P. v. Rodriguez 4/1/09 CA2/7

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2009 » P. v. Rodriguez 4/1/09 CA2/7

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B196535

Case Date: 07/09/2009

Preview:Filed 4/1/09 P. v. Rodriguez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. SALVADOR RODRIGUEZ, Defendant and Appellant.

B196535 (Los Angeles County Super. Ct. No. YA062740)

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Hollingsworth, Judge. Affirmed, as modified. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Salvador Rodriguez appeals from the judgment entered after his conviction by a jury on one count of murder and three counts of attempted murder with true findings by the jury on related gang and weapon enhancement allegations. Rodriguez contends he was prejudiced by the erroneous admission of a videotaped interview of a witness who testified against him at trial and by the trial courts refusal to allow him to reopen testimony. He also challenges the calculation of his sentence. We modify the judgment to correct his sentence and, as modified, affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND 1. The Shooting On the night of December 19, 2004 Rene Elias and Alberto Aragon, members of a tagging crew known by its initials "SAP," were spray-painting walls on Imperial Avenue near Van Buren Street in south Los Angeles. Renes brother, Luis Elias, and Alex Contreras were parked and waiting for them nearby in a green Buick. As a white van with brown stripes drove by, Rene and Aragon headed back to the waiting car. The van stopped in front of the Buick about 30 to 40 feet away; and two people, a tall, brownskinned male with a shaved head, wearing a white shirt and holding a chrome revolver, and a short, Hispanic male wearing a hooded sweater, got out. The man with the gun began shooting as Rene climbed into the back seat and Aragon reentered the front passenger seat of the Buick. Luis, the driver, ducked to avoid the gunshots, and began backing down the street. After driving away, the young men flagged down a police car. Aragon, who had been hit in the head by a single gunshot, was dead.
2 1

1

Because Rene and Luis share the same last name, we refer to them by their first names, not out of disrespect but for convenience and clarity. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
2

A woman driving past the scene largely confirmed this account of the shooting, although she mistook Rene, who wore his hair long, for a woman. Some testimony suggested there may have been a third person who got out of the van and that at least two weapons were fired. These factual variances do not affect the resolution of this appeal. 2

2. The Investigation In an initial interview with Los Angeles Sheriffs Department detectives after the shooting, Rene described the shooter as a tall, slim, dark-complexioned male about 18 years old wearing a white shirt and gray pants. Luis gave a similar description, adding that the shooters head was shaved. The second shooter, also a brown-skinned male, was very short, "almost like a kid." Rene reviewed some photographs in a book provided by the detectives but stated he could not identify anyone. Several days after the shooting deputy sheriffs observed graffiti in two different places in the neighborhood that appeared to refer to the shooting. The first stated, "RIP SAP Jackel," which was understood to mean "Rest in peace, SAP tagger Jackel," the moniker for Aragon. The second featured the letters "CRS," a reference to a local gang known as the Crazy Riders, followed by the letters "SAP," which had been crossed out, and the number 187, a reference to the Penal Code section for murder. A deputy reported this graffiti to the detectives investigating the Aragon murder, who interpreted it to mean a CRS member had killed, or had wanted to kill, an SAP member. About the same time, Detective Michael Valento, a deputy sheriff assigned to the Lennox station gang detail, reviewed another deputys report of a December 1, 2004 incident at a home three blocks from the scene of the shooting. The deputy had interviewed a number of young men at the home, including Rodriguez, who admitted his membership in the CRS gang, and Gabriel Flores, who was a member of a tagging crew known as a rival of SAPs. In a conversation with the reporting deputy, Valento was told the deputy had logged the license plate of a white van parked in front of the home. After tracing the license plate, Valento learned the van was registered to Floress father. Valento drove to the residence and photographed the van. In an interview with detectives on December 29, 2004, Rene identified the van in the photograph as the one involved in the shooting and stated he was certain about the identification. He also stated he had seen someone who looked like the shooter with other members of the CRS gang at an automobile body shop located on Vermont Avenue

3

at 95th Street. According to Rene, CRS and SAP had been "slashing" or crossing out each others graffiti for the past month. On the evening of December 30, 2004 a patrolling sheriffs deputy saw fresh graffiti on a bus stop depicting the letters "CRS." The deputy approached a group of Hispanic males standing nearby to inquire about the graffiti. When they saw the patrol car, the members of the group scattered into an adjacent parking lot. Because the deputy had observed one of the men, later identified as Edwin Morales, holding a revolver that he discarded as the deputy approached, the deputy chased Morales and detained him. Morales, who was on probation for felony possession of a sawed-off shotgun, was arrested on a charge of possession of a loaded handgun while on probation. Rodriguez was also interviewed at the scene and acknowledged his membership in the CRS gang, but was not arrested. The revolver recovered from the parking lot, a stainless steel .357 magnum, contained six bullets and matched the description of the gun used in Aragons murder.
4

3

The next day Morales was interviewed by Detective Valento and two detectives from the sheriffs homicide unit investigating Aragons murder. In a videotape that was played for the jury at trial, Morales denied he was a member of CRS and claimed to know nothing about the gun, insisting he had never touched it. Instead he told the detectives he had run because he had been smoking marijuana, also a potential probation violation, and had thrown the joint, not the gun, to the ground as he ran toward the parking lot. The detectives pressured him to talk more openly, warning him the revolver had been used in a murder and had been seen in his possession and clearly implying he could be charged with the murder, even though they later acknowledged at trial he did not resemble the

3

According to testimony at trial, Rodriguezs father owned the body shop, which was frequented by Rodriguez and at least four of his brothers, in addition to other CRS members.
4

At trial a ballistics expert testified the bullet fragments retrieved from Aragons head were fired by the gun recovered on December 30, 2004. No fingerprints were found on the gun or on the bullets. 4

description of either perpetrator. Morales continued to deny any knowledge about the gun or the murder, and the interview was terminated. Detective Valento initially left the room with the other detectives. When he returned to escort Morales back to his holding cell, Morales offered to talk to Valento if Valento would help him. After Valento restarted the video camera, Morales told him his mother lived in the apartment building he had been standing near when he was arrested. While waiting for his mother, Morales said, he had been with his nephew, a CRS gang member; Rodriguez, a CRS member Morales knew as "Lazy"; Rodriguezs brother Manuel, known as "Flaco"; and another gang member Morales knew as "Red Eyes." As they stood and talked, Flaco raised his shirt to reveal a gun tucked into his waistband; and Lazy said he had "done another job with that one." Lazy, Flaco and Red Eyes had been driving around and saw some "enemies" tagging a wall on Imperial. Lazy got out and shot someone from SAP in the head. Morales told Valento Lazy and Flaco were CRS members and he was afraid they would target him or his family for retribution. He also identified photographs of Lazy, Flaco and other CRS gang members and told Valento Lazy stayed with his girlfriend, the sister of Gabriel Flores, at the Flores home. After the interview, Morales directed Valento to the Flores home where the white van was parked. On January 4, 2005 Detective Valento and the homicide detectives again interviewed Rene and Luis Elias. Valento inserted photographs of the Rodriguez brothers in the collection of photographs for Rene to review. Rene, however, refused to look at the book, stating he was afraid to leave his children without a father. He would not indicate whether he recognized a particular photograph Valento pointed out to him. A search warrant was executed at the Flores home on January 11, 2005. Deputies found two notebooks containing gang symbols and graffiti and photographs depicting Salvador Rodriguez displaying CRS gang signs. The white van, in which spray paint
5 5

A deputy sheriff testified Manuel Rodriguez had acknowledged his gang membership and moniker in a stop some months before the murder. The deputy recorded Manuels height at the time as 5 feet, 4 inches. Manuel Rodriguez was tried concurrently with Salvador Rodriguez but is not a party to this appeal. 5

cans were found, was also impounded. Rodriguez was arrested following the search. Another search warrant was executed at the Rodriguez family home, where deputies found bullets for a .357 magnum revolver. On January 13, 2005 Detective Valento, accompanied by the assistant district attorney assigned to the case, again interviewed Morales. This interview was also videotaped. During the first portion of the interview, Morales recounted the statements he had previously made to Valento concerning Rodriguezs description of the shooting. After Morales finished answering questions about the case, Valento and the prosecutor advised him he would have to testify in court and that Rodriguez, his brother Manuel and Gabriel Flores had been arrested and charged with murder "because of a bunch of other circumstances." Because Moraless name was not yet "out there," they said, if he was willing to work with them, he and his family could be moved to a different residential area for their safety. When Morales admitted he was afraid, the prosecutor explained, "move your mom, move you, and then, you know, were hoping that youll cooperate with us, because . . . youve been totally truthful, you said what happen[ed], you said your prints werent going to be on the gun, theyre not on the gun. And so . . . well never have to file the case on you, but we do want to know that youre going to cooperate with us." The prosecutor continued, "Were just trying to tell you that, you know, you were helpful, you were honest, so were going to let the gun thing slide, but we got to know that youre going to cooperate. So do you feel like either of us are threatening you in any way?" Morales answered he did not feel threatened but wanted to talk with his mother before committing to testify for the prosecution. The prosecutor reiterated the suspects did not yet know about Morales; and Valento concurred, stating he would never do that because "they" could go "switch" his mother "right now." Valento and the prosecutor also warned Morales to stay out of the gang life when he moved because he would be killed if he came back to the neighborhood. They concluded the interview after discussing logistics related to moving Moraless family.

6

3. The Trial Rene and Luis Elias and Alex Contreras all testified reluctantly at trial and professed to remember little about the night of the shooting. Rene volunteered he was drunk that night and had been drunk frequently during that period of time. None of the victims identified Salvador Rodriguez or his brother Manuel as the perpetrators. Excerpts from the videotapes of Renes and Luiss interviews with the detectives were played for the jury, and transcripts of those excerpts were marked as exhibits and provided to the jury. Morales testified for the prosecution. In support of his testimony, and with no objection from the defense, the prosecutor played the entire videotape of his first interview with detectives. Predictably, he was subjected to intensive cross-examination, most of it focused on his own motivation to avoid being charged with murder and the Peoples grant of immunity in exchange for his testimony. The defense also impeached him with inconsistent statements he had made during his second interview with Detective Valento and the prosecutor. The prosecutor then called various sheriffs deputies as witnesses, who recounted the results of their investigation. Finally, she called Valento to testify and proffered the videotape of the second interview she and Valento had conducted of Morales. Defense counsel objected to use of the videotape, arguing it was improper on numerous grounds, particularly because it included the prosecutors statements vouching for Moraless truthfulness. The trial court overruled the objections. After the tape was played, the court denied a defense motion to strike the tape in its entirety but offered to caution the jury not to consider as evidence any statements made by the prosecutor. The defense accepted the instruction, albeit reserving multiple objections to the evidence. At the close of the Peoples case, defense counsel renewed their objections. The prosecutor offered to submit herself for cross-examination and justified the admission of the tape under Evidence Code section 356, relating to use of an
6

6

The transcript of the videotape provided to the jury was edited to remove the prosecutors statements related to Moraless truthfulness. 7

entire communication after a part has been received in evidence, or as a prior consistent statement. The court denied the defense motion to exclude the tape. Rodriguez did not testify in his own defense. One of his brothers, Ismael, a former CRS member, and a second CRS member each testified Morales himself was a member of CRS known as "Diablo," an allegation Morales had denied under cross-examination. Rodriguezs sister, Maria, testified she saw Detective Valento speaking to Rene, Luis and Contreras in an aggressive manner. According to her, Valento swore at them and directed them to accuse Rodriguez. On redirect Valento denied swearing at the witnesses, stating he had always had a friendly relationship with them. The jury convicted Rodriguez on one count of murder (Pen. Code,

Download P. v. Rodriguez 4/1/09 CA2/7.pdf