live lineup was not
unduly suggestive where the defendant was the only person with “Lott Stoners 13”
tattooed on the back of his head. The court reasoned that none of the witnesses had
observed a tattoo on the gunman’s head and it was only after the witnesses recanted that
they claimed the tattoo was significant. (People v Gonzalez, supra, 38 Cal.4th at p. 944;
see also Cook, supra, 40 Cal.4th at p. 1355 [live lineup was not unduly suggestive where
the defendant was the shortest person in the lineup]; People v. DeSantis (1992) 2 Cal.4th
1198, 1222 [photographic lineup not unduly suggestive where witness described the
9
perpetrator as wearing a red jacket and the defendant was the only person in the lineup
wearing a red shirt].)
Here, defendant filed a pretrial motion to exclude Robert’s September 2011
identification on the grounds that the photographic lineup shown to Robert at the time
(Defendant’s Exhibit No. W) was unduly suggestive because Robert had described the
suspect as having a tattoo on his head and defendant was the only person in the lineup
with a tattoo.8 At the Evidence Code section 402 hearing, Detective Hoeppner explained
that in June 2009, he created photographic lineup No. 195165, which included a
photograph of defendant in position number five. At that time, Hoeppner printed a copy
of photographic lineup No. 195165, which he showed to Orozco (People’s Exhibit
No. 23). Defendant’s head tattoo is not discernable on the June 2009 printout. In
September 2011, Hoeppner printed out another copy of photographic lineup No. 195165
to show Robert (Defendant’s Exhibit No. W). Although it is the identical photo six pack,
defendant’s tattoo is visible on the September 2011 printout because, sometime between
June 2009 and September 2011, the Sheriff’s Department began using new technology
that produced clearer photographs. After ascertaining that Robert had not been shown a
version of lineup No. 195165 without a visible tattoo, the trial court ordered that it be
done. The next day, before Robert testified, he was shown another printout of lineup
No. 195165 (People’s Exhibit No. 43), in which defendant’s tattoo was not visible but
which otherwise had the same face shots in the same order as the 2009 lineup. On
People’s Exhibit No. 43, Robert identified defendant as the person he saw running in the
alley. Based in part on the corroborative identification Robert made from People’s
Exhibit No. 43, the trial court concluded that Robert’s original identification was
admissible because it was not the result of an impermissibly suggestive identification
procedure. Robert identified defendant a third time in the courtroom and testified that his
8 Defendant also complains that defendant stood out because he had the thinnest
face of the six persons depicted in the photographic lineup. This is simply not the case.
In our judgment and after reviewing the lineup, we conclude that defendant is not the
only person with a thin face.
10
September 2011 identification was based entirely on his memory of defendant’s face, in
particular its thin shape, and was not influenced by the fact that defendant was the only
person with a tattoo depicted on Defense Exhibit No. W.
We have reviewed the challenged September 2011 photographic lineup (Defense
Exhibit No. W), compared it to the unchallenged June 2009 version shown to Orozco
(People’s Exhibit No. 23) and the second version shown to Robert (People’s Exhibit
No. 43) and conclude that Robert’s identification was not the result of an impermissibly
suggestive pretrial photographic lineup.
We agree with defendant that the visible tattoo caused defendant’s photograph to
stand out more than the other photographs.9 But we conclude that, under the totality of
the circumstances, the identification was nevertheless reliable. (Kennedy, supra,36 Cal.4th at p. 608.) Four of the analytical factors identified by our Supreme Court and
which we describe above militate in favor of our conclusion: (1) Robert had ample time
(six to eight seconds) to view the suspect from a distance of between 30 and 35 feet
away; (2) from Robert’s testimony that he kept looking out his front door after at first
seeing nothing it is reasonable to infer that Robert was paying particular attention;
(3) Robert’s identification of defendant was consistent with Orozco’s identification and
Robert’s description of the suspect – a thin, young, medium-skinned male with a tattoo
on his head wearing shorts, a t-shirt and a baseball cap running west and then north in the
alley – and was also consistent with other witness’s testimony; and (4) Robert expressed
certainty each of the three times he identified defendant and expressly testified that he
was not influenced by the tattoo. Although the two-year time span between the May
2009 event and Robert’s September 2011 identification – the fifth factor – “weighs
9 Contrary to defendant’s argument, the fact that Robert saw a grainy surveillance
video of a suspect running down the alley, and later saw a newspaper article about
defendant’s arrest which included a photograph of defendant, does not render his
identification impermissibly suggestive. These images were not shown to Robert by law
enforcement as part of the identification procedure. (Robert saw the surveillance tape
because he was tasked with assisting the officers in obtaining a copy of the tape from his
building’s security cameras.) Therefore, the fact that Robert saw these images goes to the
weight of his identification, not its admissibility.
11
against reliability to some degree,” it is not enough here to establish a substantial
likelihood of irreparable misidentification. (See People v. Arias (1996) 13 Cal.4th 92,
169 [identification not impermissibly suggestive despite 10-month lapse between the
robbery and photographic lineup].) It is true that, if Robert had been shown a six-pack in
which defendant was not the only person with a tattoo, his identification might have been
viewed as even more reliable. But that is not the test. Instead, under the totality of the
circumstances, we conclude that Robert’s identification was not the result of an
impermissibly suggestive procedure.
B. The Trial Court Had No Sua Sponte Duty to Give Accomplice Instructions
Defendant contends he was denied a fair trial and due process by the trial court’s
failure to sua sponte instruct the jury that Orozco was or may have been an accomplice
whose testimony should be viewed with caution (see CALCRIM No. 334 [witness may
have been an accomplice] and CALCRIM No. 335 [witness was an accomplice]). He
argues that substantial evidence including reasonable inferences suggest that Orozco was
an accomplice to Quijada’s murder. We disagree.
A “conviction cannot be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.” (§ 1111.) When a jury receives
substantial evidence that a witness who has implicated the defendant was an accomplice,
the trial court must sua sponte instruct that an accomplice’s testimony implicating the
defendant must be viewed with caution. (People v. Houston (2012) 54 Cal.4th 1186.)
Section 1111 defines an accomplice as “one who is liable to prosecution for the
identical offense charged against the defendant on trial in the cause in which the
testimony of the accomplice is given.” In People v. Whalen (2013) 56 Cal.4th 1, 58-59,
our Supreme Court recently explained that, to be liable for prosecution for the identical
offense (i.e., an accomplice), the witness must be a “principal,” which section 31 defines
as the direct perpetrator of the crime or one who aids and abets in its commission. “An
12
aider and abettor is one who acts with both knowledge of the perpetrator’s criminal
purpose and the intent of encouraging or facilitating commission of the offense. Like a
conspirator, an aider and abettor is guilty not only of the offense he intended to encourage
or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator
he aids and abets.’ [Citations.]” (Id. at p. 59.) Presence at the scene of the crime,
companionship with the perpetrator and conduct before and after the crime are relevant
considerations in determining whether a person aided and abetted an offense. (People v.
Miranda (2011) 192 Cal.App.4th 398, 407.) But it is well settled that neither mere
presence at the scene of the crime which does not itself assist the commission of the
crime, nor knowledge that a crime is being committed and failure to prevent it, amount to
aiding and abetting. (See CALJIC No. 3.01.)
Here, although there was evidence that Orozco and defendant were friends, they
were not in the same gang. (See People v. Garcia (2008) 168 Cal.App.4th 261, 277
[common gang membership relevant to intent element of aiding and abetting].) The only
evidence connecting Orozco to the shooting is Joseph B.’s testimony that he saw Orozco
and the shooter walk into the apartment complex, then exit the complex together, and saw
them talking to one another. Orozco was standing about five feet away from the shooter
and looked “shocked or scared” when the shooting started. As soon as the shooting
started, Orozco ran away. The shooter looked neither shocked nor scared, and he ran in
the opposite direction from which Orozco ran.
This evidence establishes nothing more than Orozco’s presence and is not
sufficient to support an inference that Orozco aided and abetted the shooting. It is not
clear from Joseph’s testimony whether defendant and Orozco went to the apartment
complex together or, as Orozco claimed, they coincidentally arrived there at the same
time. Even assuming they went together, there was no evidence from which it could be
inferred that Orozco knew that defendant intended to commit a crime. Joseph’s
testimony that Orozco looked “shocked and scared” when the shooting started suggests
Orozco had no knowledge that defendant had any criminal intent, much less the intent to
13
shoot Quijada. Under this state of the evidence, the trial court had no sua sponte duty to
give CALCRIM Nos. 334 or 335.
DISPOSITION
The superior court is directed to modify the abstract of judgment to reduce the
restitution fines imposed pursuant to Penal Code section 1202.4, subdivision (b), and
Penal Code section 1202.45 from $240 to $200. In all other respect, the judgment is
affirmed. Upon the issuance of the remittitur, the superior court is to prepare an amended
abstract of judgment and deliver a copy to the Department of Corrections and
Rehabilitation.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.
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