THE PEOPLE v. SANTOS TOPETE

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SANTOS TOPETE, Defendant and Appellant.

B220322

Decided: January 19, 2011

Flier and Flier, Theodore S. Flier and Andrew Reed Flier for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

A jury convicted defendant Santos Topete of first degree murder (§ 187, subd. (a)) 1 with findings that he had committed the crime to benefit a street gang (§ 186.22, subd. (b)(1)(C)) and had personally and intentionally discharged a firearm, causing death (§ 12022.53, subd. (d)).  The trial court sentenced defendant to a term of 50 years to life, plus 10 years.

In this appeal, defendant primarily contends that the evidence is insufficient to sustain his conviction.   He argues that “the testifying witnesses for the prosecution [whose prior inconsistent statements inculpated him] lied, were inconsistent and coerced by law enforcement” and that “there was no independent and reliable evidence” that he “was the shooter.”   We disagree.   The record contains substantial evidence from which a reasonable jury could find defendant guilty.

Secondarily, defendant contends that the trial court erred when it submitted the pattern flight instruction because “there was insufficient evidence” that he “ ‘ran from authorities or fled.’ ”   We are not persuaded.   We therefore affirm the judgment.

STATEMENT OF FACTS

1. Factual Overview

The murder is gang-related.   Defendant is a member of the Sanfer gang.   The victim, Eric Perez, was a member of the rival Pacoima Vaughn Street gang.   Defendant fatally shot Perez at a birthday party being held in Sanfer territory.

2. The Prosecution's Case

a. The Murder

The murder occurred on July 1, 2007.   That evening, Eric Perez (Perez) and his brother Marco attended a party in a neighborhood considered Sanfer territory.   During the party, Perez walked outside.   Several minutes later, Marco heard shots.   He went outside.   Perez was shot and lying on the sidewalk.   Marco drove his brother to the hospital where he was pronounced dead.

b. The Identification Evidence

The primary disputed issue at trial was defendant's identity as the shooter.   In that regard, the prosecution called as witnesses four men who had previously incriminated defendant in police interviews and at the preliminary hearing.   However, at trial, the men either denied or attempted to recant their inculpatory statements and testimony.   As a result, the prosecution introduced their prior inconsistent statements into evidence.  (Evid.Code, § 1235.)   The specifics are the following.

i. Police Interviews

Detective Terence Keyzer, one of the lead investigators in the case, interviewed four men who had attended the party.   The interviews were tape recorded and introduced at trial.   Each of the four inculpated defendant.

Juan Lopez explained to Detective Keyzer that he saw defendant shoot Perez at the party as Perez was speaking on a cell phone.   After the shooting, Juan Lopez left the party in his truck accompanied by his brother Rafael Lopez, Brian Paniagua, and defendant.   Defendant told Juan Lopez not to tell anyone about what he had seen.   During his interview with Detective Keyzer, Juan Lopez prepared a diagram indicating defendant's location when he shot and the direction defendant shot.  (The diagram was introduced into evidence at trial.)

Rafael Lopez was approximately 10 feet from the shooting.   He identified defendant as the shooter.   After the shooting, he and his brother Juan Lopez ran out of the party and entered his brother's truck and left the area.   Rafael Lopez prepared a diagram of the shooting for Detective Keyzer indicating where defendant stood and the direction he shot.  (The diagram was introduced into evidence at trial.)

Eduardo Lopez told Detective Keyzer that he was inside the party when he heard shots.   He left and went home.   Approximately 40 minutes later, defendant arrived at his home.   Defendant told Eduardo Lopez that he was the shooter but not to tell anyone that.   Eduardo Lopez explained to Detective Keyzer:  “And I didn't want to say anything because, like, honestly, he's my friend, but, like, since he's a gangster, I kind of get scared of him.”

Edwin Arceo left the party after he heard gunshots and went to the home of Eduardo Lopez.   Defendant arrived soon thereafter.   Defendant told Arceo that he was the shooter and that the victim had been “from Pacoima.”

ii. Preliminary Hearing Testimony

Three of the four men testified at defendant's August 2008 preliminary hearing.   Juan Lopez testified that he saw defendant, who was standing six to ten feet from him, shoot “more than once” at the victim who was holding only a cell phone.   Eduardo Lopez testified that defendant stated:  “I shot him.”   Similarly, Arceo testified that defendant told him that he had been the shooter and that “it shouldn't be discussed anymore, you know, just forget about it.”

iii. Trial Testimony

At trial, the four men attempted to recant their prior statements and testimony in the following ways.

Juan Lopez, who considered defendant a friend, claimed that Detective Keyzer had pressured him into making the statements and into testifying at the preliminary hearing.   In addition, he testified that in his interview with Detective Keyzer, he “was probably confusing [defendant] with Brian [Paniagua]” who had also attended the party because he was “trying to avoid snitching on Paniagua.”

Rafael Lopez denied having spoken with Detective Keyzer and claimed that he did not recognize his voice on the tape recorded interview played for the jury.   He acknowledged that he did not want to be viewed as a snitch because a snitch could be beaten up or killed.

Eduardo Lopez, conceding that he was afraid to testify at trial, claimed that he did not remember having told Detective Keyzer that defendant had identified himself as the shooter.   Eduardo Lopez further testified that he had felt pressured by Detective Keyzer into testifying at the preliminary hearing.

Arceo testified that Detective Keyzer pressured and threatened him and that his testimony at the preliminary hearing was either mistaken or false.

Detective Keyzer testified and denied having threatened any of the four witnesses.   He explained that each man had expressed fear about cooperating with the police.   They had told the detective that they “were afraid that this will go somewhere, their statements will go somewhere.”   In addition, the detective testified that he had tape recorded the four interviews because in gang cases, witnesses often later become reluctant to testify out of fear of retaliation.

The police recovered physical evidence from the crime scene from locations consistent with the witnesses' statements (including the two diagrams prepared by the Lopez brothers) about where defendant and Perez had been standing at the time of the shooting.   Expended gun casings were found where the gun had been fired and items of Perez's personal property (including his cell phone) were found near where he had been shot.

c. Gang Evidence

Los Angeles Police Officer Alonso Menchaca testified as a gang expert.   Because defendant's challenge to the sufficiency of the evidence to sustain the gang finding is based solely on his contention that there is insufficient evidence to identify him as the shooter, we summarize only the portion of the expert testimony relevant to that specific contention.

Defendant is a known member of the Sanfer gang.   Juan Lopez and Rafael Lopez are “associates” of the Sanfer gang who live in Sanfer territory.   The Sanfer gang's primary activities include witness intimidation.   An individual who lives in gang territory will be fearful of cooperating with a police investigation of a gang related crime.   If people speak to the police, “they get labeled on the street a rat, pretty much a snitch.   Once they are labeled a rat, they can face some type of serious penalty, whether it's them being beat up or ․ killed or having a family member seriously hurt.  [¶] So it's common for them to talk to [the police] and later on deny ever talking to [them] for fear of retaliation.”

Perez (the murder victim) had been a member of the rival Pacoima Vaughn Street gang.   The birthday party occurred in Sanfer territory.   Perez had been wearing clothing associated with his gang when defendant shot him.   Perez's presence at the party constituted an act of disrespect to the Sanfer gang.   Perez's murder benefitted the Sanfer gang because it demonstrated that the Sanfer gang would not be “disrespected” by a rival gang member attending a party in its territory.

3. The Defense Case

The defense theory of the case was that Paniagua-who Officer Menchaca had testified was a Sanfer member-was the shooter.   Although defendant did not testify, several individuals who had attended the party testified on his behalf.   None could identify the shooter but two of them suggested that Paniagua, who they had seen at the party, had shot Perez.   Paniagua did not testify.2

In closing argument, defense counsel urged that one reasonable interpretation of the evidence was that Paniagua had shot Perez.   In addition, defense counsel attacked the credibility of the out-of-court statements and preliminary hearing testimony of the four witnesses who had inculpated defendant.

DISCUSSION

A. Sufficiency of the Evidence

The crux of defendant's contention of insufficient evidence is an attack on the out-of-court statements and testimony identifying him as the shooter.   He argues:  “The credibility of the governmental witnesses was highly lacking.   In combination, they were unreliable and inconsistent․  Threats to implicate them and false utterances dominated each initial interrogation of these witnesses at the police station․  [¶] There was no independent, corroborative evidence in [the] trial that [defendant] was the shooter.”   The argument is not persuasive.

It is well-established that a single out-of-court identification is sufficient to sustain a finding that an individual committed a crime.   Despite defendant's suggestion to the contrary, no corroborating evidence is required.  (People v. Cuevas (1995) 12 Cal.4th 252, overruling People v. Gould (1960) 54 Cal.2d 621.)   The sufficiency of an out-of-court identification is determined under the substantial evidence test used to determine the sufficiency of other forms of evidence.   We “view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence-i.e., evidence that is reasonable, credible, and of solid value-to support the [trier of fact's] finding” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398), bearing in mind that it is the exclusive province of the jury to determine a witness's credibility.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Here, substantial evidence supports the jury's finding that defendant committed the murder.   In tape recorded police interviews, Juan Lopez and Rafael Lopez, two individuals who had attended the party and witnessed the shooting, unequivocally identified defendant as the shooter.   In addition, each of those two men prepared a diagram of the shooting, the accuracy of which was corroborated by the physical evidence recovered from the scene (expended casings and the victim's personalty).   Further, two other men (Eduardo Lopez and Edwin Arceo) told the police in separate tape recorded interviews that shortly after the shooting, defendant admitted being the shooter.

At defendant's preliminary hearing, three of the men testified.   Each reiterated his inculpatory statements to the police.   Juan Lopez testified that he saw defendant shoot Perez.   And Eduardo Lopez and Arceo each testified that defendant had told him that he (defendant) had been the shooter.

That at trial the four men attempted to disavow or deny their prior statements does not compel a conclusion that the evidence is insufficient to sustain the jury's guilty verdict.   Evidence was presented to explain that fear motivated their trial testimony.   Detective Keyzer testified that when he had interviewed the men, each had expressed fear about cooperating with the police.   In addition, two of the men's prior statements to him indicated their fear of defendant.   Defendant had instructed Juan Lopez not to tell anyone about the shooting and Eduardo Lopez feared defendant because he was a gang member.   Further, at the preliminary hearing, Arceo testified that defendant had told him to forget about his admission of guilt.   At trial, Rafael Lopez acknowledged fear of physical retaliation if he were viewed as a snitch, and Eduardo Lopez conceded he was fearful of testifying at trial.   In addition, Officer Menchaca (the gang expert) testified that one of the Sanfer gang's primary activities was witness intimidation and that individuals who initially cooperate with the police often later recant out of fear.   The jury could have reasonably considered this evidence in deciding to disbelieve the four men's trial disavowals and to credit instead their pretrial statements and testimony.

To avoid this conclusion, defendant focuses on:  (1) the four men's trial testimony that their earlier incriminating statements were the result of threats and pressure and (2) the evidence suggesting that Paniagua was the shooter.   This approach is not persuasive because it constitutes nothing more than an improper request that we reevaluate the evidence.   Defense counsel presented all of these points to the jury during his closing argument.   In convicting defendant, the jury rejected these arguments.   It was the exclusive province of the jury to determine the credibility of the four men's prior identifications of defendant as the shooter and the truth or falsity of the facts upon which those identifications rested.  (People v. Barnes (1986) 42 Cal.3d 284, 303.)   Consequently, we cannot and will not reweigh the evidence or substitute our evaluation of the credibility of any of these four witnesses' identifications for that of the jury.  (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)   Our review is limited to determining whether, after drawing all reasonable inferences in favor of the judgment, a rational jury could have found beyond a reasonable doubt that defendant was the individual who fatally shot Perez.  (People v. Hughes (2002) 27 Cal.4th 287, 370.)   As explained above, the record contains substantial evidence from which a reasonable jury could have found defendant guilty.3  Or stated another way, “ ‘to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all.’   [Citation.]”  (People v. Prado (1982) 130 Cal.App.3d 669, 674.)   This is not such a case.

B. Submission of CALCRIM No. 372

Over defense objection, the trial court submitted CALCRIM No. 372.   It provides:

“If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt.   If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct.   However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”

Defendant contends use of this instruction constitutes prejudicial error.   We disagree.

1. Factual Background

Detective Keyzer testified that after he had “filed” “this case,” he and his partner went to defendant's home to arrest him.   He explained:  “We stopped the car, got out of the car kind of casual, said hello․  [¶] [Defendant] started backing up, walking backwards on his property.   I said, Hey, we just want to talk.   He said I don't want to talk to you [and then] he ran into his house.”   At this point, defense counsel sought a sidebar conference.   The court excused the jury for the lunch recess.

Defense counsel moved for a mistrial.   He claimed that the detective's testimony that defendant did not want to speak with him constituted “a Griffin type of error.   The jury's not supposed to hear when a defendant doesn't want to talk to [the] police․  I don't think the jury is entitled to know about his invoking his right to not speak to the police.”

The prosecutor responded that defendant's Fifth Amendment rights were not implicated because he had not yet been arrested.   He characterized defendant's response to the detective as “a spontaneous statement” “only offered ․ to explain the subsequent conduct of the defendant, which is running.”

The trial court denied defendant's request for a mistrial, finding no violation of defendant's privilege against self-incrimination.4  However, the court ruled that “defendant's comments are not relevant” and that it would “admonish the jury that the comments are not evidence in this case and cannot be considered by the jury for any purpose.”

When proceedings resumed in front of the jury, the court struck Detective Keyzer's testimony that defendant had said he did not want to speak with him.   The court told the jury:  “You cannot consider those comments made by the defendant for any purpose.”   The court stated that if any juror could not follow that admonishment, he or she should raise a hand.   None did.

Detective Keyzer resumed his testimony.   He explained that after defendant had run from his house, the police established a perimeter to apprehend him.   Within an hour or two, defendant was found at a gas station about a mile from his home.

When the parties later discussed jury instructions, the prosecutor asked the court to submit CALCRIM No. 372.   Defense counsel objected.   He argued:  “[T]here is no evidence this defendant had any knowledge whatsoever that any charges had been filed against him․  [N]obody told him he was under arrest or he was going to be taken into custody.”   Defense counsel claimed that defendant was simply “exercising his constitutional right [to] not talk[ ] to the officer” when he left the scene so that his conduct could not viewed as circumstantial evidence of consciousness of guilt.   The court overruled the defense objection.

In closing argument, the prosecutor relied only briefly upon the flight instruction to argue defendant's guilt.   Defense counsel did not mention it in his closing argument.

2. Discussion

A flight instruction is proper where the evidence shows a defendant fled from the police under circumstances suggesting his movement was motivated by consciousness of guilt.  (People v. McWhorter (2009) 47 Cal.4th 318, 376.)   Contrary to what defendant suggests, “the instruction neither requires knowledge on a defendant's part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest.”  (People v. Carter (2005) 36 Cal.4th 1114, 1182.)

Here, Detective Keyzer approached defendant and asked to speak with him.   Defendant responded first by running into his house and then by fleeing the residence.   Defendant was apprehended an hour or two later in a gas station a mile from his home.   This evidence warranted submission of the flight instruction because the jury could reasonably infer defendant's actions reflected consciousness of guilt.  (People v. Howard (2008) 42 Cal.4th 1000, 1020.)   And, as set forth above, the instruction simply permitted the jury to consider this evidence of flight in deciding defendant's guilt or innocence;  it did not suggest that the jury should consider such evidence to be dispositive.   That there might be other reasonable explanations for defendant's actions did not preclude submission of the instruction.  (People v. Burres (1980) 101 Cal.App.3d 341, 355.)

Defendant's argument that “indirect ‘Griffin’ error was also committed” is not persuasive.   The predicate of this argument is Detective Keyzer's brief testimony that defendant stated he did not wish to speak with him.   As the trial court correctly found (see fn. 4, ante ), no Griffin error occurred because there was no prosecutorial comment upon defendant's invocation of the right to remain silent.   Further, the trial court struck the testimony and admonished the jury to disregard it.   As the jury is presumed to have followed that instruction (see, e.g., People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17) and the prosecutor failed to mention the stricken testimony in closing argument, defendant's claim of prejudice is unsupported speculation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code..  FN1. All undesignated statutory references are to the Penal Code.

FN2. Outside of the jury's presence, the prosecution called Paniagua as a witness.   The trial court appointed counsel for Paniagua.   The prosecutor represented that Paniagua, in a recorded interview, had told Detective Keyzer that defendant had committed the murder.   The defense stated that it intended to ask Paniagua if he was the shooter.   Based upon the advice of counsel, Paniagua asserted the privilege against self-incrimination.   The trial court sustained the assertion and Paniagua did not testify..  FN2. Outside of the jury's presence, the prosecution called Paniagua as a witness.   The trial court appointed counsel for Paniagua.   The prosecutor represented that Paniagua, in a recorded interview, had told Detective Keyzer that defendant had committed the murder.   The defense stated that it intended to ask Paniagua if he was the shooter.   Based upon the advice of counsel, Paniagua asserted the privilege against self-incrimination.   The trial court sustained the assertion and Paniagua did not testify.

FN3. In denying defendant's motion for judgment of acquittal (§ 1118.1), the trial court stated:  “[T]he court finds any rational trier of fact could find the defendant guilty.”.  FN3. In denying defendant's motion for judgment of acquittal (§ 1118.1), the trial court stated:  “[T]he court finds any rational trier of fact could find the defendant guilty.”

FN4. In a thoughtful ruling, the trial court explained:“The United States Supreme Court, in Griffin versus California, held that under the Fifth Amendment of the Federal Constitution a prosecutor is prohibited from commenting on an accused's invocation of his right to remain silent.“In United States versus Bagley the Ninth Circuit explained that the test is whether the comment is manifestly intended to call attention to the defendant's failure to testify and is of such character that the jury would naturally and necessarily take it to be a comment on the failure to testify.“In this case there is no Griffin error because the prosecutor has not commented on the defendant's invocation of his right to remain silent.“I could interpret [defense counsel's] concern as a Doyle issue.   Under Doyle versus Ohio, a violation of the defendant's right to due process occurs if the prosecutor uses the defendant's silence at the time of arrest and after receiving Miranda warnings to impeach an affirmative defense at trial.“Brecht versus Abrahamson, 1993 507 U.S. 619, pinpoint cite is 628, explains that the Doyle rule, quote, ‘reasons on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’“For many reasons Doyle is not implicated.   The most important reason is that the defendant's comments occurred prior to any Miranda warnings.   The motion for mistrial is therefore denied.”  (Italics added.).  FN4. In a thoughtful ruling, the trial court explained:“The United States Supreme Court, in Griffin versus California, held that under the Fifth Amendment of the Federal Constitution a prosecutor is prohibited from commenting on an accused's invocation of his right to remain silent.“In United States versus Bagley the Ninth Circuit explained that the test is whether the comment is manifestly intended to call attention to the defendant's failure to testify and is of such character that the jury would naturally and necessarily take it to be a comment on the failure to testify.“In this case there is no Griffin error because the prosecutor has not commented on the defendant's invocation of his right to remain silent.“I could interpret [defense counsel's] concern as a Doyle issue.   Under Doyle versus Ohio, a violation of the defendant's right to due process occurs if the prosecutor uses the defendant's silence at the time of arrest and after receiving Miranda warnings to impeach an affirmative defense at trial.“Brecht versus Abrahamson, 1993 507 U.S. 619, pinpoint cite is 628, explains that the Doyle rule, quote, ‘reasons on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’“For many reasons Doyle is not implicated.   The most important reason is that the defendant's comments occurred prior to any Miranda warnings.   The motion for mistrial is therefore denied.”  (Italics added.)

EPSTEIN, P. J. MANELLA, J.