Opinion
Defendant Javier Munoz made and received several calls on his mobile telephone before and after he and several other men, including defendant Michael Aaron Davis, Preston Baldwin and John Hernandez, drove to the Meadowview light rail station in two SUV’s to retaliate against “some brothers” who had “jumped” Hernandez’s nephews. Instead, the men trapped a car driven by Demario Chappell, who had nothing to do with “jumping” Hernandez’s nephews, and fired pistols at the car. Although a number of nine-millimeter and .45-caliber shots were fired, only one bullet struck Chappell. The bullet lodged in Chappell’s brain, but miraculously did not kill him.
Defendants were no doubt dismayed to learn that a federal judge had previously authorized the Drug Enforcement Agency (DEA) to wiretap Munoz’s mobile telephone. This must have been a welcome surprise to the lead detective, when a DEA agent told him about the recordings.
Hernandez remains a fugitive. Baldwin pleaded no contest to two counts of assault with a firearm, with a vicarious arming enhancement, for a stipulated
Both Davis and Munoz were sentenced to prison and both timely filed their appeals, which we consolidated for decision. Defendants each raise many issues on appeal and each incorporates the other’s briefs. The People agree that Davis is entitled to additional custody credits, and identify an error in Munoz’s abstract of judgment. Apart from these two points, we affirm the judgments.
In the published portions of this opinion, we conclude: (1) Wiretap evidence is subject to the normal rule that a party seeking exclusion must object or move to suppress in the trial court, or claims of inadmissibility will be deemed forfeited on appeal. (2) The corpus delicti mle does not apply to uncharged acts, except when uncharged acts are used in the penalty phase of a capital trial.
FACTS
The DEA began monitoring Munoz’s calls on June 24, 2004. (Further unspecified dates are in 2004.) The DEA’s recording system captures conversations on the caller’s end even before the recipient answers.
Some recordings were introduced into evidence to show the relationships of the parties, their access to weapons and their intent. For example, on June 30, Munoz called Davis and said he was taking a “Clock” to “John” (Hernandez). Davis replied that Munoz should take him the “four-five” (i.e., a .45-caliber pistol) because Davis wanted the Clock back. Munoz said he was referring to his Clock, but Davis said Munoz should still give Hernandez the “four-five,” so Hernandez could “blow holes.” Munoz explained that he preferred to give Hernandez the Clock because the “four-five” was “fresh” and “clean.”
On July 1, at 9:22 p.m., Hernandez called Munoz, and said, “My nig, you got the [clapper (gun)] on you?” “[S]ome brothers” “just jumped my nephews” at the Meadowview light rail station; Munoz replied, “I’m coming right now.” At 9:29, Munoz called to tell Hernandez, “I’m behind you, I’m, I’m turning right right here on Meadowview.”
Although the various witness accounts were not entirely consistent, a white or silver SUV cut Chappell off, requiring him to brake hard, and inducing him to make an unfriendly comment to the SUV’s driver. Munoz’s green SUV trapped Chappell’s car. A number of men got out of the SUV’s, and when Chappell saw a man pointing a gun at him, he drove off, hitting the second SUV in his effort to get away. After he blacked out he stopped the car and then Jones drove him to the hospital. Landers testified one shooter got out of each SUV, but later he testified he did not know this, and he had so told an officer before trial.
Two passersby heard someone in the green SUV yell “Bitch, аss, Niga” as it left; one heard laughter and described this yell as “Celebrating, sort of.”
Many shots had been fired at Chappell’s car; four nine-millimeter and seven .45-caliber shell casings were found. Two nine-millimeter bullets were found in the car, and a .45-caliber bullet was extracted from Chappell’s brain.
At 9:33, Hernandez called Munoz, and said, “Think they got my license plate?” He told Munoz, “Put your shit in the garage, I’m putting mine away right now, too.”
At 9:49, Munoz spoke with someone and said he could not drive his “truck,” and “we just lit some niggers up, bro. I think I murffed [phonetic] one of ’em. I need somebody to go by there, bro.”
At 9:56, Munoz called Davis, in part as follows:
“[Munoz:] Where you at?
“[Davis:] Right here. There ain’t even nothing up there!
“[Munoz:] So we didn’t even shoot ’em then, nigga.
“[Davis:] Ah, hell no, nigga! The [unintelligible] up there though.
“[Munoz:] Some boys [i.e., police] are out there?
“[Davis:] Yeah, just a couple o’ cars though.
“[Munoz:] We ... so then we didn’t kill his ass?
“[Davis:] Naw, we didn’t kill ’im, man.
“[Munoz, in a disappointed tone of voice:] Fuck! Now we really gotta watch out.”
At 9:57, Munoz called Hernandez, but before Hernandez answered on his end, Munoz can be heard on the recording telling someone “. . . seen mе shoot like this, ‘Pop! Pop!’ Then I said, Tuck that!’ Top! Pop! Pop! Pop! Pop!’ That’s why . . . .” After Hernandez answered, Munoz told him “Lil’ Smokes,” meaning Davis, was at the scene, there were some police there and it seemed like nobody got hit; Hernandez said “they probably drove to the hospital.” Munoz said “Pop!” seven times and there were seven .45-caliber casings found.
At 10:14, Munoz called someone and in part said, “We just have to show these niggas that we ain’t playing,” that they had had trouble with “some Blacks” “because of [Hernandez’s] nephews” and they “almost killed the dudes.”
At 10:47, Munoz talked to someone about the need to fix a dent in his SUV “ASAP,” a dent presumably caused when Chappell drove away, hitting one of the SUV’s while attempting to escape.
In a call on July 2, Davis told Munoz he should switch “clappers,” and Munoz suggested that Davis give him the “forty” (i.е., .40-caliber pistol) and take the “Neener” (nine-millimeter pistol); Davis said, “I don’t want them guns around me.” They talked about what the police might know.
In Munoz’s apartment police found a silver-and-black .45-caliber Ruger pistol, a black nine-millimeter Clock pistol, and ammunition fitting both. A criminalist testified these guns fired the bullets that left the shell casings at the scene, and fired the bullet found in Chappell’s brain.
On July 21, Davis was found hiding under a house in which a safe contained a .40-caliber Clock pistol, as well as a nine-millimeter bullet; another nine-millimeter bullet was found on a nightstand in the master bedroom: Davis refused to surrender until he was extracted with the help of a canine officer.
Munoz’s jury heard evidence of statements he made, while in custody, to Detective MacLafferty on July 7. Munoz first claimed that Davis had borrowed his SUV after Hernandez called to say his nephew Bradley had
Munoz’s jury also heard some wiretap calls unrelated to Davis, including two calls within minutes of each other on June 26. In the first call, at 1:21 p.m., Hernandez directs Munoz to bring him a gun so he could shoot a rival named “Rabby,” Munoz accepts the assignment. The men were discussing where tо meet during the conversation. In the second call, at 1:27, between Munoz and an unidentified person, Munoz says he “caught ’em” and “was about to let ’em have it, nigga, but the boys was right there!” and later says “When John [i.e., Hernandez] runs up on ’im, he pulls a fucking strap out! He almost shot John!”
In a call on June 29, Munoz told Hernandez about shooting at someone from inside his “truck,” so the shell casings would not be left; he thought this incident was “hella funny.” Also on June 29, a man called Munoz and described beating “Gabino” over a debt; Munoz said he had “hammers” (guns) and would “come ’round the comer lammin’.”
Munoz did not testify, but in argument pressed the theory that he was not one of the shooters.
Davis’s jury heard testimony from Munoz’s wife about Munoz’s dmg dealing and the fact both he and Davis were usually armed. Davis’s jury also heard about a statement Davis made to the police in which, after initially denying involvement, he admitted he shot at the car with a nine-millimeter Clock pistol.
Davis claimed self-defense: He testified he went with the other men with no purpose to harm anyone, but when the shooting started he feared for his life. In large part this was due to his traumatic experience of having been shot in 2003, and much evidence about that event was presented. He admitted he was a dmg dealer and carried a gun because he had a lot of money; he also admitted he carried it generally because he sometimes had dmgs and dmg dealers could be robbed.
In light of a pretrial mling, Davis admitted that he threatened B.A.’s sons while displaying a gun to her; the jury was instructed on the limited use of this misdemeanor moral turpitude evidence.
I., II. *
III. Challenges to Wiretap Evidence
Defendants challenge the wiretap evidence on many grounds, some of which are based on wiretap law and some of which are based on other principles. For clarity, we first summarize all of our conclusions touching on the wiretap evidence.
(A) We find defendants forfeited their claims that the wiretap evidence should not have been admitted (1) absent a judicial finding of lawfulness, and (2) because the record lacks evidence that the recordings were properly sealed. We reject their fallback claims that their trial attorneys were incompetent because they failed to preserve these claims.
(B) We reject on the merits the claim that the affidavit failed to show the “necessity” required for a wiretap order.
(C) We reject the claim that the corpus delicti rule applies to evidence of uncharged acts in the recordings.
(D) We reject the claims that specific unchаrged acts as to each defendant should have been excluded as improper character evidence or as more prejudicial than probative.
(E) We reject the claims that the trial court had a duty to give a limiting instruction on the uncharged acts, and the fallback claims that the trial attorneys were incompetent because they did not ask for such an instruction.
A. Forfeited claims
The collection and use of wiretap evidence is regulated by federal law (18 U.S.C.A. § 2510 et seq.; Title HI), and analogous California law (Pen. Code, § 629.50 et seq.).
Munoz moved to suppress the wiretap recordings based on lack of full discovery of the wiretap affidavit and lack of necessity for the wiretap order. Davis’s trial brief joined in these objections. The prosecutor’s response in
The trial court denied the motion to suppress, stating: “I did read the entire 74-page affidavit, and the order as well, аnd frankly I’m very impressed with the affidavit. I thought it was very, very thorough, well-supported. I think the finding of requisite necessity ... is well-supported and I think the wiretap complies in all respects to the federal law.”
When authorities listen for conversations about the crime(s) specified in a wiretap order, it is not unusual for them to hear conversations about other crimes. To use those recordings, the government must seek court permission; “When an investigative or law enforcement officer . . . intercepts . . . communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section [relating to investigations and performance of official duties]. Such contents and any evidence derived therefrom may be used under subsection (3) of this section [that is, testimony in any proceeding] when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.” (18 U.S.C.A. § 2517(5); see Pen. Code, § 629.82, subd. (a) [analogous Cal. statute].)
The offenses described in United States District Court Judge Burrell’s order authorizing the wiretap relate to the manufacturing, importation and distribution of narcotics, money laundering and related offenses. Although the trial court made a general finding that the wiretap complied “in all respects” to federal, law, it does not appear that the People’s ex parte sealing and sanitization application was a “subsequent application” as contemplated by this statute and therefore for the purposes of argument we do not construe the trial court’s general statement to mean that it found compliance with this provision, as it was not asked to make this finding.
On appeal, defendants contend that these gaps in the record compel reversal. Both of these claims are forfeited as they were not lodged in the trial court.
As a general rule a party objecting to evidence must make a timely and specific objection
in the trial court.
(Evid. Code, § 353, subd. (a); see
People
v.
Smith
(2007)
In some suppression contexts the burden is on the People to prove that evidence was lawfully obtained, for example, during a warrantless search, but this burden arises when and only when a defendant moves to suppress and makes a prima facie claim that the search or arrest was without a warrant.
(People
v.
Williams
(1999)
Defendants claim the proponent of wiretap evidence must show it is admissible and the trial court judge has the duty to review the adequacy of sealing and the propriety of introduction of recordings about crimes other than those specified in the affidavit, and that they had no obligation to move to suppress or object on these grounds. We disagree.
For example, defendants assert the lack of a timely subsequent application to allow the use of recordings not related to narcotics. How is this alleged failure qualitatively different from the failure to comply with the knock-notice rule, the business records exception, the
Miranda
warnings
(Miranda
v.
Arizona
(1966)
In a case where an officer testified about the contents of telephone conversations he listened to, the defendants alleged this violated state and federal statutes which would have required exclusion unless one party to the conversation allowed the offiсer to listen in. The California Supreme Court held; “There is no evidence as to whether Hall did or did not know of or consent to [the officer’s] listening to the conversations, and defendants at the trial did not object to the admission of the evidence on the ground of their present contention.
Therefore, the merits of the contention were not before the trial court and are not before this court.” (People v. Rojas
(1961)
Although defendants call it an “untenable premise” to treat wiretap evidence like other evidence, they do not persuasively explain why that premise is untenable. They quote from
United States v. Marion
(2d Cir. 1976)
Federal and state wiretap laws both provide for motions to suppress. (18 U.S.C.A. §2518(10) [procedures for motion to suppress for unlawful wiretap, defective wiretap order, or monitoring in violation of valid wiretap
Thus, review of a suppression issue may be obtained if and only if at some point before conviction the defendant raised the issue.
(People
v.
Gutierrez
(2004)
Federal courts have held that the failure to make an appropriate motion forfeits a claim that wiretap evidence should have been excluded.
(United States v. Morgan
(9th Cir. 1979)
It is true that federal law broadly provides: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other
But suppression is mandated “ ‘where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ”
(U.S. v. Duran
(9th Cir. 1999)
People v. Jackson
(2005)
Defendants complain that the record does not show compliance with these statutes, but that militates against them: Had they lodged timely objections, the People could have produced the evidence necessary to show, for example, that the proper sealing procedures had been used, or that a judge had authorized the use of the recordings in this case. Their claim that they cаnnot know whether recordings are properly sealed and therefore should not be charged with the duty to object is unpersuasive: Had defendants claimed in their motion that the recordings were not properly sealed, the record could have been developed, factually, as to what sealing was done. (See
United States v. Orozco
(S.D.Cal. 1986)
Defendants claim their trial attorneys were incompetent because they failed to preserve these grounds. In order to prevail on such a claim, a
“Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence.”
(People
v.
Freeman
(1994)
Defendants cannot show prejudice because they cannot show that timely objections would have resulted in the exclusion of the evidence. As for the sealing issue, Davis claims trial counsel could have no tactical reason not to object, assеrting that if an objection had been made it would have succeeded. But this overlooks the fact that counsel may have known there was no impropriety regarding sealing. Absent an objection and hearing in the trial court, we will not assume the illegality of the sealing procedures.
Nor will we assume the
materiality
of any claimed transgressions. (See
U.S.
v.
Crumpton
(D.Colo. 1999)
There is no claim that any of the recordings have been tampered with, the evil the sealing requirement is designed to combat.
(United States v. Ojeda Rios
(1990)
Defendants mention in passing that there is no evidence the DEA properly recorded the calls to ensure their authenticity or adhered to minimization rules. If this was intended as a claim it is forfeited for lack of a proper heading.
(Alameida v. State Personnel Bd.
(2004)
As for allowing into evidence recordings not related to narcotics, the record does not show that there was any illegality in listening to those recordings and no showing that a court order allowing their admission into evidence had not been obtained. Further, some authorities hold that there is no remedy of suppression for unlawful
disclosure
of wiretap information, if the
interception
was lawful. (See
U.S. v. Barnes
(8th Cir. 1995)
In
Jackson,
the court reached some wiretap suppression issues that had not been preserved, partly because of its view that it would have to reach the issues by way of an incompetence of counsel claim.
(Jackson, supra,
Because the record sheds no light on whether a “subsequent application” was made nor on the manner in which Judge Burrell sealed the recordings, we cannot conclude there were any failures to comply with the wiretap laws. Also, trial counsel may have had plausible tactical reasons for not objecting. Therefore, to pursue these points, defendants will have to invoke the remedy of habeas corpus, where relevant facts outside the record on appeal can be determined. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
C. Corpus delicti rule
Observing that some of the recorded calls introduced against him describe acts at least arguably criminal, Munoz claims these calls should have been excluded because under the corpus delicti rule, uncharged conduct may not be proven by uncorroborated out-of-court statements. This point was raised in the trial court.
Although the corpus delicti rule applies to uncharged conduct introduced at the penalty phase of a capital trial, it does not apply generally to uncharged conduct.
We recently addressed the corpus delicti rule as follows:
“ ‘Wigmore explains [the rule] this way: every crime “reveals three component parts, first the occurrence of the specific kind of injury or loss (as in homicide, a person deceased; in arson, a house burnt, in larceny, property missing); secondly, somebody’s criminality (in contrast, e.g., to accident) as the source of the loss,—these two together involving the commission of a crime by somebody, and thirdly, the accused’s identity as the doer of this crime.” By the great weight of authority, the first two without the third constitute the corpus delicti.' [Citation.]
“California distinguishes between the evidentiary and the proof sides of the corpus delicti rule since ‘[it] is nоt a requirement of federal law, and it has no basis in California statutory law.’ [Citation.] The evidentiary side of the rule, that ‘restricts] the admissibility in evidence of otherwise relevant and admissible extrajudicial statements of the accused,’ has been abrogated by article I, section 28, subdivision (d) of the California Constitution (the ‘truth-in-evidence’ law [Proposition 8]). [Citation.] However, ‘section 28(d) did not eliminate the independent-proof rule . . . that. . . prohibits conviction where the only evidence that the crime was committed is the defendant’s own statements outside of court.’ [Citation.]
“Thus, the rule in California: ‘In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy thisburden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]’ [Citation.] . . . The purpose of the corpus delicti rule is to satisfy the policy of the law that ‘one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.’ ” (People v. Miranda (2008) 161 Cal.App.4th 98 , 107 [73 Cal.Rptr.3d 759 ].)
As mentioned in this quotation, the passage of Proposition 8, generally making all relevant evidence admissible in criminal cases, precludes a defendant from succeeding with a corpus delicti objection to evidence.
(People v. Alvarez
(2002)
Most discussion about uncharged acts and the corpus delicti rule involves using uncharged acts to satisfy the corpus delicti rule, that is, using prior acts to corroborate that a charged crime was committed. (See Imwinkekied, Uncharged Misconduct Evidence (2006) §§ 6.4, 9.24 [and authorities cited].)
Although the main purpose of the rule is to prevent a person from being
convicted
of “a crime that never happened”
(Alvarez, supra,
The root authority,
Hamilton,
stated as follows: “It is well settled that proof of prior crimes is admissible during the penalty phase of the trial [citations].
The italicized passage addresses the guilt phase of a criminal trial and none of the authorities cited by Hamilton involved uncharged acts, only the corpus delicti rule related to charged crimes. (See People v. Cullen, supra, 37 Cal.2d at pp. 624-625; McCormick, Evidence, supra, Corroboration, § 110, pp. 229-231; 7 Wigmore, Evidence, supra, Required Corroboration, §§ 2070-2073, pp. 393-406.)
This application of the corpus delicti rule was arguably expanded in
People
v.
Robertson
(1982)
The plurality then stated that the evidence should have been excluded under Evidence Code section 352, but concluded the error was harmless as to the verdicts and speсial circumstance findings, because of overwhelming evidence.
(Robertson, supra,
Thus, the
Robertson
plurality’s statement that the corpus delicti rule applied generally to uncharged acts, not just at the penalty phase, did not command a majority of the court. But it led to
People
v.
Williams
(1988)
A later decision reviewed several of these authorities and concluded, “The reference [in Robertson] to the common law and most jurisdictions is one we have been unable to confirm.”
(People v. Denis
(1990)
We agree with
Denis.
(See
People
v.
Martinez
(1996)
Several other states, with similar evidentiary rules, have concluded that the corpus delicti rule does not apply to uncharged acts. (See
Com. v. Edwards
(2006)
Federal Rules of Evidence, rule 404 (28 U.S.C.), is similar to California Evidence Code section 1101 in that it generally forbids the use of character evidence, except to show motive, plan, knowledge, and so forth. (See
People v. Beuer
(2000)
The use of other crimes evidence, generally, is not subject to special standards of proof: A jury may find the prior acts occurred by applying the
In a case predating
Hamilton,
supra,
Hamilton, supra,
D., E. *
IV.-VII *
The judgment as to Munoz is affirmed. The judgment as to Davis is modified to award him 625 days of presentence custody credits and otherwise affirmed. The trial court is directed to forward to the Department of Corrections and Rehabilitation new abstracts of judgment in accordance with this opinion.
Davis, Acting P. J., and Hull, J., concurred.
The petitions of both appellant Michael Aaron Davis and appellant Javier Munoz for review by the Supreme Court were denied March 11, 2009, S169208.