THE PEOPLE v. LEONARD MERCADO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. LEONARD MERCADO, Defendant and Appellant.

B222223

Decided: January 20, 2011

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Leonard Mercado appeals his judgment of conviction of murder, making three assignments of error.   He contends that the prosecution committed prejudicial misconduct, that the trial court erred in failing to instruct sua sponte regarding third-party culpability, and that the trial court's award of presentence custody credits was inadequate.   We find no prosecutorial misconduct or instructional error.   In addition, because we find the record insufficient to determine whether the trial court erred in calculating custody credits, we presume that the award was correct.   Thus, we affirm the judgment.

PROCEDURAL BACKGROUND

Defendant was charged with one count of murder and allegations of personal use and discharge of a handgun, as well as the commission of the crime in association with a criminal street gang.   Defendant admitted the gang allegations and conceded at trial that he was a gang member.   A jury convicted him of first degree murder, and found the gun use allegations to be true.

The trial court sentenced defendant to 25 years to life in prison for the murder, plus a consecutive term of 25 years to life for the personal and intentional discharge of a firearm, causing great bodily injury and death, as provided by Penal Code section 12022.53, subdivision (d).1  The court stayed imposition of sentence on the two other firearm enhancements.   Defendant filed a timely notice of appeal from the judgment.

FACTUAL BACKGROUND

1. The Shootings

Jorge or George Martinez (Martinez) was shot October 6, 2006, and died of multiple gunshot wounds.   Investigators found .40-caliber shell casings at the scene of the shooting.

Adriana Palacios (Palacios), a long-time friend of the victim, testified that Martinez was a member of the DMK (Des Madre Klikas) tagging crew.   At approximately 3:30 p.m. that day, Palacios and Martinez were chatting near the corner of Paramount Boulevard and Birchcrest Road, when a young man she did not recognize approached them from a nearby cul-de-sac, and said, “Where are you from?”   Palacios understood this question to mean, “What gang are you from?”   She saw the man pull something from his waistband, and heard four gunshots.   Martinez collapsed, and the shooter got into a dark-greenish sedan that emerged from the cul-de-sac.   The car then left the area.

Just before the shooting, Anthony Lopez (Lopez) was sitting in his apartment located on the second floor corner of the apartment complex at Birchcrest Road and Paramount Boulevard.   He testified that he heard five gunshots, and went to his balcony, where he saw two men approximately 40 feet from his position.   One man was holding his chest as he fell to the ground.   A car appeared, and the second man got into it before it sped away.

There was a second shooting in the area that evening after the police left, and a third shooting at approximately 4:45 a.m. the next day.   The second shooting occurred at approximately 7:30 p.m., three or four houses away from the first shooting.   Several .40-caliber bullet casings were found at that scene.   There were three suspects in the third shooting, all members of GND, a Pico Rivera tagging crew that feuded with DMK.

In the course of the investigation into the second shooting, Joshua Laffere (Laffere) was identified as someone who may have been involved based on reports that placed Laffere's automobile license plate and cell phone within a quarter mile of the crime scene within 15 seconds of the shooting.   Officers searched his residence, and found a box of .40-caliber rounds, a California identification card in the name of Laffere, a blue jersey, and other items.

2. Identification Evidence

Palacios described the shooter as Hispanic, 18 or 20 years old, with a light complexion and a peach fuzz mustache.   He was wearing a cream-colored or beige polo-type shirt, baggy pants, and a Dodger baseball cap over his very short buzz cut.   Palacios viewed two “six-pack” photographic lineups.   From one, she selected defendant's photograph as a person who looked familiar.   Two days later, Palacios selected a photograph in another photo array depicting the person who looked like the shooter.

At the preliminary hearing, Palacios identified defendant as a person who “kind of looks like the guy's description,” because of his “light skin and short hair.”   At trial, she identified defendant as the person whose photograph looked like the shooter.   She acknowledged that defendant had the lightest complexion of any of the persons depicted in either photographic lineup, and that she had not seen defendant without a hat.

On May 7, 2007, Lopez viewed the same photographic lineups, and selected defendant's photograph, with the comment that he was 70 percent sure.   Lopez acknowledged that defendant was the only light-complected person depicted in the photographs, and that he was looking for a light-skinned person.   A few months earlier, when the police had shown Lopez another photographic lineup, he thought that the photograph of Laffere looked like the shooter.   However, he wrote the comment, “questionable” on his identification.   Lopez also helped a police sketch artist create a composite drawing of the shooter, and was completely satisfied with that likeness.

Lopez described the shooter in the first incident as a light-complected Latino in his early 20's, bald, with no facial hair and no hat, and sunglasses over his eyes.   He described the driver as a male Hispanic in his mid-20's, with a bony face, mustache, and white T-shirt.   Lopez testified that the shooter wore a blue and white striped athletic jersey, not a polo shirt.   However, Downey Police Department (DPD) Officer Paul Edwards testified that on the day of the shooting, Lopez told him that the blue and white jersey was worn by someone inside the car leaning out the front passenger window.

Lopez identified defendant as the shooter at the preliminary hearing and at trial.   He was 99.9 percent sure of his identification.

3. Gang Evidence and the Jailhouse Conversation2

Detective Kevin Lloyd of the Los Angeles County Sheriff's Department testified as the prosecution's gang expert.   He testified that he had been familiar with the Rivera 13 gang since 1990, and that he was also familiar with defendant, whom he identified in court.   In Detective Lloyd's opinion, defendant was an active member of the Rivera 13 gang, and his gang moniker (nickname) was “Trippy” or “Little Trippy.”

Detective Lloyd testified that the Rivera 13 gang had 200 or 210 active members in October 2006, and was loyal to the more powerful Mexican Mafia.   Rivera 13 was also known as “Rivera Viejo” (old Rivera), its common symbol was R13, and its adopted color was light blue, although members sometimes wore the darker, Dodger blue.   Rivera 13's territory was the southern part of the City of Pico Rivera, and its main rival in October 2006 was the Pico Nuevo Gang, the first gang north of its territory.

On May 3, 2007, at the Los Angeles County Inmate Reception Center defendant was placed in the same cell as another jail inmate, Joey Page (Page).   Their conversation was monitored and recorded without their knowledge.   A portion of the recorded conversation was played for the jury, and a transcript entered into evidence.   Defendant stipulated that the voices were correctly designated in the transcript, which reflects the following conversation:

“Joey Page:  Chopper don't come around no more.

“[Defendant]:  I know, why do you think why?

“Joey Page:  He lives in La Habra.

“[Defendant]:  Why do you think why?

“Joey Page:  He's over there staying with Josh, him and David.   Uhm, him and Josh.

“Joey Page:  Fool took off, eh?

“[Defendant]:  You know why, right?   He was trying to snitch on me.

“Joey Page:  What for?

“[Defendant]:  Over there from DMK, the taggers.

“Joey Page:  Where at?

“[Defendant]:  On Telegraph and Paramount.   You mean you didn't hear about that one?

“Joey Page:  Uh, uh.

“[Defendant]:  Homie caught it cold.

“Joey Page:  Fuck, hey, good homie, uh?   He was the homie I was about to go at it with.

“[Defendant]:  Bam, homie got it cold, dog.   Whacked.  Tu, tu, tu, tu.   Fired that motherfucker.   Pow, pow, pow, pow.   Forty Glock.   They tried to leave me.   They tried to leave me.

“Joey Page:  Who?

“[Defendant]:  Joe.

“Joey Page:  Joe who?

“[Defendant]:  Joe Brown.

“Joey Page:  Who?

“[Defendant]:  Joe Brown.   Joseph Lucero.

“Joey Page:  Oh, yeah, yeah, yeah.”

Detective Lloyd explained the names and gang monikers used by defendant and Page. “Chopper” was Rivera 13 member Anthony Garcia.   Joe Brown and Joseph Lucero were the same person and he was also a Rivera 13 gang member.   There were two Rivera 13 members named Josh:  Josh Laffere and Josh Garcia.   Josh Garcia was not a known gang member, but was known to associate with them.

Detective Lloyd also explained the slang and gang jargon used by defendant and Page. “Fool” was a common derogatory term for another person.  “Snitch” meant giving information to the police about a crime, which was a cardinal sin against gang life.  “Homie” was used by gang members to denote another member of a gang, whether rival or friendly, and “dog” meant a close friend, and sometimes, a fellow gang member.  “Cold” meant dead, and “whacked” meant murdered.  “40 Glock” referred to a specific brand of .40-caliber handgun.

In Detective Lloyd's opinion, when defendant said, “Tu, tu, tu, tu.   Fired that motherfucker.   Pow, pow, pow, pow,” he was reenacting the shooting.   As much as gang members liked to boast about their crimes, a gang member such as defendant would not boast to another gang member, such as Page, about a crime he did not commit, because the consequences would be “dire.”   It would ruin the member's friendships and status in the gang, and bring retribution.

4. Defense Evidence

The defense recalled Ted Hiler, supervisor of the DPD's forensic unit, who testified that the bullet casings recovered at the scene of the shooting of Martinez were .40-caliber Smith & Wesson brass casings, while those recovered from the second shooting that evening were Federal brand nickel casings.

5. Evidence Code Section 402 Hearing and Detective Lloyd's Testimony regarding Contacts with Defendant

Prior to Detective Lloyd's testimony, the prosecutor moved to exclude evidence of Detective Lloyd's disciplinary record, and requested an Evidence Code section 402 hearing (402 hearing).   In the course of that hearing, the prosecutor told the court that he intended to ask the detective whether he recognized defendant's voice on the jail recording of his conversation with Page, and how many times before then he had heard defendant's voice.   Defendant's trial counsel argued to the court:  “Detective Lloyd's familiarity with my client ․ should be ․ very limited.   He's going to say he recognizes my client's voice, and I think the only question should be how many times have you heard my client's voice prior to today, and that should be it.   His familiarity about how he interacted with my client in the past really is not relevant.”

It was represented to the court that Detective Lloyd would testify that he had heard defendant's voice in excess of 15 times.   Detective Lloyd was present at the 402 hearing, and volunteered that he had spoken to defendant in the field, at his family's home, and when interviewing him as a victim.   Defense counsel responded:  “So this is the problem.   It's not relevant that he's a victim.   It's not relevant that he did that.   I think it should just be many times, and ․ if the court makes a ruling in my favor, I will not use that.   I will not get up in this case and argue that that is not my client's voice․  I'll stipulate that he's the person that spoke ․ so we don't have to get into Lloyd's contacts at all with my client, which are really irrelevant.”

The court asked, “Then you're going to stipulate before the jury that it's your client's voice on that tape?” and, “Along with Joey Page's voice?”   When defendant's counsel confirmed that he would stipulate, the court said, “There you go.   Then you don't have to go into that.”

Later, in the course of Detective Lloyd's testimony, before the stipulation was made, and prior to playing the recording of the jail conversation for the jury, the following direct examination took place:

“Q: [Prosecutor]:  Prior to October 6th of the year 2006, just listen carefully to my question.   Had you ever spoken to Mr. Mercado?

“A: Yes.

“Q: And would that be once, twice, several times?

“A: A fair estimate, at least 15 times.”

Defense counsel then moved to strike the last answer as a “[v]iolation of a 402.”   The court replied, “No, it's not.   Unless I misheard something.”   The following discussion outside the jury's presence ensued:

“[Defense attorney]:  The 402, it was agreed upon that I would stipulate it was my client's voice and that he was not going to testify as to how many times he has spoken to my client because it was irrelevant.

“[Prosecutor]:  Oh, I forgot․”

“The court:  I can caution the jurors, I suppose.

“[Defense attorney]:  I would just ask that the motion to strike be granted․

“[Prosecutor]:  It wasn't intentional on my part.”

Back in the presence of the jury, the trial court ruled:  “That answer is stricken.   You're not to consider it whatsoever.   Remember the proposition of law that I gave you earlier that all stricken testimony you're not to consider, you're not to consider at all.”   Counsel then stipulated before the jury that the voices of defendant and Page were accurately identified on the transcript of the conversation (exh. 54).

DISCUSSION

I. No Prosecutorial Misconduct

Defendant contends that the prosecutor committed prejudicial misconduct when he elicited from Detective Lloyd the number of times that the detective had spoken to defendant prior to October 6, 2006, after the trial court had excluded such evidence.   Defendant suggests that the misconduct rendered his trial unfair and deprived him of due process of law under the federal Constitution.

“To constitute a violation under the federal Constitution, prosecutorial misconduct must ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.’  [Citations.]”  (People v. Valdez (2004) 32 Cal.4th 73, 122.)  “ ‘But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” '   [Citations.]”  (People v. Earp (1999) 20 Cal.4th 826, 858.)

It is improper for a prosecutor to elicit testimony in violation of a trial court's directive.  (People v. Glass (1975) 44 Cal.App.3d 772, 781-782.)   However, as respondent points out, the trial court did not direct the prosecutor not to ask Detective Lloyd how many times he had spoken to defendant, and it is unclear from the argument in the 402 hearing that defense counsel asked for such a directive.   Indeed, the trial court's first reaction when defendant objected on the ground that Detective Lloyd's testimony was given in violation of the court's ruling was, “No, it's not.   Unless I misheard something.”

At the 402 hearing, defendant's attorney initially asked the court to limit the question to how many times Detective Lloyd had heard defendant's voice prior to trial, and to exclude testimony regarding the nature of his past interactions with defendant.   When the prosecutor said that Detective Lloyd would testify that he had heard defendant's voice in excess of 15 times, Detective Lloyd volunteered that his contacts with defendant included having interviewed him as a victim.   Defendant's attorney objected to the relevance of defendant's having been a victim, and offered to stipulate that it was defendant's voice on the recording, in exchange for a ruling limiting the testimony to “many times,” “so we don't have to get into Lloyd's contacts at all with [defendant], which are really irrelevant.”   The court said, “There you go.   Then you don't have to go into that.”

It appears from the discussion that defense counsel's concern was the nature of Detective Lloyd's contacts with defendant, and the prosecutor did not ask about them.   As there was no actual ruling prohibiting the testimony regarding the number of times Detective Lloyd had spoken to defendant, the prosecutor did not elicit testimony in violation of a trial court's directive, and thus, did not engage in misconduct.3

As there was no misconduct, we need not reach defendant's argument that he was prejudiced.   We note, in any event, that any unfairness was avoided, and prejudice dispelled, because the testimony was stricken, and the trial court told the jury not to consider it for any purpose whatsoever.  (See People v. Wash (1993) 6 Cal.4th 215, 263.)   Because defendant has not pointed to evidence indicating that that the jury did not heed the court's instruction, we presume that the jury did not consider the evidence that was stricken.  (See People v. Gray (2005) 37 Cal.4th 168, 217.)

II. No Instructional Error

Defendant contends that because there was evidence that Laffere committed the crime, the trial court was required to instruct the jury, sua sponte, regarding third party liability.   He argues that it was not enough to instruct the jury with CALJIC No. 2.90-that a criminal defendant is presumed innocent, that the prosecution bears the burden of proving him guilty beyond a reasonable doubt, and that he is entitled to a verdict of not guilty if the jury has reasonable doubt whether his guilt has been shown.   In particular, defendant contends that the court should have instructed the jury that he did not have the burden to prove that a third party was guilty of the crime.   Such an instruction is a “pinpoint” instruction which defendant bore the burden of requesting.  (People v. Gutierrez (2009) 45 Cal.4th 789, 824.)   He did not do so.

Further, as the California Supreme Court pointed out in rejecting a nearly identical claim, where the jury has been instructed with CALJIC No. 2.90, it would acquit the defendant if it believed that a third party, not defendant committed the shooting.  (People v. Gutierrez, supra, 45 Cal.4th at p. 825.)   Thus, under such an instruction, there could be no reasonable probability of a different result with an instruction that the defendant did not have the burden to prove that a third party was guilty of the crime, and any error in failing to give the pinpoint instruction would be harmless.   (Ibid.) As the court properly instructed the jury with CALJIC No. 2.90, there was no error and no harm.4

III. Presentence Credit

Defendant contends that he is entitled to presentence custody credit beyond the 490 days awarded by the trial court.   He claims that he should be credited from the time spent in custody from his arrest on September 20, 2007, until his sentencing on February 2, 2010, a total of 867 days.  “The failure to award an adequate amount of credits is a jurisdictional error which may be raised at any time.  [Citations.]”  (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.)

As respondent points out, however, it is not apparent from the record that the award was inadequate, nor does the record reflect how the trial court computed the number of days defendant spent in custody on this case, and not the other case pending against defendant.   The probation and sentencing report for this case shows that on September 20, 2007, defendant was charged with vehicle theft, receiving stolen property, and possession of a firearm in a vehicle.   On November 12, 2008, he was convicted of the vehicle theft and sentenced to two years in state prison.   However, the report does not state how much presentence custody credit was awarded in that case, or whether the sentence was completed prior to sentencing in this case.

Pursuant to section 2900.5, a person sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).)  However, a prisoner may not be awarded “dual credit against a new criminal sentence for periods during which he was serving time for another, unrelated crime, even if the new matter was simultaneously pending.”  (People v. Bruner (1995) 9 Cal.4th 1178, 1188, 1192-1193, confirming the rule of In re Rojas (1979) 23 Cal.3d 152, 155-156, and In re Joyner (1989) 48 Cal.3d 487, 492.)

It is defendant's burden to establish that the claimed credit would not be duplicative.  (People v. Bruner, supra, 9 Cal.4th at pp. 1193-1194.)   Defendant has not made that showing here, and the record is inadequate to do so.   Respondent surmises that an adequate record would show that defendant is entitled to fewer credits, and asks that we remand to the trial court for recalculation.   Error is never presumed, and a silent record will not justify a remand.  (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)   We thus leave the parties to seek relief in the trial court.  (See People v. Acosta, supra, 48 Cal.App.4th at p. 428, fn. 8;  People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Because defendant admitted that he was a member of the gang, and that the crime was committed in association with the gang with the intent to promote it, we summarize only the gang evidence relevant to the issues..  FN2. Because defendant admitted that he was a member of the gang, and that the crime was committed in association with the gang with the intent to promote it, we summarize only the gang evidence relevant to the issues.

FN3. Respondent contends that defendant invited any error, by telling the prosecutor that he had no objection to his eliciting the number of contacts, but not the nature of contacts.   Defendant counters that the record shows that he changed his mind, and thus did not make a deliberate tactical choice to accept the testimony as to the number of contacts.   (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 831.)   Because we find no error, we need not resolve this issue..  FN3. Respondent contends that defendant invited any error, by telling the prosecutor that he had no objection to his eliciting the number of contacts, but not the nature of contacts.   Defendant counters that the record shows that he changed his mind, and thus did not make a deliberate tactical choice to accept the testimony as to the number of contacts.   (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 831.)   Because we find no error, we need not resolve this issue.

FN4. Moreover, although there was some evidence linking Laffere to the second shooting, there was no evidence linking him to the shooting of Martinez, other than his gang association with defendant, as defense counsel pointed out several times in final argument..  FN4. Moreover, although there was some evidence linking Laffere to the second shooting, there was no evidence linking him to the shooting of Martinez, other than his gang association with defendant, as defense counsel pointed out several times in final argument.

_, P.J. BOREN _, J. DOI TODD