People v. Zamora CA5 ( 2022 )

Filed 7/27/22 P. v. Zamora CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080140
Plaintiff and Respondent,
(Super. Ct. No. 11CMS4083)
v.
SANTIAGO MANUEL ZAMORA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
Spolin Law, Aaron Spolin, Jeremy M. Cutcher and Erick Munoz for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Santiago Manuel Zamora was charged on March 15, 2016, with a sole count of
premeditated murder (Pen. Code, § 187, subd. (a)) 1 which occurred in November of 2011.
1 All further statutory references are to the Penal Code unless otherwise stated.
Numerous firearm allegations were also alleged (§§ 12022.53, subds. (b), (c), (d), 12022.5,
subd. (a)(1)).
Jury trial began in July 2019, three years after Zamora was charged. Zamora was
found not guilty of first degree murder, but guilty of second degree murder. The associated
firearm allegations were found true.
Zamora was sentenced to 15 years to life, plus 25 years for the firearm enhancement
(§ 12022.53, subd. (d)). Punishment on the remaining firearm enhancements was stayed.
On appeal, Zamora contends that the trial court erred in numerous ways: admitting
his pretrial statements for impeachment purposes; refusing to give a requested discovery
violation instruction to the jury; in excluding gang expert testimony; excluding witness
testimony on the issue of Zamora being shot in Lemoore; and denying Zamora’s request to
instruct the jury with CALCRIM No. 505. He further contends Brady2 error and
prosecutorial misconduct occurred, as well as cumulative error. Finally, Zamora contends
remand is required to allow the trial court to exercise its discretion pursuant to newly
amended section 1385. We agree with Zamora’s last contention for remand and otherwise
affirm.
STATEMENT OF THE FACTS
Circumstances Leading to Isaac Donez’s Murder
In November 2011, Elizabeth Renee Vasquez was in a relationship with Zamora.
Renee’s brother, Emmanuel Joe Donez (Joe),3 saw Facebook posts about incidents between
Zamora and Vasquez which angered Joe, as he believed the relationship was abusive.
The Murder of Isaac Donez
On November 28, 2011, shortly after Thanksgiving, Joe went to find Vasquez and
Zamora at the residence of Joe’s cousin Danny Gaytan, so that Joe could talk to Zamora,
2 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
3 We refer to various individuals with first names rather than last to avoid confusion.
2.
although it crossed his mind that the encounter might come to blows. Cynthia Donez
(Cynthia), Joe’s wife, drove a white Dodge with Joe, Joe’s stepbrother Isaac Donez (Isaac),
and another of Joe’s cousins, Timothy Young, to Gaytan’s house.
When the group arrived at Gaytan’s residence on Meadow Place, in Lemoore,
Cynthia parked the Dodge next to the passenger side of a black SUV, with the front of the
Dodge lined up with the passenger door of the SUV, both facing the front of Gaytan’s
house.
Cynthia stayed in the Dodge while the others got out. Joe noticed that another
cousin, Adrian, was in the SUV, and Young and Isaac went to say hello to Adrian, who was
“pretty much” in the same gang as Isaac. Joe knocked on the door of Gaytan’s house and
someone let him in. Once inside, Joe went into the garage and spoke to Vasquez, telling her
he wanted to speak to Zamora. Joe and Vasquez made their way back into the house and
out the front door of the residence.
While Joe was in the front yard, he saw Zamora emerge from the shadows by the
driveway. Joe raised his hand, pointed at Zamora and asked if he was “Santiago.” Zamora
said he was, and Joe confronted him and asked why he had “put hands” on Vasquez.
Zamora responded by asking Joe if he wanted to “get beast.” Joe did not know what that
term meant, but “gang members use it.”
The confrontation between Joe and Zamora lasted a few minutes. At one point, Joe
called Zamora names and Zamora pulled a gun from the left side of his waistband, cocked it,
and held it to the left side of his body. Joe, who thought the gun looked like a nine-
millimeter firearm, told Zamora he could put the gun down and the two of them could fight,
one-on-one, in the street. Young intervened and tried to dissuade the two. Joe stopped and
he and the others began to leave the area.
Before leaving, Joe walked over to Gaytan, who was outside, and apologized for
disrespecting him at his house. Joe then walked back to the Dodge. As he did, Zamora
went to the driver’s side of the SUV. Young moved to a location between the passenger’s
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side of the SUV and the driver’s side of the Dodge. Zamora and Isaac briefly exchanged
words. Cynthia overheard Zamora say something, and Isaac responded, “we can do this at
the park, homie.” As Isaac walked away from Zamora, gunshots rang out.
Three shots were fired initially, followed by a brief pause and additional shots.
During the shooting, both Joe and Cynthia heard the sound of breaking glass. Joe believed
only one gun was fired during the shooting; another person in the area also thought the
multiple gunshots sounded similar.
After the shots were fired, there were flashes and Isaac turned and fell to the ground.
Young took cover between the SUV and Dodge. Zamora and Isaac were both in the area of
the flashes, which Cynthia thought came from “in front” of Isaac.
A neighbor of Gaytan’s, Kathleen Duarte, heard gunshots and saw flashes coming
from “an SUV” and going towards the “white car.” Duarte did not notice anyone shooting
into the SUV.
During the incident, neither Joe nor Cynthia ever saw Isaac or Young with a weapon.
At trial, Joe denied ever having told Detectives Janette Hanes or Mike Wallace that Young
fired two to four shots at Zamora with a .45-caliber gun.
When Isaac fell to the ground, Joe yelled at Young to grab Isaac. Zamora and
another man got into the SUV and almost ran over Isaac as they left the scene. Joe and
Young got Isaac, who had two gunshot wounds to the back, into the Dodge and Cynthia
drove all of them to the hospital. Prior to arriving at the hospital, Young, who may have
been on probation, got out of the Dodge and fled.
Prior to the arrival of the police, neighbor Duarte saw females picking up shell
casings or bullets on the ground.
Police Investigation
Later that November evening, Lemoore police officer Michael Kendall received a
call of shots fired and a possible suspect vehicle described as “a black SUV.” When
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Kendall arrived, he saw three females in front of the Meadow Place residence. The females,
one of them later identified as Vasquez, tried to get back into the residence.
On the same evening, police officer and later Detective Albert Avelar saw a black
SUV in the parking lot of an apartment complex on East Spruce Avenue, approximately
one-half mile from Meadow Place, and near where Joe lived. Detective Avelar watched the
parking lot where the SUV was parked and saw two vehicles, a silver-gray Chrysler 300 and
a minivan, pull into the parking lot and then leave after a brief period of time. At the time,
Joe’s sister, Brianda Diaz4, had a dark grey/silver Chrysler 300. After the vehicles left,
Commander Kendall arrived and he and Detective Avelar approached the SUV, which had
at least one broken window. Other law enforcement was alerted.
Also on the same evening, police evidence technician Jonathan Ferrell arrived at
Meadow Place and saw broken glass and a nine-millimeter shell casing, which had “9MM
Luger” on it, on the ground. A copper-jacketed bullet was found in the road and another
inside a trailer parked at Meadow Place. An unspent .45-caliber cartridge was found on the
sidewalk and another in the grass nearby.
From the Meadow Place crime scene, Ferrell went to the East Spruce Avenue
location and saw a black SUV being loaded onto a flatbed. The SUV’s right rear window
and driver’s side window were broken and there was glass on the driver’s seat. There was
also a shell casing on the driver’s seat that had “9MM Luger” on it. The interior of the SUV
had a cracked hole in the rear fender well. Inside the well was a copper-jacketed piece of
metal. A shell casing on the back passenger’s seat on the driver’s side and another under
that seat were found. The casing under the seat had “9MM Luger” on it.
There was no blood found in the SUV, except for possibly one drop of blood on a
white glove found in the glove compartment.
4 Brianda is referred to in the record as both Brianda Hernandez and Brianda Diaz. We
will refer to her as Diaz, as she testified at trial in that name.
5.
Jessica Winn, a firearms expert, analyzed the two found bullets and described them
as “nominal .38 caliber bullets,” which includes a large range of different types of bullets.
The two recovered bullets were consistent with .99 Luger bullets and Winn opined both
were fired from the same gun. One of the bullets was damaged, which indicated it may
have hit some glass. Winn also analyzed three recovered nine-millimeter Luger casings and
concluded all three had been fired from the same firearm. Winn testified that the bullets and
casings could have been fired from the same gun, but could not say for certain.
Former Police Detective Michael Wallace attended one or more of the police
interviews with Joe. Detective Wallace never heard Joe say that anyone other than Zamora
had a gun during the shooting.
Isaac’s Cause of Death
Dr. Gary Walter performed an autopsy on Isaac and observed two gunshot entry
wounds to Isaac’s back, one on the left back and one to the left buttock. Both gunshots
exited the front right side of Isaac’s body. Dr. Walter opined that the wound to Isaac’s
buttock was fatal, as it entered Isaac’s body at an upward angle and caused damage to his
kidney and liver.
Zamora’s Arrest
Five years after the murder of Isaac, in October 2015, law enforcement went to a
particular residence looking for Zamora. Once there, they announced their presence and
ordered the occupant to come outside. Kings County Deputy Sherriff Grecia Thomas
noticed a person lying flat on his back with his hands at his side on a nearby rooftop. The
person turned out to be Zamora, who had gone out of the window of the residence when law
enforcement arrived.
Zamora, who initially identified himself as Eduardo Guzman, was arrested. His
girlfriend at the time, Sujey Franco, told officers Zamora had never told Franco his name
was Santiago Zamora, even though they had been together three months. Zamora and
Franco married two months after his arrest in December 2015.
6.
Franco spoke to officers on the date Zamora was arrested. Franco told officers she
and Zamora, whom she referred to as “Ed,” had primarily dated in Franco’s house, because
“Ed” did not want to go out in public. On one occasion, Franco took a photograph of “Ed”
and posted it on social media. “Ed” got upset with Franco, called her a name, and broke up
with her.
Defense Witnesses
In November of 2011, evidence technician John Ferrell went to an apartment at the
East Spruce Street location and found a bag containing ammunition and high capacity
magazines.
Criminalist Mindy Crow examined the recovered bullets from the scene and
determined there was no blood on them. Crow examined the SUV and saw a bloodstain on
a white glove in the glove compartment, but that was the only bloodstain found.
Retired criminalist William Matty examined the evidence in the case and reviewed
the lab reports. According to Matty, the .45-caliber cartridges had scratches on the cartridge
case, indicating they had been loaded in a gun and manually extracted. He also testified that
one of the bullets in the .45-caliber cartridges had been pushed rearward to some degree,
which can happen when a gun fails to properly cycle the cartridges into the chamber and
jam the gun.
Gaytan’s neighbor, Duarte, made a statement on the date of the incident that she had
heard three or four shots as she was sitting in her living room. Duarte also stated she then
walked to the door and heard two more pops and saw two flashes in an SUV.
In November of 2011, Janette Hanes, then a detective with the police department,
interviewed Joe in connection with the shooting in this case. Most of the conversations
between Hanes and Joe were recorded, although a few minutes were not. Detective Hanes
testified at the preliminary hearing that Joe had told her Young had a gun and had shot it on
the night in question, something which was noted in her police report, but at trial she
testified the statement was not included in the recorded statement.
7.
On cross-examination, Hanes acknowledged that she had reviewed the recording of
the interview she conducted with Joe, and, in the recordings, Joe had stated that Young did
not have a gun. Hanes testified that, if she could rewrite her report, it would not include a
statement that Young had a gun because Joe never said that. The shooting was Hanes’s first
homicide case; she retired from law enforcement in 2016.
On redirect examination, Hanes claimed to have made a mistake, but then claimed
she did not know if she had. Hanes testified that she had taken notes during her interview
with Joe and based her report on those notes, not on Joe’s recorded statement.
On recross-examination, Hanes testified her report was a brief summary of the case
and, based on that summary, she believed Zamora had fired first during the shooting.
Detective Mike Wallace was recalled and testified that he spoke with Joe and did not
recall Joe saying that Young had fired two to four shots at Zamora with a .45-caliber
handgun, even though Detective Wallace’s December 9, 2011, report stated that Joe had
said this. Detective Wallace explained that his report was a supplemental report and merely
summarized the other police reports, including Hanes’s report referring to a statement that
Hanes believed Joe had made.
Diaz, Zamora’s sister, spoke with police investigators on December 2, 2011, and
provided them with Facebook postings related to Joe she had received about one month
before the shooting. When Diaz had spoken to Detective Wallace earlier on November 29,
2011, she stated she had not seen Zamora in weeks, although, at trial, she said this was a lie.
Diaz drove a silver Chrysler 300.
Zamora testified in his own defense. According to Zamora, he lived at Gaytan’s
house in September through November of 2011, and also had a room at his mother’s house
in Hanford at the time. Vasquez stayed with him at Gaytan’s house, and Zamora admitted
that he hit Vasquez in the past when he was angry.
Zamora and Vasquez shared a Facebook account and Zamora’s sister showed
Zamora Facebook postings in which Joe communicated that he wanted to fight Zamora.
8.
Zamora interpreted these postings as a threat, and Zamora had information suggesting Joe
was looking for him. For this reason, as well as “other threats,” Zamora obtained a weapon
for defense.
On the evening in question, Zamora borrowed a black SUV from his friend, Tino,
and planned to return it after shopping. When Zamora found out Tino wanted some
cigarettes, Zamora went back to Gaytan’s to pick some up to take to Tino. Zamora then left
Gaytan’s house from the garage and went out the side gate. As he walked to the SUV, he
heard someone yell, “[H]ey, are you Santiago?” Zamora turned and yelled back, “[Y]eah,
what’s up?” Zamora then noticed three males walking towards him in a triangular
formation, with Joe in front flanked by Isaac and Young. Isaac and Young pulled out guns,
and Joe was tucking his shirt over an object in the front of his body.
One of the three said, “[O]h, you ain’t so hard now, motherfucker,” and another said,
“[Y]ou got to see us now, motherfucker.” Zamora took out his weapon, took the safety off,
and told the three, “[Y]ou guys are confused, I don’t have to see nobody.” Zamora was
afraid for his life and told them that, if one of them shoots him he was going to shoot back.
Joe called Zamora names and told him to get out of his “hood.” At the time, Zamora was
about three of four yards from the SUV. Zamora denied using the term “beast mode.”
While this was going on, Gaytan came out of his house and said he did not want “this
shit” at his house and demanded that they leave. The three men separated and one of them
said, “[A]ll right, Tio,” and another said “[L]et’s meet at the park then.”
Zamora testified that he agreed to meet at the park even though he did not intend to
do so. Young and Joe went around the front of the SUV and Isaac went around the back.
Zamora assumed all three were walking to the other car in the driveway. Zamora turned to
say something to Gaytan and, as he did so, the back of the SUV was at an angle slightly
behind him.
Zamora heard Isaac yell, “Norte, bitch,” a shot rang out and something hit Zamora’s
shoulder. Zamora thought he had been shot and fired his nine-millimeter gun two or three
9.
times in the direction where he had last seen Isaac, the same direction from which the initial
shot was fired.
After firing back, Zamora ran to the SUV and got into the driver’s seat. He put the
car in neutral by mistake and more shots were fired. Zamora returned fire while in the SUV.
During the shooting, the back passenger’s side window, the back driver’s side window, and
the driver’s window were broken. Two of Zamora’s friends were in the SUV during the
incident, including Zamora’s friend “Edgar,” who was in the passenger’s seat.
After the shooting, Zamora fled from the area in the SUV and drove to Tino’s. Tino
lived in a building next to the building where Joe and Cynthia lived, which Zamora knew.
Once there, Zamora told his fellow passengers that he had been shot, which they did not
believe until they saw “it.” Zamora testified that he was bleeding profusely from two
different locations on his body. He got out of the SUV and ran to Tino’s and banged on the
door. Zamora did not have a chance to clean up the SUV; his friends stayed in the vehicle.
Once inside Tino’s place, Zamora took off his jacket and shirt and showed Tino his
injury. A bullet had struck Zamora in the back, just below the neck and exited though his
left shoulder, and the wound was bleeding. Zamora asked for help and eventually, “a lady
that was a nurse,” a neighbor of Tino’s, came and cleaned, sewed and bandaged the wound.
While at Tino’s, various other people also arrived, including Zamora’s sister,
Brianda. Brianda and another person took Zamora to his aunt’s house in Hanford.
Zamora did not go to the police or a hospital, but instead he and Vasquez spent the
night in a hotel before Zamora, who feared for his life, fled to Mexico, where he stayed for
several years. According to Zamora, someone in Tijuana treated his wound. Zamora
returned to the United States at some point, crossing through the desert instead of going
through customs, as he knew there was a warrant out for his arrest.
After Zamora was arrested, he was interview by Detective Avelar. Zamora initially
told Detective Avelar his name was “Eduardo Guzman” and stated he wanted an attorney
present during the interview. Zamora acknowledged that he later lied to Detective Avelar,
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telling him he was not present at the shooting, that he was not driving the SUV, or that he
was with Vasquez. Zamora acknowledged he may have told Detective Avelar that he was
on PCP on the day of the shooting, but that was a lie because he had never used PCP.
Zamora did not tell Detective Avelar that the three men approached him with guns, yelled
“Norte bitch” and shot him in the back. Zamora testified that he was afraid to tell Detective
Avelar the truth as he did not trust the police and wanted an attorney. He was also not sure
what he had done on the night of the shooting was justified. Zamora claimed that, when he
told Detective Avelar he had been shot, he was not saying he had been shot in Mexico, but
was volunteering about having been shot in Lemoore while talking to Detective Avelar
about Mexico.
Elizabeth Quair testified that she saw Zamora at her father-in-law’s residence on the
day of the shooting. Zamora had an injury to his upper back on the left side and there was
blood coming from the injury. However, when Quair spoke to police on December 5, 2011,
she did not mention seeing blood on Zamora. And she acknowledged that she told officers
she had not seen Zamora in months. Zamora’s sister was married to Quair’s cousin. Quair
last spoke with Zamora in January 2019 and was interviewed by defense investigators after
that. It was at that point that Quair recalled seeing blood on Zamora.
Diaz, Zamora’s sister, testified that she saw an injury on Zamora when Zamora was
getting out of a car at Quair’s house on the day of the shooting. Zamora had a wrap around
his shoulder, but she did not see any blood. Zamora appeared to be in pain.
Gloria Mendez, Zamora’s aunt, saw an injury on Zamora on the evening of the
shooting. According to Mendez, Diaz brought Zamora to Mendez’s place that night and
Zamora had an injury that “looked pretty ugly.” Mendez saw a small amount of blood and a
white bandage behind Zamora’s left shoulder, which she removed and saw a hole.
Private Investigator Thomas Edmonds had previously worked as a chief deputy
coroner for Kings County and a former homicide detective and was familiar with gunshot
wounds. Edmonds was hired by Zamora’s former attorney to examine Zamora with Dr.
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Burr Hartman in March of 2016.5 Edmonds also looked at Zamora’s shoulder during a
break in the current trial.
According to Edmonds, during the 2016 observation, Edmonds saw scar tissue on the
left side of Zamora’s back toward the base of his neck which was in alignment with another
scar four inches away toward the front of Zamora’s shoulder. While Edmonds could not say
when the injury occurred, the scarring was consistent with a gunshot wound.
Prosecution Rebuttal
Detective Avelar testified that his interview with Zamora was recorded. In the
interview, Zamora repeatedly stated he was never at the shooting, he denied borrowing
Tino’s SUV on the date of the shooting, and he claimed not to have a gun. At one point
during the interview, Zamora stated he was using “PCP, methamphetamines,” and that he
had used a mix of drugs around Thanksgiving (presumably 2011). Zamora admitted having
gone to a drug rehabilitation clinic in the past.
During the interview, Zamora stated he had been to Mexico and while talking about
Mexico, stated he was shot, sliced in the neck, and beaten for hours “over there.” While
saying this, Zamora dropped his left shoulder towards Detective Avelar and showed him
where he had been shot. He also pointed to the part of his neck where he had been slashed.
Cynthia was recalled as a witness and testified that, a minute prior to the shooting,
she heard Isaac say, “[W]e can take this to the park, homie.” He then walked toward her
car, and she heard him scream. Cynthia never heard anyone yell “Norte, bitch.” Cynthia
saw flashes behind Isaac as he was facing her direction. Cynthia, who could clearly see
Isaac, saw that he was not holding anything. Cynthia explained that, when she had earlier
said that the flashes were in front of Isaac, she was trying to explain that Isaac was already
looking at her when the flashes occurred and that they were in front of the area where Isaac
5 Dr. Hartman was not a witness at the trial.
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had been previously. Cynthia testified to a second series of shots that came from the front
of the SUV. The first set of shots hit Isaac, who was not shooting.
A day after the shooting, Detective Wallace interviewed Diaz, who said she had not
seen Zamora in two or three weeks, and that he was “out of control” and no longer living in
the family residence.
Defense Surrebuttal
Zamora was recalled and testified that, when he told Detective Avelar he had been
shot, he was responding to Detective Avelar’s statement that the police thought Zamora was
dead. When Zamora said he had been shot, sliced in the neck, and beaten up for hours, he
did not mean that all of those things had happened at one time. According to Zamora, he
decided to come back to the United States from Mexico after he got mugged, robbed, and
sliced in the neck. Zamora claimed that, at one point, Detective Avelar asked him if he had
been shot in Mexico, but this was not recorded.
On cross-examination, Zamora admitted that, during the interview, when he said,
“look it right here, I got shot, sliced my neck, beat for hours over there,” that the words,
“over there” referred to Mexico. He also acknowledged that he had not previously testified
at trial that he had spoken with Detective Avelar off the record about being shot.
Prosecution Surrebuttal
Detective Avelar was recalled and testified that, after the 2015 recorded interview, he
never spoke with Zamora again other than some small talk on the way to jail and nothing
having to do with the facts of the case. While taking Zamora to jail, Detective Avelar never
asked Zamora if he had been shot.
Verdict and Sentencing
On July 18, 2019, the jury found appellant not guilty of first degree murder, but
guilty of second degree murder. The associated firearm allegations were found true.
On October 4, 2019, appellant was sentenced to 15 years to life for the murder, plus
25 years to life for the associated firearm enhancement pursuant to section 12022.53,
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subdivision (d). Punishment on the remaining firearm enhancements was stayed. On
October 16, 2019, appellant filed a timely notice of appeal.
DISCUSSION
I. DID THE TRIAL COURT ERR IN ADMITTING ZAMORA’S PRETRIAL
STATEMENTS FOR IMPEACHMENT PURPOSES?
Zamora first contends that the trial court prejudicially erred when it allowed the
prosecutor to impeach his trial testimony with pretrial statements he made to Detective
Avelar. We disagree.
Zamora’s Pre-Trial Interview
Detective Avelar’s interview with Zamora was recorded and transcribed.6 When
Detective Avelar began his interview with Zamora, he read Zamora his Miranda7 rights.
When asked if he understood his rights, Zamora replied that he did. Detective Avelar
provided Zamora with some tissues and then asked if he needed anything else. Zamora
replied, “A lawyer too.” Detective Avelar confirmed that Zamora wanted a lawyer and
Zamora reiterated that he wanted a lawyer because he did not know “what’s going [on]
here.” Detective Avelar explained to Zamora that he was under arrest for a homicide that
occurred in 2011 and that he wanted to get Zamora’s side of the story. Zamora again said
that he did not know anything and that he wanted a lawyer. Detective Avelar stated that he
could not actually summon a lawyer to the interview and that this was something Zamora
would have to work out later.
Detective Avelar then stated he would not ask any more questions if Zamora wanted
to speak with a lawyer, but that he needed Zamora’s contact information in order to fill out a
6 Zamora’s pretrial interview with Detective Avelar was recorded. Transcriptions of
the recording were attached to the defense trial motion and prosecution’s opposition to the
motion. There are slight variations in the transcriptions, and we use the one provided by the
defense, to give Zamora the benefit of the doubt. The record was augmented by a video of
the interview, which we have reviewed.
7 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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booking sheet. Zamora said his name was “Eduardo Guzman,” and gave his height, weight,
date of birth, and hair and eye color. He initially provided one birthdate, but then changed it
to another date with a different day and month four years apart.
During these booking questions, Zamora stated that he did not want to spend any
time locked up. Detective Avelar asked Zamora if he had children, and Zamora said he
had two. Zamora lamented his current circumstances, and Detective Zamora agreed that it
was a “shitty situation.” Zamora replied that it was not Detective Avelar’s fault. Detective
Avelar asked Zamora if he wanted to contact his parents. Zamora said, “do what you can
for me, Sir,” but he did not know his mother’s telephone number.
Zamora then talked about his upbringing and how he could “probably blame it all on
that.” Detective Avelar agreed, and Zamora then said he grew up using drugs. Zamora told
Detective Avelar that he wished there was a “faster way” out of his current situation, and
that he had “fled” because he was scared. Zamora admitted that he lied to Detective Avelar.
Detective Avelar then told Zamora that he could not ask Zamora “anything” without
reminding him of his rights. When asked if Zamora remembered, the transcription reads
“[Yes, Sir?].”8 Detective Avelar then asked Zamora if he wanted those rights read to him
again, and Zamora said “No, Sir.” Detective Avelar then asked Zamora if he understood his
rights and Zamora said “Yeah.” Detective Avelar told Zamora not to worry about having
lied earlier, and Zamora said he was not going to lie anymore.
Zamora then spoke about what he would do in the future if he was set free. He
mentioned his struggles with drug use. Detective Avelar told Zamora this was his chance to
state what had happened in this case, and Zamora responded that he was “never there” and
had heard from others that he had been involved in a shooting, but that this was not correct,
and he fled.
8 In the transcription provided by the prosecution, Zamora replied “Okay” to this
question.
15.
Zamora stated that he had been using all kinds of drugs during the period around
Thanksgiving, that he felt unloved and neglected at the time, and that he wanted to turn
himself in but could not let go of his freedom.
Zamora told Detective Avelar that “[w]hen this happened” he went to Mexico.
Detective Avelar told Zamora, “We thought you were dead.” Zamora responded that he was
shot, sliced in the neck and beaten for hours “over there.” Zamora claimed “mafia people”
almost killed him and that was why he came back.
Zamora said his mother had gotten him locked up in a rehab clinic in Mexico and it
had been hard. Zamora and Detective Avelar talked about gangs. Detective Avelar talked
about how he came to the United States as a young child, and Zamora related his experience
of coming to the United States through the desert.
Detective Avelar asked Zamora if he wanted to call his mother, but Zamora was not
sure, and he did not have his mother’s number. Zamora and Detective Avelar then
discussed how life would be in jail and having visits while in custody.
Detective Avelar told Zamora that, while Zamora might go to jail, there were always
two sides to a story and an explanation for everything. Detective Avelar mentioned that
authorities really did not know how the shooting in 2011 had occurred. When Zamora
asked Detective Avelar why people had said he “did it,” Detective Avelar replied that he
wanted to know the truth. Detective Avelar reiterated that there was always an explanation
for everything and that, in order to be free, Zamora had to free his mind and say, “This is
what happened.”
Zamora asked how he could get out of custody the fastest way possible, and
Detective Avelar replied that the best advice was for Zamora to tell the “whole truth.”
Zamora again insisted that he was never at the shooting and wondered how he could prove
that because he was somewhere “probably lost doing drugs,” which he did every day at that
time. Zamora was evasive about whether he ever used Tino’s SUV. When told by
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Detective Avelar the only thing he could do was tell the truth, Zamora wondered how much
more truthful he could be.
Zamora then said he did not want to lie. Detective Avelar then told Zamora he had
seen him on the date in question in front of the apartment and stated Zamora’s “it wasn’t
me” excuse did not work. Zamora said that he did not want to be locked up and did not
know what Detective Avelar wanted him to do. Detective Avelar stated that he had no
control as to how long Zamora would be “locked up.”
Zamora stated that he knew he was going to do time because he ran away. But again,
Detective Avelar stated that there was an explanation for everything, and Zamora needed to
tell the truth. Detective Avelar told Zamora that the police knew he had been at the shooting
and that he had fled.
Zamora then said he was in Fresno getting drugs when the shooting occurred and that
he then spent the night on the road before going to Mexico. He ran away because he did not
want to get locked up. He continued to do drugs and he then went to rehab. He had come
back from Mexico only a few weeks prior. He reiterated that he was not at the shooting.
When asked if he and Isaac were close, Zamora said he had met Isaac once in the
distant past.
Zamora then asked about someone else the police had apprehended in connection
with the case. Detective Avelar stated that through his investigation he thought that another
person in custody in this case had been shooting at Zamora. Zamora claimed not to have a
gun.
Detective Avelar told Zamora he was throwing away his opportunity to provide an
explanation. Zamora said he was going to fight this case, and again claimed that he did not
know what occurred at the shooting.
Detective Avelar said he was trying to help Zamora. Zamora said that, if Detective
Avelar wanted to help, he would obtain a lawyer for Zamora to consult. Detective Avelar
17.
confirmed that Zamora wanted a lawyer and told him he was not mad at him and did not
blame him.
Detective Avelar then stated he needed information for the booking sheet and a DNA
sample from Zamora. Zamora said he was not consenting to a DNA swab and told
Detective Avelar, “[Y]ou can’t do anything until I have a lawyer.” Detective Avelar then
asked Zamora booking questions—name, address, height, weight, date and place of birth.
Zamora responded to the questions and acknowledged he made up the name “Eduardo
Guzman.”
After the booking questions, Zamora asked Detective Avelar how he could get out of
this situation as fast as possible. Detective Avelar responded that Zamora would have to go
through the court process and his lawyer would answer those questions. Zamora asked what
kind of sentence he was facing, and Detective Avelar responded that he did not know.
Zamora again asked Detective Avelar, “How can you help me, Sir?” Detective
Avelar responded that he had tried to help by attempting to take a statement from Zamora
and tried to get the truth. Detective Avelar then informed Zamora that he could not make
any promises or deals with him, and Zamora had to work that out with the District
Attorney’s office. Detective Avelar then placed handcuffs on Zamora and the interview
concluded.
Motion to Suppress
Prior to trial, defense filed a motion to suppress Zamora’s pretrial statement to
Detective Avelar due to “Miranda violations,” as any waiver by Zamora was due to
repeated badgering and police coercion. The prosecutor filed an opposition to the motion,
arguing Zamora validly waived his Miranda rights and, in any event, the statements were
admissible for impeachment purposes. Defense counsel followed with a reply to the
opposition.
At a hearing on the motion, the parties argued the issue, and the trial court took the
issue under submission, stating it would watch the recording of the interview.
18.
Several days later, the trial court ruled that Zamora’s statements to Detective Avelar
were inadmissible in the prosecution’s case-in-chief, but were admissible should Zamora
testify at trial inconsistently with his prior statements.
Zamora’s Trial Testimony
At trial, Zamora testified that, on the evening in question, he was confronted by Joe,
Isaac, and Young, and fired his nine-millimeter firearm in the direction of Isaac after having
been shot by Isaac.
On cross-examination, the prosecutor questioned Zamora about his pretrial statement
to Detective Avelar, which were inconsistent with his trial testimony. Near the beginning of
the prosecutor’s cross-examination on this subject, defense counsel objected “to this line of
questioning regarding statements made to Detective Avelar .…” The objection was
overruled.
Applicable Law and Analysis
There is no dispute that Zamora requested an attorney multiple times during his
police interrogation and, therefore, his statement was obtained in violation of his Miranda
rights. After Zamora took the stand during trial and testified that he acted in self-defense,
however, the prosecutor used his statement, in which he denied being involved in the crime
or being present in the area, for impeachment purposes. The trial court found Zamora’s
statement was voluntary and, therefore, admissible for impeachment. On appeal, Zamora
claims that his statement to police was involuntary, and the trial court erred in concluding
otherwise. The People maintain that the trial court did not err. We agree no error occurred.
“[T]o protect a suspect’s Fifth Amendment privilege against self-incrimination, the
United States Supreme Court, in Miranda, required law enforcement agencies to advise a
suspect, before any custodial law enforcement questioning, that ‘he has the right to remain
silent, that anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires.’ [Citations.] If the suspect knowingly and
19.
intelligently waives these rights, law enforcement may interrogate, but if at any point in the
interview he invokes the right to remain silent or the right to counsel, ‘the interrogation must
cease.’ ” (People v. Martinez (2010) 47 Cal.4th 911, 947; see also People v. Case (2018) 5
Cal.5th 1, 20; People v. McCurdy (2014) 59 Cal.4th 1063, 1085-1086.)
While there is longstanding disapproval of the tactic (People v. Nguyen (2015) 61
Cal.4th 1015, 1077 (Nguyen), citing People v. Neal (2003) 31 Cal.4th 63, 90 (Neal) [conc.
opn. of Baxter, J.] and & People v. Peevy (1998) 17 Cal.4th 1184, 1205), a statement
obtained in violation of Miranda, even deliberately, is admissible for impeachment purposes
so long as the statement was voluntary (Neal, supra, at p. 78, citing Peevy, supra, at p. 1188;
accord, People v. Sanchez (2019) 7 Cal.5th 14, 58; People v. Case, supra, 5 Cal.5th at pp.
24–25; Nguyen, supra, at pp. 1075–1078).
“A statement is involuntary [citation] when, among other circumstances, it ‘was
“ ‘extracted by any sort of threats ..., [or] obtained by any direct or implied promises,
however slight ....’ ” ’ [Citations.] Voluntariness does not turn on any one fact, no matter
how apparently significant, but rather on the ‘totality of [the] circumstances.’ ” (Neal, supra,
31 Cal.4th at p. 79; accord, Nguyen, supra, 61 Cal.4th at p. 1078.) However, “[p]olice
coercion is ... crucial. To be considered involuntary, a confession must result from coercive
state activity.” (People v. Sanchez, supra, 7 Cal.5th at p. 50, citing Colorado v. Connelly
(1986) 479 U.S. 157, 165 & People v. Smith (2007) 40 Cal.4th 483, 502.)
“ ‘In reviewing Miranda issues on appeal, we accept the trial court’s resolution of
disputed facts and inferences as well as its evaluations of credibility if substantially
supported, but independently determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained.’ ” (People v. Martinez, supra,
47 Cal.4th at p. 949; accord People v. Case, supra, 5 Cal.5th at p. 20.) Where, as here, “an
interview is recorded, the facts surrounding the admission or confession are undisputed and
we may apply independent review.” (People v. Duff (2014) 58 Cal.4th 527, 551.)
20.
As previously stated, the trial court determined Zamora’s statement inadmissible
other than for impeachment. We have reviewed the video of Zamora’s interrogation in full
and conclude that his claim of coercion is not supported by the record. Continuing an
interrogation in the face of repeated requests for counsel is a factor for consideration in
determining whether a statement is involuntary. Zamora contends Detective Avelar’s tactics
were coercive, as he was questioned when he was handcuffed to a chair, without shoes, in a
small, windowless interrogation room. Zamora also cites the fact that he was young at the
time, he was inexperienced when dealing with the police, and the interview lasted “well
over 2 hours.”
In Neal, the California Supreme Court was most concerned with the continued
interrogation of the defendant despite his repeated invocation of his right to remain silent
and his right to counsel, but other factors also informed its determination that the
defendant’s confession was involuntary, including “the circumstance that [the] defendant
remained in custody without being provided access to counsel before requesting to speak to
[the detective]; [the] defendant’s youth, inexperience, minimal education, and low
intelligence; the deprivation and isolation imposed on [the] defendant during his
confinement; and the promise and the threat [the detective] made to defendant during the
initial interrogation after questioning should have ceased ....” (Neal, supra, 31 Cal.4th at p.
78.) The defendant in Neal was only 18 years old at the time of his interrogations, he had
failed to graduate from high school and his intelligence “was quite low.” (Id. at p. 84.) He
was questioned on three separate occasions and, between the first and second interrogations,
he was detained overnight in a cell without access to a toilet or water. In addition, he was
not provided with any food until after the third interrogation, which was more than 24 hours
later. (Id. at pp. 74, 76.)
In this case, Zamora was 22 years old at the time of the interrogation and had
sustained numerous juvenile adjudications. He himself volunteered several times during the
interview instances of his own past contact with law enforcement. While the interview
21.
lasted two-and-one-half hours, there is no indication Zamora was deprived of food, water or
restroom facilities. In fact, during the interview, Detective Avelar asked Zamora several
times if he was comfortable and needed anything. There was no indication Zamora was
physically or mentally impaired. His responses to questions were on topic and he was
introspective at times. Detective Avelar never threatened violence or made any threats or
promises of any kind toward Zamora or his family. The video recording evidences no
aggression or other tactics designed to break Zamora’s free will and, while Zamora cries on
several occasions during the interview, the style of questioning is always conversational.
Having evaluated the totality of the circumstances in this case, we find no error in the
trial court’s determination that Zamora’s statement was voluntary and therefore admissible
for impeachment purposes. In light of this conclusion, we need not address whether the
admission of Zamora’s statement was prejudicial.
II. WAS THERE A BRADY VIOLATION OR PROSECUTORIAL
MISCONDUCT?
As part of a claim of prosecutorial misconduct (which we address later), Zamora
asserts that the prosecutor willfully suppressed evidence, and he raises an alleged Brady
error. We find no error.
Procedural Background
At trial, Joe denied ever having told Detectives Hanes or Wallace, who interviewed
him, that Young fired two to four shots at Zamora with a .45-caliber gun.
Zamora’s defense at trial was that he shot the victim in self-defense, that two of the
three men who confronted him, Isaac and Young, pulled out guns, and Joe tucked his shirt
over an object on the front of his body. After words were exchanged, Zamora feared for his
life and pulled out his own gun, cocked it, and told them he would shoot back if shot at.
Following additional words, the four appeared to disband, Zamora heard one yell “Norte,
bitch,” and then shot Zamora. Zamora fired back.
22.
Detective Hanes had been called to testify at the 2016 preliminary hearing as a
prosecution witness. At the preliminary hearing and in her police report, Detective Hanes
stated that, when she spoke to Joe after the shooting, he said, in part, that the first shots fired
that night were fired by Young. She testified at trial as a defense witness after the
prosecution chose not to call her as a witness. At the 2019 trial, she acknowledged that the
purported statement by Joe that Young had a gun was not included in the recording of
Detective Hanes’s interview with Joe, although a small part of the interview was not
recorded. Detective Hanes testified she had reviewed the audio recording and that Joe did
not tell her that Young was armed or that he had fired his gun. She further testified that her
earlier testimony had been a mistake.
Detective Wallace testified for the prosecution that he never heard Joe say that
anyone other than Zamora had a gun during the shooting. The defense recalled Detective
Wallace to question him about the discrepancy between his trial testimony and his report
which stated that Joe had said this. Detective Wallace explained that his report was a
supplemental report and merely summarized the other police reports, including Hanes’s
report referring to a statement that Hanes believed Joe had made. When asked by the
prosecutor how this had occurred, Detective Wallace stated that he had been asked to
“essentially” take a very large investigation with many documents and condensed it to a
“readable understandable version in a page or two.”
During the evidentiary portion of the trial, Zamora filed a motion to dismiss based on
the alleged prosecutorial misconduct and discovery violations for not providing notice that
the trial testimony of Detectives Wallace and Hanes would be contrary to their reports and
Detective Hanes testimony would also be contrary to her prior testimony at the preliminary
hearing.
The following day, the trial court denied Zamora’s motion and ruled that there was
no prosecutorial misconduct or discovery violations. The trial court did not believe
Detective Wallace’s position in the case had ever changed. It also noted no information was
23.
presented that the prosecutor was aware that Detective Hanes was going to testify adversely
to her report, and that the defense was on notice regarding potential conflict between
Detective Hanes’s report and the recorded statement with Joe, as it had been provided with a
transcript of the recorded statements.
After the jury rendered its verdict, Zamora filed a motion for new trial, arguing that
the prosecutor engaged in misconduct when he suppressed information about the upcoming
testimony of Detectives Hanes and Wallace, namely that the testimony was inconsistent
with pretrial statements made by Joe about whether Young had fired a gun during the
shooting. Zamora alleged this disclosure failure violated Brady, supra, 373 U.S. 83.
The trial court denied Zamora’s claim, concluding that there was no evidence
Detective Wallace’s trial testimony had changed over time and there was no evidence the
prosecution was aware that Detective Hanes’s trial testimony would be different from her
reports or the preliminary hearing. The trial court noted specifically that the defense had
received Detective Hanes’s report and preliminary hearing testimony, and knew that this
was inconsistent with Joe’s recorded interview.
Zamora’s Claim
Zamora claims that “the reason why the prosecution did not place Detective Hanes
on its witness list is due to the fact that the prosecution was aware that her testimony would
change drastically between the preliminary hearing and trial,” violating the prosecution’s
Brady obligation to reveal that fact. Zamora also contends Detective Wallace’s part in this
was also Brady error and prosecutorial misconduct, in that both instances were failures to
disclose in a timely manner material exculpatory evidence which could be used to impeach
key prosecution witnesses.
Brady Violation
“We independently review the question whether a Brady violation has occurred, but
give great weight to any trial court findings of fact that are supported by substantial
evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
24.
In Brady, the high court held that the prosecution’s suppression of favorable evidence
to an accused upon request violates due process, irrespective of the prosecution’s good or
bad faith, if the evidence is material to either guilt or punishment. (Brady, supra, 373 U.S. at
p. 87.) The defendant has the burden of showing materiality. (In re Sassounian (1995) 9
Cal.4th 535, 545.) There are three components of a true Brady violation: The evidence at
issue must be (1) favorable to the accused, either because it is exculpatory, or because it is
impeaching; (2) that evidence must have been suppressed by the State, either willfully or
inadvertently; and (3) prejudice must have ensued. (Strickler v. Greene (1999) 527 U.S.
263, 281-282.)
The United States Supreme Court holds that, under Brady, a state must disclose
evidence favorable to the defense, which “turns on the cumulative effect of all such
evidence suppressed by the government, and we hold that the prosecutor remains
responsible for gauging that effect regardless of any failure by the police to bring favorable
evidence to the prosecutor’s attention.” (Kyles v. Whitley (1995) 514 U.S. 419, 421.) A
defendant is entitled to a new trial if the “net effect” of the withheld evidence raises “a
reasonable probability” that a different result would have occurred with disclosure. (Id. at
pp. 421-422.) “ ‘A reasonable probability does not mean that the defendant “would more
likely than not have received a different verdict with the evidence,” only that the likelihood
of a different result is great enough to “undermine[ ] confidence in the outcome of the trial.”
’ ” (Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40,
quoting Smith v. Cain (2012) 565 U.S. 73, 75.)
Here, we find no Brady error. The evidence Zamora complains of was suppressed,
i.e., the trial testimony by Detectives Hanes and Wallace that was inconsistent with prior
testimony and/or written reports, was not suppressed but actually presented during trial.
(See People v. Mora and Rangel (2018) 5 Cal.5th 442, 467 [“Evidence actually presented at
trial is not considered suppressed for Brady purposes, even if that evidence had not been
previously disclosed during discovery.”]; People v. Verdugo (2010) 50 Cal.4th 263, 281 [“
25.
‘[E]vidence that is presented at trial is not considered suppressed, regardless of whether or
not it had previously been disclosed during discovery.’ ”].)
Further, there is no evidence that the prosecution sought to suppress the evidence in
question. By exercising reasonable diligence, the defense could have discovered the
potential inconsistencies as it had both the police reports and Joe’s recorded police
interview. As stated by our Supreme Court in People v. Salazar (2005) 35 Cal.4th 1031 in
addressing a claim of Brady error:
“Although the prosecution may not withhold favorable and material evidence
from the defense, neither does it have the duty to conduct the defendant’s
investigation for him. [Citation.] If the material evidence is in a defendant’s
possession or is available to a defendant through the exercise of due diligence,
then, at least as far as evidence is concerned, the defendant has all that is
necessary to ensure a fair trial, even if the prosecution is not the source of the
evidence. [Citations.] Accordingly, evidence is not suppressed unless the
defendant was actually unaware of it and could not have discovered it ‘ “by
the exercise of reasonable diligence.” ’ ” (Id. at pp. 1048-1049.)
Finally, for Brady purposes, Zamora’s claim fails because the allegedly “suppressed”
information was not material or favorable. Evidence is favorable if it helps the defense or
hurts the prosecution, as by impeaching a prosecution witness. (United States v. Bagley
(1985) 473 U.S. 667, 674, 676; see In re Sassounian, supra, 9 Cal.4th at p. 544.)
Materiality includes consideration of the effect of the nondisclosure on defense
investigations and trial strategies. (Bagley, supra, at pp. 682-683; see In re Brown (1998)
17 Cal.4th 873, 887.) Evidence is material if there is a reasonable probability its disclosure
would have altered the trial result. (E.g., Banks v. Dretke (2004) 540 U.S. 668, 699.)
Because a constitutional violation occurs only if the suppressed evidence was material by
these standards, a finding that Brady was not satisfied is reversible without need for further
harmless-error review. (Kyles v. Whitley, supra, 514 U.S. at p. 435.)
26.
Here, the allegedly suppressed information was not helpful to Zamora, and we find
no Brady error occurred.9
Prosecutorial Misconduct
Zamora further claims that the prosecutor committed misconduct by failing to place
Detective Hanes on its witness list due to the prosecution’s awareness that Detective
Hanes’s testimony would drastically change between the preliminary hearing and the trial.
Under federal law, a prosecutor's conduct requires reversal if it “ ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’ ” (Darden v.
Wainwright (1986) 477 U.S. 168, 181.) Under state law, “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury” is misconduct that
requires reversal only when it is reasonably probable that the defendant would have received
a more favorable result if the misconduct had not occurred. (People v. Cunningham (2001)
25 Cal.4th 926, 1000; People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
There is no evidence that the prosecutor was aware, prior to trial, of a change in
testimony by Detective Hanes from that given at the preliminary hearing. To the contrary,
when Detective Hanes testified for the defense on direct examination, she testified that Joe
had said prior to trial that Young fired a gun even though a recording of her interview with
Joe did not include such a statement. She further stated that part of her interview with Joe
was not recorded, but she believed Joe had stated that Young had a gun and fired during the
incident. It was not until cross-examination when Detective Hanes admitted that she may
have made the assumption that Young had a gun. The back and forth between defense and
prosecution questioning revealed Detective Hanes to be unsure about what she had heard,
9 We further reject Zamora’s argument that the trial court prejudicially erred when it
declined to give the jury an instruction that the prosecutor committed discovery violations
pursuant to Brady. Because we find no Brady error occurred, there was no need to give
such an instruction. (People v. Marshall (1997) 15 Cal.4th 1, 39–40 [trial court need only
give a requested instruction if it is supported by substantial evidence, i.e., evidence
sufficient to deserve jury consideration].)
27.
but she did testify that, based on her discussions with Joe and/or her reports, that Zamora
fired first during the shooting in question.
Nor is there any affirmative showing of why the prosecution left Detective Hanes off
of the prosecution’s witness list. As for Detective Wallace, long before trial, the prosecutor
disclosed to the defense its plan to call Detective Wallace as a witness, along with his
address.
In any event, Zamora cannot show any possible misconduct was prejudicial. While
Detective Hanes and Detective Wallace’s trial testimony was unfavorable to Zamora, it was
inconsequential to the determination of Zamora’s guilt, based on all of the other evidence
presented at trial, including Zamora’s flight from the scene, his lack of candor before and
during trial, and the inconsistencies in other defense witness’s testimony. Even if Joe had
told the police that Young had fired a weapon, Detective Hanes’s understanding was always
that Zamora fired first. In addition, Zamora’s claim of self-defense was not against Young,
who supposedly had the weapon, it was against Isaac, as Zamora claimed he fired in Isaac’s
direction after Isaac shot him. And yet the evidence at trial was that Isaac was shot in the
back twice.
We find no prosecutorial misconduct and reject Zamora’s claim to the contrary.
III. DID THE TRIAL COURT ERR WHEN IT EXCLUDED EXPERT GANG
TESTIMONY?
Zamora next contends the trial court prejudicially erred when it excluded proposed
gang expert testimony as it deprived him of presenting a complete defense. We disagree.
Background
Six months before trial, Zamora filed a memorandum/offer of proof regarding the
prospective testimony of a gang expert named Dr. Jesse De La Cruz. In the memorandum,
Zamora argued that the shooting may have been gang related or gang motivated. A letter
from Dr. De La Cruz, attached to the memorandum, states that he believed the instant case
“although not gang-related, is without a doubt, in my opinion gang motivated.” In his letter,
28.
Dr. De La Cruz states Zamora was associated with the Norteño street gang in the past and
Isaac was a known Lemoore Norteño gang member. According to Dr. De La Cruz, Jessica
Sanchez, a cousin of Zamora’s, said she had received threatening phone calls. Although she
did not say the calls were from gang members, Dr. De La Cruz was certain that they were.
Dr. De La Cruz also concluded in his letter that there were multiple gunshots on the evening
in question, based on a statement reportedly made by Elsa Gayton. The letter states further,
without more, that there was “other evidence” supporting his “conclusion.”
Prior to trial, the issue was discussed in court and defense counsel asserted Zamora
was a gang dropout, and prior to the shooting in this case, the Norteño gang had a hit on
him. Counsel further claimed the three people who confronted Zamora on the night in
question were Norteño gang members. Counsel stated, “whether or not this is relevant
evidence will probably have to be determined as the case sort of shakes out.”
The prosecutor argued that Joe confronted Zamora on the evening in question
because he believed Zamora was abusing his sister, whom Zamora was dating. The
prosecutor argued that the defense’s gang expert testimony was speculative, lacked
foundation, and was baseless. The prosecutor stated that he had spoken to his own gang
expert, who did not believe Zamora was a gang drop out at the time of the shooting. The
prosecutor noted there was no evidence of a “hit” on Zamora, and that Joe and Cynthia were
not Norteño gang members. While the prosecutor conceded that Isaac was a “shot caller,”
he did not think that the evidence would show this to be a gang related or gang motivated
shooting.
Defense counsel stated that, shortly before the shooting, Zamora was arrested in
relation to having intercepted “kites” written by Norteños and, based on these “kites,”
Zamora believed there was a hit on him at the time of the shooting.
The trial court stated that it had a hard time seeing the relevance of the proposed gang
expert testimony, but did not intend to rule on it at that time. It did state that, since the
29.
proposed evidence was a bit attenuated “right now,” absent other evidence to establish a
gang connection, the proposed gang expert testimony by the defense would be excluded.
During trial, Joe testified that, when he and the others arrived at Gaytan’s house,
Young and Isaac got out of the car and spoke to Adrian, who was “pretty much” in the same
gang as Isaac and Young. Joe claimed not to be part of that gang. Joe also testified that
Isaac and Zamora knew each other “through the gang.”
During Joe’s testimony, a sidebar was held in which defense counsel asked to
question Joe about Isaac’s gang affiliation. The trial court believed the evidence was not
relevant, but left open the possibility that such evidence might become relevant in the future.
Zamora testified, inter alia, that he obtained a weapon at one point because he had
received threats from Norteño gang members. The trial court sustained an objection to this
answer and struck it. Defense counsel then asked Zamora who had threatened him, and he
said “Norteno gang members.” The prosecutor again objected, and the trial court cleared
the courtroom to discuss the matter.
The trial court then told the parties that the “Norteno aspect” was not relevant unless
there was some connection to “these parties.” The trial court stated that it did not want to go
“down the rabbit hole on some tangential issue that isn’t relevant. You have direct threats
from Mr. Donez on evidence that’s already been presented. That is what this case is about.”
While the trial court stated that the defense of Zamora receiving a threat and arming himself
as a result of that threat was fine, the “gang” was not relevant and, pursuant to Evidence
Code section 352, would “take an undue consumption of court time, distract the jury,
mislead the jury, and isn’t relevant to these proceedings.”
Defense counsel then reminded the trial court that its ruling during motions in limine
was tentative and asked that Zamora be allowed to testify that he was confronted by Young,
Joe, and Isaac, who Zamora knew to be a shot caller for the Norteño gang, and that this
would help explain his state of mind and response during the shooting.
30.
After the trial court stated that it had not heard any evidence to suggest the incident
was gang related “in any way,” defense counsel requested a foundational hearing pursuant
to Evidence Code section 402.
At the Evidence Code section 402 hearing, Zamora testified that he was associated
with “Northerners” when he was about 15 years old, but separated from the group when his
son was born. He was then labeled a “dropout” and resented for choosing his family over
the gang. When Zamora was 18 and in jail, he was removed from the Northerner pod
because of his label as dropout. After he got out of jail, he was jumped, robbed, and shot at
by Northerners.
Zamora testified that, after he got out of jail, he met with gang task force officials and
saw some “kites.” Based on these “kites,” Zamora felt that his life was in danger, so he
armed himself. He also received other threats and, a couple of weeks prior to the shooting,
was assaulted at a gas station and jumped and robbed by Norteños.
On the night in question, Zamora testified that Joe and Isaac were both armed, and
Zamora thought Isaac and Young, who were both Norteños, were going to kill him. Isaac
had a high status in the Norteño gang at the time.
Following Zamora’s testimony at the hearing, the trial court heard additional
argument from the parties. The trial court ruled that Zamora could testify he was a gang
dropout and armed himself out of fear of retaliation, but other gang evidence was
inadmissible under Evidence Code section 352. The trial court stated that there was no
testimony about what the actual threat was to Zamora from the Norteños, and there was no
evidence that Young, Isaac or Joe were aware of a supposed hit placed on Zamora by the
Norteños. The trial court further noted that there was no evidence that the current incident
was gang-related, as there was no evidence of gang clothing or gang threats, and it was not
reasonable for Zamora to assume this was a gang hit given the expressed threats by Joe as it
related to Zamora’s treatment of Joe’s sister.
31.
Zamora then spoke with defense counsel off the record, and counsel then stated that
Zamora was prepared to testify that, when Isaac shot at him, he heard Isaac say, “ ‘Norte
bitch,’ ” and asked if Zamora could testify to that.
The trial court said it would permit such testimony, but noted that this was the first
time this detail had ever been mentioned by the defense, even though the issue relating to
gang evidence had been previously raised.
When trial testimony resumed, Zamora recounted the details of the shooting and
testified that he heard Isaac yell “Norte, bitch” before Zamora was struck by a bullet.
On October 4, 2019, after the jury rendered its verdict, Zamora filed a motion for a
new trial arguing, inter alia, that the trial court erred by excluding gang evidence and gang
expert testimony.
Addressing this part of the motion, the trial court noted that, during the motion in
limine on the issue, there was no evidence to indicate that this was anything other than a
family dispute, and Zamora offered no new evidence suggesting a gang nexus to the
shooting. The trial court noted that, when the issue was addressed a second time, that trial
court again found no gang nexus for the shooting. It also noted that the issue of Zamora
arming himself for his own safety from the Norteños was “simply not proper subjects of
expert testimony.” The trial court observed that, shortly after making its later ruling,
Zamora turned to defense counsel, whispered to him, and then, for the first time, indicated
that Zamora had said someone shouted “Norte,” or something to that effect. While the trial
court did not find this believable, it allowed Zamora to so testify. The trial court stated that,
other than this “eleventh hour” “ ‘Norte’ ” reference, the evidence did not suggest a gang
motive for the shooting. The trial court concluded that the probative value of gang evidence
was minor and would be extraordinarily time consuming, and there was no error in
excluding the evidence.
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Forfeiture
The People contend Zamora forfeited the argument that the trial court erred in
excluding proposed gang expert testimony by the defense because the trial court never
specifically ruled that Dr. De La Cruz’s proposed testimony was inadmissible and Zamora
did not renew his request during trial. The People are correct that a pretrial evidentiary
request the trial court does not rule on will not preserve the issue for appeal “if the appellant
could have, but did not, renew the objection ... and press for a final ruling in the changed
context of the trial evidence itself.” (People v. Holloway (2004) 33 Cal.4th 96, 133; accord
People v. Ennis (2010) 190 Cal.App.4th 721, 735-736; see, e.g., People v. Johnson (2018) 6
Cal.5th 541, 586 [defendant forfeited the argument the trial court erred in tentatively
sustaining an objection because the defendant “fail[ed] to press for a final ruling”].) By not
pursuing the matter, Zamora forfeited it. (See Ennis, supra, at p. 736; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1181.)
Law and Analysis of Excluded Expert Testimony
Even if Zamora has not forfeited the argument, it lacks merit. We disagree with
Zamora that the trial court abused its discretion in excluding the proffered evidence and find
exclusion of the evidence did not impermissibly infringe on Zamora’s right to present a
defense or otherwise violate his constitutional rights.
Only relevant evidence is admissible. (Evid. Code, § 350.) “Evidence is relevant if
it has a ‘tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.’ (Evid. Code, § 210.)” (People v. Wright (2021) 12 Cal.5th
419, 448.) Under Evidence Code section 352, a trial court has wide discretion to exclude
evidence, even relevant 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.’ ”
(People v. Dworak (2021) 11 Cal.5th 881, 899.) As our Supreme Court has explained, “we
review trial court decisions about the admissibility of evidence for abuse of discretion.
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Specifically, we will not disturb a trial court’s admissibility ruling ‘ “except on a showing
the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” ’ ” (People v. Morales (2020) 10 Cal.5th
76, 97.)
Here, the probative value of Zamora’s proposed gang expert testimony was weak. In
a letter, Dr. De La Cruz, Zamora’s proposed gang expert, opined that this case was not
gang-related, but gang motivated. This opinion was based on Dr. De La Cruz’s
understanding of Zamora’s past association with the Norteños, that Isaac was a known
Norteño, and on information received from one person, Zamora’s cousin, that she had
received threatening phone calls and another person had heard multiple gun shots on the
night in question. But Dr. De La Cruz failed to explain how a shooting involving two
individuals, both somehow connected with the Norteños, made this a gang shooting; the
telephone calls received by Zamora’s cousin did not say they were made by Norteño gang
members or when they were made; and multiple gun shots does not demonstrate one way or
the other whether the shooting was gang motivated. In addition, there was solid evidence
that the actors were involved in underlying family dynamics, which led to Joe confronting
Zamora.
As noted by the trial court, gang expert testimony would have taken up an undue
consumption of time — needing to lay a foundation for the existence of the Norteños or a
specific subset of the Norteños; Zamora and/or Isaac’s association with the specific gang;
whether Zamora was considered a dropout of the gang; and the existence of the alleged
“kites” and specifically what they said.
In addition to the fact that the probative value of the proposed evidence was weak,
there were no gang charges or enhancements in this case and the potential for prejudice was
high. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [“[E]vidence of gang
membership [would have been] potentially prejudicial and should not [have been] admitted
if its probative value [was] minimal.”]; see also People v. Williams (1997) 16 Cal.4th 153,
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193 [“[E]ven where gang membership is relevant, because it may have a highly
inflammatory impact on the trial, trial courts should carefully scrutinize such evidence
before admitting it.”].)
Because we find the trial court acted within its discretion in excluding gang expert
evidence, we reject Zamora’s claim to the contrary. Courts have long held that “ ‘ “the
ordinary rules of evidence do not impermissibly infringe on the accused's right to present a
defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to
control the admission of evidence in the interests of orderly procedure and the avoidance of
prejudice.” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 607, quoting People v. Babbitt
(1988) 45 Cal.3d 660, 683.)
IV. DID THE TRIAL COURT ERR WHEN IT EXCLUDED WITNESS
TESTIMONY ON THE ISSUE OF ZAMORA BEING SHOT IN LEMOORE?
Zamora next contends that the trial court erred prejudicially when it did not allow
him to present additional witnesses to testify that Zamora had a gunshot wound when they
saw him after the shooting. We find no error.
Background
At trial, Zamora testified that he turned to say something to Gaytan, Isaac yelled
“Norte, bitch,” and then shot Zamora in the shoulder, after which Zamora returned fire.
Zamora testified he then got into the SUV and drove to Tino’s residence. He was bleeding
profusely from two places on his body due to the gunshot wound. He did not have a chance
to clean up the SUV after the shooting.
At trial, the defense called Elizabeth Quair, who testified that she saw an injury to
Zamora in the past on a date around Thanksgiving. According to Quair, she saw Zamora
bleeding from his left, upper back.
During a break in Quair’s testimony, the prosecutor alerted the trial court to defense
counsel’s intention to call “five people” to say that Zamora had a gunshot wound, which the
prosecutor through was “pretty cumulative.” The trial court agreed and told defense counsel
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to “trim … down” that number, suggesting that the defense pick one or two of the “best
witnesses on that topic.” The trial court left open the possibility of additional witnesses on
this topic if those additional witnesses offered something different from the other witnesses.
The following day, Zamora filed a written motion requesting the trial court allow “all
relevant witnesses [(five)] who have percipient knowledge that he was shot before he left for
Mexico.”
That same day, the defense called Diaz, Zamora’s sister, as well as Mendez,
Zamora’s aunt, who both testified that, on the evening in question, they saw an injury to
Zamora. The wound was bandaged when Diaz saw it and cleaned and stitched when
Mendez saw it.
The defense also called Edmonds, a former chief deputy coroner for Kings County,
who examined Zamora in March of 2016, and saw what appeared to be a wound on
Zamora’s shoulder consistent with having been shot.
The following day, the trial court denied Zamora’s motion to present all relevant
witnesses, stating Zamora had been allowed a complete defense and had not been precluded
from presenting evidence on that issue, but only precluded from presenting “cumulative
evidence on that issue, those are two different things.”
Following the verdicts, Zamora filed a motion for new trial and raised, as one of its
arguments, that the trial court erred when it excluded witnesses with respect to Zamora
“being shot in Lemoore.”
At the hearing on the motion, defense counsel stated that one of the witnesses not
allowed was Renee Vasquez (Zamora’s girlfriend and Joe’s sister), who was at the scene of
the shooting. But defense counsel conceded that he did not know what Renee would have
said during testimony, only that Renee had told a defense investigator in the past that she
saw what appeared to be blood on Zamora’s left shoulder on the night in question.
The trial court rejected the argument in Zamora’s motion for new trial, noting that the
defense did not have the right to call an unlimited number of witnesses on the issue and did
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not identify any witnesses who would have added something different from the witnesses
who had already testified at trial.
Law and Analysis
As noted above, Evidence Code section 352 permits the exclusion of relevant
evidence where “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.)
Cumulative evidence is also inadmissible under Evidence Code section 352 if it threatens to
confuse or mislead the jury, or if it would necessitate undue consumption of time. (People
v. Burgener (1986) 41 Cal.3d 505, 525, disapproved on other grounds in People v. Reyes
(1998) 19 Cal.4th 743, 753.)
We review a trial court order denying a motion to exclude evidence under Evidence
Code section 352 for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 49.) The
trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed
unless the court acted in an “arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We find that the trial court acted within its discretion under Evidence Code section
352 when it excluded additional witness testimony on the topic of Zamora being shot in
Lemoore. The record supports the trial court’s finding that the evidence was cumulative and
therefore unduly time consuming.
In addition, the probative value of the excluded witnesses appears to have been very
limited. The defense wanted to call multiple witnesses on the same subject that Zamora had
been injured after the shooting. The trial court permitted the defense to present three
witnesses on that topic and left open the possibility of more witnesses if those witnesses
offered something different from the other witnesses who testified. However, during trial,
the defense did not provide names of additional witnesses, did not make an offer of proof
regarding those witnesses, and did not argue additional witnesses would have new
37.
information to add to the topic. In light of this omission, it is reasonable to deduce that the
probative value of any new additional witnesses was slight, and the trial court properly
exercised its discretion by excluding the additional witnesses on the same subject as
cumulative. (See, e.g., People v. Cavanaugh (1968) 69 Cal.2d 262, 271 [no abuse of
discretion on the part of the trial court in limiting live alibi witnesses]; People v. Mincey
(1992) 2 Cal.4th 408, 439 [cumulative evidence may be excluded under Evidence Code
section 352].)
Zamora contends the alleged error implicated his federal constitutional rights to
present a defense. Not so.
“Although a defendant has the general right to offer a defense through the testimony
of his or her witnesses, ‘a state court’s application of ordinary rules of evidence—including
the rule stated in Evidence Code section 352—generally does not infringe upon this right.’ ”
(People v. Linton (2013) 56 Cal.4th 1146, 1183.) “[T]here are instances where due process,
the right to a fair trial, and other constitutional guarantees trump the rules of evidence.”
(People v. Guillen (2014) 227 Cal.App.4th 934, 1019.) But, “[a]s a general matter, a
defendant has no constitutional right to present all relevant evidence in his favor.
[Citation.]” (Ibid.)
Here the trial court did not preclude Zamora from presenting a defense, it only
limited the number of cumulative witnesses on one topic. As such, Zamora was not denied
a fair trial or otherwise denied the right to present a defense.
V. DID THE TRIAL COURT ERR WHEN IT DENIED ZAMORA’S REQUEST
TO INSTRUCT THE JURY WITH CALCRIM NO. 505?
Zamora next contends the trial court erred when in refused to instruct the jury with
pinpoint language in CALCRIM No. 505. We find no merit to his claim.
Background
The trial court instructed the jury pursuant to CALCRIM No. 505, in relevant part, as
follows:
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“The defendant is not guilty of murder or manslaughter if he was justified in
killing someone in self-defense. The defendant acted in lawful self-defense if:
[¶] 1. The defendant reasonably believed he was in in imminent danger of
being killed or suffering great bodily injury; [¶] 2. The defendant reasonably
believed that the immediate use of deadly force was necessary to defend
against that danger, and [¶] 3. The defendant used no more force than was
reasonably necessary to defend against that danger. [¶] Belief in future harm
is not sufficient, no matter how great or how likely the harm is believed to be.
The defendant must have believed there was imminent danger of death or
great bodily injury to himself. Defendant’s belief must have been reasonable,
and he must have acted only because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than was
reasonable, the killing was not justified. [¶] When deciding whether the
defendant’s beliefs were reasonable, consider all the circumstances as they
were known to and appeared to the defendant, and consider what a reasonable
person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have
actually existed. [¶] If you find Joe Donez threatened the defendant in the
past, you may consider that information in deciding whether the defendant’s
conduct and beliefs were reasonable.”
At the jury instruction conference, Zamora requested that the trial court provide
additional language to CALCRIM No. 505 as follows: “ ‘someone who has been threatened
with harm by a person in the past is justified by acting more quickly or taking greater self-
defense measures against that person.’ ” The trial court denied the request.
Applicable Law and Analysis
Pinpoint instructions “ ‘relate particular facts to a legal issue in the case or “pinpoint”
the crux of a defendant's case.’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) “Upon
proper request, a defendant has a right to an instruction pinpointing the theory of defense ...
if the theory proffered by the defendant is supported by substantial evidence” (People v.
Randolph (1993) 20 Cal.App.4th 1836, 1841), the instruction is a correct statement of law
(People v. Bivert (2011) 52 Cal.4th 96, 120), and the proposed instruction does not simply
highlight specific evidence the defendant wishes the jury to consider (People v. Wright
(1988) 45 Cal.3d 1126, 1137.)
39.
The trial court may properly refuse an instruction highlighting a defense theory if it is
“duplicative or potentially confusing.” (People v. Gonzales (2012) 54 Cal.4th 1234, 1276.)
“[W]here standard instructions fully and adequately advise the jury upon a particular issue, a
pinpoint instruction on that point is properly refused.” (People v. Canizalez (2011) 197
Cal.App.4th 832, 857; see e.g., People v. Gonzales, supra, at p. 1276 [trial court did not err
in refusing to instruct jury that “ ‘a person is not guilty of murder simply because he or she
failed to stop someone else from committing a murder’ ” where topic was covered by
standard aiding and abetting and child endangerment instruction and “giving two different
instructions on the same topics would risk confusing the jury”].) Put another way, “[t]here
is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining
instructions, considered as a whole, fail to cover the material issues raised at trial.” (People
v. Dieguez (2001) 89 Cal.App.4th 266, 277.) The failure to give an instruction on even an
essential issue “may be cured if the essential material is covered by other correct
instructions properly given.” (Ibid.)
In a claim challenging the denial of a pinpoint instruction, we apply an abuse of
discretion standard. (People v. Mora and Rangel, supra, 5 Cal.5th at p. 497.)
Without deciding whether the proposed instruction was a correct statement of law,
we find there was no substantial evidence to support such a pinpoint instruction. (See
People v. Hovarter (2008) 44 Cal.4th 983, 1021 [trial court may refuse to give instruction
requested by the defendant if the instruction is potentially confusing and/or not supported by
substantial evidence].) The instruction proposed by Zamora states that someone who has
been harmed or threatened by another can take greater self-defense measures “against that
person.” The evidence at trial showed that Joe had previously threatened Zamora.
However, Joe was not the person who Zamora allegedly “took greater self-defense measures
against.” Instead, Zamora shot at and killed Isaac. There was no evidence that Isaac had
ever harmed or threatened Zamora prior to the shooting.
40.
We find no abuse of discretion on the part of the trial court in refusing to give the
proposed pinpoint instruction, as adequate instruction on self-defense was given. We reject
Zamora’s claim to the contrary.
VI. CUMULATIVE ERROR?
Zamora contends finally that cumulative error deprived him of a fair trial. “We have
found no error, and where we assumed error, we have found no prejudice. Nor do we
discern cumulative prejudice.” (People v. Edwards (2013) 57 Cal.4th 658, 767; see People
v. Bell (2019) 7 Cal.5th 70, 132; People v. Westerfield (2019) 6 Cal.5th 632, 728.)
VII. SENATE BILL NO. 81
On October 4, 2019, the trial court sentenced Zamora to 15 years to life for the
murder, plus 25 years to life for the associated firearm enhancement pursuant to section
12022.53, subdivision (d). Punishment on the remaining firearm enhancements were
stayed.
In supplemental briefing, Zamora contends that remand is required to allow the trial
court discretion to strike one or more sentencing enhancements, pursuant to section 1385.
In 2021, the Legislature enacted Senate Bill No. 81, which amended section 1385 to specify
factors that the trial court must consider when deciding whether to strike enhancements
from a defendant’s sentence in the interests of justice. (Stats. 2021, ch. 721, § 1.) Most
notably, under the newly enacted subdivision (c)(2)(B) of section 1385, if “[m]ulitple
enhancement are alleged in a single case,” “all enhancements beyond a single enhancement
shall be dismissed.” And in subdivision (c)(2)(C) of section 1385, if “[t]he application of
an enhancement could result in a sentence of over 20 years,” the trial court “shall ... dismiss[
]” the enhancement. These requirements “shall apply to sentencings occurring after the
effective date of” Senate Bill No. 81. (Stats. 2021, ch. 721, § 1, enacting § 1385, subd.
(c)(7).)
41.
Because Zamora’s case is not yet final and the amendment could lessen any
punishment (In re Estrada (1965) 63 Cal.2d 740, 744), any resentencing in this case will
take place after Senate Bill No. 81 became effective on January 1, 2022. As such, we agree
with Zamora that the court must apply the new law in any such proceeding. (People v. Sek
(2022) 74 Cal.App.5th 657, 674 [case remanded for option to retry on gang allegations, and
resentence discretion on newly amended sections 654 and section 1385].)
DISPOSITION
The matter is remanded for resentencing. The judgment is otherwise affirmed.
FRANSON, J.
WE CONCUR:
POOCHIGIAN, ACTING P. J.
SMITH, J.
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