P. v. Castro

Filed 11/29/05 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MARTIN CASTRO, Defendant and Appellant.

F045255 (Super. Ct. No. F03901030-7) OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Seven individuals were prosecuted for the events leading up to and ending with the murder of Donald “DJ” Hunter. Ramiro Roman pleaded guilty before trial to one count of robbery in return for his truthful testimony against the other defendants. Jose David Romero, Martin Castro (defendant), and Alfred Cruz were tried together for the first degree murder of Hunter. Cruz pleaded guilty to one count of robbery at the close of the evidence at the joint trial. His plea was predicated on his promise to testify truthfully about the events surrounding Hunter’s death at the upcoming murder trial of Stacy Dyer, Daniel Ortega, and Jesus Lopez. The jury convicted Romero and defendant of first degree felony murder. Subsequent to the trial of Romero and defendant, the remaining three defendants were jointly tried and convicted of first degree murder with special circumstances.

In this opinion, we consider the appeal of defendant Castro. He claims the admission of numerous hearsay statements violated his right to confrontation, the admission of unredacted out-of-court statements violated Aranda/Bruton^[1] rules, and the prosecutor committed intentional misconduct during closing arguments. We affirm.

FACTS

Nineteen-year-old Hunter owned a 2000 pickup truck. He added special equipment to his truck and the vehicle was known around town. On the evening of March 21, 2002, Hunter left home and drove in his truck to the home of his friend Carlos Rodriguez. He and Rodriguez went out to dinner. Hunter had $5 with him. They returned to Rodriguez’s house and remained there until approximately 1 a.m. Hunter left and said he was going home.

Paul Bedrosian knew Hunter and was familiar with the truck that he drove. Bedrosian saw Hunter alone in the vehicle driving his truck in the direction of his (Hunter’s) home at approximately 1:15 a.m. on March 22, 2002.

Roman was at his home on the evening of March 21, 2002. His friend Cruz was at Roman’s home “kicking back.” As Roman was getting ready to leave to walk over to get his girlfriend Delores (Cruz’s sister), Stacy Dyer walked up, asked for Roman, and said that “Chuey” (Jesus Lopez) wanted to see him.

After Roman called to Cruz, the two went outside and saw Lopez standing next to a truck. Roman asked Lopez where he got the truck. Lopez said he “jacked” the truck and the victim was being held in the bed of the truck under the truck bed cover.

Roman left and met his girlfriend Delores. As they walked back to Roman’s house, he told her what was happening. Delores was not pleased. When they arrived back at the house, Lopez and Dyer were standing by the bed of the truck. Roman told them to leave because his mother was asleep in the house. Lopez said he was waiting for someone and was going to take the truck to Mexico.

The truck remained in front of the house for approximately 30 minutes. Roman then moved the truck to the other side of the house so it would not be near his mother’s window. Roman returned inside the house and told Delores he was going to take the stereo out of the truck. She told him he was dumb. Roman grabbed tools, walked outside, and put on gloves. Lopez did not want Roman removing the stereo from the truck. Roman removed the stereo and took it to his room.

Roman went back outside and looked through the truck for more property to steal. Lopez told Roman not to take the speakers. Roman decided he wanted the speakers, but agreed to give them to Lopez. Roman removed the speakers and amplifiers from the truck. He took them out of the truck with Cruz’s help. Cruz helped him carry the items to his room.

Roman returned to the location of the truck, where Cruz had already returned. Lopez and Dyer were also standing by the bed of the truck. Cruz told Roman they had gotten the wallet from the victim, Hunter, after Lopez had demanded it from Hunter; Cruz then hit Hunter, closing the truck bed cover over him. Lopez handed the wallet to Roman. Roman removed the papers from it and gave the wallet back to Lopez.

Roman returned inside. Cruz and Lopez came into the room and said they were leaving. Roman followed them outside. A light blue van was there with four additional individuals. The four people were Romero, Daniel Ortega (Dyer’s boyfriend), defendant, and another male. Ortega asked Lopez, “Where’s the stuff at?”

Ortega, Dyer, and the other male got into the truck. Romero, Lopez, and defendant drove off in the van. When Roman and Cruz returned inside, Delores asked what they were going to do with Hunter. Roman said he did not know.

Juan Hernandez lives in rural southwest Fresno. He usually leaves for work between 4 and 5 a.m. On the morning of March 22, 2002, after leaving for work, he saw a van stopped at a stop sign. The van was followed by a very nice Chevrolet truck.

Harry Stackhouse also lives in rural southwest Fresno. On the morning of March 22, 2002 he heard several gunshots. Seconds later, he saw a blue van speed away. He then saw smoke. Another neighbor also reported hearing gunshots and seeing smoke. His wife called law enforcement. The smoke was not unusual because cars are frequently dumped and burned in the area.

Deputy Sheriff David Cunha received a call at 5:30 a.m. of a burning vehicle at Muscat and West in Fresno County. He arrived at the scene and found a burning truck. There was a burned human body in the bed of the truck. The victim, Hunter, had been shot three times in the head. The cause of death was perforation of the brain by multiple gunshot wounds. The burns on the body were post mortem. The autopsy physician could not tell if the victim suffered any blunt force injuries because the body was too badly burned.

At approximately 8 a.m. that same morning, Beu Vang arrived at his business. There, he found a cellular phone in the parking lot. He picked it up and brought it inside, believing that it belonged to one of his customers. When the phone rang Vang answered it. The person calling was Hunter’s mother, looking for Hunter. Law enforcement officers confiscated the phone later that morning.

Roman switched the speakers from Hunter’s truck that had been placed in his room with some less expensive ones. Hunter’s speakers and one of the amplifiers were placed in the basement of his home. Cruz took one of the amplifiers.

Roman got a call from Lopez. He said Hunter “ate dirt.” Lopez came by and took the “switched” speakers. Roman destroyed the papers that had been in Hunter’s wallet.

A couple of days later, Roman saw Romero with Cruz’s brother, Robert, at Kmart. Roman asked what had happened. Romero said that Dyer killed Hunter. Romero said that he, Lopez, and defendant waited in the truck. He also said that Hunter had been killed and then burned. Robert Cruz had the amplifier that he had purchased from his brother. He gave the amplifier to law enforcement when they spoke to him.

Stephanie Garcia saw a Crime Stopper’s announcement on television regarding the murder of Hunter.^[2] She called law enforcement officials and told them she had information about the murder. In March of 2002, Stephanie was out looking for her brother. She saw defendant, whom she had known for approximately eight years. Defendant was nervously pacing back and forth. Defendant told Stephanie that they had done something wrong and he was nervous. Defendant said they ran into someone last night and he killed someone. Defendant told her that a female had brought a guy over there and they beat him up and burned him for his rims, but they only got three rims. Defendant admitted to Stephanie that he hit the victim a couple of times and kicked him but denied he killed him. Stephanie testified that defendant said they had the female (Dyer) shoot him.

Law enforcement conducted interviews and issued search warrants. The speakers and one of the amplifiers were found in the basement of Roman’s home. The serial numbers and/or brand and model numbers on the stereo equipment found in the basement matched the stereo equipment boxes retrieved from Hunter’s home.

Cruz testified on his own behalf before he entered his guilty plea. He admitted taking things from Hunter’s truck, but he denied going to the murder scene. Cruz testified that Lopez urged him to leave defendant out of it. However, Cruz further testified that defendant was one of the people who left in the van. In his first interview with officers, Cruz said that defendant had nothing to do with the crimes. It was not until a later interview that he implicated defendant. At one point during his testimony, Cruz stated that he did not know if defendant was there, but he later testified that defendant was there.

Defendant testified that he was not present at any time prior to or during Hunter’s murder. He claimed he was at home asleep.

DISCUSSION

I. Admission of Hearsay Statements

“A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right however is not absolute.” (People v. Wilson (2005) 36 Cal.4th 309, 340.)

In Crawford v. Washington (2004) 541 U.S. 36 the prosecution introduced at trial a tape recording of a police interview with a witness who did not testify. The United States Supreme Court reversed the conviction, finding that the interview was not admissible. The court held that unless a witness is unavailable at trial and the defendant has had an opportunity to cross-examine the witness, the out-of-court “testimonial” hearsay is barred by the confrontation clause. The Crawford court did not spell out a comprehensive definition of “testimonial.” It did state that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Id. at p. 68.)

Earlier in the opinion, the Crawford court explained the history leading to the implementation of the confrontation clause and stated: “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” (Crawford v. Washington, supra, 541 U.S. at p. 50.)

Defendant contends that statements of Romero and Lopez, as testified to by Cruz and Roman at trial, were testimonial hearsay statements made by nontestifying declarants and pursuant to Crawford they were not admissible at trial. Defendant acknowledges that these statements largely were admitted at trial as coconspirator statements made in furtherance of the conspiracy, but he argues that the coconspirator hearsay exception (Evid. Code, § 1223) is trumped by the confrontation clause when the coconspirator’s statements are testimonial.

It is defendant’s position that “‘testimonial’ evidence should be considered to be oral, and possibly written, statements by a percipient witness to a crime. Here, the hearsay statements of Lopez and Romero should be considered ‘testimonial’ because they were oral statements by a percipient witness to a crime.”

Defendant asks that we ignore “dictum” in Crawford that clearly refutes his position. In examining the viability of hearsay exceptions developed over time, the court stated, “[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial--for example business records or statements in furtherance of a conspiracy.” (Crawford v. Washington, supra, 541 U.S. at p. 56.)

Crawford contains two clear statements regarding the obvious parameters of what is considered “testimonial.” The first is the above quoted statement of what is not testimonial.^[3] The other is the statement that “testimonial” applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Crawford v. Washington, supra, 541 U.S. at p. 68.)

The Crawford opinion could not be clearer that statements made in furtherance of a conspiracy are not testimonial and thus not subject to the rules requiring exclusion under the confrontation clause. Other than relying on Crawford, defendant has not argued that the statements were inadmissible under the coconspirator hearsay exception. “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law….” (Crawford v. Washington, supra, 541 U.S. at p. 68.)

Contrary to defendant’s position, not all out-of-court statements offered against an accused are testimonial and thus not all statements need to be tested by cross-examination. The confrontation clause is aimed at government abuses and the involvement of government officers in the production of testimony with an eye towards trial. (Crawford v. Washington, supra, 541 U.S. at pp. 52-53, 56.) The statements made among the perpetrators of the crimes against Hunter were made in the complete absence of any governmental involvement, they were not testimonial statements, and Roman and Cruz properly testified regarding the statements.

In addition to objecting to the statements of Lopez and Romero made during the course of the criminal events that Roman and Cruz testified to at trial, defendant also complains that statements made by Cruz during police interrogations that involved comments he heard from Lopez are inadmissible testimonial evidence. Defendant fails to recognize that Cruz testified at trial and was subject to cross-examination about his statements made during the police interview. Roman and Cruz testified at trial regarding their personal observations of the criminal events and the statements made by those involved. No right of confrontation was violated.

II. Aranda/Bruton

Defendant contends that numerous out-of-court statements by Lopez and Romero were admitted at trial in violation of the Aranda/Bruton rule.

The Aranda/Bruton rule stands for the proposition “that a nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the other defendant is generally unreliable and hence inadmissible as violative of that defendant’s right of confrontation and cross-examination, even if a limiting instruction is given.” (People v. Anderson (1987) 43 Cal.3d 1104, 1120-1121.)

We begin by rejecting defendant’s argument as it relates to any statements made by Lopez that were admitted at trial. The Aranda/Bruton rule does not apply to other participants in criminal activity when those participants are not jointly tried with the defendant. The Aranda/Bruton rule applies only to jointly tried codefendants. (People v. Brown (2003) 31 Cal.4th 518, 537.) Lopez was not jointly tried with defendant; the Aranda/Bruton rule thus has no application to these statements.

Next, defendant argues that numerous statements by Lopez and Romero referred to “they” and “we” and these statements directly implicated him and were admitted in violation of the Aranda/Bruton rule.

In Richardson v. Marsh (1987) 481 U.S. 200, the United States Supreme Court limited Bruton and held that “where the confession is not incriminating to the nontestifying defendant except when linked with evidence introduced later at trial, the judge’s instruction to disregard the evidence in assessing the defendant’s guilt ‘may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.’ [Citation.]” (People v. Archer (2000) 82 Cal.App.4th 1380, 1387.)

“In People v. Fletcher (1996) 13 Cal.4th 451, the California Supreme Court considered a question left open by Richardson--whether it is sufficient to avoid violation of the confrontation clause to edit a codefendant’s extrajudicial statement by replacing references to the nondeclarant’s name with pronouns or similar neutral and nonidentifying devices. The court concluded that ‘the efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.’” (People v. Archer, supra, 82 Cal.App.4th at p. 1387.)

Although this case did not involve “editing” of names, the same principles apply when the statement itself contains neutral references to other individuals. Jurors were well aware that several individuals were involved in the criminal activities resulting in the murder of Hunter. They were particularly aware that Dyer and Lopez were major participants and the activities involved several individuals. The references to “we” and “they” would not lead the jury to the conclusion that defendant was the coparticipant referred to in the statements by Romero. In the context of what occurred here the references were sufficiently neutral.

Roman testified that he joined in the conversation between Robert Cruz (Alfred Cruz’s brother) and Romero at Kmart. Roman asked Romero what happened the night of the murder. The following questions and answers occurred:

“Q [Prosecutor] What did he [David Romero] say?

“A That the girl had killed him and Bear [Ortega] and the girl had went back to the truck and him and Chuey [Lopez] and Martin [defendant] waited in the back.

“Q Chuey and him did what?

“A And Martin waited in the back.

“Q What else did he say?

“A That they killed him and burned him.”

Defendant did not object to this statement. The following day defense counsel made the following statement to the court:

“MR. RICHARDSON [Defense Counsel]: I would request that the Court admonish the District Attorney to admonish his witnesses about the Aranda-Bruton rule and also about hearsay concerning statements made by other co-defendants regarding my client. Yesterday, when Mr. Roman testified, he made a statement that purportedly a co-defendant made implicating my client. And I wasn’t particularly concerned, but my argument is going to be that that witness, Mr. Roman, is a complete liar. But I would like to have him admonish all of his remaining witnesses to not do that again.

“THE COURT: You didn’t make an objection at the time, and I guess it is for the tactical reasons you just described; is that right?

“MR. RICHARDSON: That is right.”

Defendant contends that his counsel was “wholly ineffective” in failing to object to this and the other previously discussed statements.

“‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’ [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)

Defense counsel clearly stated that his failure to object was a tactical decision. He argued to the jury that Roman was a complete liar and that in his initial statements to law enforcement Roman stated that defendant was not present. It was not until Roman was offered a deal to testify and was then reinterviewed that he said that defendant was present. Roman’s agreement required that he would testify in the prosecution of defendant. Defense counsel argued that Roman did not mention defendant when he testified at the preliminary hearing, but in order to make sure that Roman was in compliance with his agreement he brought up defendant at trial. Defense counsel argued that the jury should totally disregard any testimony from Roman.

Defense counsel had tactical reasons for not objecting to the admission of the evidence. Defendant has failed to show that his counsel’s performance fell outside of the bounds of professional competence.

III. Claimed Prosecutorial Misconduct

During closing argument the prosecutor was discussing the involvement of all of the participants in Hunter’s murder. He stated: “Because, you see, it took courage, it took a lack of courage to do something on one’s own. And it is so much easier to involve other people when you’re going to do a horrendous, unhumanitarian sort of act like was done in this case. [¶] If we have learned anything from the wars our country has fought that when a large group of people decide to do something that is horrendous and evil, it is a lot easier to get some people on board to do it. The more there, the more, I guess, can you dilute the responsibility, the easier it is to commit those vicious and cruel acts.” Defense counsel objected but did not request an admonition.

Defendant now claims that the above remark constituted intentional misconduct requiring the reversal of his conviction.

“The law governing prosecutorial misconduct is well established. ‘Conduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury” [citations] or “is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” [citation].’ [Citations.] A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (People v. Kennedy (2005) 36 Cal.4th 595, 617-618.)

Counsel failed to request an admonition and has thus waived the issue for purposes of appeal. In any event, we do not find that the argument constituted misconduct. Even opprobrious terms used in argument “are not necessarily misconduct when they are reasonably warranted by the evidence.” (People v. McDermott (2002) 28 Cal.4th 946, 1002.) Referring to conduct by a defendant as “unhumanitarian” or “horrendous” does “not exceed the permissible scope of closing argument in view of the evidence presented of, among other things, defendant’s deliberate and cold-blooded planning of the killing…. (See, e.g., People v. Hawkins [(1995) 10 Cal.4th 920, 961] [finding no prosecutorial misconduct in describing the defendant as ‘coiled like a snake’ and in comparing the act of sentencing defendant to life in prison as akin to ‘putting a rabid dog in the pound’]; People v. Sully (1991) 53 Cal.3d 1195, 1249 … [reference to the defendant as a ‘human monster’ and a ‘mutation’].)” (Ibid.)

In light of the evidence, we find that the People’s closing argument was a fair comment on the state of the evidence.

DISPOSITION

The judgment is affirmed.

_____________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

_________________________________

WISEMAN, J.

_________________________________

GOMES, J.

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^[1] People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.

^[2] Crime Stoppers is a public service announcement on television asking for information about particular crimes. The individuals giving information are sometimes monetarily rewarded.

^[3] Dicta emanating from a higher court should be considered “highly persuasive.” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328.)