People v. Aguilar, 2018 Cal. App. Unpub. LEXIS 4331, 2018 WL 3121533 (Cal. Ct. App. June 26, 2018):

A jury found defendant and appellant Yanill Aguilar guilty of first degree murder, with firearm and gang enhancements. He challenges his conviction, arguing: (1) the trial court erred by denying his motion to suppress his confession, which he contends was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (Miranda); (2) his confession should have been excluded because it was involuntary; (3) the trial court erred by excluding expert testimony on the subject of false confessions; (4) evidence of two cellular telephone text message conversations should have been excluded; (5) the prosecutor committed misconduct during argument; and (6) the cumulative effect of the purported errors [*2]  requires reversal. In supplemental briefing, the parties agree that remand is necessary to permit a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal. Rptr. 3d 496, 370 P.3d 1053 (Franklin), and to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to recently amended Penal Code section 12022.53, subdivision (h).¹ We affirm appellant's conviction, but remand the matter for a Franklin hearing and to allow the trial court to determine whether to strike or dismiss the firearm enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

a. People's evidence

(i) The shooting

Aguilar and Alejandro Salto were both members of the Rockwood criminal street gang. Aguilar went by the moniker "Drowzy" and Salto was known as "Menace." Aguilar wore glasses and was approximately 5 feet 5 inches tall. Salto was taller and larger than Aguilar.

On January 24, 2012, at approximately 3:00 p.m., the victim, Douglas Centeno, was walking in the area of Beverly Boulevard and Council Street, en route to see his mother. Aguilar and Salto were walking nearby. Salto rapidly approached Centeno and began arguing with him. Meanwhile, Aguilar hid behind a parked car. Salto began punching Centeno. Centeno punched back, but Salto got the upper hand in the fight. Aguilar emerged [*3]  from behind the car, approached Centeno from behind, and fired a single shot at the left side of Centeno's shoulder. Centeno fell to the ground. Aguilar and Salto fled, running down a nearby alley.

Two people, Oscar Reyes and Michael Yoo, witnessed the shooting and attempted to aid Centeno, who appeared to be mortally wounded. Yoo called 911. A third witness, Francisco Gonzalez, saw the assailants run away.

(ii) The investigation

Centeno died of a single gunshot to the upper left chest. The bullet that killed him was likely fired from a nine-millimeter, semiautomatic Smith and Wesson gun.

A. Identification evidence

Reyes, Gonzalez, and Yoo all described the assailants as Hispanic. Reyes and Yoo said the shooter was thin and short and his companion (referred to at trial as "the puncher") was taller, heavier, and bald.² According to Reyes, the shooter had a round face and wore glasses.

On February 21, 2012, Reyes identified a photo of Aguilar in a 12-photo array as looking "a little bit" like the shooter; he was, however, unsure of the identification. On the same date, Yoo identified a photograph of Aguilar in a photo array as looking "most similar" to the puncher, but he was likewise unsure [*4]  about the identification. On February 23, 2012, Reyes identified a photo of Salto as "look[ing] like" the puncher. Yoo did not identify Salto in a photographic array. Reyes and Yoo did not identify Aguilar as one of the assailants in court. Gonzalez did not get a good look at the assailants' faces.

B. Aguilar's statements to officers

After the shooting, detectives and patrol officers canvassed the neighborhood in an effort to find witnesses to, and information about, the shooting. Based on the information obtained, on the morning of February 2, 2012, police searched the homes of six Rockwood gang members, including Aguilar's and Salto's.

February 2, 2012 statements

Officer Shane Bua and one of the investigating officers, Detective Timo Illig, spoke with Aguilar at his apartment at approximately 6:00 a.m. on February 2, 2012. When Bua arrived, Aguilar stated, "'I know why you're here,'" and "'I know this is about the shooting.'" Aguilar said "Crimes" was involved in the shooting. He agreed to go to the police station to speak with detectives.

Aguilar arrived at the police station of his own volition later that morning, and Detective Illig, Detective Keyzer, and Officer Bua conducted a videotaped [*5]  interview with him lasting approximately three and a half hours. Aguilar confirmed he had been a Rockwood gang member for four years. He claimed that a high school girl named Stephanie, later identified as Stephanie Bonilla, told him about the shooting. Stephanie said the victim — who was "an enemy" and was tall, had a shaved head, and was "'banged out'"³ — had been walking down Beverly from the metro station; "Little Listo" punched the victim; and Francisco, known as "Timer," "popped out," came up from the side, surprising the victim, and shot him. The assailants then ran to an alley and were picked up by a car. Timer was not a Rockwood gang member and Little Listo was from a different Rockwood clique. Aguilar gave inconsistent descriptions of Little Listo and neither matched the only Little Listo known to Detective Illig. Illig was unaware of any gang member with the moniker "Timer." Eventually Aguilar changed his story and said Stephanie told him Crimes, rather than Timer, was one of the assailants.

Aguilar provided several inconsistent alibis and admitted he had asked his mother to lie and say he had been in La Puente when the shooting occurred. Eventually he admitted he had been [*6]  in the neighborhood, but at a different location. He denied any involvement in the crime.

Detective Illig spoke with Bonilla. She "had no idea about any of the details" that Aguilar had provided and, in fact, had thought the crime involved "body parts that were chopped up."

February 3, 2012 statements

The next day, February 3, 2012, Detective Illig phoned Aguilar and arranged for another interview. He picked Aguilar up at Aguilar's apartment and drove him to the police station. In the interview on the preceding day, Aguilar had explained that cuts on his hand were the result of his punching a stucco wall near his house in frustration after a discussion with his mother. As a ruse geared to test Aguilar's alibis, the detectives stopped at the wall and Illig made it appear he intended to take DNA samples from the wall. Illig also drove Aguilar past the crime scene, and Aguilar spontaneously pointed out the spot where the victim had fallen. The conversations during the drive were not recorded.

Illig then transported Aguilar to the police station.⁴ Illig collected a DNA swab from Aguilar's mouth in an attempt to "call his bluff" about his alibi. Aguilar stated his source of information about [*7]  the shooting was not Bonilla after all. Instead, he had learned the details of the shooting from his mother, who heard about it from a "guy" at a carwash. Aguilar gave yet another inconsistent account of his whereabouts during the crime, and continued to deny being present at the crime scene. Using a ruse, Detective Illig presented Aguilar with a mock six-pack photographic lineup, in which a witness purportedly identified him as being at the crime scene. Aguilar continued to deny being present at the scene.

February 22, 2012 custodial statements

In a six-hour custodial interview, and after being given Miranda advisements, Aguilar confessed to shooting Centeno. We discuss the interrogation in detail where relevant, post.

C. Text messages

Aguilar made statements admitting he was the shooter in three text message conversations, while using his mother's cellular telephone. One conversation was between him and Bonilla. The other two were between him and unidentified persons.⁵

The conversation with Bonilla transpired on the afternoon of January 25, 2012. Aguilar asked if Bonilla had heard anything in school, and she replied she had heard the police were in the Westmoreland area because someone's [*8]  arms and legs had been cut off. Aguilar replied that nothing like that happened, but some fool got smoked. Bonilla replied, "Damn who shot him." Aguilar told her not to "trip," and then said, "It was da one txtin u [sic]." Bonilla replied, "Yhew [sic] . . . ?" Aguilar said, "U never heard nada tho [sic]" and stated that he trusted her.

Approximately an hour earlier, Aguilar and an unidentified person discussed the police canvassing of the neighborhood. Aguilar asked whether police had "knokd [sic] in every pad or wh[a]t" and opined, "so no evidence at all clean." Aguilar asked if the message recipient "kn[e]w who got him." The recipient stated he or she had an idea. Aguilar replied, "yea alrwite [sic] is da foo[l] txtin you lol [sic]"⁶

In a text conversation between Aguilar and a third phone number late that night, Aguilar asked if the text recipient had seen the news about a shooting near Council, Virgil, and Westmoreland. Aguilar referenced "something serious involvin [sic] me." The text recipient asked what he had done. He responded, "Yea by westmoreland it happn mija [sic] . . . sum enemiga⁷ got smokd n i [sic] had to leave. . . ." The text recipient asked, "Who Did[] Thaa Move? [sic]" and whether the [*9]  victim was a "Faketeen."⁸ The recipient stated he or she could not believe it, asked why Aguilar would "Fuhkk Up[] Like Thaat? [sic]" and said he should have thought twice. Aguilar responded, "Its true mija [sic] I wood int [sic] lie to u." Aguilar stated there were "[t]wo other homies" involved. He asked if the recipient was mad at him. The recipient expressed surprise because he or she never thought Aguilar was like that. Aguilar asked whether the recipient had thought he was "lame or wh[a]t."

(iii) Gang evidence

Officer Bua testified as the People's gang expert. After detailing his experience and qualifications, he described the Rockwood gang's primary activities; hierarchy; territory; use of monikers; lingo; various subgroups, or "cliques," and the alliances and association between them; the gang's colors, attire, symbols, and graffiti; predicate offenses; the process for joining the gang; the necessity for gang members to commit crimes for the gang; and the paramount importance of "respect" in gang culture.⁹ The Rockwood gang's major rivals were the Temple Street and the 18th Street gangs. The area where the shooting occurred was claimed as the territory of the Rockwood gang and its Westmoreland [*10]  clique. When a rival gang member enters another gang's territory, even for an innocent purpose, he risks a gang confrontation.

Based on his personal contacts with Aguilar and Salto, Bua opined that both were active Rockwood gang members in the Westmoreland clique on the date of the shooting. Among other things, Aguilar had admitted his gang membership to Bua in 2010 and both Aguilar and Salto had Rockwood-related tattoos. After the shooting Aguilar got an additional gang related tattoo or tattoos which, in Bua's opinion, were equivalent to a trophy. The alleyway where the assailants fled after the shooting was tagged with Rockwood gang graffiti, including the names "Drowzy" and "Menace." The victim, Centeno, was not a documented gang member.

When given a hypothetical based on the evidence in the case, Bua opined that such a shooting would be committed for the benefit of, at the direction of, and in association with, the gang. The crime would benefit the gang by creating fear in the community and making it less likely gang crimes would be reported to police, and would put rivals on notice that the gang was armed and unafraid to use weapons.

(iv) Evidence of a prior shooting

On the evening [*11]  of April 13, 2011, Aguilar fired shots at a car being driven by Pedro Moreno, who was looking for a church in the area. Shots hit the car, but did not hit Moreno or his passenger. Moreno was not in a gang and had never seen Aguilar before. After learning Aguilar might be responsible, police officers went to his apartment, where they found ammunition on a balcony. After receiving Miranda advisements, Aguilar gave a written statement in which he admitted shooting at Moreno's car after being told by female friends that men in the car had threatened to kill them. Aguilar was arrested. In a recorded interview the next day, Aguilar told a detective that he shot at a car containing Temple Street gang members after they fired at him. In another recorded interview the following day, Aguilar said the Rockwood gang intended to go after the 18th Street gang, but not the Temple Street gang.

b. Defense evidence

Dr. Ricardo Winkel, a clinical and forensic psychologist, tested and evaluated Aguilar in the spring of 2015. Based on the test results, Dr. Winkel opined that Aguilar had a low intelligence quotient, in the mild mentally retarded range, indicative of brain damage or dysfunction. Dr. Winkel [*12]  opined that Aguilar would find it difficult to follow a conversation of normal speed and complexity. Personality testing revealed that Aguilar was meek, nonassertive, and submissive. He fell within the highest 25th percentile of suggestible persons. He also had high scores for anxiety and depression. Dr. Winkel believed Aguilar had a learning disability. Dr. Winkel summed up: "Looking at the entirety of the scores of the test results that I obtained, it is my opinion that Mr. Aguilar is a person of very low intellectual capacity, very meek, very non-dominant, very non-assertive, and very highly susceptible to external feedback," that is, expressions of approval or disapproval. He was easy to manipulate and very suggestible.

In Dr. Winkel's opinion, Aguilar was not malingering, based on testing designed to reveal feigning cognitive difficulties. Dr. Winkel acknowledged that Aguilar had been evaluated in 2013 by a different psychologist, who concluded Aguilar was possibly overreporting and exaggerating. The first psychologist concluded Aguilar's I.Q. was at the borderline range, slightly higher than Dr. Winkel's conclusion.

2. Procedure

Trial was by jury.¹⁰ Aguilar was convicted of first [*13]  degree murder (§ 187, subd. (a)). The jury found Aguilar personally and intentionally used and discharged a firearm, causing Centeno's death (§ 12022.53, subds. (b), (c), (d)) and committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Aguilar to 25 years to life on the murder charge, plus 25 years to life on the section 12022.53, subdivision (d) enhancement, for a total of 50 years to life in prison. It imposed a restitution fine, a suspended parole revocation restitution fine, a court security fee, and a criminal conviction assessment. Aguilar appeals.

DISCUSSION

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3. The text messages were properly admitted

As discussed ante, the prosecutor introduced three text message conversations at trial: a January 25, 2012 text conversation between Aguilar (using his mother's, Maria Lopez's, cell phone) and Bonilla, and two conversations occurring that same day between Aguilar's mother's cell phone and other, unidentified persons. Bonilla testified to the authenticity of her conversation with Aguilar, and the defense did not object to its admission. However, the defense sought to exclude the other two conversations on lack of foundation and hearsay grounds. The defense averred that someone other than Aguilar might have been using Lopez's phone. The trial court overruled the objection. It found a sufficient foundation had been laid, and the question of [*54]  whether "it may be someone else" went to the weight, not the admissibility, of the evidence.

Aguilar contends the two text message conversations with the unidentified persons were admitted in error. We disagree.

All writings must be authenticated before they may be received into evidence. (Evid. Code, § 1401.) Authentication of a writing means, inter alia, the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is. (Evid. Code, § 1400.) Like any other material fact, a document's authenticity may be established by circumstantial evidence. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435, 135 Cal. Rptr. 3d 628.) The author's testimony is not required; authenticity may be established by the contents of the writing or by other means. (Id. at p. 1435; In re K.B. (2015) 238 Cal.App.4th 989, 995, 190 Cal. Rptr. 3d 287; Evid. Code, §§ 1411, 1421 [a writing may be authenticated by evidence that it refers to or states matters unlikely to be known to anyone other than the person who is claimed to be the author].) The "'fact that the judge permits [a] writing to be admitted in evidence does not necessarily establish the authenticity of the writing; all that the judge has determined is that there has been a sufficient showing of the authenticity of the writing to permit the trier of fact to find that it is authentic.' [Citation.]" [*55]  (People v. Valdez, at pp. 1434-1435.) "'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (People v. Goldsmith (2014) 59 Cal.4th 258, 267, 172 Cal. Rptr. 3d 637, 326 P.3d 239.) We review the trial court's evidentiary rulings for abuse of discretion. (People v. Thomas (2011) 51 Cal.4th 449, 485, 121 Cal. Rptr. 3d 521, 247 P.3d 886; People v. Perez (2017) 18 Cal.App.5th 598, 620, 226 Cal. Rptr. 3d 820.)

Here, the text messages were sufficiently authenticated. They were obtained from Metro PCS pursuant to a search warrant. A Metro PCS custodian of records testified that incoming and outgoing text messages are instantly recorded by the company; he also testified as to the accuracy of Metro PCS's recordkeeping. He explained that the texts the People contended were Aguilar's were from a phone registered to Aguilar's mother, Lopez. Bonilla testified to her text conversation with Aguilar on Lopez's phone number. Aguilar was listed in Bonilla's contacts under the number associated with Lopez's phone. Detective Illig successfully contacted Aguilar multiple times at that number. Photos on the phone depicted Aguilar throwing gang signs, and he admittedly used it. Moreover, even a cursory examination of the text message conversations produced pursuant to the warrant strongly [*56]  suggest that Aguilar, rather than his mother, was using the phone.

Aguilar's hearsay challenge fares no better. Hearsay is an out-of-court statement offered for the truth of its content, and is inadmissible under state law unless each level of hearsay falls under an exception to the hearsay rule. (People v. Sanchez (2016) 63 Cal.4th 665, 674-675, 204 Cal. Rptr. 3d 102, 374 P.3d 320; Evid. Code, § 1200, subds. (a), (b).) The Sixth Amendment generally bars admission at trial of a testimonial out-of-court statement offered for its truth against a criminal defendant, unless the maker of the statement is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177.) An improperly admitted hearsay statement ordinarily constitutes statutory error under the Evidence Code. (People v. Sanchez, at p. 685; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246-1247, 222 Cal. Rptr. 3d 706.) Where the hearsay is testimonial and is admitted in violation of Crawford, the error is one of federal constitutional magnitude. (People v. Sanchez, at p. 685.)

Despite Aguilar's reference to his confrontation rights, no federal constitutional issue arises because the text messages were not testimonial. They were not made to law enforcement officers or under circumstances suggesting their primary purpose was to create evidence for a future prosecution. (See People v. Rangel (2016) 62 Cal.4th 1192, 1217, 200 Cal. Rptr. 3d 265, 367 P.3d 649; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174, 12 Cal. Rptr. 3d 774.)

Nor did their admission violate state law. The text messages comprised two levels of hearsay, [*57]  both of which fell within a hearsay exception. The text messages were authenticated by the Metro PCS custodian of records and were properly admitted as business records under Evidence Code section 1271. (See People v. Zavala (2013) 216 Cal.App.4th 242, 248, 156 Cal. Rptr. 3d 841 [a printed compilation of call data produced by human query falls under the business records exception where the underlying data is automatically recorded and stored by a reliable computer program in the regular course of business]; People v. Vu, supra, 143 Cal.App.4th at p. 1023.) Aguilar does not argue otherwise.

Aguilar's statements were admissible as party admissions. (Evid. Code, § 1220; People v. Brown (2014) 59 Cal.4th 86, 103, 172 Cal. Rptr. 3d 576, 326 P.3d 188 [a defendant's own hearsay statements are admissible against him as long as they satisfy the test of relevance]; People v. Jennings (2010) 50 Cal.4th 616, 660, 114 Cal. Rptr. 3d 133, 237 P.3d 474 [defendant's own statements are admissible as admissions of a party]; People v. Horning (2004) 34 Cal.4th 871, 898, 22 Cal. Rptr. 3d 305, 102 P.3d 228.) They were also admissible as statements against penal interest. (Evid. Code, § 1230; see generally People v. McCurdy, supra, 59 Cal.4th at pp. 1108-1109.) The statements that he was the shooter were obviously against Aguilar's interest, as he was admitting to a murder that exposed him to criminal prosecution. They were sufficiently reliable because they were made to a friend, Bonilla, and other persons in a casual, noncustodial setting. While Aguilar may have been trying to impress Bonilla and the other persons, gang expert Bua testified that in the gang culture, [*58]  falsely taking credit for another gang member's crime would have negative repercussions. (See People v. Cervantes, supra, 118 Cal.App.4th at pp. 174-175.) The text messages were properly admitted.

 

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¹ All further undesignated statutory references are to the Penal Code.

² Gonzalez thought both men were approximately the same height.

³ "Banged out" is slang for wearing clothing, or adopting a demeanor, indicative of gang membership.

⁴ Portions of the interview were conducted at the police station, and another portion was conducted on the station's patio. The former were videotaped; the latter, audiotaped.

⁵ Because on appeal we view the evidence in the light most favorable to the prosecution (People v. Vu (2006) 143 Cal.App.4th 1009, 1013, 49 Cal. Rptr. 3d 765; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304, 7 Cal. Rptr. 3d 161), we infer the messages from the mother's phone were sent to and from Aguilar.

⁶ "Lol" means "laugh out loud."

⁷ "Enemiga" is slang for "enemy."

⁸ "Faketeen" is a derogatory epithet for a member of the 18th Street gang.

⁹ Because Aguilar does not challenge the sufficiency of the evidence to prove the gang enhancement, or Bua's qualifications to serve as an expert, we do not further detail this evidence here.

¹⁰ Salto's case was resolved prior to trial, and he is not a party to this appeal.