THE PEOPLE v. OSVALDO RAMOS

Reset A A Font size: Print

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. OSVALDO RAMOS, Defendant and Appellant.

B215127

Decided: March 28, 2011

Angela Berry-Jacoby, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A jury convicted defendant and appellant Osvaldo Ramos of first-degree murder.   On appeal, defendant contends the trial court erred in admitting an alleged accomplice's out-of-court statements that implicated appellant in the murder.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

On April 8, 2007, law enforcement personnel began investigating the murder of Mychael Whittaker.   When crime scene investigator Sherri Orellana and homicide detective Mark McCann arrived at the scene, Whittaker was lying partially inside of a car and partially on the street.   His feet were in the driver's side rear passenger area of the car but his torso and head were on the ground.   McCann noticed that Whittaker's two pants pockets were pulled inside out.   There were multiple blood stains on the front passenger seat and a pool of blood at the base of the seat.   Orellana saw a hat in the car and a baggie containing what was later identified as crack cocaine.   There were also bloodstains in the backseat of the car.   Orellana lifted a partial palm print from the car's rear passenger window.   Later processing revealed blood on the print.   The palm print matched that of defendant.   The blood from the print matched Whittaker's DNA. Police found two gun cartridge casings near the car on the passenger side.

According to the forensic pathologist who performed the autopsy, Whittaker suffered four gunshot wounds to his head and face.   A gang expert opined that defendant was an active member of the 12th Street gang.   Based on a hypothetical question mirroring the evidence in the case, the gang expert also opined that the murder was carried out for the benefit of, at the direction of, or in association with a criminal street gang.

Police Interview with Defendant

In late May 2007, McCann interviewed defendant about the murder.   Defendant first claimed he did not know Whittaker.   He also claimed that in the month and a half since the homicide he had been working with his uncle in Fresno and San Francisco.   McCann told defendant police had found Whittaker's cell phone at the crime scene and defendant's nickname, Munchie, was in the phone.   Defendant then told McCann that he knew Whittaker and used to buy drugs from him or sell his drugs.   When McCann confronted defendant with information that he had just returned from Guadalajara and was not working with his uncle as he claimed, defendant admitted he was involved in Whittaker's death.

Defendant told McCann he had ordered crack cocaine from Whittaker.   After ordering the drugs, he, along with two other men-Edwin Cruz and Cesar Miranda-waited for Whittaker and planned to rob him of his drugs.   When Whittaker came to their location, defendant walked to the car while Cruz and Miranda hid in an alley and watched.   Defendant walked up to Whittaker's car, then Cruz came out of the alley and shot Whittaker in the head.   Defendant's account of what occurred next varied.   Defendant first said he ran away and went to a house and called 911;  he then recanted this statement and said he left with Cruz and Miranda and they smoked the crack cocaine they took from Whittaker.   Defendant insisted, however, that he never went to the passenger side of the car, he never entered the car, he simply ran away once Cruz shot Whittaker.   Eventually defendant told McCann he knew the group was going to rob Whittaker and Cruz had shown him a gun before Whittaker arrived.   At a second interview conducted after police knew the palm print lifted from the car matched defendant's palm print, defendant continued to insist that he had never gone to the passenger side of Whittaker's car.

Victor Tejeda

Victor Tejeda testified at a first trial of defendant but he was dead by the second.1  Over defendant's objection, Tejeda's prior trial testimony was read at the second trial.   Tejeda and defendant were both members of the 12th Street Pomona gang.   Before they were in the 12th Street gang together they were in another “crew” called “Tinto Killer,” which means “Nigger Killer.”   Tejeda also knew Cruz, who was a 12th Street gang member as well.   Sometime after April 2007, Tejeda had a conversation with Cruz and other gang members while they were hanging out at a park.   Cruz asked Tejeda if he knew Whittaker.   When Tejeda said he did, Cruz began to laugh and said, “We killed that nigger.”   The “we” was Cruz and defendant.   Cruz told Tejeda they robbed and killed Whittaker.   According to Cruz, he and defendant ordered some drugs from Whittaker and Whittaker was shot in the head.   Cruz did not say who shot Whittaker.   Whittaker tried to jump out of the car after he was shot but defendant stopped him and tried to keep the car door closed.   Cruz told Tejeda he and defendant robbed Whittaker and emptied out his pockets, then smoked the drugs they found.

On cross-examination, Tejeda admitted that the 12th Street gang had been trying to kill him.   During the cross-examination of McCann, McCann testified that the police department gave Tejeda relocation money.   McCann further admitted that prior to Tejeda's earlier testimony, Cruz was involved in an incident in which Tejeda was shot and left for dead by his own gang.   McCann also indicated that Tejeda was killed in an altercation with the police department.

Defense Evidence

Defendant testified on his own behalf.   According to defendant, on April 8, 2007, he was at home when he received a telephone call from Cruz. Cruz asked if he wanted to smoke and asked how much money defendant had.   The two had $60 between them.   Cruz told defendant to meet him on a street corner.   When they met, Cruz told him to call Whittaker.   Defendant considered Whittaker a friend and had been to his home a few times;  Whittaker had likewise been to defendant's home to deliver drugs defendant had ordered.   Cruz wanted defendant to ask Whittaker for two “quarter pieces,” which would cost $240.   Defendant told Cruz they did not have enough money, and Cruz suggested they rob Whittaker.   Defendant told Cruz no.   He said he would call Whittaker and see if they could work something out or if Whittaker would front them the drugs.   Cruz told defendant to see what he could do to get the drugs.

Defendant called Whittaker and arranged a meeting.   When Whittaker arrived, he and defendant shook hands.   Defendant took out the money he had and told Whittaker he only had $60.   Whittaker took some crack cocaine from a pocket near his belt and began to break it up.   Defendant was watching Whittaker when he heard four shots.   Defendant was startled and jumped.   He did not know Cruz had a gun.   He saw Whittaker struggle and move to the back of the car through the space between the two front seats, then stop with his head resting on the rear driver's side door.

Cruz told defendant to find the drugs in the car.   He pointed the gun at defendant's face and pulled the slide of the gun back.   Defendant was extremely scared and did what Cruz said.   Defendant searched all over the car but could not find the drugs.   He got out of the car and told Cruz he could not find anything.   Cruz replied, “Find that shit, I want that shit, find it.”   Defendant then opened the door Whittaker's body was resting against.   The body fell towards defendant;  defendant grabbed it and placed it on the ground.   Defendant searched Whittaker's pockets but found nothing.   When defendant told Cruz, Cruz told him to put the body in the car.   Defendant refused, but Cruz pointed the gun at him again.   Defendant tried to put the body back but could not lift it.   Cruz was angry and swore, then ran away.   Defendant followed, running, but when Cruz saw him he told defendant to go back and close the car doors.   Defendant went back to the car and closed the doors except the one blocked by Whittaker's body.   Defendant then followed Cruz to a friend's house.   Cruz told defendant not to tell anyone about what had happened.

Defendant admitted he had lied to Detective McCann.   He testified that Cruz's friends beat him up in the county jail because he told police what had happened.   Cruz's friends told him not to “open [his] mouth in court” about Cruz. Defendant denied he was a gang member.

Verdict and Sentence

The jury found defendant guilty of one count of first degree murder (Pen.Code, § 187, subd. (a).)  The jury also found true the special circumstance allegation that defendant murdered Whittaker while engaged in the commission of robbery in violation of Penal Code sections 211 and 212.5 (Pen.Code, § 190.2, subd. (a)(17));  a gang enhancement allegation (Pen.Code, § 186.22, subd. (b)(1)(C));  an allegation that a principal personally and intentionally discharged a firearm which proximately caused Whittaker's death (Pen.Code, § 12022.53, subds.(d), (e)(1));  an allegation that a principal personally and intentionally discharged a firearm (Pen.Code, § 12022.53, subds.(c), (e)(1));  and an allegation that a principal used a firearm (Pen.Code, § 12022.53, subds.(b), (e)(1)).2  The court sentenced defendant to a total prison term of life without the possibility of parole plus 25 years to life.

DISCUSSION

I.  The Trial Court Did Not Err in Admitting Cruz's Statements as Declarations Against Penal Interest

Defendant asserts the trial court erred in admitting Cruz's statements as reported by Tejeda.   We disagree.

Cruz's statements presented two layers of hearsay.   First, Tejeda's testimony was not live because he died before the second trial.   However, he had testified at defendant's first trial, under oath, and was cross-examined by defendant's counsel.   The trial court properly admitted Tejeda's previous testimony under the former testimony exception to the hearsay rule.   (Evid.Code, § 1291, subd. (a)(2);  People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1542-1543.)   Second, Tejeda's testimony consisted, in part, of out-of-court statements Cruz purportedly made to him following the Whittaker murder.   The court admitted Cruz's statements as declarations against penal interest.

The hearsay exception for declarations against penal interest is codified at Evidence Code section 1230 (section 1230).   The California Supreme Court discussed the requirements of section 1230 in People v. Geier (2007) 41 Cal.4th 555, 584 (Geier ):

“ ‘Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant's penal interest.   The proponent of such evidence must show “that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.”   ‘ [Citation.]  ‘The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.  [Citations.]  In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.’  [Citation.]  ‘[E]ven when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission․  [¶] ․ We have recognized that, in this context, assessing trustworthiness “ ‘requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.’  “ ‘ (People v. Duarte (2000) 24 Cal.4th 603, 614.)”

A trial court's ruling admitting or excluding evidence under Evidence Code section 1230 is discretionary and “will not be overturned unless it was so arbitrary as to result in a miscarriage of justice.  [Citation.]”  (People v. Butler (2009) 46 Cal.4th 847, 866;  Geier, supra, 41 Cal.4th at 585.)

Defendant concedes that the first prong of Evidence Code section 1230 was met here - Cruz was unavailable because he invoked his Fifth Amendment privilege against self-incrimination.   However, defendant argues Cruz's statements were not against his penal interest because they were not specifically disserving to him.   We disagree.   Cruz in no way tried to shift blame away from himself when he recounted the details of Whittaker's murder to Tejeda.   As Tejeda recalled, Cruz used “we” to describe everything that happened, or failed to use names, thereby implicating himself at every step.   He told Tejeda, “we killed that nigger.”   Tejeda also recounted Cruz said “they ordered some dope” ' and “they came up and robbed him and emptied out his pockets.”   Cruz admitted being an active participant in every aspect of the robbery and murder, thus the trial court did not abuse its discretion in finding these statements were against Cruz's penal interest.3

Moreover the trial court did not abuse its discretion in finding that Cruz's statements bore sufficient indicia of trustworthiness to be admitted.   His admissions were “ ‘so far contrary to the declarant's interests “that a reasonable man in his position would not have [admitted it] unless he believed it to be true.”  ‘ [Citations.]”  (People v. Brown (2003) 31 Cal.4th 518, 536 (Brown ).)   Cruz also volunteered the statements among fellow gang members, while at a gang hangout-a relaxed non-coercive setting.   He neither took sole credit for the crimes, nor tried to minimize his own culpability.   (Brown, supra, 31 Cal.4th at pp. 536-537.)   We also note that his statements, as recounted by Tejeda, were largely consistent with the evidence of the crimes and defendant's own admissions about the basic details of what happened.

Defendant's attempts to distinguish People v. Greenberger (1997) 58 Cal.App.4th 298 (Greenberger ) and People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes ), are not persuasive.   There was evidence that when Cruz brought up Whittaker's robbery and murder, he was having a conversation among friends in a non-coercive setting, which the Greenberger court identified as the “most reliable circumstance” in which a statement may be made.  (Greenberger, supra, 58 Cal.App.4th at p. 335.)   Further, Cruz's statements were based on personal knowledge, and he made no attempts to exculpate himself, exaggerate defendant's role in the crimes, or justify his conduct.   As in Cervantes, Cruz's statements were specifically disserving of his penal interest and nothing about the robbery or murder as he recounted the crimes “suggested he should be considered a sympathetic figure or that he acted in self-defense.”  (Cervantes, supra, 118 Cal.App.4th at p. 175.)   The trial court in this case did not abuse its discretion in determining the statements had sufficient indicia of reliability to be admitted under Evidence Code section 1230.

Defendant additionally argues the trial court erred in permitting Tejeda's testimony because he was an unreliable witness.   Defendant points to Tejeda's failure to report Cruz's statements until after he was almost killed by members of his gang, and his own altercation with police which led to his death.   However, defendant had a full opportunity to cross-examine Tejeda at his first trial, and that cross-examination was read as part of Tejeda's testimony at the second trial.   Tejeda admitted on cross-examination that members of the gang had tried to kill him.   It is well-established that “ ‘ “ ‘when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.’  “ ‘[Citations.]”  (People v. Valencia (2008) 43 Cal.4th 268, 294 (Valencia );  see also People v. Cudjo (1993) 6 Cal.4th 585, 609 [doubts about the credibility of an in-court witness relaying another declarant's out-of-court statement do not create a ground for refusing to admit evidence under the hearsay exception for statements against penal interest].)

Further, when defendant cross-examined Detective McCann at the trial at issue here, McCann testified that Tejeda had been shot and left for dead by his gang, which included Cruz, and that Tejeda's own death was the result of an altercation with police.   The jury had information that called Tejeda's credibility into doubt.   It was capable of making its own determination of how much weight to give his testimony.  (Valencia, supra, 43 Cal.4th at p. 295.)

We find no statutory basis to conclude the trial court erred in admitting Tejeda's testimony recounting Cruz's out-of-court statements.

II. Admission of Cruz's Statements Did Not Violate Defendant's Sixth

Amendment Right to Confrontation

Defendant further contends the admission of Cruz's statements violated his right to confrontation under the Sixth Amendment to the United States Constitution.   We again disagree.

As an initial matter it appears that defendant forfeited this argument by failing to object on this basis in the trial court.  (People v. D'Arcy (2010) 48 Cal.4th 257, 289-290 (D'Arcy ).)   Defendant objected to the Tejeda testimony on the grounds that Cruz's statements were unreliable and Tejeda's credibility was questionable.   Defendant did not argue that admitting the statements violated his constitutional confrontation rights.   But even if defendant has preserved this claim for appeal we would find no constitutional error.

Crawford v. Washington (2004) 541 U.S. 36 (Crawford ) established “ ‘that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination.  (Crawford, supra, 541 U.S. at p. 59.)[¶]  Under Crawford, the crucial determination about whether the admission of an out-of-court statement violates the confrontation clause is whether the out-of-court statement is testimonial or nontestimonial.’  ( [Geier, supra, 41 Cal.4th at p. 597].)”  (D'Arcy, supra, 48 Cal.4th at p. 290.)  “Testimonial statements are ‘statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing and proving facts for possible use in a criminal trial.’  [Citation.]  An ‘informal statement made in an unstructured setting’ generally does not constitute a testimonial statement.  [Citation.]”  (People v. Garcia (2008) 168 Cal.App.4th 261, 291 (Garcia ), quoting People v. Cage (2007) 40 Cal.4th 965, 984, fn.   14 (Cage ).)

Cruz's statements to Tejeda were not testimonial.   He made them voluntarily, to fellow gang members, in an informal setting.   The statements had nothing close to the “formality and solemnity” of testimony.  (Cage, supra, 40 Cal.4th at p. 984.)   Defendant contends that even if Cruz's statements were nontestimonial, they were too untrustworthy to be admitted.   We have addressed the reliability of the statements above.   If a statement is not testimonial, “it does 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.”  (Garcia, supra, 168 Cal.App.4th at p. 291.)

Cruz's statements were nontestimonial and had sufficient indicia of trustworthiness to be admitted.   Admission of the statements did not violate defendant's confrontation rights.

DISPOSITION

The judgment is affirmed.

BIGELOW, P. J.

We concur:

RUBIN, J. FLIER, J.

FOOTNOTES

FN1. The first trial ended in a mistrial..  FN1. The first trial ended in a mistrial.

FN2. The jury was unable to reach a verdict on the special circumstance allegation that defendant intentionally killed Whittaker while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang within the meaning of Penal Code section 190.2, subdivision (a)(22).   The trial court declared a mistrial as to that allegation..  FN2. The jury was unable to reach a verdict on the special circumstance allegation that defendant intentionally killed Whittaker while defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang within the meaning of Penal Code section 190.2, subdivision (a)(22).   The trial court declared a mistrial as to that allegation.

FN3. Although he did not request it in the trial court, defendant asserts on appeal that the trial court should have excised material in Cruz's statement relating to defendant.   Defendant does not identify the specific material to which he refers.   However we note Cruz attributed to Ramos alone the attempt to push Whittaker back into the car.   Tejeda also testified that Cruz told him Ramos “was involved in that killing with him,” in a statement unconnected to the rest of Tejeda's account of Cruz's narrative description of the murder.   But even if we concluded the trial court erred by admitting these particular statements which inculpated defendant, we would find the error harmless.   Defendant himself testified that he was involved in Whittaker's murder, and he further described how he attempted to push Whittaker's body back into the car..  FN3. Although he did not request it in the trial court, defendant asserts on appeal that the trial court should have excised material in Cruz's statement relating to defendant.   Defendant does not identify the specific material to which he refers.   However we note Cruz attributed to Ramos alone the attempt to push Whittaker back into the car.   Tejeda also testified that Cruz told him Ramos “was involved in that killing with him,” in a statement unconnected to the rest of Tejeda's account of Cruz's narrative description of the murder.   But even if we concluded the trial court erred by admitting these particular statements which inculpated defendant, we would find the error harmless.   Defendant himself testified that he was involved in Whittaker's murder, and he further described how he attempted to push Whittaker's body back into the car.