THE PEOPLE v. RICHARD LUJAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RICHARD LUJAN Defendant and Appellant.

B216790

Decided: November 24, 2010

Babak Bobby Farahan for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne, and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Richard Lujan appeals his conviction for second degree murder and possession of a firearm by a felon.   He argues that the admission of letters written by nontestifying witnesses violated his constitutional and statutory right to confrontation.   He also argues that the trial court gave improper jury instructions on accomplice testimony by his former co-defendant, Francisco Espinoza.   We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Pete Chavez was a member of the Puente 13 gang.   Chavez was shot outside his apartment complex in West Covina on the night of December 29, 2006.   Chavez was with his brother, Rudy Holguin, when he was shot.   Chavez was interviewed at the scene and stated that two men in hooded sweatshirts approached him and fired shots.   He died three days later.

West Covina police detectives knew that Jesus Ordaz, a known member of the rival Cyclones (CYS) gang, lived in the adjacent Brook Hallow apartment complex.   On January 11, 2007, Detectives Dario Aldecoa and Steve Wheeless waited outside Ordaz's apartment to question him about the shooting.   While there, the detectives were alerted by police radio that two men were spotted nearby vandalizing property.   The detectives apprehended the two men, who identified themselves as Francisco Espinoza and Ricardo Ordaz, Jesus Ordaz's younger brother.

Detectives questioned them separately about the Chavez shooting.   Ordaz stated that days after the incident, Espinoza admitted he was with appellant when appellant shot Chavez.   Ordaz was released.   The detectives next interrogated Espinoza, who, after initial denials, admitted he was one of the hooded assailants and identified appellant as the shooter.   Espinoza was charged with murder as an aider and abettor, but was separately tried and acquitted.

Appellant was charged with murder and possession of a firearm by a felon.   It was alleged that appellant personally and intentionally used a firearm in the commission of a murder and that both crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang.   A prior felony conviction allegation also was attached to both counts.

At trial, respondent argued that the incident arose out of a conflict between two neighboring gangs, Puente 13 and CYS. The prosecutor offered evidence, including Espinoza's police statements, to demonstrate appellant's CYS membership and his role in an ongoing graffiti tagging conflict between the two gangs in the apartment complexes.   Appellant was found guilty of second degree murder and possession of a firearm by a felon.   The jury also found all the special allegations to be true.   Appellant filed a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims the admission of confiscated letters written by persons who did not testify at trial violated his right to confrontation.   At trial, the prosecutor sought to introduce four letters written by two CYS members while in prison.   The letters, which were confiscated from appellant's home when he was arrested, were addressed to “Spooky.”   During police interrogation, appellant admitted to Detective Wheeless that Spooky was one of his two nicknames.   The letters were offered to prove appellant's active membership in the CYS gang and his relationship with Francisco Espinoza, and to rebut appellant's statement to police that indicated otherwise.   The letters were to be read by Officer Ken Plunkett, a gang expert for the West Covina police, during his testimony about appellant's gang participation.

Appellant's trial counsel objected on the ground that the letters were unduly prejudicial under Evidence Code section 352.1  The court deferred ruling on their admissibility.   Later, the parties proposed redacted copies of the letters.   Appellant's trial counsel was satisfied with the redactions but restated his section 352 objection and also objected that the letters had not been authenticated.   The court stated it would wait for the full direct and cross-examination of Officer Plunkett before ruling on their admissibility.

During redirect examination, the prosecutor offered four of the letters as exhibits and Officer Plunkett was allowed to read from them.   The first two letters were signed by “Lucky,” who was identified as Miguel Espinoza, the older brother of Francisco Espinoza and a CYS gang member.   Lucky asked the appellant to take care of his brother, and to “ ‘teach him what's up,’ ” which Officer Plunkett understood to mean showing him the ways of the gang and how to be a gangster.   The other two letters were signed by “Shadow,” who was identified as Eric Marroquin, also an established CYS member.   The author told appellant to “put [CYS] on the ․ map,” which Officer Plunkett understood to mean represent the CYS gang well.   The letters were dated October and November 2006, one and two months prior to the Chavez shooting.   Plunkett concluded that such letters would not be written to someone who was not actively involved in the gang.

Defense counsel did not object at this time.   Instead, appellant's counsel used three other letters recovered from appellant's home, and allegedly written by Marroquin and Espinoza, to rebut Plunkett on re-cross-examination.   At the close of its case, the prosecutor moved to admit the exhibits into evidence.   Appellant's counsel renewed his previous objections.   The court noted the objections but received the exhibits into evidence.

A defendant's right to confrontation must be timely asserted at trial or it is forfeited on appeal.  (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)   The objecting party must “make clear the specific ground of the objection or motion.” (§ 353;  see also People v. Redd (2010) 48 Cal.4th 691, 730 [hearsay objection at trial does not preserve confrontation clause claim].)   But an appellant does not forfeit constitutional objections on appeal when raising a different objection at trial as long as the constitutional objections do not invoke “facts or legal standards different from” the objection made, “but merely assert that the trial court's act or omission ․ had the additional legal consequence of violating the Constitution.”   (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, citing People v. Partida (2005) 37 Cal.4th 428, 437 (Partida ).)   This caveat is founded on the notion that while the requirement of a specific objection is important, “[i]f the trial objection fairly informs the [appellate] court of the analysis it is asked to undertake, no purpose is served by formalistically requiring the party also to state every possible legal consequence of error merely to preserve a claim on appeal that error in overruling the objection had that legal consequence.”  (Partida, supra, 37 Cal.4th at p. 437.)

In Partida, defendant objected at trial that evidence concerning his gang affiliation was unduly prejudicial under section 352.   He did not argue that the admission would violate his due process rights.   On appeal, defendant argued the trial court erred in overruling his objection and that the error itself had the consequence of denying him due process of law.  (Partida, supra, 37 Cal.4th at p. 431.)   The court held defendant had not waived his due process objection.  (Ibid.) The Partida holding has been interpreted not to broaden the general rule that on appeal one may not argue a different reason to exclude evidence than the reason he or she presented at trial.  (See People v. Chaney (2007) 148 Cal.App.4th 772, 778.)   Instead, “Partida ․ has strengthened application of the statutory rule but simultaneously clarified how the restricted evidentiary argument may yield other appellate arguments.”   (Id. at pp. 778-779.)

Appellant's authentication and section 352 objections are fundamentally different in law and fact from his current constitutional claim.   First, authentication determines whether the offered piece of evidence is what the proponent says it is.   In contrast, the Sixth Amendment's confrontation clause protects a defendant's ability to question a witness on the contents of his or her testimony.  (See Pointer v. Texas (1965) 380 U.S. 400 [establishing the federal constitutional right to confrontation under the Sixth Amendment].)   Appellant's authentication objection was not addressed to the content of the letters, but to whether they were actually written by Marroquin and Miguel Espinoza.   That the authenticity of the letters could have been verified by the authors does not make the constitutional violation an additional of the authentication objection.

Second, appellant contends that a section 352 objection encompasses objections on constitutional grounds.   To support this argument, he cites section 2, which states that the Evidence Code must be liberally construed.   He argues that under this liberal reading, a section 352 objection should preserve all other objections that deal with the fairness of proffered evidence, including constitutional objections.   Appellant offers no support for this argument, and we find none.   Appellant forfeited his right to bring a confrontation clause claim by failing to assert it at trial.

In any event, we find admission of the letters did not implicate the confrontation clause because the letters were offered for non-hearsay purposes.   In California, a criminal defendant has a constitutional and statutory right to confront the witnesses used against him.  (See Cal. Const., art.   I, § 15;  see also Pen.Code, § 686(3).)   However, the right to confrontation is not violated by the admission of non-hearsay statements.   (Crawford v. Washington (2004) 541 U.S. 36, 59, fn.   9 (Crawford );  see also People v. Ervine (2009) 47 Cal.4th 745, 776.)  “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (§ 1200, subd. (a).)  Conversely, a statement offered for some purpose other than to prove the fact stated therein is not hearsay.  (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.)  “Frequently, an utterance may justify an inference concerning a fact in issue, regardless of the truth or falsity of the utterance itself.   It is admitted as circumstantial evidence of that independent fact.”   (1 Witkin, Cal. Evidence (4th ed.   2000) Hearsay, § 36, pp. 718-719, italics omitted.)

Here, respondent offered the letters not to prove their contents, but as circumstantial evidence of independent facts.   The letters written by Lucky asked appellant to take care of Lucky's little brother and to show him the ways of the gang.   The fact that Lucky wrote to appellant concerning gang matters circumstantially shows appellant's active gang affiliation, rebutting his police testimony that he was no longer very active in the gang and had not been around the Brook Hallow apartments in about three years.  (See People v. Price (1991) 1 Cal.4th 324, 437 [letter written by one alleged Aryan Brotherhood gang member to another alleged member was not hearsay because it was offered to “show that the author and the intended recipient were members of an existing organization”].)   The letters also were circumstantial evidence of appellant's relationship with Francisco Espinoza, contradicting his statement to police.   Respondent offered the letters written by Marroquin for the same non-hearsay purpose of proving appellant's active participation in the gang.2

The trial court properly instructed the jury on the limited purpose of the letters.   Although not specifically referring to the letters, the court instructed the jury to consider “evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang related crime enhancement or special circumstances or special allegations charged or that the defendant had a motive to commit the crimes charged.   You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.”   The court explicitly instructed the jury not to consider gang evidence for any other purpose, including appellant's bad character or propensity to commit crime.

Even if the letters constituted hearsay they would not implicate the confrontation clause because the statements were not testimonial under the meaning of Crawford, supra, 541 U.S. at page 51.   Prior to its decision in Crawford, the United States Supreme Court held in Ohio v. Roberts (1980) 448 U.S. 56, 65-66 (Roberts ), that the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule, or when there are adequate indicia of reliability, did not violate a defendant's right of confrontation.   In Crawford, the Supreme Court overruled Roberts in relation to testimonial statements, holding that the confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination,” even if the statements would otherwise be admissible under Roberts.  (Crawford, supra, 541 U.S. at pp. 53-54.)

Two years later, in Davis v. Washington (2006) 547 U.S. 813, 821 (Davis ), the court clarified its decision in Crawford :  “Only [testimonial statements] cause the declarant to be a ‘witness' within the meaning of the Confrontation Clause․  It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”   Thus, after Crawford, nontestimonial hearsay statements “[do] not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule.”  (People v. Garcia (2008) 168 Cal.App.4th 261, 291;  see also People v. Cage (2007) 40 Cal.4th 965, 981, fn.   10 [California Supreme Court noted U.S. Supreme Court has “made clear that Roberts ․ and its progeny are overruled for all purposes, and retain no relevance to a determination whether a particular hearsay statement is admissible under the confrontation clause.”].)

Adopting language used in Davis, the California Supreme Court in People v. Cage, supra, 40 Cal.4th at page 984, footnote 14, defined testimonial statements as “statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use at a criminal trial.”  (Italics omitted.)   In contrast, “an informal statement made in an unstructured setting” does not constitute a testimonial statement.   (People v. Morgan (2005) 125 Cal.App.4th 935, 947.)   Here, the letters written to appellant were not testimonial.   They were informal correspondence between two private parties and were not made for use in a criminal trial.   (See People v. Garcia, supra, 168 Cal.App.4th at p. 286 [holding that threatening letters written by a gang member to prospective witnesses were nontestimonial].)   Their admission into evidence did not violate appellant's right to confrontation.

II

Appellant also argues that the trial court erred in overruling his section 352 objection to the letters.   It is within a trial court's discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (§ 352.)   We review evidentiary rulings for abuse of discretion.  (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)   The trial court found the letters, and a video featuring appellant at a gang event, highly probative, noting that “[i]f his affiliation, association, or membership of the Cyclones is in issue, you can't get more probative than this.”   Prejudice “ ‘naturally flows from relevant, highly probative evidence.’ ”   (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)   But, section 352 is not concerned with that sort of prejudicial effect, but with “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.”  (Ibid., italics omitted.)   Here, the trial court simply found the “prejudice really is ․ your past is catching up with you and that's too bad, but that's a choice that people have made in the past and now it's probative to the issues that are the basis for this trial.”   Nothing in the letters uniquely tends to evoke an emotional bias and the trial court did not abuse its discretion in overruling the section 352 objection.

Appellant argues it was unfair to impeach his testimony with unauthenticated documents.3  Writings are inadmissible in evidence unless the judge determines there is a sufficient showing of authenticity to permit the trier of fact to find it authentic.  (See Cal. Law Revision Com. com., West's Ann. Evid.Code (2010 ed.) foll. § 1400, p. 294.)   A writing may be authenticated in various ways.4  Section 1414 provides that “a writing may be authenticated by evidence that:  [¶] (a) The party against whom it is offered has at any time admitted its authenticity;  or [¶] (b) The writing has been acted upon as authentic by the party against whom it is offered.”  (See Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519.)

In Ambriz v. Kelegian, supra, 146 Cal.App.4th 1519, plaintiff was raped in her apartment complex by an intruder.   She filed a premises liability action against the apartment complex and hired defendants to represent her.  (Id. at p. 1524.)   Plaintiff lost the premises liability action and then filed a legal malpractice action against her attorneys.  (Id. at p. 1525.)   Defendants moved for summary judgment, contending that even if they did breach a duty of care, plaintiff could not demonstrate prejudice because she would not have been able to establish causation in her premises liability action.   (Ibid.) In opposition, plaintiff submitted the deposition of the detective who investigated the rape.   The defendants objected on various grounds, including failure to include a reporter's certificate demonstrating the authenticity of the deposition transcript.  (Id. at p. 1526.)   The defendants had used excerpts from the deposition in their own motion for summary judgment.   The trial court sustained defendants' objections and granted their motion for summary judgment.  (Id. at p. 1525.)   Citing section 1414, the appellate court held the defendants admitted the authenticity of the transcript by using portions of it in support of their motion.  (Id. at p. 1526.)  “Raising an objection as to lack of authentication of an excerpt from the same deposition defendants themselves relied upon in their motion is disingenuous, unless defendants can establish that the excerpt [plaintiff] offered was not part of the deposition transcript.  [Defendants] made no such allegation.”  (Id. at p. 1527.)

Here, appellant's trial counsel objected to the letters introduced by respondent and then introduced different letters from the same collection while re-cross examining Officer Plunkett.   To rebut Officer Plunkett's conclusion that the letters written by Espinoza and Marroquin demonstrated appellant's active gang participation, counsel introduced three letters, one written by Marroquin and two by Espinoza, to demonstrate that the two gang members were out of touch with CYS while in prison.   For example, Marroquin wrote to appellant expressing his dissatisfaction over hearing that Francisco Espinoza was initiated into the gang without Miguel's approval.   In his closing argument, appellant's trial counsel argued that this letter demonstrates Marroquin was out of touch with the gang because there was no other evidence that Francisco Espinoza was actually initiated into CYS. Appellant objected to the authenticity of the recovered letters while attempting to use them as his own evidence, without any showing that the letters he introduced were more authentic than the ones introduced by the prosecutor.   The letters were “acted upon as authentic” by both parties, thus establishing their authenticity. (§ 1414.)

III

Finally, appellant claims the trial court failed to correctly instruct the jury on accomplice testimony, in relation to Francisco Espinoza's testimony naming him as the shooter.   After his interview with the West Covina police, Espinoza was charged as a co-defendant for his involvement in the murder.   He was tried separately and acquitted.   Espinoza appeared at the preliminary hearing and at appellant's trial, but was uncooperative.5  At the end of trial, the court instructed the jury on how to treat testimony given by an accomplice and how to determine whether a witness is an accomplice.   Appellant argues that the trial court erred in failing to instruct the jury that Espinoza was an accomplice as a matter of law.

A conviction cannot be based on the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense.  (Pen.Code, § 1111;  see also CALCRIM No. 334.)   An accomplice is one “who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”  (Pen.Code, § 1111.)   CALCRIM No. 334 states:  “Someone is subject to prosecution if he or she personally committed the crime or if [¶] he or she knew of the criminal purpose of the person who committed the crime [¶] and [¶] ․ intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime).”  (See also People v. Sully (1991) 53 Cal.3d 1195, 1227 [one is not an accomplice by merely giving assistance with knowledge of the perpetrator's criminal purpose].)

Whether a witness was an accomplice is a question for the jury, unless there can be no dispute concerning the evidence or the inferences to be drawn from the evidence.  (People v. Williams (2008) 43 Cal.4th 584.)   Whenever the evidence is sufficient to warrant the jury conclusion that a witness was an accomplice, “the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice.”  (People v. Zapien (1993) 4 Cal.4th 929, 982;  see also People v. Hamlin (2009) 170 Cal.App.4th 1412, 1458;  see also CALCRIM No. 334.)   But, when the facts establishing the witness's status as an accomplice are clear and undisputed, the court must instruct the jury that the witness was an accomplice as a matter of law.  (People v. Williams, supra, 43 Cal.4th at p. 636.)   In that situation, the court should give CALCRIM No. 335, which states that if the charged crimes were committed, then the witness was an accomplice to those crimes.

Here, appellant argues that the trial court erred in giving CALCRIM No.334 instead of CALCRIM No. 335.   He argues that because Espinoza was charged and prosecuted for the same offense, he was an accomplice as a matter of law.   Appellant offers no legal support for this assertion and it is in direct contradiction with established law.   A witness is not an accomplice as of matter of law merely because he was suspected (People v. Platnick (1958) 161 Cal.App.2d 313, 320), or even indicted for committing the same offense.   (People v. Williams (1970) 10 Cal.App.3d 638, 641 [witness who was present at time of a homicide was not an accomplice simply because he was also indicted for the murder].)   In contrast, the acquittal of a witness jointly charged with another defendant, while not determinative, constitutes a factual finding that the witness was not an accomplice.  (People v. Lawson (1952) 114 Cal.App.2d 217, 220.) 6  Being pursued by prosecution is not synonymous with being liable for prosecution.   Espinoza was not an accomplice as a matter of law simply because he was suspected, charged and prosecuted for Chavez's murder.

Espinoza's status as an accomplice was not established by clear and undisputed facts.   First, while it was appellant's theory that Espinoza was the shooter, there were no indisputable facts to support the claim.   And while it was clear and undisputed that Espinoza was at the scene of the crime, the defense did not indisputably show Espinoza's knowledge of the shooter's criminal purpose, let alone an intent to aid or abet the shooter.   During his police interrogation, Espinoza admitted that he knew some CYS members were looking for Chavez, who had been crossing out CYS graffiti in the Brook Hallow apartments.   However, Espinoza maintained that he did not know appellant was looking for Chavez on that night.   Appellant did not offer any evidence to refute that claim.

Even if Espinoza was an accomplice as a matter of law, the trial court's failure to give CALCRIM No. 335 was not prejudicial error.   When reviewing the prejudicial effect of an instructional error, we evaluate whether it is reasonably probable that such error affected the verdict.  (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)   In this case, the error was harmless for three reasons.   First, the trial court's failure to give CALCRIM No. 335 was mitigated by its preceding recitation of CALCRIM No. 301.   When giving CALCRIM No. 301, the court instructed:  “Except for the testimony of Francisco Espinoza, which requires supporting evidence, the testimony of only one witness can prove any fact.”   While the court did not explicitly identify Espinoza as an accomplice as a matter of law, this instruction had the same effect.

Second, there was information apart from the jury instruction which cast suspicion on Espinoza's testimony.  (See People v. Williams (2010) 49 Cal.4th 405, 456 [failure to give jury instructions on accomplice testimony was harmless because “[t]he jury would have been inclined to view [the witness's] testimony with caution even in the absence of an instruction that it do so,” because the jury knew the witness was arrested in connection with the crime, had been contacted by the defendant after the crimes, and had driven him to his destination after his criminal activity].)   The California Supreme Court noted that the purpose of Penal Code section 1111 is to compel the jury to treat accomplice testimony with distrust and suspicion.  (See People v. Miranda (1987) 44 Cal.3d 57, 101, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d. 907, 933, fn. 4.) Thus, the court held in People v. Miranda that any error the trial court made in failing to give the proper instruction was harmless because the “jury had before it ample information suggesting that [the witness's] testimony may not have been completely trustworthy.”  (Ibid.) Here, the court gave jury instructions on accomplice testimony, and there were circumstances surrounding Espinoza's testimony that would reasonably prompt the jury to treat it with suspicion.   Espinoza's status as a former co-defendant, while not sufficient grounds to make him an accomplice as a matter of law, should have raised suspicion.   His inconsistent statements in his police interview and his uncooperative testimony at the preliminary hearing and at trial also gave the jury reason to distrust his testimony and require corroborating evidence.

Finally, Espinoza's testimony was sufficiently corroborated by independent evidence.   Failure to properly instruct the jury on accomplice testimony is harmless error where there is sufficient corroborating evidence in the record.  (People v. Whisenhunt (2008) 44 Cal.4th 174, 215.)   Evidence is corroborative if it is independent of the accomplice's testimony and tends to connect the defendant to the commission of the crime.  (Pen.Code, § 1111.)   The evidence may be slight and entirely circumstantial.  (People v. Whisenhunt, supra, 44 Cal.4th at p. 215.)   Only a portion of the accomplice's testimony need be corroborated, and the corroborative evidence need not establish every element of the charged offense.  (People v. Sully, supra, 53 Cal.3d at p. 1228.)   The trier of fact's determination of corroboration is binding on the reviewing court unless the evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime.  (People v. Thompson (2010) 49 Cal.4th 79, 123-124.)

Here, the corroborating evidence reasonably supports the truthfulness of Espinoza's testimony.   During his interview with the West Covina police, Espinoza initially denied knowing Chavez, but later admitted he saw appellant shoot Chavez.   According to Espinoza, on the night of the shooting around 11:00 p.m., he and appellant were together in a shopping center parking lot next to the Brook Hallow and Continental apartment complexes.7  He and appellant hopped over a wall separating the parking lot and Brook Hallow, at which point he saw that appellant was carrying a gun.   Espinoza described the gun as a .38 caliber chrome revolver.   The two were walking through the complex when the victim appeared and asked them where they came from, which in gang language means what gang they belong to.   Appellant responded, “Cyclones” and then shot Chavez.

Espinoza's description of the gun was corroborated by Jose Ruiz, a friend of Espinoza's.8  The West Covina detectives interviewed Ruiz a few days after interrogating Espinoza.   Ruiz told the police that roughly a half hour before the shooting, Espinoza and appellant visited him at his Brook Hallow residence.   During this visit, Espinoza told Ruiz that he and the appellant had a gun.   Appellant pulled the gun out of his pocket.   Ruiz described the gun as a metal chrome revolver, matching the description Espinoza gave to the police.   Espinoza's description of the gun also was corroborated by physical evidence.   At trial, a Los Angeles County Sheriff's Department firearms examiner testified that a ballistics test determined the gun used to kill Chavez was most likely a .38- or .357-caliber revolver, matching both descriptions of the gun appellant had on the night of the shooting.  (See People v. Abilez (2007) 41 Cal.4th 472, 506 [co-defendant's testimony that he saw the defendant straddling the victim with white cloth around the victim's neck was sufficiently corroborated by police testimony that the victim's body was found with white sock around her neck].)

In addition, it was established at trial that appellant is taller than Espinoza.   At the scene of the shooting, the victim's brother, Rudy Holguin, told a West Covina detective that he saw two hooded assailants and that the taller one was the shooter.   Finally, gang membership can be a significant factor in corroborating an accomplice's testimony because it speaks to motive.  (People v. Vu (2006) 143 Cal.App.4th 1009, 1022.)   In People v. Vu, the victim was killed by gang members of “TRG” who mistook him for a member of a rival gang, “Asian Boyz.” The appellate court held an accomplice's testimony was corroborated by evidence that defendant was a member of the “TRG” and his close friend was previously killed by the “Asian Boyz.” (Ibid.) Here, Espinoza's identification of appellant as a CYS gang member was corroborated by Jose Ruiz's statement and the letters written to appellant by known gang members.   There also was independent evidence:  statements made by Ruiz that appellant was angered by the victim's Puente 13 graffiti in CYS territory, providing him with a motive to commit the crime.   Taken together, the corroborative evidence was sufficient to render any instructional error harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All statutory references are to the Evidence Code, unless otherwise indicated..  FN1. All statutory references are to the Evidence Code, unless otherwise indicated.

FN2. The dating of the letters demonstrated that appellant was active in CYS just months prior to the Chavez incident, rebutting appellant's statements to police that he was no longer active and had not been in the Brook Hallow complex in years.   We note that this constitutes hearsay because the dates are being offered to show that the letters were written on a particular day.   Appellant did not make a hearsay objection to the dates or ask to have the dates redacted, while redacting other portions of the letters.   Nor does he raise this issue on appeal..  FN2. The dating of the letters demonstrated that appellant was active in CYS just months prior to the Chavez incident, rebutting appellant's statements to police that he was no longer active and had not been in the Brook Hallow complex in years.   We note that this constitutes hearsay because the dates are being offered to show that the letters were written on a particular day.   Appellant did not make a hearsay objection to the dates or ask to have the dates redacted, while redacting other portions of the letters.   Nor does he raise this issue on appeal.

FN3. Appellant's trial counsel raised an authentication objection at trial.   Though the court did not specifically rule on the authentication issue, it summarily overruled all of appellant's evidentiary objections..  FN3. Appellant's trial counsel raised an authentication objection at trial.   Though the court did not specifically rule on the authentication issue, it summarily overruled all of appellant's evidentiary objections.

FN4. A writing may be authenticated by evidence of the genuineness of the handwriting of the alleged writer (§ 1416), or by evidence that the writing refers to or states matters unlikely to be known by anyone other than the alleged writer (§ 1421)..  FN4. A writing may be authenticated by evidence of the genuineness of the handwriting of the alleged writer (§ 1416), or by evidence that the writing refers to or states matters unlikely to be known by anyone other than the alleged writer (§ 1421).

FN5. At the preliminary hearing, Espinoza answered most inquiries in the negative, denied knowing the appellant and making statements about the incident, and denied that it was his voice on an audiotape recording of the interrogation.   Espinoza testified at trial, and while he admitted to being a friend of appellant and identified him as a member of CYS, he was unresponsive to questions about the shooting and his role in the investigation..  FN5. At the preliminary hearing, Espinoza answered most inquiries in the negative, denied knowing the appellant and making statements about the incident, and denied that it was his voice on an audiotape recording of the interrogation.   Espinoza testified at trial, and while he admitted to being a friend of appellant and identified him as a member of CYS, he was unresponsive to questions about the shooting and his role in the investigation.

FN6. An acquittal does not preclude a witness from being an accomplice.   A previous acquittal alone does not prevent the jury from finding the witness to be an accomplice.  (See People v. Gordon (1973) 10 Cal.3d 460, 469, disapproved on another ground in People v. Ward (2005) 36 Cal.4th 186, 212.)   The operative test is not whether the alleged accomplice witness was subject to trial at the time he or she testified, but whether at the time the acts were committed and as a result of those acts the witness became liable to prosecution for the same offenses charged against the defendant.  (Ibid., citing People v. Wallin (1948) 32 Cal.2d 803, 808.).  FN6. An acquittal does not preclude a witness from being an accomplice.   A previous acquittal alone does not prevent the jury from finding the witness to be an accomplice.  (See People v. Gordon (1973) 10 Cal.3d 460, 469, disapproved on another ground in People v. Ward (2005) 36 Cal.4th 186, 212.)   The operative test is not whether the alleged accomplice witness was subject to trial at the time he or she testified, but whether at the time the acts were committed and as a result of those acts the witness became liable to prosecution for the same offenses charged against the defendant.  (Ibid., citing People v. Wallin (1948) 32 Cal.2d 803, 808.)

FN7. Espinoza did not refer to appellant by his given name but by “Spooky.”   He then identified appellant as Spooky during a photo lineup.   For clarity purposes we do not refer to appellant as Spooky..  FN7. Espinoza did not refer to appellant by his given name but by “Spooky.”   He then identified appellant as Spooky during a photo lineup.   For clarity purposes we do not refer to appellant as Spooky.

FN8. Ruiz testified at trial but was uncooperative.   An audio recording of his police interview was played for the jury..  FN8. Ruiz testified at trial but was uncooperative.   An audio recording of his police interview was played for the jury.

MANELLA, J. SUZUKAWA, J.