People v. Gonzalez CA2/3 ( 2021 )

Filed 5/27/21 P. v. Gonzalez CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300422
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA089384)
v.
JONATHAN JOSUE
GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed as
modified.
Mary Jo Strnad, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
A jury found Jonathan Gonzalez guilty of two counts of
attempted murder. On appeal, he raises numerous contentions,
the main one being that the trial court violated his Sixth
Amendment confrontation rights by finding that one victim was
unavailable to testify and allowing her preliminary hearing
testimony to be introduced in lieu of her live testimony. Gonzalez
also contends that evidence identifying him was insufficient to
support his convictions. We reject these and other contentions
but modify the judgment to correct a sentencing error.
BACKGROUND
I. The attempted murders
On the afternoon of November 30, 2016, the two juvenile
victims Mario B. and Preciosa L. were at a bus stop. Although
both were members of the Pacoima Treces gang, they were in
Blythe Street gang territory. A witness near the bus stop saw a
man and woman in a gray Nissan yelling at the two victims. The
man and woman exited the car and “squared up” with the
victims. The woman said, “ ‘Blythe Street’ ” or “ ‘What up,
bitch.’ ” After a few minutes of exchanging words, the two
victims walked away, and the man and woman returned to their
car and pursued them. The man wore dark blue jeans and a dark
jersey shirt. About 45 minutes later, witnesses heard gunshots
and saw Mario and Preciosa on the ground. Both had been shot.
A recording from a responding officer’s bodycam was played
for the jury. In that recording, Mario said “Burros”1 shot him,
1This apparently is a derogatory term for the Blythe Street
gang. It is also spelled “Burrows” in portions of the record.
2
and his attackers were two “Mexicans” who said, “ ‘Fuck Pacas.’ ”
Preciosa added that the attackers said, “ ‘fucken Pacoima.’ ”
En route to the hospital, Preciosa made statements that
were also captured by an officer’s bodycam recorder. She said
that “they” came up from behind her and Mario, and a Hispanic
man said, “ ‘Fuck Pacas.’ ” The man was from “ ‘Burros.
Blythe.’ ” Preciosa also said she was a member of the Pacoima
Pacas gang, and her moniker was Wicked.
At the hospital later on the day she was shot, Preciosa
repeated to Detective Felipe Martinez that she was from Pacoima
Tiny Locas, and her moniker was Wicked. Preciosa told him that
earlier that day, a new model Honda with tinted windows pulled
alongside her and Mario. A man and woman in the car yelled,
“ ‘Blythe Street.’ ” The man was 20 or 25 years old. The man and
woman got out of the car, and the man confronted Mario, saying,
“ ‘This is Blythe. This is our Town.’ ” Mario replied, “ ‘Pacas
Trece.’ ” The woman similarly confronted Preciosa with, “ ‘Blythe
Street, bitch.’ ” Preciosa responded in kind, “ ‘Pacas Trece Tiny
Locas, bitch.’ ” The group argued until the man and woman
returned to their car. Although the woman told the victims to
meet around the corner to fight, Preciosa and Mario did not meet
them. Instead, after waiting at a nearby swap meet for almost an
hour, they were walking when an older model gray Honda did a
U-turn in front of them. The male driver was bald, and the male
Hispanic passenger wore a blue Brooklyn Dodgers hat with a
white B logo on it. The passenger got out of the car, said “ ‘Fuck
Pacas,’ ” and shot Mario. Saying, “ ‘You too, bitch,’ ” he then shot
Preciosa. Preciosa described the shooter as a male Hispanic,
5 feet 8 or 9 inches tall, and wearing blue clothing, including the
Brooklyn Dodgers hat.
3
A week after being shot, Mario gave a similar account to
the detective on December 6, 2016.2 Mario said that the car that
first approached him and Preciosa was an older model blue
BMW. The passenger, a male Hispanic, got out of the car. He
was 5 feet 8 or 9 inches tall with a medium complexion, stocky
build, and tattoos on his arms. He wore dark clothing, blue jeans,
and a blue Brooklyn Dodgers baseball hat with a B logo on it.
Mario associated the hat with the Blythe Street gang. Mario
became concerned, because Preciosa was wearing a Pittsburgh
Steelers hat, which is associated with the Pacoima Pacas gang.
The man said, “Blythe Street,” and told Mario he had a “strap” (a
gun), and they should “get down.” Mario replied that he was
from Pacas Trece but wanted no problems. However, the man
told them to meet around the corner “to handle this.”
Instead of going to the meeting, Mario and Preciosa waited
at the nearby swap meet until they thought it was safe. After
leaving the swap meet, Mario saw an older model gray car driven
by a male Hispanic with a shaved head. The male Hispanic
passenger—the same man who had confronted Mario earlier—
wore a Brooklyn Dodgers baseball hat with a B logo on it. The
driver got out of the car and followed Mario and Preciosa on foot.
The man said, “ ‘Fuck Pacas’ ” and shot Mario and Preciosa,
yelling “ ‘Blythe Street’ ” as he ran away. Mario said that the
shooter was a male Hispanic, 18-to-19 years old, bald, medium
build, 5 feet 10 to six feet tall, and wore blue clothing.
A month after the shooting, officers conducted a probation
compliance check on Gonzalez. They found baseball hats with
the letter “B” on them.
2 Mario was still hospitalized.
4
A police officer assigned to monitor the Blythe Street gang
testified that he had almost daily encounters with Gonzalez and
had arrested him and searched his residence. Gonzalez typically
wore a sports hat associated with Blythe Street: Brooklyn Nets,
Boston Red Sox, Brooklyn Dodgers with a B on it, or the Raiders.
Gonzalez would admit his gang membership by saying “B’s up.”
The parties stipulated that Gonzalez is 5 feet 5 inches tall
when wearing shoes.
II. Identifications
Based on Mario and Preciosa’s descriptions of the shooter,
Detective Martinez compiled five photographic lineups consisting
of six photographs each. On December 8, 2016, the detective
admonished Mario that he was going to show him photographs
but the person involved in the crimes may not be in them. The
detective then showed the lineups to Mario, who rejected the first
two but hesitated over the third, saying that the person in the
second position, Gonzalez, was the man who hit him up during
the initial incident and was the passenger in the car during the
second incident. Mario recognized “100 percent” Gonzalez’s face,
the three dots near his eye, and facial hair. Mario wrote, “facial
hair three dots and eye” and drew an arrow to Gonzalez’s photo.
The detective then reinterviewed Preciosa on December
15, 2016. She repeated that just before she and Mario were shot,
an older gray model Honda driven by a bald Hispanic man pulled
alongside them. The car’s passenger wore a Brooklyn Dodgers
hat with a B logo, and the passenger was the shooter. The
detective then showed Preciosa a photographic lineup, and she
told him that the person in the second position, Gonzalez,
resembled the shooter and looked familiar. At this point, the
detective began to record the interview. Preciosa initially said,
5
“Well Two . . . this one, none of these, none of these catch my
attention.” The detective then asked if the person in the second
position was the person she saw driving back, and Preciosa said
he could have been because he looked “too familiar, too familiar,
I’m thinking it was this one that was wearing a B hat.” She
agreed that he was the one who hit her up and crept up on her.
When the detective asked Preciosa to rephrase what the
individual did, she said he “was the one, either . . . he was the
passenger, the shotgun one.” She knew for sure that he was the
one wearing the B hat. The detective asked, “And that’s the one
that shot you?” Preciosa answered, “Again, just . . . yeah. Cause
the one that shot had the B hat.”
III. Mario and Preciosa’s later statements and trial testimony
About two years after he was shot, Mario, who was now
incarcerated, told a detective in a follow-up interview that he did
not remember the incident and wanted nothing to do with the
investigation, because involvement in it could endanger him in
the general prison population. At trial, Mario continued to say he
did not remember anything about the shooting or about
identifying Gonzalez.
Preciosa invoked her Fifth Amendment privilege at trial
and was accordingly found unavailable. Her preliminary hearing
testimony was therefore read in lieu of her live testimony. At the
outset of the preliminary hearing, Preciosa had refused to testify
and was uncooperative. She refused to show the scar on her arm
caused by the gunshot wound, repeatedly said she did not want to
be there, and refused to sit down. When shown video of her
December 15, 2016 interview with Detective Martinez, she
admitted she was the person in the footage but said she did not
remember the video. As to her identification of Gonzalez,
6
Preciosa testified that she had been on medication when she
made it so she just “pointed out a person.” She did not remember
identifying the man who shot her and Mario. She also did not
remember any details of the incident, including being at the
location of the shooting and being with Mario. However, she did
admit belonging to a gang, although she would not identify which
one. She also remembered the description of the shooter she gave
to the detective. She admitted having a conviction for
misdemeanor battery on emergency personnel.
On cross-examination, Preciosa said that when the
detective asked if the guy in the photograph was in the car, she
just agreed with him. She denied that Gonzalez was the guy in
the car, and she did not believe he was the shooter.
IV. Defense eyewitness and identification expert testimony
An expert in eyewitness memory and identification testified
for the defense. According to him, memory does not work like a
camera, capturing everything within the aperture of its lens.
Rather, there are limits on our attention. Stress and trauma
inhibit processing information. Also, human memory is
changeable. Gaps in memory can be filled in, and memory can be
reconstructed, a process called inferential memory. Then, once a
person decides how something happened, they “buy into it” 100
percent, right or wrong.
The expert also testified generally about the proper way to
administer lineups and problems with the selection process.
Identifications should be double-blind, meaning that the person
administering it should not know who the suspect is and should
limit interaction with the witness to avoid inadvertently or
deliberately influencing the witness. To create a fair lineup, the
“fillers” must match what the witness is looking for. Otherwise, a
7
lineup can be suggestive if only one viable choice is presented, for
example, where the suspect is a middle-aged White man, and the
lineup has only one middle-aged White man. Also, people treat
lineups like a multiple choice test in which they pick the best
answer, which is why it is important to admonish the witness
that the person they are seeking may not be in the lineup.
“Relative judgment” occurs when a witness picks someone
relative to other options as opposed to actually recognizing the
person.
V. Verdict and sentence
A jury found Gonzalez guilty of two counts of attempted
murder (Pen. Code,3 §§ 664, 187, subd. (a)) with true findings on
allegations that the attempted murders were willful, deliberate,
and premeditated. The jury also found true personal firearm use
(§ 12022.53, subds. (b), (c), (d), (e)(1)), gang (§ 186.22, subd.
(b)(5)), and personal infliction of great bodily injury (§ 12022.7,
subd. (a)) allegations.
On July 24, 2019, the trial court sentenced Gonzalez on
count 1 to life with a minimum parole eligibility of 15 years per
the gang enhancement, 25 years to life for the gun enhancement,
and three years for the great bodily injury enhancement. The
trial court imposed the same sentence on count 2, to run
consecutive to the sentence on count 1.
3All further undesignated statutory references are to the
Penal Code.
8
DISCUSSION
I. Admission of Preciosa’s preliminary hearing testimony
Based on Preciosa’s assertion of her Fifth Amendment
privilege against self-incrimination and her refusal to answer
questions, the trial court found her unavailable to testify. Her
preliminary hearing testimony was therefore introduced in lieu of
her live testimony. Gonzalez now contends that this violated his
Sixth Amendment right to confront Preciosa.
A. Additional background
After Preciosa testified at the preliminary hearing but
before trial, she was charged in an unrelated case with felony
murder. At the time of trial, a transfer hearing to adult court
under Welfare and Institutions Code section 707 was pending.
Her counsel therefore expressed concern that any testimony
Preciosa gave about gang affiliation in the current trial could be
used against her at the transfer hearing, where Preciosa’s past
behavior, probation violations, and amenability to being
rehabilitated would be relevant.
The trial court held a hearing under Evidence Code section
402 (402 hearing). At that hearing, Preciosa said on direct
examination she could not remember talking to Detective
Martinez, being shown a photographic lineup, or any of her
statements about what happened. When asked if she was with
Mario on the day of the shooting or if she was dating him, she
asserted the Fifth Amendment. She did not remember telling
law enforcement what happened the day she was shot or giving a
description of the shooter to law enforcement. On cross-
examination by defense counsel, Preciosa asserted the privilege
9
when asked any gang-related questions and questions about
what happened the day she was shot.
The trial court found that Preciosa had properly invoked
the Fifth Amendment and that she was not answering questions.
Accordingly, the trial court found that she was unavailable as a
witness and that her preliminary hearing testimony could be
used in lieu of her live testimony. Defense counsel objected to
using the preliminary hearing testimony because counsel’s cross-
examination during that hearing had been limited due to
Preciosa’s lack of cooperation. The trial court overruled the
objection, noting that Preciosa answered questions at the 402
hearing in the same way she did at the preliminary hearing,
which is to say, uncooperatively. “So her being on the witness
stand here would not change the circumstance,” and Preciosa had
repeatedly said she did not remember the circumstances of the
shooting. “Again, today it’s not like she’s being cooperative or she
would answer any questions anyway.” And, based on her
pending juvenile matter, her assertion of the Fifth Amendment
was appropriate.
Preciosa’s preliminary hearing testimony, which we
summarized above, was then read to the jury.4
B. Confrontation rights
The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to confront witnesses
against them. This constitutional guarantee ensures that the
4 This background shows that Gonzalez adequately objected
under the Sixth Amendment. We accordingly reject the People’s
assertion that Gonzalez forfeited any issue on appeal regarding
that issue.
10
defendant is able to cross-examine witnesses, thereby testing
their recollection and compelling them to face a jury so that it
may judge the witnesses by, for example, their demeanor.
(People v. Louis (1986) 42 Cal.3d 969, 982.) Denying or
significantly diminishing this confrontation right deprives a
defendant of the essential means of testing the credibility of the
prosecution’s witnesses, thus calling into question the integrity of
the fact-finding process. (People v. Herrera (2010) 49 Cal.4th 613,
621.)
However, a defendant’s confrontation right is not absolute
and may give way when a witness is entitled to assert the Fifth
Amendment privilege against self-incrimination and the
defendant had a prior opportunity to cross-examine that witness.
(People v. Seijas (2005) 36 Cal.4th 291, 303 (Seijas).) The
defendant must have had the opportunity to cross-examine the
witness at the previous hearing and have had an interest and
motive similar to that at the subsequent hearing. (Ibid.) To be
unavailable on this ground, the witness must not only assert the
privilege but be entitled to assert it. (Ibid.) “To deny an
assertion of the privilege, ‘the judge must be “ ‘perfectly clear,
from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer[s] cannot
possibly have such tendency’ to incriminate.’ ” ’ ” (Id. at pp. 304–
305.) Where the relevant facts are undisputed, we independently
11
review a trial court’s ruling permitting a witness to assert the
privilege. (Id. at p. 304.)5
Evidence Code section 1291 codifies this exception to the
hearsay rule. Under that section, prior testimony is not made
inadmissible by the hearsay rule if, first, the declarant is
unavailable as a witness and, second, the party against whom
that testimony is offered had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that
which the party has at the hearing. (Evid. Code, § 1291,
subd. (a)(2).) A person is unavailable as a witness when the
person is exempted on “the ground of privilege from testifying
concerning the matter to which his or her statement is relevant.”
(Id., § 240, subd. (a)(1).)
1. Unavailability as a witness
Per Evidence Code section 1291, we first consider whether
Preciosa was unavailable as a witness. The trial court here found
that she was unavailable, partially based on her assertion of her
5 Gonzalez cites Fost v. Superior Court (2000) 80
Cal.App.4th 724 and People v. Seminoff (2008) 159 Cal.App.4th
518, to argue that the Fifth Amendment privilege may only be
used as a shield and not as a sword to block inquiry. We have no
issue with that argument as a general proposition. But those
cases have little application to the scenario before us. Fost
involved the tension between the right of confrontation and the
newspaper shield law, which is not at issue here. In Seminoff, a
witness testified for the defense at a suppression hearing but
then asserted the Fifth Amendment on cross-examination by the
prosecution. The trial court therefore struck the witness’s
testimony. (Seminoff, at p. 525.) Seminoff is factually and
procedurally distinguishable.
12
Fifth Amendment privilege against self-incrimination. A witness
may assert that privilege if the witness has reasonable cause to
apprehend danger from a direct answer to a question. (Seijas,
supra, 36 Cal.4th at p. 304.) “ ‘To sustain the privilege, it need
only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.’ ” (Ibid.) We
liberally construe that privilege in favor of the right it was
intended to secure. (Ibid.)
Here, Gonzalez argues that nothing Preciosa could testify
to in the current action could incriminate her in the unrelated
juvenile matter, because Preciosa’s only involvement in this case
was as a victim. Thus, the crimes in the current case were
independent of the crimes Preciosa allegedly committed in the
juvenile case. That is correct. Even so, it is inaccurate to say
that Preciosa had no reasonable cause to apprehend danger from
a direct answer to a question she might be asked in this case.
(See, e.g., Seijas, supra, 36 Cal.4th at p. 304.) Any testimony she
might give about gang-related aspects of the current case could
be used to impeach her in the juvenile matter. Gonzalez counters
that this was not a valid reason to assert the privilege because
other evidence established Preciosa’s gang affiliation, thus
placing her in no additional jeopardy. However, this argument
misses the point. Even if other evidence incriminated Preciosa as
to her gang affiliation, the Fifth Amendment provides that she
cannot be compelled to give such evidence against herself.
In addition, Preciosa was facing not just the criminal
charges but a transfer hearing from juvenile to adult court. The
significance of that transfer hearing cannot be overstated.
13
Rehabilitation is the goal in juvenile court, so staying in the
juvenile system can result in dramatically different and more
lenient treatment than what a juvenile may face in adult court.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.)
Therefore, a transfer hearing is one of the most crucial and
important proceedings that will determine a youthful offender’s
future.
In ruling on the transfer motion, a juvenile court takes a
holistic approach in determining whether the minor should be
transferred to adult court. The juvenile court must consider any
relevant evidence and the minor’s degree of criminal
sophistication, whether she can be rehabilitated, and her
delinquency history. (Welf. & Inst. Code, § 707, subd. (a)(3)(A),
(B), (C).) When considering criminal sophistication, the trial
court must also consider any relevant factor, such as the minor’s
age, maturity, intellectual capacity, and physical, mental, and
emotional health at the time of the alleged offense, impetuosity or
failure to appreciate risks and consequences of criminal behavior,
the effect of peer pressure on her actions, and the effect of her
family, community environment, and childhood trauma. (Id.,
§ 707, subd. (a)(3)(A)(ii).)
A trial court considering these factors could find they
weighed against keeping Preciosa in juvenile court, based on the
circumstances surrounding the current case. On the day of the
shooting, Preciosa was with Mario, her then-boyfriend and a gang
member. She too was a gang member. Preciosa was openly
wearing Mario’s gang-related hat, even though she was in
another gang’s territory. And although Mario testified that he
had tried to defuse the situation during the initial encounter,
there was evidence that Preciosa wanted to fight with the man
14
and woman who first approached them. Preciosa’s mere
association with Mario and her behavior thus reflected poorly on
her choices, impetuosity, ability to assess the risks and
consequences of her behavior, and to the danger she posed to
herself and others. In short, the evidence was incriminating and
could have weighed against her at the transfer hearing.
Gonzalez, however, also argues that the trial court’s ruling
was overbroad because Preciosa asserted her Fifth Amendment
privilege only to questions about her gang affiliation. That was
certainly her counsel’s focus during argument about admitting
Preciosa’s testimony. However, although the defense asked
questions primarily about the gang aspects of the current case,
Preciosa also asserted the privilege when asked if she was with
Mario and if he had a knife the day they were shot.
Moreover, the trial court also found Preciosa unavailable
because of her general refusal to answer questions. Under
Evidence Code section 240, subdivision (a)(6), a witness is
unavailable if she persistently refuses to testify despite having
been found in contempt for refusing to testify. In People v.
Lawson (2020) 52 Cal.App.5th 1121, 1125, for example, the
sexual assault victim testified at a preliminary hearing and at a
first trial, which ended in a mistrial on some counts. Citing her
emotional and mental well-being, the victim refused to testify at
a second trial. After hearings that verified the victim’s
unwillingness to testify, the trial court found her unavailable as a
witness. (Id. at p. 1128.) Lawson found that the trial court was
not required to take the extreme step of finding the witness in
contempt to induce her testimony. (Id. at p. 1130; accord, People
v. Smith (2003) 30 Cal.4th 581, 624.) Rather, a trial court need
only take reasonable steps to induce the witness to testify unless
15
it is obvious such steps would be unavailing. (Lawson, at p. 1130;
see also People v. Farmer (1983) 145 Cal.App.3d 948, 951
[witness unavailable where record showed she would refuse to
testify to any matter to which she had previously testified; no
requirement witness assert privilege separately to specific
questions]; accord, People v. Hollinquest (2010) 190 Cal.App.4th
1534, 1547–1548.)
Although Lawson involved a sexual assault victim, which
Preciosa was not, that is not a sufficiently distinguishing factor.
Preciosa, at the preliminary hearing and at the 402 hearing,
refused to answer most questions beyond claiming she did not
remember anything. At the preliminary hearing, the trial court
threatened her with contempt to no avail. Therefore, the trial
court took reasonable steps to get Preciosa to testify and did not
have to find her in contempt before finding her unavailable. This
is especially so considering that Preciosa, notwithstanding her
bad attitude and obstreperous nature, was a minor. The record is
clear that Preciosa would refuse to answer questions about the
shooting and that the trial court took reasonable steps to induce
her to testify.
We therefore conclude that the trial court did not err by
finding Preciosa unavailable as a witness.
2. Opportunity for cross-examination
Having found that the trial court did not err by finding
Preciosa unavailable, the next question is whether Gonzalez had
the opportunity to cross-examine her with an interest and motive
similar to that which he had at trial. (Evid. Code, § 1291, subd.
(a)(2).) Admissibility of prior testimony under Evidence Code
section 1291 does not depend on whether the defendant availed
himself of that opportunity. (People v. Wilson (2005) 36 Cal.4th
16309, 343.) And the interest and motive at the earlier proceeding
need only be similar to the interest and motive at the later
proceeding. (People v. Alcala (1992) 4 Cal.4th 742, 783–784.)
Gonzalez now argues that his counsel did not have a fair
opportunity to cross-examine Preciosa at the preliminary
hearing. Rather, his counsel conducted a limited cross-
examination of Preciosa at that hearing in deference to the trial
court and because of Preciosa’s truculence. We are unpersuaded.
The trial court did tell Preciosa at the preliminary hearing that it
would try to get her out of court as fast as possible. And, when
Preciosa refused to remain seated toward the end of direct
examination, the trial court assured her they were close to
finishing. However, Gonzalez confuses the trial court’s attempts
to reassure and to calm Preciosa with a rush to conclude the
hearing at the expense of cross-examination. To the contrary, the
trial court repeatedly advised Preciosa that it understood she did
not want to be there but “this hearing is going to continue, and
the quicker we get done with it, the quicker you’ll be on your
way.” The trial court further advised Preciosa that it could hold
her in contempt but did not want to do that. And it told her that
they would work into the lunch hour to finish and if they did not
finish, then Preciosa would be ordered back for the next day and
the next, if it took that long. Therefore, the trial court was clear
that the hearing would not be cut short because of Preciosa’s
attitude.
Indeed, when it came time for the defense to cross-examine
Preciosa, she answered counsel’s questions more readily. As to
the identification, Preciosa said she did not remember if the
detective suggested she pick a certain photograph. Preciosa
testified that when the detective asked if that was the guy in the
17
car, she just agreed even though she did not believe he was the
shooter. She added that she was heavily medicated when she
identified Gonzalez, and he was not the guy who shot her.
This also refutes Gonzalez’s next argument about cross-
examination, that his counsel’s interest and motive at the
preliminary hearing were dissimilar to those at trial. Counsel’s
interests and motives at both proceedings were the same—to
discredit Preciosa’s identification. Given that on direct
examination Preciosa said she did not remember the incident or
the identification, and on cross-examination she recanted her
identification of Gonzalez, counsel achieved that goal. Indeed,
defense counsel moved to dismiss for insufficiency of the evidence
at the preliminary hearing, arguing that nothing tied Gonzalez to
the crime and that Preciosa had said he was not the shooter.
This is no different than Gonzalez’s position at trial. (See, e.g.,
People v. Carter (2005) 36 Cal.4th 1114, 1172 [defendant’s
interest and motive sufficiently similar at preliminary hearing
and trial to satisfy Evidence Code section 1291].)
3. Prejudice
Any error in admitting Preciosa’s preliminary hearing
testimony must be reviewed under the Chapman v. California
(1967) 386 U.S. 18, 24, standard, that is, whether the error was
harmless beyond a reasonable doubt. (People v. Byron (2009) 170
Cal.App.4th 657, 676.) Even under that standard, and
acknowledging that identification was the key issue, we cannot
agree that admitting Preciosa’s preliminary hearing testimony in
lieu of her live testimony was prejudicial. As the trial court
noted, Preciosa was unambiguous in her unwillingness to testify
about the key issues. At the preliminary hearing, she was
disrespectful, refused to sit, and decried what she felt was a
18
violation of her rights. She undercut the validity of her
identification by saying she was medicated when she made it and
had just “pointed out a person.” She also denied remembering
identifying the man who shot her and Mario. At the later 402
hearing, she continued to say she did not remember anything of
substance about the crime, including anything concerning the
identification. Beyond a reasonable doubt, Preciosa would have
continued in this vein had she testified at trial.
That being so, and even if the trial court erred by finding
Preciosa unavailable as a witness, it is unclear how her live
testimony would have helped the defense. Preciosa had already
retreated from the identification at the preliminary hearing.
Mario had also retracted his identification. Therefore, to the
extent the defense goal was to get Preciosa to recant her
identification, Preciosa had already done so at the preliminary
hearing. And, instead of reinforcing the defense theory that
Preciosa had misidentified Gonzalez, her and Mario’s retractions
can also be viewed as strengthening the identifications. Having
Preciosa at trial continue her protestations and claims not to
recall even the smallest detail about what happened could have
lent, in the jury’s mind, credibility to the identifications. Stated
simply, the jury could have believed that the witness doth protest
too much.
Otherwise, the defense effectively attacked Preciosa’s
identification by cross-examining the detective who administered
the lineup. Counsel elicited that the detective knew that
Gonzalez was the suspect, which, according to the defense expert,
violated the better practice of having the person administering
the lineup be ignorant of who is the suspect to avoid deliberately
or inadvertently suggesting to the witness who is the suspect.
19
Counsel also highlighted potential problems with how the lineup
was compiled; for example, Gonzalez might have stood out from
the other suspects because he had three dots tattooed on his face.
The defense buttressed this argument through the eyewitness
identification expert’s testimony about suggestive identification
procedures, including that no person should stand out.
We therefore conclude that any error in finding Preciosa
unavailable and in admitting her preliminary hearing testimony
was harmless beyond a reasonable doubt.
II. Exclusion of impeachment evidence
Gonzalez next contends that the trial court improperly
excluded evidence of Preciosa’s pending juvenile matter. We
disagree.
A. Additional background
In 2018, Preciosa allegedly left her suitable placement,
stole a car, and crashed it into another car, killing a person. By
the time of trial, she therefore had a pending juvenile petition for
felony murder with the possibility it would be reduced to gross
vehicular manslaughter. The defense acknowledged it could not
bring up the charges but wanted to elicit the facts to establish
Preciosa’s moral turpitude. In response, the prosecutor argued
that admitting the evidence would require a trial within a trial,
when the defense had other avenues of impeachment, namely
that Preciosa was an active gang member.
The trial court denied the request because the juvenile
petition was merely pending and had not yet been sustained.
The trial court found that inquiry into Preciosa’s conduct in the
juvenile matter could raise Fifth Amendment issues and would
require her attorneys in the juvenile matter to advise her. And if
20
Preciosa asserted the Fifth Amendment, then the defense would
have to get witnesses to establish the facts underlying the
juvenile petition. The trial court particularly noted that Preciosa
was a juvenile and that the events took place after she was shot
and after she testified at the preliminary hearing. The trial court
therefore excluded the evidence under Evidence Code section 352,
finding it would confuse the jury and consume an undue amount
of time.
B. No abuse of discretion
Because misconduct “involving moral turpitude may
suggest a willingness to lie” (People v. Wheeler (1992) 4 Cal.4th
284, 295), a witness may be impeached with prior conduct
involving moral turpitude even if it did not result in a felony
conviction (People v. Clark (2011) 52 Cal.4th 856, 931).
Misconduct other than a prior conviction “generally is less
probative of immoral character or dishonesty and may involve
problems involving proof, unfair surprise, and the evaluation of
moral turpitude.” (Clark, at pp. 931–932.) Trial courts have
discretion to exclude such evidence “if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.) A trial court’s
exercise of its broad discretion to admit or to exclude
impeachment evidence will ordinarily be upheld on appeal.
(Clark, at p. 932.)
Gonzalez acknowledges the broad discretion vested in a
trial court in ruling on the admissibility of evidence but suggests
the trial court here failed to fulfill its duty to know of and to
assess the proffered evidence before excluding it. The suggestion
21
is meritless. The trial court held a substantive, in-depth hearing
on the issue at which all counsel spoke and the trial court
demonstrated its command of the law and essential facts. When
the trial court noted that the events giving rise to the juvenile
petition occurred after the shooting, it was implicitly commenting
on the probative value of the evidence. That is, nothing giving
rise to the juvenile petition gave Preciosa a direct motive to lie in
the current case. And, although Gonzalez now faults the trial
court for failing to obtain Preciosa’s juvenile file, he does not say
what the file would have added to the hearing. Instead, the
record unequivocally shows that the trial court complied with its
duty to weigh the probative value of the proposed evidence as
required by Evidence Code section 352.
Turning to the substantive issue of whether the trial court
abused its discretion by excluding the evidence, it did not.
Preciosa could not testify about facts underlying the petition
without incriminating herself, so other witnesses would have to
establish those facts. Those alleged facts included that Preciosa
absconded from her suitable placement, stole a car, drove it
recklessly, and crashed into another car, killing its passenger. As
the trial court found, admitting the evidence would have
necessitated a trial within a trial, thereby consuming an undue
amount of time, when the defense had ample other impeachment
evidence. Preciosa had several times admitted she was a gang
member; indeed, a detective described her as an open and proud
one. Preciosa also brought her credibility and willingness to lie
into question by saying that she had misidentified Gonzalez and
had only identified him at the detective’s suggestion. Further,
Preciosa’s behavior at the preliminary hearing did her no favors.
Although Gonzalez suggests that the cold reading of that
22
testimony at trial favored the prosecution, to the extent the
defense wanted to cast doubt on Preciosa’s morality, even the cold
reading of her testimony served that purpose.
Finally, Preciosa’s juvenile matter concededly spoke to her
overall credibility and moral turpitude. But it did not implicate a
direct bias or motive to lie in Gonzalez’s case. Indeed, as the trial
court noted, the events giving rise to the juvenile petition
occurred in 2018, after Preciosa had already identified Gonzalez
and then recanted at the preliminary hearing. The matters were
therefore unconnected. Under these circumstances where the
witness has no direct reason to lie in the current case, courts are
empowered to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.
(People v. Wheeler, supra, 4 Cal.4th at p. 296.)
III. CALCRIM No. 315
Gonzalez challenges the standard jury instruction the trial
court gave regarding eyewitness identification testimony,
CALCRIM No. 315. The instruction lists factors for the jury to
consider in evaluating identification testimony, including “[h]ow
certain was the witness when he or she made an identification?”
Our California Supreme Court has approved use of CALCRIM
No. 315’s predecessor instruction, CALJIC No. 2.92, including its
certainty factor. (People v. Sánchez (2016) 63 Cal.4th 411, 462;
People v. Wright (1988) 45 Cal.3d 1126, 1144.) But the California
Supreme Court is now considering whether instructing a jury
that an eyewitness’s level of certainty can be considered when
evaluating the reliability of the identification per CALCRIM No.
315 violates a defendant’s due process rights. (People v. Lemcke
(June 21, 2018, G054241) [nonpub. opn.] review granted Oct. 10,
2018, S250108.) We express no opinion on the issue and instead
23
merely find that, for now, we are bound by Sánchez.6 (See
generally Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
IV. Cumulative error
Gonzalez asserts that the cumulative effect of the
purported errors requires reversal, even if they were individually
harmless. As we have “ ‘either rejected on the merits defendant’s
claims of error or have found any assumed errors to be
nonprejudicial,’ ” we reach the same conclusion with respect to
the cumulative effect of any purported errors. (People v. Cole
(2004) 33 Cal.4th 1158, 1235–1236.)
V. Sufficiency of the evidence
Gonzalez contends that the evidence was insufficient to
support his convictions because the evidence rested on Preciosa’s
untested and unreliable identification.7 We disagree.
A. Standard of review
The standard for determining whether evidence was
sufficient to sustain a criminal conviction is well-settled. We
“ ‘ “review the entire record in the light most favorable to the
judgment to determine whether it contains substantial
6The certainty factor was not left unchallenged by the
defense expert, who testified that there are case studies in which
witnesses 100 percent certain of their identifications were wrong.
7Gonzalez makes no direct argument that the photographic
lineups were unduly suggestive and should have been excluded
under the two-part test described in, for example, People v.
Cunningham (2001) 25 Cal.4th 926, 989.
24
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” (People v.
McCurdy (2014) 59 Cal.4th 1063, 1104.) We presume in support
of the judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. (Ibid.) Resolution of
conflicts and inconsistencies in the testimony of witnesses is in
the trier of fact’s exclusive province. (People v. Young (2005) 34
Cal.4th 1149, 1181.) We may not on appeal substitute our
judgment for the jury’s unless the testimony is so inherently
improbable and impossible of belief as to constitute no evidence
at all. (Ibid.) Reversal is unwarranted unless on no hypothesis
whatever is there sufficient substantial evidence to support the
conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Notwithstanding these well-settled principles, Gonzalez
suggests that the standard of review is “tempered” where, first,
evidence was withheld from the jury and, second, where the
conviction rested primarily on identification evidence. We have
already rejected the first premise on which this suggestion is
based, that evidence was improperly withheld from the jury.
Moreover, In re Sodersten (2007) 146 Cal.App.4th 1163, which
Gonzalez cites, does not support his argument that some different
standard of review applies. In that case, prosecuting and law
enforcement authorities knowingly withheld exculpatory
evidence. (Id. at pp. 1169, 1224.) Sodersten thus involved error
under Brady v. Maryland (1963) 373 U.S. 83, 87. The trial
court’s rulings here, even if erroneous, do not implicate Brady.
Sodersten has no relevance to this case or to the appropriate
standard of review. As for Gonzalez’s second argument, an
uncorroborated out-of-court identification, even though
25
repudiated, can be sufficient evidence to support a conviction.
(People v. Cuevas (1995) 12 Cal.4th 252, 270, 276–277; see also
People v. Young, supra, 34 Cal.4th at p. 1181 [single witness’s
testimony sufficient to support criminal conviction].)
B. Sufficiency of the evidence
Preciosa identified Gonzalez as the shooter. Gonzalez,
however, argues that Preciosa’s identification was insufficient
because the lineup was administered in a suggestive manner and
her identification was equivocal. In addressing this argument,
we begin with the general observation that, notwithstanding
Preciosa’s unavailability at trial, the defense was able to attack
the identification through, for example, cross-examination of the
detective who administered the lineups and introduction of the
defense expert’s testimony. Therefore, we generally reject
Gonzalez’s argument to the extent it asks us to reweigh evidence.
(See, e.g., People v. Young, supra, 34 Cal.4th at p. 1181.)
Turning to Gonzalez’s specific arguments, he first says
that, according to the expert, best practices demand that the
person administering a lineup not know who is the suspect. The
jury, however, knew about this alleged problem with the lineup.
The jury knew that Mario had already identified Gonzalez by the
time the detective showed the lineup to Preciosa. The jury was
also given information to evaluate this fact, as the defense expert
had testified that a double-blind lineup is the better practice.
The jury was therefore equipped to determine whether the
detective suggested to Preciosa that she should select Gonzalez.
Gonzalez’s second argument why the lineup was defective
is that the “fillers” made him stand out because he was the only
person with a three-dot facial tattoo. And, although no witness
said that a suspect had facial hair, some of the “fillers” had facial
26
hair. Again, the lineups were in evidence, as was the expert’s
testimony about how “fillers” should be selected to ensure that
the witness does not have just one viable choice.8 The jury was
more than capable of deciding whether Gonzalez stood out from
the others.
Third, Gonzalez casts suspicion on the detective’s behavior
when the detective showed the lineup to Preciosa, because her
initial identification occurred off-camera. The detective did not
start recording Preciosa until about 5 or 15 minutes into his
interview of her. The jury was therefore unable to evaluate
whether the detective suggested to Preciosa that she should
select Gonzalez; hence, the detective’s testimony about what
happened before he began recording “holds little relevance.” As
we have said, however, what relevance should be attached to the
detective’s testimony about what happened before he began
recording Preciosa was up to the jury. As for the portion of the
interview that was recorded, the jury heard the comments the
detective made and could therefore determine whether Preciosa
hesitated in making an identification or was pressured to select
Gonzalez. Clearly, the jury resolved these issues against
Gonzalez.
Turning to Preciosa’s identification itself, Gonzalez
describes it as “not a strong recognition experience.” In
8 Gonzalez speculates that perhaps Preciosa recognized him
from a prior encounter. He apparently bases this on a recorded
phone call Gonzalez made to his girlfriend in which she implored
him to stop hitting up people on the street and on evidence that
Gonzalez hung out on Blythe Street. There was, however, no
evidence that Mario or Preciosa had ever encountered Gonzalez
before that day.
27
Preciosa’s words, she thought Gonzalez looked “too familiar” and
she said he was “the one, either . . . he was the passenger, the
shotgun one.” But Preciosa also clearly said that he hit her up on
the sidewalk and “for sure he was wearing the B hat.” She was
unequivocal that the man in the B hat was the shooter.
Given this and the standard of review, we cannot say that
the evidence was insufficient to support the convictions, even
with the conflicts in the evidence, the primary one being that
Mario said that the driver got out of the car and shot him, and
Preciosa said the passenger got out of the car and shot them.9
Nothing about these conflicts renders the identifications an
impossibility. Such evidentiary conflicts are for the trier of fact
to resolve. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)
Notwithstanding any conflicts in the evidence, Preciosa’s
testimony did not stand alone in implicating Gonzalez. Preciosa
and Mario’s testimony aligned in one crucial respect: both placed
Gonzalez at the scene of the shooting, albeit in different roles.10
Mario said that the man who confronted him in the first
9Other discrepancies included disagreement about the
makes of the cars involved in the incidents. For example, Mario
thought that the car involved in the second incident was a BMW;
Preciosa thought it was a Honda. There were different estimates
about the height and age of the male participants, and all
witnesses estimated that the shooter was taller than Gonzalez,
who is 5 feet 5 inches when wearing shoes.
Preciosa and Mario independently identified Gonzalez,
10
with Mario selecting Gonzalez from 30 photographs.
28
encounter was the passenger in the car in the second encounter.11
Mario added that the man who first confronted him wore a
Brooklyn Dodgers hat, and the passenger in the second
encounter—whom he identified as Gonzalez—also wore a
Brooklyn Dodgers hat. And Mario said that the man wearing the
Brooklyn Dodgers hat in the first encounter had a gun. Preciosa
said that a man wearing a Brooklyn Dodgers hat was the shooter.
From this, the jury could have reasonably inferred that because
the man involved in the first encounter wore a Brooklyn Dodgers
hat and had a gun and because Preciosa testified that the shooter
wore a Brooklyn Dodgers hat, the passenger was the shooter, as
Preciosa testified. She identified that passenger/shooter as
Gonzalez.
In addition to Preciosa and Mario’s identifications, other
evidence linked Gonzalez to the crimes. There was evidence that
Gonzalez was a member of the Blythe Street gang, that Blythe
Street gang members wear Brooklyn Dodgers hats, and that
Gonzalez was known to wear such a hat. A Brooklyn Dodgers hat
was found in Gonzalez’s room. This evidence would be
insufficient on its own to establish Gonzalez’s guilt. But when
11 It makes sense that the man involved in the first
encounter also participated in the second encounter. The
evidence suggests that the Blythe Street gang members were
looking for Mario and Preciosa after they failed to meet up to
fight the man and woman. Only someone who engaged in the
first exchange of gang challenges could have identified Mario and
Preciosa as the people they were seeking.
29
viewed in context with the identifications, it buttressed them,
albeit ever so slightly.
We therefore conclude that the evidence was sufficient to
support Gonzalez’s conviction of the attempted murders.
VI. Sentencing errors
Gonzalez raises two purported sentencing errors.
First, the jury found true as to both counts firearm
enhancements under section 12022.53, subdivisions (b), (c), (d),
and (e)(1). The trial court imposed sentence on the subdivision
(d) enhancement but failed to impose and to stay sentences on
the remaining enhancements. Gonzalez argues that those
remaining enhancements must be stricken under Senate Bill No.
620, which added section 12022.53, subdivision (h) and gave trial
courts discretion to strike firearm enhancements. However, that
new law was already in effect when the trial court sentenced
Gonzalez. The trial court therefore clearly exercised its
discretion not to strike the remaining firearm enhancements.
Under these circumstances, the trial court, having exercised its
discretion to impose the one enhancement, should have imposed
and stayed the remaining ones. (See People v. Gonzalez (2008) 43
Cal.4th 1118, 1130.)
Second, the trial court imposed two 3-year terms for the
great bodily injury enhancements under section 12022.7.
However, because the trial court imposed a term under section
12022.53, subdivision (d), it could not also impose a term under
30
section 12022.7. (§ 12022.53, subd. (f).) As the People concede,
the two 3-year terms must be stricken.
DISPOSITION
The enhancements under Penal Code section 12022.53,
subdivisions (b) and (c) are imposed and stayed as to all counts.
The two 3-year terms imposed under Penal Code section 12022.7
are stricken. The trial court is directed to modify the abstract of
judgment and to forward the modified abstract of judgment to the
Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
KALRA, J.*
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31