People v. Marez CA3

Filed 5/24/16 P. v. Marez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078086

Plaintiff and Respondent, (Super. Ct. No. 13F05667)

v.

MANUEL VALDEZ MAREZ,

Defendant and Appellant.

Defendant Manuel Valdez Marez challenges the admission during jury trial of two out-of-court statements he made to his codefendant brother, Daniel Marez (Daniel), after the two were arrested for robbery.1 Finding no error, we affirm.

1 The jury failed to reach verdicts on the charges against Daniel. He entered into a plea agreement and is not a party to this appeal.

1

FACTUAL AND PROCEDURAL BACKGROUND Just after midnight on September 1, 2013, Nathaniel Wilson was walking home from the light rail station after working a late shift. Defendant, Daniel, and another man (who was never identified) approached Wilson and demanded his money and wallet. Defendant showed Wilson a gun. Wilson was hit in the back of the head and then tried to flee, but stopped running after about 15 seconds. The men resumed hitting Wilson with their fists and the gun, and Wilson fell to the ground. Wilson gave them his wallet, phone, and bag, but the men continued to hit him. Wilson suffered a broken thumb and injuries to his ear, elbow, hands, and head. Wilson called 911 from a convenience store. The police arrived, called for medical assistance for Wilson, and went to the robbery scene. A responding officer saw defendant, Daniel, and three other individuals. The officer searched defendant and found Wilson’s cellular phone and wallet in his pocket. The officer also found a loaded silver handgun approximately 10 feet away from the group. Police found another cartridge for the gun in defendant’s pocket during a subsequent search at the station. Wilson later identified the gun used during the robbery. The police detained defendant and Daniel and brought them for a field showup at the hospital. Wilson identified both men as the robbers, and the police returned both men to the police car. At 2:55 a.m., approximately 10 minutes after the showup, the police car’s video system recorded defendant saying to Daniel, “ ‘that Nigga deserved it though, for all the shit he be talking. I hope you almost knocked that guy out, fool.’ ” After the showup, the police took defendant and Daniel to jail. At 3:55 a.m., while defendant and Daniel were waiting to be seen by the nurses in the jail booking area, a police officer overheard defendant say to Daniel, “ ‘I should have smoked his ass.’ ” Defendant and Daniel were both charged with crimes related to the robbery, and a joint trial was set. Daniel challenged the admissibility of defendant’s out-of-court statements and asked to sever their trials, but defendant did not formally join in these