California Court of Appeal Sep 15, 2015 No. D065515Unpublished
Filed 9/15/15 P. v. Mendivil CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065515
Plaintiff and Respondent,
v. (Super. Ct. No. JCF27253)
LAWRENCE DANIEL MENDIVIL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Raymond A.
Cota, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent.
Lawrence Daniel Mendivil appeals a judgment following his jury conviction of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and the jury's true
findings he committed that offense for the benefit of, at the direction of, or in association
with a criminal street gang (§ 186.22, subd. (b)(1)) and personally inflicted great bodily
injury (GBI) on the victim (§ 12022.7, subd. (a)). On appeal, Mendivil contends: (1) the
evidence is insufficient to support his conviction for assault with a deadly weapon and the
jury's true finding on the GBI allegation; (2) the court erred by discharging a juror; (3)
the court erred by admitting evidence on his codefendant's jail telephone call and his
codefendant's prior conviction; (4) the court erred by denying his postverdict motion for a
continuance to allow his defense counsel to investigate possible juror misconduct; and (5)
if he forfeited any of the above contentions by not timely objecting, he was denied
effective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2011, Alonso Pineda lived in a Brawley home with his girlfriend, Diane
Verdusco (Diane), her son, Mark Verdusco (Mark), Mark's girlfriend, Monique Arellano
(Monique), and Diane's ex-husband, Richard Pacheco. Mark was an associate of a
Brawley criminal street gang known as "Brole." Monique was associated with a rival
Calexico criminal street gang known as "Calexia." Their Brawley home was located
within territory claimed by Brole.
1 All statutory references are to the Penal Code unless otherwise specified. 2
At about 3:00 p.m. on May 11, Monique was in the front yard of her home when
Vanessa Miranda (also known as "Guera" or "Guerra," her gang moniker) and Vanessa
Mendoza (also known as "Terca," her gang moniker) confronted her and told her she was
disrespectful of the Brole gang because she was affiliated with Calexia and had a
relationship with Mark, a Brole associate. The three women, followed by Diane, walked
to the backyard where Monique and Mendoza began fighting. Hearing the fight, Pacheco
attempted to separate the women. Miranda punched Pacheco and helped Mendoza fight
Monique. When Diane pushed Miranda away from Monique, Diane and Miranda began
fighting. Pacheco separated the women and was able to end the fight. As Mendoza and
Miranda left, Mendoza yelled that she and Miranda would go get back-up and finish the
fight.
At about 10:15 p.m., Diane and Monique were in the front yard when two cars
passed them and parked nearby. About 10 people got out of the cars and began shouting
profanities and "Brole, Brole. This is my hood. Better respect." The group, including
Miranda, Mendoza, Marie Hernandez (also known as "Cuca," her gang moniker),
Raymond Quezada (also known as "Spider," his gang moniker), and Mendivil (also
known as "Low Low," his gang moniker), approached the front yard. Some of the group
members pulled Diane from the front yard by her hair and she fell onto the street. She
was then punched and kicked in the face. Monique punched Miranda to get her away
from Diane. Pineda came out of the house, saw Diane lying on the street, and tried to
pick her up. Mendivil and Quezada pulled out pocket knives and stabbed Pineda. When
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someone yelled, "I'm calling the cops," the group's members, including Mendivil and
Quezada, ran to the cars and drove away.
Veronica Castellano, a neighbor, was outside her home when the fight occurred.
She saw a group of people approach Pineda's home, yelling profanities and "Brole." She
went inside her home, called 911, and remained inside until police arrived.
Shortly thereafter, police and emergency medical personnel arrived at the scene.
Pineda was taken to the hospital. He had five stab wounds, a collapsed lung, and a
fractured rib. Diane's eyes and face were swollen, her nose was bleeding, and her
forehead and lips had marks on them. Monique had bruises and marks on her face.
An amended information charged Mendivil and Quezada with the willful,
deliberate, and premeditated attempted murder of Pineda (§§ 664, 187, subd. (a)) and
assault with a deadly weapon on Pineda (§ 245, subd. (a)(1)). It alleged they committed
those offenses for the benefit of, at the direction of, and in association with a criminal
street gang within the meaning of section 186.22, subdivision (b)(1), and that in
committing the assault they personally inflicted great bodily injury on Pineda (§ 12022.7,
subd. (a)).
At the joint trial of Mendivil and Quezada, the prosecution presented testimony
substantially as described above. Brawley Police Detective Christian Romualdo testified
regarding statements made to him by eyewitnesses after the incident. Jeffrey Glaze, a
neighbor, told him two Hispanic males attacked Pineda and the others. One was tall with
tattoos on his head, and the other was short. Romualdo also testified as a gang expert that
in a hypothetical situation similar to the facts in this case, the gang members would have
4
committed the charged offenses for the benefit of the Brole criminal street gang. He also
testified regarding a telephone conversation between Quezada and Ernesto Barraza
recorded while Quezada was in jail after his arrest.
Many of the eyewitnesses testified inconsistently with the statements they made to
Romualdo after the incident. Diane testified she did not recognize anyone that night and
did not recall hearing any yelling. She could not tell who pulled her and kicked her. She
did not see any weapons. Monique admitted getting into a fight with a female that day,
but did not know who the female was. She was not in a fight later that evening. Pineda
testified he returned home from a store, placed beer in the refrigerator, and then saw
Diane lying on the street. There were three people standing about six feet away from
Diane. When he stooped over to pick Diane up, he was struck on his back. The next
thing he remembered was waking up in a hospital. He could not recall photographs being
taken of his stab wounds. Castellano testified she saw a group of people walking down
the street, but did not hear anyone yelling, "Brole, Brole." Glaze testified that from
inside his home he saw a group of females, but did not recall hearing anyone saying,
"Brole." One of the females knocked Diane down and the other started kicking and
hitting her. Glaze testified that as Pineda stepped toward Diane, one of the females hit
him and two more females "piled on him." Glaze went outside to help get the attackers
off Pineda. After he pulled two females off of Pineda, Glaze saw two Hispanic males out
by the street. One was short and the other was tall. He later identified Mendivil as
probably the shorter male he saw that night and Quezada was probably the taller male.
Glaze testified neither of the two males could have stabbed Pineda.
5
In his defense, Quezada presented the testimony of Miranda, Mendoza, and
Hernandez that they went back to Diane's house to ask her for money they had given her
for drugs she did not deliver to them. A fight broke out and Diane pulled out a pocket
knife. They testified neither Quezada nor Mendivil were present when Pineda was
attacked. They did not know who stabbed Pineda.
Miranda testified she was no longer a Brole member, but still associated with
Brole members. Her boyfriend is a Brole associate and Quezada's friend. Hernandez
testified she was no longer a Brole member, but still associated with Brole members. She
was Quezada's former girlfriend.
In rebuttal, Brawley Police Officer Stephanie Zamora testified Monique told her
that Mendivil and Quezada began to punch Diane and, when she tried to help Diane,
Mendivil and Hernandez punched her (Monique). Monique told Zamora she heard the
snap of a pocket knife being extended and then saw Mendivil and Quezada with knives in
their hands. When Pineda tried to break up the fight, Mendivil and Quezada attacked
him. However, she did not see who stabbed Pineda.
The jury found Mendivil not guilty of attempted premeditated murder and guilty
of assault with a deadly weapon. It found true allegations he committed the assault for
the benefit of, at the direction of, or in association with a criminal street gang, and that in
committing that offense he personally inflicted GBI on Pineda. The trial court sentenced
Mendivil to the upper term of four years for the assault conviction, a consecutive 10-year
term for the gang enhancement, and imposed, but stayed execution of, a three-year term
6
for the GBI enhancement, for a total term of 14 years in prison. Mendivil timely filed a
notice of appeal.
DISCUSSION
I
Substantial Evidence to Support Assault with a Deadly Weapon Conviction and True Finding on GBI Allegation
Mendivil contends the evidence is insufficient to support his conviction for assault
with a deadly weapon and the jury's true finding on the GBI allegation. He argues that
although Pineda was stabbed by someone with a knife, the evidence is insufficient to
support a finding by the jury that he committed that assault with a deadly weapon.
A
When a defendant challenges a criminal conviction on appeal based on a claim of
insufficiency of the evidence, "the reviewing court's task is to review the whole record in
the light most favorable to the judgment to determine whether it discloses substantial
evidence--that is, evidence that is reasonable, credible, and of solid value--such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."
(People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d
557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to support
a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
7
The substantial evidence standard of review involves two steps. "First, one must
resolve all explicit conflicts in the evidence in favor of the respondent and presume in
favor of the judgment all reasonable inferences. [Citation.] Second, one must determine
whether the evidence thus marshaled is substantial. While it is commonly stated that our
'power' begins and ends with a determination that there is substantial evidence [citation],
this does not mean we must blindly seize any evidence in support of the respondent in
order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean]
anything at all, it clearly implies that such evidence must be of ponderable legal
significance. Obviously the word cannot be deemed synonymous with "any" evidence.
It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate
determination is whether a reasonable trier of fact could have found for the respondent
based on the whole record." (Kuhn v. Department of General Services (1994) 22
Cal.App.4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins
and ends with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial court. If such substantial
evidence be found, it is of no consequence that the trial court believing other evidence, or
drawing other reasonable inferences, might have reached a contrary conclusion."
(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
The standard of review is the same in cases in which the prosecution relied
primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) In
8
applying the substantial evidence standard of review to cases primarily involving
circumstantial evidence, Bean stated: "Although it is the duty of the jury to acquit a
defendant if it finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury, not the appellate
court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt.
' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the
reviewing court that the circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment." ' " (Id. at pp. 932-933.)
"Circumstantial evidence may be sufficient to connect a defendant with the crime and to
prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal.3d 199,
210.)
B
Based on our review of the record, we conclude there is substantial evidence to
support Mendivil's conviction for assault with a deadly weapon and that it was Mendivil
who committed an assault with a deadly weapon against Pineda. To prove the offense of
assault with a deadly weapon, the prosecution must prove beyond a reasonable doubt that
the defendant (1) willfully committed an act that by its nature would probably and
directly result in the application of physical force to another person; (2) he or she was
aware of facts that would lead a reasonable person to realize that as a direct, natural, and
probable result of that act, physical force would be applied to another person; (3) he or
she had the present ability to apply physical force to another person; and (4) he or she
used a deadly weapon in the assault. (CALCRIM No. 875; People v. Miller (2008) 164
9
Cal.App.4th 653, 662; People v. Golde (2008) 163 Cal.App.4th 101, 108-109.) However,
the prosecution need not prove the defendant actually intended to use force against
someone when he or she acted or intended to cause injury to another person. (CALCRIM
No. 875; Miller, at p. 662; Golde, at pp. 108-109.)
The record contains substantial evidence to support a finding by the jury that
Mendivil committed an assault with a deadly weapon on Pineda. According to
Romualdo's testimony, several percipient witnesses identified Mendivil as one of the two
men who stabbed Pineda with a knife. Soon after the incident, Diane and Monique told
police that Mendivil, Quezada, Miranda, Mendoza, and Hernandez approached their
home. They stated they saw Mendivil and Quezada stab Pineda and then flee. When
presented with a six-pack photographic lineup and asked if she recognized Pineda's
attackers, Diane identified Mendivil and Quezada as his attackers. Similarly, Pineda
described his attackers as two Hispanic males and when presented with a six-pack
photographic lineup, he pointed at a photograph of Mendivil and stated, "he attacked me,
he stabbed me." Romualdo's testimony regarding those statements made by percipient
witnesses is substantial evidence to support a finding that Mendivil stabbed Pineda with a
knife and, in so doing, committed the offense of assault with a deadly weapon.
Contrary to Mendivil's assertion, the fact that many, if not all, of the percipient
witnesses testified inconsistently with their statements to Romualdo and testified they did
not see Mendivil commit the assault does not show the evidence is insufficient to support
his conviction of assault with a deadly weapon. To the extent he cites and relies solely on
the trial testimony of the percipient witnesses who testified they did not recall seeing
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Mendivil stab Pineda, he misconstrues and/or misapplies the substantial evidence
standard of review. In reviewing the sufficiency of the evidence, we consider all of the
evidence admitted at trial and do not reweigh the evidence or make inferences contrary to
those made by the jury. Furthermore, the percipient witnesses' trial testimony did not
make their prior statements to Romualdo inherently improbable, unreliable, or incredible.
Rather, their statements to Romualdo, to which he testified at trial, constituted substantial
evidence to support the jury's finding that Mendivil, and not some unidentified
perpetrator, committed the assault with a deadly weapon on Pineda. "Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.
[Citation.] Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction." (People
v. Young, supra, 34 Cal.4th at p. 1181.) The jury could reasonably infer that the
statements made by the percipient witnesses soon after the incident were more credible
than their inconsistent testimony at trial, which inconsistent testimony may have been the
result of their fear (e.g., possible threats of retaliation). The fact that no physical
evidence (e.g., the knife used to stab Pineda) was found by police tying Mendivil to the
assault does not show he did not, in fact, use a knife to stab Pineda. Mendivil has not
carried his burden on appeal to show the evidence is insufficient to support his conviction
for assault with a deadly weapon.
C
Based on our review of the record, we conclude there is substantial evidence to
support the jury's true finding that in committing the assault, Mendivil personally
11
inflicted great bodily injury on Pineda within the meaning of section 12022.7, subdivision
(a). Contrary to Mendivil's assertion, there is substantial evidence to support the jury's
finding that he, and not some unidentified perpetrator, stabbed Pineda with a knife. As
discussed above, both Diane and Pineda identified a photograph of Mendivil to
Romualdo as showing one of his attackers. Accordingly, Romualdo's testimony
regarding their statements, as well as his testimony regarding the statements of other
percipient witnesses, is substantial evidence that Mendivil personally inflicted great
bodily injury on Pineda while committing the offense of assault with a deadly weapon.
The fact that those percipient witnesses testified inconsistently with their statements to
Romualdo does not show their statements were inherently improbable, unreliable, or
incredible. Mendivil has not carried his burden on appeal to show the evidence is
insufficient to support the jury's true finding on the allegation he personally inflicted GBI
on Pineda while committing the assault on him.
II
Discharge of Juror
Mendivil contends the trial court erred by discharging a juror without good cause.
A
During trial, the trial court addressed one of the jurors in the presence of the entire
jury. The following dialogue occurred between the court and juror number one:
"THE COURT: . . . [¶] It appears that one of you has been violating my instructions, [Juror No. 1] -- You are [Juror No. 1']?
"JUROR: Yes.
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"THE COURT: You've been going on Facebook, sir, apparently, and discussing this case.
"JUROR: Not on Facebook. I just posted I was going on jury duty.
"THE COURT: Pardon me?
"JUROR: Going to jury duty. Going to jury duty. That's what I put.
"THE COURT: Sir, I have them right here. And let me remind you of two things: every once in a while, I try [to] remember to tell everyone, please do not discuss this case with anyone. And also, I will read a portion of my instructions to you that I gave you at the beginning of this case: [¶] 'Do not use the internet in any way in connection with this case.'
"Now, [Juror No. 1], we have spent three weeks picking this jury to try to see if we could put together a jury that could be fair and impartial . . . to all of the parties and the witnesses, but to follow my instructions.
"And here you are talking about this case and about the jury, and about other people, you know, telling you things.
"[Juror No. 1], I cannot believe that you have violated this instruction. [¶] You are excused." (Italics added.)
After that juror left the courtroom, the court replaced the excused juror with an alternate
juror.
B
Section 1089 provides for the discharge of a juror if the juror on "good cause
shown to the court is found to be unable to perform his or her duty." When a trial court is
on notice that good cause to discharge a juror may exist, the court must " ' " 'make
whatever inquiry is reasonably necessary' to determine whether the juror should be
discharged." ' " (People v. Martinez (2010) 47 Cal.4th 911, 941.) The California
13
Supreme Court has stated: "[A] juror's inability to perform as a juror must be shown as a
'demonstrable reality' [citation], which requires a 'stronger evidentiary showing than mere
substantial evidence' [citation]. . . . 'To dispel any lingering uncertainty, we explicitly
hold that the more stringent demonstrable reality standard is to be applied in review of
juror removal cases. That heightened standard more fully reflects an appellate court's
obligation to protect a defendant's fundamental rights to due process and to a fair trial by
an unbiased jury.' " (People v. Wilson (2008) 44 Cal.4th 758, 821.) "Under the
demonstrable reality standard, . . . the reviewing court must be confident that the trial
court's conclusion is manifestly supported by evidence on which the court actually
relied." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)
In People v. Daniels (1991) 52 Cal.3d 815, the court held a juror may be removed
for "serious and willful misconduct." (Id. at p. 864.) In that case, the trial court
discharged a juror who, in violation of the court's instructions, read a newspaper article
about the case, discussed the case with nonjurors, and expressed an opinion on the
defendant's guilt before jury deliberations. (Id. at p. 863.) The California Supreme Court
concluded that misconduct showed the juror was unable to perform his duty, which "duty
includes the obligation to follow the instructions of the court, and a judge may
reasonably conclude that a juror who has violated instructions to refrain from discussing
the case or reading newspaper accounts of the trial cannot be counted on to follow
instructions in the future." (Id. at p. 865, italics added.) Daniels upheld the trial court's
discharge of the juror. (Id. at p. 866; see People v. Ledesma (2006) 39 Cal.4th 641, 743
14
[juror who discussed case with his wife could not be counted on to follow instructions in
the future and was therefore unable to perform his duties as a juror].)
C
Assuming arguendo Mendivil did not forfeit his challenge to the trial court's
discharge of the juror by not objecting below, we conclude the trial court properly found
the juror was unable to perform as a juror within the meaning of section 1089.2 The
record on appeal reflects a demonstrable reality that the juror was unable to perform. In
the presence of counsel, the court questioned the juror about his purported misconduct,
giving the juror an opportunity to answer its questions and otherwise respond to the
assertion that the juror had discussed the case on the internet. After the juror denied
discussing the case and attempted to minimize his actions by claiming he only stated he
was "going on jury duty," the court stated, "I have them right here," presumably
indicating it had the juror's actual Facebook or other internet postings before it. The
court described those internet postings, stating, "here you are talking about this case and
about the jury, and about other people, you know, telling you things." Those internet
postings by the juror showed he had violated the trial court's prior instructions not to
discuss the case with others and not to use the internet in connection with the case. Based
on those violations of its instructions, the court could reasonably find the juror could not
2 Because we assume arguendo Mendivil did not forfeit his challenge to the court's discharge of the juror, we need not address his claim of ineffective assistance of counsel. Instead, we address the merits of his contention that the court erred by discharging the juror.
15
be counted on to follow its instructions in the future and was therefore unable to perform
his duties as a juror. (Cf. People v. Daniels, supra, 52 Cal.3d at pp. 863-865; People v.
Ledesma, supra, 39 Cal.4th at p. 743.) Because the juror's inability to perform was
shown on the record as a demonstrable reality, the trial court properly discharged the
juror. (People v. Wilson, supra, 44 Cal.4th at p. 821.)
Contrary to Mendivil's assertion, the trial court was not required to state on the
record the actual Facebook or other internet postings that the juror made to find the juror
was unable to perform. Rather than state on the record the juror's actual postings, the
court described the types of postings he made. We presume the trial court and both
counsel had the juror's actual postings before them when the court addressed his
purported misconduct. Therefore, if the court had inaccurately described those postings,
we presume Mendivil's counsel and/or the prosecutor would have corrected the court.
Absent any affirmative showing on the record to the contrary, we presume the court
accurately described the juror's postings.
Furthermore, contrary to Mendivil's apparent assertion, the record does not show
the juror posted on Facebook only that he was "going on jury duty." Although that is
what the juror represented to the trial court, it corrected him by describing his actual
postings (i.e., "here you are talking about this case and about the jury, and about other
people, you know, telling you things"). Accordingly, the record shows a demonstrable
reality that the juror was unable to perform his duty as a juror. Moreover, contrary to
Mendivil's assertion, the court did, in fact, conduct a hearing, albeit a brief one,
addressing the issue of the juror's purported misconduct before it found he committed
16
such misconduct and was unable to perform. People v. Cleveland (2001) 25 Cal.4th 466,
cited by Mendivil, is factually inapposite to this case and does not persuade us to reach a
contrary conclusion.
Finally, the fact that the court handled other instances of purported juror
misconduct differently from this instance does not show the court abused its discretion or
otherwise erred in discharging the juror here. Rather, our review of the record regarding
those other instances shows they were inapposite to this one and did not involve a juror's
disregard of the court's instructions not to discuss the case with others and not to use the
internet regarding this case.
III
Admission of Evidence of Codefendant's Jail Telephone Call and Prior Conviction
Mendivil contends the trial court erred by admitting evidence of a jail telephone
call and prior conviction of Quezada (his codefendant).
A
Quezada's jail telephone call. Before trial, the prosecution filed an in limine
motion for admission of a recorded jail telephone call made by Quezada after his arrest in
this case. The call was made by Quezada to Ernesto Barraza, a Brole gang member, and,
according to the prosecution, discussed dissuading Pineda, Diane, and Monique from
testifying at trial. The prosecution argued the call was relevant to prove Quezada's
identity and guilt and to explain any inconsistencies between the trial testimony of Pineda
and other percipient witnesses and their prior statements.
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At the hearing on the motion, the prosecution argued Romualdo would testify as a
gang expert to "decode" the substance of Quezada's call. Romualdo would testify that
Quezada asked Barraza to facilitate the intimidation of Diane and Monique, and that
witness intimidation is common in gang culture. Quezada's counsel objected to
admission of his client's telephone call, arguing its language was so vague and ambiguous
that it would be prejudicial for a gang expert to testify that witness intimidation was
discussed. He also argued the call had no probative value in proving the offenses charged
against Quezada. Mendivil's counsel submitted on the issue without argument.
After hearing arguments of counsel, the trial court decided it would conduct an
Evidence Code section 402 hearing before ruling on the prosecution's motion. At that
subsequent hearing, the court heard the recording of Quezada's call and Romualdo's
testimony about it. Romualdo testified he could tell it was Quezada who made the call
because he (Quezada) identified himself by his gang moniker, "Spider," and stated the
date on which his trial in this case was to begin. He was also able to identify Barraza as
the recipient of the call based on his prior contacts with Barraza. Quezada stated: "My
trial starts November first, the victim ain't seen shit, and then them, those two people, the
girls, they already changed their story like three times, fool, so I got it beat. And the
homie Vinnie . . . was right here, right? He went home." Romualdo testified that during
the call Quezada asked Barraza to tell "Vinnie," who he believed was a fellow gang
member, Benny Hernandez, to continue threatening witnesses in his case. Romualdo
based that opinion on Quezada's statements that "he [i.e., Vinnie] went to make sure that
[inaudible] you know what I mean? . . . So, if you see that fool or you get word to him,
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make sure he, he keeps it going." Romualdo testified that Quezada repeated that request
later in the call, stating: "I told the short guy if he could, uhm, to ask you for something
for me, because he's going to do something for me." According to Romualdo, Quezada's
reference to the "short guy" was to "Vinnie," or Benny Hernandez. Quezada then told
Barraza to get "a hold of" the "short guy" and "make sure that fool does it." Barraza
replied, "Yeah, yeah, yeah, I already gave him an AK-47 and everything, so he . . . he . . .
you know?" Quezada asked him, "[Y]ou already hooked that up for him?" Barraza
replied, "Yeah, yeah." Quezada told him to "[g]et a hold of him. Tell him . . . to hook
that up for and don't trip, man." Romualdo testified that conversation meant Quezada had
provided Vinnie with a gun and told Barraza to contact him to keep the threat going.
On cross-examination, Romualdo conceded Quezada's reference to "Vinnie" could
also have been to Vincent Verdusco, a Brole gang member who is related to Diane.
However, even if that reference was to him, it did not change Romualdo's opinion that the
recorded telephone call involved a threat.
The prosecutor argued the call should be admitted as circumstantial evidence to
prove the gang enhancement because intimidation of witnesses and victims is one of the
gang predicate offenses. It was also relevant to show Quezada's consciousness of guilt.
Finally, it would be relevant to corroborate potential testimony by Pacheco that a
Hispanic male came to his house, brandished a gun, and instructed him not to testify.
Quezada's counsel argued the recorded call should be excluded because it was
unintelligible without Romualdo's speculative interpretation. He also argued the
prejudicial nature of the call outweighed its probative value. Mendivil's counsel joined in
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those arguments and also argued the admission of evidence on Quezada's call would
violate his constitutional right to confrontation of witnesses against him under the
Aranda/Bruton3 cases.
The trial court concluded there was a sufficient evidentiary foundation for
Romualdo to testify as a gang expert regarding the meaning of the coded conversation
between gang members. The court stated the defense could then argue whether his
interpretation of the call was accurate. It further concluded the call evidence was
admissible to show Quezada's gang affiliation to prove the gang enhancement, as well as
his consciousness of guilt. Furthermore, if Pacheco testified he was intimidated, the call
would be relevant to corroborate his testimony. Regarding Mendivil's Aranda/Bruton
argument, the court stated a jury had already been selected for the joint trial and it could
not "undo" that. Nevertheless, the court agreed to instruct the jury that Quezada's call
was admissible only as to Quezada and it should not consider it for any purpose regarding
Mendivil.
During the trial, the prosecution played the audio recording of Quezada's call to
Barraza. Romualdo then testified regarding the call substantially as he had during the
Evidence Code section 402 hearing. However, Pacheco did not testify that he had been
threatened.
Quezada's prior conviction. During trial, the prosecution also sought to admit
evidence of Quezada's prior conviction for unlawful possession of a firearm. That
3 People v. Aranda (1965) 63 Cal.2d 518; Bruton v. U.S. (1968) 391 U.S. 123.
20
conviction, along with three other convictions unrelated to Quezada or Mendivil, were
offered to show the predicate offenses necessary for the gang allegations. Quezada
objected to admission of his prior conviction, arguing that predicate offense was
cumulative and highly prejudicial and the prosecution could use other predicate offenses
unrelated to him or Mendivil to prove the gang allegations. Although Mendivil agreed
evidence on Quezada's prior conviction was relevant to prove the gang allegations, he
argued it should be excluded because there were other predicate offenses available for
use by the prosecution.
Before the trial court ruled on the admissibility of evidence on Quezada's prior
conviction, all of the parties stipulated to its admission and the language to be used to
inform the jury of their stipulation. Thereafter, the prosecutor read the parties' stipulation
to the jury, stating:
"The People and defendant stipulate that [Quezada] has a felony conviction for a violation of Penal Code section 1202.1, unlawful possession of a firearm in the Superior Court of California, County of Imperial on July 10th, 2009."
The prosecutor also presented evidence on three other predicate offenses committed by
Brole gang members (i.e., Brian Perez's 2010 second degree robbery conviction,
Barraza's 2010 vehicle theft conviction, and Barraza's 2010 conviction for unlawful
possession of a firearm by a felon).
B
Mendivil asserts the trial court erred by admitting evidence on Quezada's recorded
jail telephone call because that evidence improperly implicated him in violation of the
21
Aranda/Bruton cases and his constitutional right to confront witnesses against him. We
disagree.
Under the federal and California Constitutions, a criminal defendant is guaranteed
the right to confront and cross-examine witnesses against him or her. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15; Pointer v. Texas (1965) 380 U.S. 400, 403-405; People
v. Anderson (1987) 43 Cal.3d 1104, 1119.) People v. Aranda, supra, 63 Cal.2d 518 and
Bruton v. U.S., supra, 391 U.S. 123 generally hold that a nontestifying codefendant's
extrajudicial self-incriminating statement that inculpates the other defendant is unreliable
and inadmissible as a violation of that defendant's constitutional right of confrontation
and cross-examination. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1176.)
However, since Aranda and Bruton were issued, the United States Supreme Court has
clarified that the confrontation clause of the Sixth Amendment applies only to
"testimonial" hearsay statements. (Crawford v. Washington (2004) 541 U.S. 36, 51-53,
68; Davis v. Washington (2006) 547 U.S. 813, 821-825.) Accordingly, the confrontation
clause does not apply to nontestimonial hearsay statements, including those by a
codefendant. (Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Arceo (2011)
195 Cal.App.4th 556, 571.) For example, an inmate's surreptitiously recorded jailhouse
conversation that does not involve law enforcement interrogation is not testimonial.
(People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402; cf. Davis v. Washington, at
p. 828 [recorded 911 call was to enable police to assist emergency and was not
testimonial]; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [codefendant's
statements to long-time friend were nontestimonial].) Although Crawford did not, and
22
subsequent United States Supreme Court and California Supreme Court cases have yet to,
expressly overrule or limit the Aranda/Bruton holdings, it seems clear that the Sixth
Amendment confrontation clause applies only to testimonial hearsay statements. (Arceo,
at p. 575; People v. Loy (2011) 52 Cal.4th 46, 66; People v. Gutierrez (2009) 45 Cal.4th
789, 812; Whorton, at p. 420; Davis, at p. 821.)
In this case, Mendivil does not argue, nor could he reasonably argue, that
Quezada's extrajudicial statements during his recorded jail telephone conversation with
Barraza were "testimonial" statements. None of Quezada's statements were made under
circumstances that would lead an objective witness to reasonably believe the statements
would be available for use at a later trial. (Crawford v. Washington, supra, 541 U.S. at
pp. 51-53; Davis v. Washington, supra, 547 U.S. at pp. 821-825.) Because Quezada and
Barraza spoke in code, Quezada could not have reasonably expected his statements
would be used at his (or Mendivil's) trial even though he had been warned his jail call
may be recorded. (Cf. Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309-310;
People v. Loy, supra, 52 Cal.4th at pp. 66-67.) Accordingly, admission of evidence on
Quezada's recorded call did not violate Mendivil's Sixth Amendment right to
confrontation and cross-examination or the Aranda/Bruton holdings, as implicitly limited
by Crawford and its progeny.
In any event, none of Quezada's extrajudicial statements facially inculpated
Mendivil. Neither Quezada nor Barraza made any reference to Mendivil during the
recorded call and Romualdo did not testify that Mendivil was referred to in that call.
Because the Aranda/Bruton rule does not apply to confessions or other inculpatory
23
statements that are not incriminating on their face, admission of evidence on Quezada's
recorded call did not violate that rule as to Mendivil. (Richardson v. Marsh (1987) 481
U.S. 200, 207-208; People v. Hajek and Vo, supra, 58 Cal.4th at pp. 1176-117.) Contrary
to Mendivil's apparent assertion, the fact that both Quezada and Mendivil were charged
with the same offenses for the benefit of the same gang did not make Quezada's
statements during his recorded call facially inculpatory of Mendivil.
Furthermore, Mendivil does not argue that Quezada's extrajudicial statements
during his recorded jail telephone conversation were inadmissible hearsay under our rules
of evidence. Evidence Code section 1230 provides that statements made against the
declarant's penal interest are not made inadmissible by the hearsay rule. Based on
CALCRIM No. 1401; Gardeley, at pp. 616-617.) A defendant's prior conviction for a
listed offense qualifies as a "predicate offense" for purposes of establishing a pattern of
criminal gang activity. (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Quezada's prior
28
conviction for unlawful possession of a firearm qualified as a predicate offense and was
relevant to prove Brole was a criminal street gang within the meaning of section 186.22,
subdivisions (b) and (f). Furthermore, his prior conviction was also relevant to prove
Quezada actively participated in a criminal street gang (i.e., Brole) and knew Brole
engaged in a pattern of criminal street activity. (Tran, at p. 1048.)
Mendivil argues the trial court nevertheless should have excluded evidence of
Quezada's prior conviction under Evidence Code section 352 because its probative value
was outweighed by its probable prejudicial effect. He argues that because the
prosecution introduced evidence of three other predicate offenses, evidence of Quezada's
prior conviction was cumulative and therefore its prejudice outweighed its probative
value. However, Mendivil does not cite, and we are unaware of, any authority holding
that the prosecution is limited to introducing evidence of no more than three predicate
offenses or cannot introduce evidence of a defendant's or codefendant's prior conviction
of a predicate offense. We believe there is no absolute limitation on the number of
predicate offenses the prosecution may introduce. Instead, evidence of predicate offenses
introduced by the prosecution is limited only by its probative value and the trial court's
exercise of its discretion to exclude that evidence under Evidence Code section 352.
Based on our review of the record in this case, we cannot conclude the trial court abused
its discretion by allowing the prosecution to introduce evidence of Quezada's prior
conviction for unlawful possession of a firearm. Although the prosecution introduced
evidence of three other predicate offenses committed by other gang members, evidence
of Quezada's prior conviction showed not only that Brole had a pattern of criminal street
29
activity, but also that Quezada actively participated in Brole and knew it engaged in a
pattern of criminal street activity. (People v. Tran, supra, 51 Cal.4th at p. 1048.)
Furthermore, the court could reasonably conclude that the probative value of that
evidence outweighed its probable prejudicial effect. (Cf. Tran, at p. 1050.) The court
could reasonably conclude any potential prejudicial effect on Mendivil was minimal
because he was not involved in that prior offense by Quezada and the mere fact he was
being jointly tried with Quezada would not lead the jury to attribute that prior conduct to
him. Furthermore, the court gave a limiting instruction regarding the jury's use of
evidence of Quezada's prior conviction, stating the jury could not conclude from that
evidence that the defendant is a person of bad character or has a disposition to commit
crime. The court properly admitted evidence of Quezada's prior conviction for
possession of a firearm. People v. Hendrix (2013) 214 Cal.App.4th 216 and the other
cases cited by Mendivil are factually inapposite to this case and do not persuade us to
reach a contrary conclusion.
Mendivil also argues he was denied effective assistance of counsel when his
counsel did not object to admission of evidence of Quezada's prior conviction. However,
we conclude that, had his counsel objected to admission of that evidence and the trial
court overruled that objection, the prejudicial effect of that evidence on Mendivil was
minimal, at most, and therefore it is not reasonably probable he would have obtained a
more favorable outcome had that evidence been excluded. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688; People v. Frye (1998) 18 Cal.4th 894, 979.)
30
IV
Denial of Continuance
Mendivil contends the trial court erred by denying his postverdict motion for a
continuance to allow his defense counsel to investigate possible juror misconduct. He
argues he showed good cause for a continuance based on a juror's affidavit regarding the
jury's purported misunderstanding of the court's instructions.
A
On April 16, 2012, the jury returned its verdict convicting Mendivil of assault with
a deadly weapon. On July 18, Mendivil filed a motion for release of juror identifying
information. He argued that after the verdict was returned, his counsel and Quezada's
counsel were informed by three jurors that they did not believe either Mendivil or
Quezada personally attacked Pineda. In the supporting declaration of Mendivil's counsel,
he stated the jurors did not believe the defendants personally inflicted great bodily injury,
but instead found them guilty based on a theory of aiding and abetting as argued by the
prosecutor. However, the jury was not instructed on aiding and abetting.
The prosecution opposed the motion, arguing Mendivil did not make a prima facie
showing of good cause, did not specifically identify any of the jurors his counsel or
Quezada's counsel spoke with, and did not show diligent efforts were made to contact
jurors through other means. Importantly, the prosecution also argued Evidence Code
section 1150, subdivision (a), barred admission of evidence on the subjective reasoning
processes of jurors and that is what Mendivil sought to discover.
31
On August 3, the trial court found Mendivil made a sufficient showing to warrant
a hearing to show cause why the identifying information for the three jurors should not be
provided to him and, if testimony of those three jurors supported his contention, that it
would then consider disclosing the identifying information for the remaining jurors. On
August 29, the court held a hearing to show cause why the identifying information of the
three jurors should not be provided to Mendivil. The court apparently provided
Mendivil's counsel with the names, addresses, and telephone numbers of the three
jurors.4 The court also continued Mendivil's sentencing hearing until September 26,
presumably to allow his counsel to investigate the alleged juror misconduct.
At the scheduled September 26 sentencing hearing, the trial court continued
Quezada's sentencing because his counsel was not present. The court allowed Mendivil's
counsel to lodge a declaration from Juror No. 3, in which she stated the jurors
misunderstood the instructions on whether Mendivil and Quezada personally inflicted
great bodily injury on Pineda. She stated in part:
"Once the trial was concluded and prior to all deliberations the jury agreed to apply the jury instruction as to Penal Code [section] 245[, subdivision] (a)(1), which did not require the Defendant's [sic] to personally attac[k] the victim, as to all charges and allegations, including the [section] 1202.7 [sic] allegation of Great Bodily Injury. [¶] . . . [¶] . . . As to the Penal Code [section] 12022.7 allegation, I understood that I could find the allegation true, even though I did not feel that either of the defendants personally used a deadly weapon. I did not use the jury instruction for [section] 12022.7 and neither did any of the other jurors. We applied the instruction from Penal Code
4 Although the record on appeal does not contain a transcript of that hearing, subsequent proceedings in the record show the court took that action.
32
[section] 245[, subdivision] (a)(1) to the [section] 12022.7 allegation. We did so based upon the District Attorney's statement that a person could be guilty . . . of all the charged offenses even though they did not personally participate in the attack. Using the statement from the District Attorney and applying the instruction from Penal Code [section] 245[, subdivision] (a)(1), I found the allegation true."
Mendivil's counsel represented to the court that he had tried to contact Juror No. 1 to
ascertain whether that juror would corroborate Juror No. 3's statements, but was unsure
whether he would cooperate. Accordingly, he requested a two-week continuance to
allow him additional time to contact Juror No. 1.
The prosecution opposed a continuance of Mendivil's sentencing, arguing the
statements in the declaration of Juror No. 3 were inadmissible under Evidence Code
section 1150 and the possibility that another juror might corroborate those inadmissible
statements was insufficient to show good cause for a continuance. The trial court found
Mendivil had not shown good cause for a continuance and proceeded to sentence him.
B
A trial court has broad discretion in ruling on motions for continuance of
sentencing and new trial. (People v. Smithey (1999) 20 Cal.4th 936, 1011-1012.) We
review a court's denial of a motion for continuance for abuse of discretion. (People v.
Jones (1998) 17 Cal.4th 279, 318.)
If a party does not comply with the requirements of section 1050 (i.e., written
notice of motion filed and served at least two days before hearing), the trial court must
deny the motion unless the party shows good cause. (People v. Smithey, supra, 20
Cal.4th at pp. 1011-1012.) In ruling on a motion for continuance, the court " ' "must
33
consider not only the benefit which the moving party anticipates but also the likelihood
that such benefit will result, the burden on . . . witnesses, jurors and the court and, above
all, whether substantial justice will be accomplished or defeated by a granting of the
motion." ' " (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.) The court may also
consider the diligence exercised by trial counsel. (People v. Jenkins (2000) 22 Cal.4th
900, 1037-1040.) A party is denied due process if the trial court's denial of a continuance
is arbitrary under the circumstances of the case. (People v. Frye, supra, 18 Cal.4th at
pp. 1012-1013; Smithey, at p. 1011-1012.)
C
Based on our review of the record, we conclude the trial court did not abuse its
discretion by denying Mendivil's motion for continuance. The court reasonably
concluded Mendivil did not show good cause for a continuance because the information
his counsel sought to ascertain with further investigation related to the subjective thought
processes of jurors.
"Evidence of jurors' internal thought processes is inadmissible to impeach a
verdict." (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th
"Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Italics added.)
34
"Juror declarations are admissible to the extent that they describe overt acts constituting
jury misconduct, but they are inadmissible to the extent that they describe the effect of
any event on a juror's subjective reasoning process. [Citation.] Accordingly, juror
declarations are inadmissible to the extent that they purport to describe the jurors'
understanding of the instructions or how they arrived at their verdict. " (Bell, at
pp. 1124-1125, italics added; see People v. Allen and Johnson (2011) 53 Cal.4th 60, 75
["a court cannot consider evidence of a juror's subjective reasoning process in deciding
whether to grant a new trial based on purported juror misconduct"]; People v. Steele
(2002) 27 Cal.4th 1230, 1261 [evidence of how a juror understood the trial court's
instructions is not competent].) In short, "the jurors' subjective thought processes [are]
immaterial and of no jural consequence." (People v. Hill (1992) 3 Cal.App.4th 16, 30.)
Therefore, evidence showing the jurors misunderstood the trial court's instructions "is
simply of no legal significance." (Ibid.) Alternatively stated, "evidence about a jury's
'subjective collective mental process purporting to show how the verdict was reached' is
inadmissible to impeach a jury verdict. [Citation.] Thus, juror declarations are
inadmissible where, as here, they 'at most suggest "deliberative error" in the jury's
collective mental process—confusion, misunderstanding, and misinterpretation of the
law.' " (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.)
In moving for a continuance of the sentencing hearing, Mendivil argued his
counsel needed additional time to investigate possible misunderstanding of the trial
court's instructions by jurors in deliberating and reaching a verdict. However, the object
35
of Mendivil's investigation (i.e., purported juror misconduct based on misunderstanding
of the instructions) could not have resulted in any admissible evidence under Evidence
Code section 1150, subdivision (a), and relevant case law, and it could not have
supported a motion for new trial based on purported juror misconduct. Any evidence of
jurors' misunderstanding of instructions is both inadmissible and immaterial on the
question of juror misconduct. The declaration of Juror No. 3 that Mendivil lodged with
the trial court in support of his request for a continuance dealt with the purported
misunderstanding of the court's instructions by that juror and other jurors. That
declaration was inadmissible evidence not only to show juror misconduct, but also as
support for Mendivil's motion for continuance. Furthermore, Mendivil's argument that he
might be able to obtain similar declarations from other jurors if he had additional time to
investigate could not support a continuance because those possible additional declarations
would likewise be inadmissible under Evidence Code section 1150, subdivision (a).
Absent any evidence showing Mendivil had, or could obtain, admissible evidence of juror
misconduct, the trial court reasonably concluded he did not show good cause for a
continuance and properly denied his motion.
V
Ineffective Assistance of Counsel
Mendivil alternatively contends that if his counsel did not sufficiently object, or
sufficiently move, to preserve the issues of improper juror dismissal, erroneous admission
of evidence, or improper denial of his motion for continuance, he was denied effective
36
assistance of counsel.5 However, because we dispose of those issues on grounds other
than waiver, forfeiture, or procedural inadequacies, we need not, and do not, address his
ineffective assistance of counsel claim.6
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
5 To the extent Mendivil also suggests his counsel may have performed deficiently by not requesting additional jury instructions or clarification of instructions on the GBI allegation, he has forfeited or waived that contention by not presenting any substantive legal analysis showing the instructions given in this case were inadequate or confusing and therefore we do not address the merits of that contention. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
6 As discussed above, we have, however, discussed that issue to the extent it relates to the admission of evidence of Quezada's prior conviction.
37
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction for assault with a deadly weapon and the true findings on gang and great bodily injury enhancements, holding that substantial evidence supported the verdict and the trial court did not err in discharging a juror for misconduct.
Issues
Whether there was sufficient evidence to support the conviction for assault with a deadly weapon and the great bodily injury enhancement.
Whether the trial court erred in discharging a juror for violating instructions regarding internet use and discussing the case.
Whether the trial court erred in admitting evidence of a codefendant's jail telephone call and prior conviction.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The record contains substantial evidence to support a finding by the jury that Mendivil committed an assault with a deadly weapon on Pineda.”
“The record on appeal reflects a demonstrable reality that the juror was unable to perform.”
“[A] juror's inability to perform as a juror must be shown as a 'demonstrable reality'”