People v. Munoz

Dist., No. 13964. Fourth Div. June [Crim. One. 1984.] PEOPLE,

THE Plaintiff and Respondent, MUNOZ,

EDWARD Defendant and Appellant. Dist., Fourth Div. One. June

[Crim. 1984.] No. 15029.

In re EDWARD MUNOZ on Habeas Corpus.

Counsel Defenders, Bell, Jr., under

Quin State Public Denvir and Frank O. Noland, State Deputy the Court of E. Augustus appointment Appeal, Defender, for and Petitioner. Public Defendant Appellant General, Robert Attorneys and John K. Van de Deukmejian Kamp, George General, Philibosian, Overoye, Arnold O. Chief Assistant Attorney H. General, Deputy and W. Scott Thorpe, Eddie T. Keller Attorney Assistant General, for Plaintiff and Attorneys Respondent.

Opinion

WIENER, J. calm of Océano on of three shots shattered the ringing 11, The shots John Klima had been murdered. Sunday night, May 1980. 18-year- from of Victoria Ford driven by had come the interior a 1955 blue was a Edward Munoz old Eduardo Ramirez. A determined defendant jury for in the rear of that vehicle and was the person responsible passenger of first degree Klima’s Munoz was convicted tragic killing. senseless Code, a firearm (Pen. 187/189)1 murder while using personally §§ (§ 12022.5) and for 27 to life. years sentenced to prison with a barrage

Munoz attacks the entered on the verdict judgment of the issues raised When those were first made some arguments. arguments the California Supreme were resolution in cases before awaiting pending now been this case has Those issues have since been resolved and Court. with appropriate retransferred to us with directions to file a modified opinion 390, (1983) 34 441 Cal.Rptr. reference to v. Dillon Cal.3d [194 24 35 Cal.3d 668 P.2d and Donaldson v. Court Superior [196 697] directions, without 704, 672 Pursuant to those P.2d Cal.Rptr. 110]. rule discussion, the felony-murder further we Munoz’ reject argument Dillon, 462-476) 34 Cal.3d at pp. should be abolished v. (People supra, specified. statutory 1All references are to the Penal Code unless otherwise 1004

and the court erred in failing two suppress surreptitious tape recordings of his (Donaldson conversations while he was a detainee. pretrial Supe- Court, rior 34-39.) Cal.3d at in- supra, Munoz’ claim of pp. Although of the sufficiency evidence to a verdict first support premeditated degree merit, murder has we decide the instructional error is harmless in light our conclusion the jury resolved his on the basis of the guilt felony-murder We rule. also reject claims of other trial v. Cardenas (People 897, 569]) 903-910 647 P.2d and instructional Cal.Rptr. errors and therefore affirm the We decline to judgment. modify judg- ment by Munoz’ reducing conviction from first to second felony-murder Dillon, 476-489.) degree. (People Cal.3d at we Finally, pp. Munoz’ deny consolidated writ of habeas corpus.

Facts In a claim of reviewing of the evidence to insufficiency support conviction, first murder we degree must examine the entire record most favorable to the light in order to determine whether it dis judgment closes substantial evidence such that a reasonable trier of fact could find the determination, defendant guilty beyond a reasonable doubt. In making we must presume existence fact support judgment every which the trier of fact could deduce from the reasonably evidence. We may not, however, limit this review to the evidence favorable to the People, the insufficiency issue must be resolved on the whole record in order to evaluate whether the evidence of each of the essential elements properly reasonable, substantial. This evidence must be credible and of solid value. v. Johnson (1980) 26 Cal.3d 575-578 mandate, A.L.R.4th Because of this and Munoz’ alibi defense, theory the facts are in a stated detailed fashion to assure a careful analysis of his insufficiency argument.

Ramirez was a witness for the he alone Munoz key fingered prosecution; as the killer. Ramirez with the Although was biased because of his bargain district attorney,2 version of the following his events. accepted 11, 1980, Ramirez,

Between 6 and 6:30 on Munoz and Raul May p.m. Galvan started to go Ramirez was Munoz was alone “cruising.” driving; (count 2The criminal complaint charged with murder and firearm use Munoz Galvan 1) 32; (§ 2). and Galvan being and Ramirez with after the count Before the accessories fact preliminary hearing attorney. exchange Ramirez made a deal with the district In for Rami killer, testimony rez’ consistent with police his earlier statements to the that Munoz was attorney the district agreed against not to him recommend a charge file a murder and to trial, Authority. guilty commitment pleaded California Youth Before Munoz’ Ramirez being accessory charge. to an awaiting and when he testified was sentence on that into Galvan went Munoz and Between 7 and 7:30 p.m., in the back seat. Peter returned they When five minutes. Yracheta’s house for about Ophelia short, conver- whispered Munoz had a Salinas and was with them. Salinas Munoz, Ramirez drove Galvan and left and in the back seat. Salinas sation off. Ra- Munoz told the street. crossing Ramirez saw a man

About 10 p.m., for directions Munoz asked the car. to the man and to stop mirez to drive up but at drove off Klima, Ramirez man, responded. Los and the Angeles to to Klima said the man again. to backed the car question Munoz’ request told when Munoz away drive began the same Ramirez way. keep going bent When Klima directions. Klima for Munoz asked again Ramirez stop. backwards; took a wallet. Klima answer, step Munoz demanded his down to heard three feet. Ramirez four to five him from a distance of Munoz shot heard him yell chest and car, saw Klima grab from the back of the shots him on the back away, hitting Munoz told Ramirez to drive for help. shot Munoz why Ramirez asked he did not do so. immediately

head when been there had Ramirez testified “For the hell of it.” the man. Munoz said in the car. was a gun know there of a and he did not robbery no discussion and observed Klima car drive past Several saw Ramirez’ neighbors the car’s occupants. Klima and conversation and between gestures away. the car shots, speed and saw heard Klima’s shout for help neighbors had shot asked who Gaittan, Klima and rushed neighbor, help Joseph gunshot a .22 caliber Klima died from him. Klima answered kids.” “Young indicated of the wound downward angle wound to the chest. The degree he had been then from the weapon if Klima were four to five feet away him. feet above had fired from several over the assailant bending car, home. He Ramirez went After Munoz and Galvan out of jumped he morning car. The next to find a gun looked for but was unable it in the glove and put in the back seat found a .22 caliber under a rug pistol Ramirez to and asked That Salinas morning telephoned same compartment. talked There Ramirez house. meet Munoz and Galvan at Jerry Rodriguez’ Larry Croy. left with Ramirez with Munoz but did not him give gun. Ra- About 7:30 p.m., saw the in Ramirez’ gun glove compartment. Croy gun Rodriguez, giving returned to house. As he was Rodriguez’ mirez to give told Salinas Ramirez it and threw it under a bed. grabbed Salinas back to Munoz. gun on 13. May and a.m. between 1:30 Ramirez was arrested for murder at his had been lied, girlfriend’s officers he He telling investigating first the same essentially them but later told killing house on the night He on Munoz. murder He blamed the facts to which he testified at trial. failed to mention Munoz’ demand for Klima’s wallet his own possession of the gun day after the Only after the examina- shooting. preliminary tion—two weeks before add trial—did Ramirez these elements to his story. He he was afraid explained he could still be with and murder charged this information further him. might implicate

Salinas relied on his he against self-incrimination when asked if privilege were with Munoz day whether he a .22 cal- shooting, possessed iber or whether weapon, Ramirez had ever admitted Dis- Klima. shooting trict in attorney investigator Ray testified that an interview on Jauregue May 15, Salinas admitted he had a .22 caliber revolver under the back put seat of Ramirez’ vehicle on 11 before 8:30 when he in the car May was p.m. Munoz, with Ramirez and Galvan. Salinas said he had to take the forgotten when he left the gun vehicle.

On San May Luis sheriff’s detective Hobson Obispo Larry secretly recorded Munoz, a conversation between Ramirez and while the Galvan three were in in a sheriff’s custody van outside department transportation court. A municipal portion tape played in partial transcript received evidence.3 3The transcript states: “Munoz: Hey, got get my we touch Bear. He said that

jefita my carnala . . . “Galvan: I know what that’s I heard. (snitched) him, “Munoz: put rata gun. go go on him that he had a I back to I T not do my think that jefita They just would do up, that.’ want information on him. He fucked man. I him told like that. “Galvan: they got And it. “Munoz: They got what? “Galvan: They gun. seen the “Munoz: They seen the cuete? “Ramirez: You know what he told me? You know what he told me? “Galvan: What? away? That he threw the cuete “Munoz: That he Right up. doesn’t know where it’s at. fucked You know what there. He doing? else he’s “Galvan: What? “Munoz: He’s going to take a lie detector’s test. going up. “Galvan: He’s to fuck “Munoz: Don’t take that either. “Ramirez: They can’t it in use court. know, “Munoz: I but still don’t it. take “Galvan: They’ll you they fuck around you if catch a lie once. “Munoz: Bear. “Galvan: stupid. It’s “Munoz: Bear’s fucking up. Jud, “Munoz: thought you I fucking up. were You haven’t to them? talked “Ramirez: Fuck no! “Munoz: you (inaudible). going you Because know if do happen what’s Oh, know, “Ramirez: I I know. “Munoz: You’re not going through make it nowhere. know, “Ramirez: I I all know that shit. and Jail monitored 31, County the Obispo On at San Luis May personnel county in the jail visting over the telephone recorded a conversation secretly A Munoz, Galvan. portion tape mother and Aurora among center was entered the and of the played was also to played transcript portion that she to Aurora Munoz’ statement into Of is evidence. significance at the at house Ophelia’s to had been they together should remember say time of the crime. He he was at after the testified killing.

Munoz was arrested two days 8 and 8:30 p.m. from between house on the day killing Ophelia’s on May in Ramirez’ vehicle being until next He denied ever morning. the did 11, he see He Salinas’ .22 caliber handling pistol, 1980. also denied With house. Rodriguez’ hand Salinas on at May Ramirez a gun Galvan, Munoz with Aurora recorded conversation respect jailhouse he truth. He also denied claimed he was to her to tell the just trying get van. Mu- threatened Ramirez when were the they transportation together that he only noz claimed to meant was fucking his reference “Bear up” on May to also said that Salinas’ Munoz just trying rights. protect to an old man. The reason Ramirez admitted rob killing attempting Ramirez blamed both had dated Aurora Galvan. Munoz was that on at house Rangel Ophelia’s

Irma testified that Munoz remained May from about 7:45 until after 6 the next p.m. morning. a.m.

“Munoz: You’re going go. get you to stuck wherever I already. “Ramirez: know all that shit “Munoz: They just make that done it. want to it look like I’m one (inaudible).’’ anything If left “Ramirez: there’s out states: “Munoz: No. And when—that when transcript you police they that 4The told 2:30, picked up. that me picked—you upme because then fucked at shouldn’t have said that daytime you go testify When and court and tell them that we were at beach around 8 o’clock Faye’s then we went to and we had a dinner there at 8 o’clock and down Rachael, know, Me, you, Day. we we all there. had dinner for Mother’s You that were Ruben— “Girl: Uh-huh. I told “Munoz: —that girl spend night we there. ’Phelia. them “Girl: Uh-huh. “Munoz: From 8 o’clock on. them—they me where “Girl: you But I tell that 2:30. I told asked didn’t them I seen at day day I was in Santa Maria during I was and it and I said was—’cause I that got to bed. before and I came home at 2:30 and that’s when I I But I We wanted “Munoz: you say—you have said that. know. didn’t want shouldn’t too, up. you picked me together during day night to be and because 2:30 all then “Girl: Yeah. that—together that say I “Munoz: night. murder 10:30 that wanted happened at night, you know. “Girl: Yeah. “Munoz: From on. I day we went and had dinner all and at o’clock o’clock mean say that! spent night house was it. Just remember ’Phelia’s there Yeah.” “Girl: 1008 12, testified that

Croy 1980, while intoxicated on he May overheard Ra- mirez who was also drunk Munoz had tell he and with a gun along couple of other had tried to rob a man the before. corrob- people night Rodriguez 12, orated that on he May also heard Ramirez he killed a say had man Salas, night before. Samuel who had previously been convicted forgery, claimed that while he and Ramirez were both in Ramirez told him he jail, had shot a man while loaded and that Munoz need not worry because Ra- mirez was Ramirez, to it.” going Joe no relation to Ra- “cop Eduardo mirez, 12, testified that on he refused May Eduardo’s for some .22 request caliber bullets.

Appeal I The jury was instructed on two alternative of first theories degree murder: premeditated first and degree felony murder first murder degree committed the course of an Munoz contends the trial attempted robbery. court erred in on instructing premeditated first murder since the degree evidence before the jury was insufficient to sustain a conviction on legally He theory. theories, insists where a is instructed on two one jury legal of which is evidence, not supported by and the court cannot reviewing tell which theory utilized, the conviction must be (People reversed. (1980) 1, 1, Green 27 Cal.3d 70-71 468].) 609 P.2d Cal.Rptr. [164

The issue of and deliberation in case before us premeditation is a close one. “Numerous decisions have discussed and defined the concept of premeditation as it serves to distinguish first and second murder. degree “ deliberate, A killing if they the killer acted ‘as a result of explain, considerations; careful and thought a deliberate weighing judgment carried on plan; to a cooly steadily, [especially] according preconceived [Citations]; 15, design.’” (1968) (People v. Anderson 70 Cal.2d 26 [73 550, 942].) 447 Cal.Rptr. ‘The true test is not duration time as much itas is the extent of the each reflection. follow other Thoughts may cold, with great rapidity calculated bemay arrived at judgment quickly, but the express a concurrence of requirement deliberation and preme ditation excludes . . . those homicides . . . which are the result mere unconsidered or rash impulse hastily executed.’ [Citations.]” (1980) 341], 26 Velasquez Cal.3d 606 P.2d Cal.Rptr. [162 judgment (1980) vacated and cause remanded 448 U.S. 903 L.Ed.2d [65 1132, 100 3042], S.Ct. reiterated Cal.Rptr. 622 P.2d In v. Anderson 70 Cal.2d 942], 447 P.2d our Court “The of evidence explained: type which this court has found sufficient sustain a finding premeditation how and (1) facts about three basic categories: and deliberation falls into the defendant show that which killing what defendant did to the actual prior result toward, intended to and in directed activity explicable was engaged (2) facts activity; in, be characterized as ‘planning’ the killing—what may victim from with the and/or conduct the defendant’s prior relationship about victim, which kill the a ‘motive’ to the could infer reasonably which jury (3), would in turn (1) or motive, facts of inference of together type reflec- inference of ‘a pre-existing was the result killing an that the support than ‘mere rather of considerations’ tion’ and ‘careful and thought weighing Thomas, supra, unconsidered or rash executed’ hastily impulse nature 7]); (3) about the facts 25 Cal.2d at pp. was killing manner of the from which the could infer that the jury of killing killed intentionally must have so that the defendant exacting particular in victim’s life a particular to a to take his design’ according ‘preconceived infer from facts of type for a which the can way jury reasonably ‘reason’ (D (2). or verdicts of first that this court sustains of the cases will show

“Analysis all three and oth murder when there is evidence of types degree typically (2) of or evidence of at least evidence extremely strong erwise requires 26-27, (3).” (Id., italics original.) with either conjunction pp. in the most favorable light the evidence must be considered Although of the solid evidence premeditated we believe judgment, requisite murder first degree lacking. trial, evidence to the only support

At the district attorney argued contact with Klima and between Munoz’ first occurred premeditated killing out the could jury On General Attorney points shooting.5 appeal, and deliberation from have drawn reasonable inferences premeditation to him Salinas and Munoz’ after it was possession given weapon the victim. confrontations with his several planning activity during facts, desire to shoot On the basis of these combined with Munoz’ senseless case, “In this is as follows: attorney’s argument 5On this issue the district entire willful, you If believe premeditated murder. People’s evidence establishes a deliberate and time, him, asked victim the first hassled that from time defendant Munoz contacted the mean, hassle, him I ask directions him I not in a normal tone. directions—and use the word directions, way. you If in a nonsense really Munoz did him kind of that not need. Ask Vista, me, on if down the street that between and the contact believe that contact—excuse you intent on Mr. Munoz’s you believe that that two contacts had an contact—between those it,’ statement, reason, ‘For the hell of his part to kill Mr. Klima for some either because of it, to kill just in the mood or he was that that’s when he decided to kill him for the hell night. someone that willful, deliberate and you find to be only portion “That is the of the act that could course, And, that he Mr. Munoz denied premeditated you happened. if believe since that there, testimony, other you his intents from get anything along was don’t the lines of that he than wasn’t there.” someone that night, General asserts the had Attorney facts adequate to find Munoz guilty first premeditated murder. degree

Admittedly, however, this is a difficult In case. our judgment, the events surrounding do not killing contain sufficient solid or motive planning facts of credible value to a murder on support conviction Under theory. time, seconds, circumstances of this case the brief from Munoz’ first confrontation with Klima until the do not establish the shooting killing reflection, result of careful preexisting thought weighing consid- erations.

The Green rule which upon Munoz relies is limited to in which situations the relied, i.e., court reviewing cannot discern which upon theory jury there must have been reasons not to on the “ample rely [legally Green, evidence. ...” v. 3d at supra, sufficient] Cal. p. Here, a has no majority doubt the reached jurors their verdict by way the felony-murder rule’s of malice. To under imputation reversal require these circumstances necessitates an its verdict assumption jury premised on a on legal theory which a majority there was eviden agrees inadequate tiary token support only while argument, uncontradicted ignoring evidence of murder felony under a presented theory described by pros ecution as “the more to be to apt this case.” Under these circum applicable stances, the instructional error of which Munoz has not resulted complains in Const., (Cal. VI, 13; Green, miscarriage art. justice. People § 74; 27 Cal.3d cf. People Murtishaw 29 Cal.3d

II Munoz’ next contention is the trial court erred prejudicially allowing to prosecutor Munoz and his witnesses question regarding Mexican youth gang membership.

In his cross-examination defense witness Rodriguez, prosecutor whether inquired Munoz were in clubs After Rodriguez any together. issue, on this the absence of the colloquy the court jury, permitted district deputy “to do some what attorney some to see probing fishing answers you but ordered the get” not to use the word “gang” any of his questions.6 Munoz the court’s semantic solution be- challenges pertinent dialogue 6The between defense counsel and the court on this issue is as follows: Well, deny probing. “Mr. Dorsi: I right don’t that he has some to do some What I’m club, saying, if going he’s him regarding gangs, say ask if he would clubs or that’s fine. that, already He has explored Rodriguez and Mr. has denied the clubs. association, long “And type as as it relates to type some of club or other I think that ‘association,’ transparent synonyms, cause it permitted “equally devastating ‘club,’ and ‘brothers.’”7 ‘group,’ La just think Mr. Barbera appropriate objected those to them. I questions are and I haven’t association for questions infer an [deputy attorney] going try and ask that district inappropriate. activity, be

purposes questions of criminal in themselves would that those my only objection. “That would be objection. going to allow him to right. going All I’m overrule the I’m “The Court: gang. questions, going ask the but I’m restrict the use of word unduly prejudicial is being evidence “Your motion under section 352 to exclude the use of the word going questions on the do not involve the to be denied condition that the probative value will gang, the word club. those their but involve I feel under circumstances may outweigh any prejudice that result.” association that is not a issue. 7The “A. “Q. “Q. “A. ’Cause I don’t know. “Q. Why “A. “A. I “A. “Q. “Q. “A. “A. I don’t know. “Q. “A. “Q. “A. “Q. “A. “Q. What does that mean? “Q. can’t “A. “Q. You’ve never heard of the “A. No. “A. I’ve heard of it. “Q. “Q. Okay. “Q. Is Mr. Munoz a member of that club? Have No, Have Is that No, And No, Have Yes, Yeah, Aren’t Are Yes, Have No, No, [to following are all references in the record to Rodriguez]: you I ain’t. I haven’t. I haven’t. I’m not. I ain’t. you’re I have. I have. can’t you you you you but Do club, you say. sworn to ever heard of the term Océano Trece? ever heard of that club? ever been in that club? ever tried to they’re just you you say? a member of that? not aware of whether he’s a member of have name of the association your knowledge, Well, very good secrecy friends. get you or in that club? term association, indicated something? Pee Wee Locos? in existence you isn’t that true? had a today? which or a group club name? a Munoz club called Pee Wee Locos? people has directed were in us on an “A. That means Océano. “Q. Océano what? “A. Thirteen.

“Q. you Are one of Thirteen. No, those thirteen? “A. I’m not. “Q. Is Mr. Munoz? “A. I don’t know. “Q. you Have ever been one of thirteen? “A. No. “Q. you And know if don’t Mr. Munoz is or is not? No, “A. I don’t.

“Q. brothers; testifying your he? against He’s one of isn’t [Ramirez] Cardenas,

In People the California Court addressed the recently effect prejudicial questions eliciting gang The membership. concern the lead was that reference expressed opinion to “common undue gang membership” creates “a substantial danger a could prejudice” because infer the defendant a crim- jury has improperly inal disposition from in a youth which commits criminal membership gang thus, {Id., acts from that infer in a predisposition, case. guilt particular 904-905.) California, “In Chi- pp. plurality opinion states: Southern youth cane gangs have received media for their widespread publicity pur- case, criminal In ported activities. did not prosecutor specifically refer the El However, Monte Flores as a undoubt- youth gang. such, identified the as edly either from their group personal knowledge their from in-court observations of the witnesses’ and tat- age, ethnicity, {Id., toos.” at p. at first blush it Cardenas Consequently, appears stands for the that reference to proposition or words “gang” membership having connotation is On closer how- comparable prejudicial. analysis, ever, we conclude Cardenas is from the case and distinguishable present asked, if even do not reversal. questions improper, require

As a “. . . a on general witness cross-examina proposition, may, tion, be action, asked about he shares with a group membership party on the that such common is a theory factor that to im membership tends Thus, peach witness’ . . . testimony by bias. establishing prosecution in the instant case could witnesses re properly inquire ... [defense] their garding their common mem friendship Wing, including group witnesses, as a bership, means their attacking credibility establish 69, bias in a favor of the minor.” re Y. ing Wing 67 Cal.App.3d {In Cardenas, 390]; 76-77 see cases cited in Cal.Rptr. also [136 916, Richardson, Here, at J.) Cal.3d dis. p. opn. (see 7, that, excerpted ante) portions testimony fns. indicate Y., with defense acquiescence counsel’s consistent with Wing pros ecutor limited his bias or inquiry possible from com prejudice flowing Cardenas, club mon or association Unlike he did not add relationship. any to violence hostilities between fillips relating competing groups. friend, once Munoz’ Arguably, any testified evidence Rodriguez being And, of mutual “club” or affiliation became cumulative. “gang” “ has evi unquestionably, no cumulative prosecution right present ‘[t]he which dence creates a substantial of undue to the defend danger prejudice ” Cardenas, ant.’ {People supra, 31 Cal.3d at from Peo p. quoting 843], v. De La ple Plane Cal.App.3d right. “A. That’s your sorry, One of wrong? club members—I’m that’s “Q. wrong.” That’s “A.

cert, Even den., 100 S.Ct. 444 U.S. 841 L.Ed.2d in allowing the error error, however, whether the issue remains assuming was the questioning prejudicial. the court’s followed from in Cardenas

The determination of prejudice court’s the trial from resulting there was “cumulative prejudice” conclusion ” at italics (31 supplied.) errors. evidentiary p. “several evidence of gang the cumulative only errors included not evidentiary several occasions, that, the pros- two but the fact at least also membership, “[o]n to whether the (id., 905) unrelated ecutor . . . .” at p. posed questions which “. . . suggested associates and witnesses and defendant were close Given the between the two youth gangs. that hostilities existed rival youth gangs, violence between publicity concerning widespread were accus- of the Flores gang well have assumed that members jury may 905.) In ad- (Id., at p. violence to further their interests.” tomed using dition, serious,” to the prosecutor’s and “even more was the error relating was robbery that the attempted line of which left the impression questioning “Thus, error in (Ibid.) admitting the trial court’s a gang operation. evidence of common in the Flores was gang compounded membership involved in that the gang broad suggesting prosecutor’s inquiries that the jury made it a near certainty criminal activities. These questions the violent offenses viewed as more to have committed likely [defendant] (Id., in Flores him of his membership gang.” because charged against Cardenas, in 906.) or inferences occurred at Unlike no such references p. in the case before us. Cardenas also attorney the district questioning by intro- held evidence of the narcotics addiction was improperly defendant’s There, wit- robbery. duced to motive for the attempted establish financial condition testified about physical nesses “. . .at great length [defendant’s] been arrest, using time had at the time of his length [defendant] habit.” narcotics, heroin and the and value of alleged size [defendant’s] devoid of such irrelevant (Id., any before us is the record Again, in Cardenas. evidence similar to that presented on how turns part

Whether an results evidentiary prejudice ruling called is, jurors upon as evaluated strong case prosecution 12 Cardenas, about deliberated for Here, the jury render judgment. v. hours, and shut.” the issue of was not guilt “open indicating Cardenas, Nonetheless, 907.) in the context 31 at supra, Cal.3d p. not believe we do

limited neutral given, asked and the questions responses have to Munoz would it a result more favorable reasonably is probable ad- had not been if membership been reached evidence club pertaining under article occurred justice mitted. We therefore hold no miscarriage (1956) Watson VI, (See v. People 13 of the California Constitution. section 243].) 46 Cal.2d 836 [299

III We also Munoz’ it was reject contention that error prejudicial the trial court to instruct on consciousness of without a lim guilt including instruction iting that such evidence be could not considered on the question Anderson, of his (See state of mind before crime. committing supra, 32.) 70 Cal.2d at Munoz’ failure at trial to p. request qualification of this instruction our this in his precludes argument consideration ap Moreover, peal. his assertion error on ground properly rejected. this (People Mathews 91 Cal.App.3d Cal.Rptr. 628].)

Munoz further trial court error references urges allowing poly- to a (See 3, ante.) test. graph fn. no to the and/ Again, objection tape recording addition, on In transcript this was made at this not a case ground trial. is where the prosecutor commented on rejection defendant’s of an offer to take a lie detector test. trial on court ruled Munoz’ Code properly Evidence section 352 objection.

IV Dillon, on People v. Cal.3d con Relying Munoz tends we must his felony-murder reduce conviction from first to second degree. Dillon rule Although upheld felony-murder against barrage attacks, constitutional it also held “that the for first felony penalty degree murder, like all statutory is penalties, subject constitutional prohibi Const., tion (Cal. I, cruel or unusual against 17), art. and in punishments § to the that a particular rule if it punishment impermissible is grossly committed, disproportionate to the offense as defined or as and/or (In individual offender. re culpability Lynch 503 P.2d Because on such is manifest disproportion the record before it was to the us—as triers of fact—we modify judgment (Id., this as a punish defendant second murderer.” degree outset,

At the we stress of a Dillon's application analysis proportionality to reduce a first be felony-murder rep conviction must viewed as degree an rather resenting than a rule. The Dillon on exception general majority (Mosk, J., Bird, J., J., J.) point C. itself Reynoso, recog Kingsley, nized the nature factual of its After the “broad exceptional noting result. spectrum” murder, of acts as first and further punishable felony degree noting has for first Legislature provided punishment degree same felony murder as for deliberate and murder committed premeditated malice the record before us illus aforethought, majority states: “As trates, however, in some first cases this Procrustean degree felony-murder

1015 Constitution against violate of the California penalty may prohibition Dillon, v. supra, (People or unusual cruel punishments. [Citation.]” Thus, a reduc not “mandate” added.) Dillon does Cal.3d at italics p. 1019.) mandatory A (See Munoz’ dis. at opn., p. tion of conviction. post, elimi effectively would of analysis Dillon’s interpretation proportionality contravene a result would felony nate the crime of first murder. Such degree system government inherent our separation powers tripartite (Cal. Const., III, 3; Cal.3d Lynch (1972) art. In re § and, nullify would also 921]) ironically, somewhat Dillon court rather doubt the defense of the rule. We felony-murder Dillon’s rule) III the felony-murder intended and IV of its opinion parts (upholding analy V its proportionality should self-destruct virtue by part (applying sis). Dillon, merits, not a case in which dispro- unlike this is

Turning triers of it was to the “is manifest on the record before us—as portionality Dillon, with 450.) at We (People agree fact. ...” 34 Cal.3d supra, p. robbery-murder Dillon’s assessment “that when it is viewed in the abstract delib- second only a level of presents very high danger society], such [to 479.) (Id.., at aforethought.” p. erate and murder malice premeditated we The the crime as this with Dillon. facts of Beyond point part company who com- committed in this and the nature of offender particular case crime a (ibid.) benign sympathetic mitted that us from or taking prevent decline to reduce view of Munoz’ individual We therefore culpability. conviction to second murder. degree Munoz’ crime. As the court

We share court’s view of sentencing Munoz; I like to add the court has “In sentence would that this explained was a killing; been concerned about the that this senseless very much fact victim; you there was between and the that no contact apparently previous innocent, struck man who was a citizen apparently, that a totally good cause, no I feel been found good having guilty down for that you, trial, will be that you offense a full and it by required after fair the court’s serve sentence As is from your apparent as law.” required ante), this not a case (see and from remarks the facts crime situation which the to a shooting response suddenly developing “was defendant his life in immediate danger.” perceived putting Dillon, no reflects self- at The record before us p. 482) (id., at or panic p. defense nuances indications uneasiness any com- Munoz’ surrounding on Munoz’ of the circumstances part. totality first de- 479) (id., of the crime us persuades punishment mission individual culpability. murder is to Munoz’ gree felony not disproportionate Munoz’ background reach the same when we consider We conclusion defendant, his age, prior factors as characteristics as “such including 1016 Dillon, characteristics,

criminality, personal and state of mind.” v. supra, 479.) offense, 34 Cal.3d adult, at At the p. time of his Munoz was an one month away from 21st As in his described the re birthday. probation port, “[d]uring have not years, past probation adolescent officers [Munoz’] ed that he was an and man who was intelligent responsive young capable demonstrating excellent and control. Unfortunately, instead of leadership the serving Mexican/American and them with community his benefiting and courage, strength he them rightness, bring chose to shame on fright ening and abusing that he should be ... very community serving. As in and past present investigative Defendant still continues to reports, Océano, a enjoy in in position leadership element gang California.” As in this suggested description, Munoz had an extensive record of prior short, In criminality.8 Munoz does not before “an stand us as unusually immature who has had “no youth” trouble with the law.” v. prior {People Dillon, 34 did supra, Cal.3d at Nor Munoz’ of mind at state (“For time of it”) the crime hell of evoke from either any sympathy trial are judge. We likewise unmoved. Absent any either trial or on of Munoz’ showing appeal “attenuated Dillon, individual culpability” {People 486), at p. Cal.3d we need not compare Munoz’ with that punishment given his codefendants or id., which (See may have would be parties imposed. expected 486-488.) at pp. Corpus

Writ of Habeas Munoz petitions habeas he was denied the ef alleging corpus (See fective assistance of 412, counsel. Pope 732, 421-426 859, He A.L.R.4th claims his probation report 8The prior narrates Munoz’ record follows: “The Defendant’s contact County with the Luis Obispo Department San Probation when dates back to at the age of 13 a Petition in Juvenile Court was Subsequent sustained for extortion. Petitions were intoxication, involving control, truancy, sustained rest, parental joy riding, resisting lack of ar robbery. Petitions, home, and As a in spent result of these the Defendant time a foster County boys camp, ultimately level Authority and committed the California Youth at the to age robbing $15.00. of 17 after year being an 80 old man of Since from the paroled Cali Authority, robbery, fornia Youth suspect the Defendant has been in an and on a armed 8, 1979, January pled guilty possession beverage alcoholic public intoxication and of an 9, 1979, Court, Obispo Municipal City April San Luis On the De Grover Branch. Branch, Court, appeared fendant Obispo Municipal City San Grover and entered Luis plea paint a guilty year and sniffing placed probation and was on bench for one ordered 10, 1979, $100.00 pay again fine. On in the San appeared October the Defendant Luis Court, Branch, County Obispo Municipal City Grover and admitted violation of his modified, probation reinstated, placed at which time on probation extended two years probation commencing spend days April formal from and directed to two 18, 1980, custody commencing on violation probation November 1979. On June at a hearing, probation the Defendant’s was reinstated terminated on motion court.” (1) lawyer should have to the in conversation objected tape-recorded (2) van because it contained to testing, references improper polygraph should have established a record to Munoz’ statements were better show caused and an between the delayed arraignment agency relationship Ramirez, (3) and and have Munoz take a test police should had polygraph before trial.

Appellate counsel has asked to Munoz’ counsel failed us trial ponder why to ask certain nine questions Why arraignment delayed trial. was Munoz’ What days? was the between and the at the Ramirez time relationship police the police van? surreptitiously their conversation Counsel taped police asserts that legitimately had these been asked would have led questions they to further (See and valid inquiry on Rhode objections grounds. constitutional v. (1980) 297, 1682]; Island Innis 446 U.S. 291 100 S.Ct. L.Ed.2d [64 115, United States 447 Henry (1980) 264 L.Ed.2d 100 U.S. S.Ct. [65 2183]; (1964) Massiah v. United 201 States 377 84 U.S. L.Ed.2d [12 1199].) merit, S.Ct. these to have we Although arguments decline appear to issue an order to show cause to find on lawyer incompetence record alone. We adhere (1979) in In re Lower philosophy expressed 24], 100 Cal.App.3d 152-153 unusual Cal.Rptr. except [161 cases the writ should be filed in the court a factual determina- superior tion on the issues The record us is devoid of presented. any before statement Munoz’ from trial we counsel and will not foreclose his opportunity Accordingly, for respond. only reasons we Munoz’ procedural deny petition for writ of (See (1979) habeas corpus. Perry also 100 People v. Cal.App.3d 251, 265 108]; Cal.Rptr. v. Adams People [161 Cal.App.3d 791, 802 72]; v. Hall Cal.Rptr. People stress, however, We the denial of the

writ is grounded on and not be solely considerations should con- procedural strued as a on holding of the issues any presented.

Disposition Judgment affirmed. Writ denied.

COLOGNE, Acting P. J. I concur in the in its and I majority opinion even am satisfied the entirety though its reached verdict on the evi- rule believe there is sufficient felony-murder dence to that conviction support theory premeditated nonetheless on acts. victim,

After the initial contact with Klima intended hassle the the party later, this, then drove Sometime a short time Munoz away. admittedly after time, told Ramirez to he from stop gun back About this obtained up. and, the hell it.” He Salinas without his victim “for shot provocation, when he killing had some time in which to about a thoughts develop the driver I believe that thought told period stop backup. and a first degree enough jury’s finding premeditated process support murder conviction. 17, 30, it (1864), 24 Cal. has

“Since decision Sanchez of be no time appreciable space been declared that ‘There need repeatedly as be instan- killing; they may between the kill and the act of intention to mind,’ the equivalent of but is not taneous as successive the thoughts being preceded by of that the to kill be formed without saying intention can the act of killing deliberation and It a declaration that only is premeditation. finally follow the once the latter is formulat- intention may instantaneously (deliberation not and premeditation) ed. It does that mature reflection imply itsBy very need not the ultimate of the evil intention. formation precede it time the intention has reference of between language only ‘space words, act the first to kill and the of In other a murder is of degree killing.’ no matter how the act of follows ultimate formation quickly killing and intention if has reached with deliberation pre- that intention been by This case meditation. view of the law is manifest the Sanchez be the result of (at Cal.) 24 that intent to kill must statement 30 of ‘The reflection, a deliberate it must be premeditation; upon pre-existing formed idea of and not sudden heat sufficient upon passion preclude to measure in Neither the statute nor the court undertakes deliberation.’ be of time the which the must during thought units length period before which deliberate and truly it can into an intent is pondered ripen and under The would with different individuals time premeditated. vary true not the duration of time much as circumstances. The test is differing with other great it is the extent of reflection. follow each may Thoughts cold, be but the calculated arrived judgment may quickly, rapidity and premeditation for a concurrence deliberation express requirement (not excludes from the first those homicides specifically murder of degree or rash statute) which of mere unconsidered enumerated are the result antonym ‘Hasty, The ‘deliberate’ an hastily executed. word impulse [f] rash, ed.)) and (Webster’s (2d Int. no act New Diet. impetuous, impulsive’ unless has been subject intent can be said to be it truly ‘premeditated’ (1945) 25 (id.).” Thomas of actual deliberation or v. forethought 880, 7], People also P.2d italics see original; Cal.2d 900-901 [156 425, 306, 341], P.2d (1980) 606 Cal.3d 435 Cal.Rptr. 26 Velasquez [162 (1980) 448 L.Ed.2d vacated and cause remanded U.S. 903 judgment [65 3042], (1980) 28 Cal.3d 100 S.Ct. reiterated and Dissenting. STANIFORTH, by are J., required Concurring We (Feb. 1984) to file modified opinion Court directive

1019 reference to appropriate (1983) v. Dillon [194 390, 668 Cal.Rptr. P.2d Superior Donaldson v. Court 697] Cal.3d 24 Cal.Rptr. 672 P.2d has majority opinion 110]. now complied and as to those controlled portions majority opinion Sales, Dillon and (Auto I Superior Donaldson concur. Equity Inc. Court Cal.2d 450

I also concur with Justice Wiener’s no conclusion substantial evidence Munoz’ supports first I degree—premeditated—murder conviction. But dis- sent from the failure of the with the mandate of Dillon majority comply (34 Cal.3d at 477-489) and pp. reduce the conviction to one of second degree Moreover, however, murder. seeks majority opinion, to cover and the Supreme Court decision to not discuss void—lack of glaring substantial evidence to support “felony murder” conviction—with the unanalyzed conclusion that there was “uncontradicted evidence of felony ante, murder.” (Majority A minute search of opn., the record fails to disclose any substantial in to evidence law convict Munoz sufficient of that crime. I again reflect and the re-emphasize procedural and consti- tutional errors committed both before and during trial—areas not ad- yet by dressed the California Court.

I crime; Eduardo Ramirez was the sole witness Munoz the connecting he is the lone who testified to person Munoz as to act or implicate “some fact which was an element of the crime” which He implicated Munoz. the self-confessed accessory of John Ramirez killing Klima. was orig- inally the prime for suspect this murder he was not yet murder. charged arrested, He was in placed for the Klima murder. His car had jail been vehicle; identified as the murder he was observed the possession gun used immediately after the He killing. admitted to several wit- killing nesses. In this web of evidence his Ramirez told pointing guilt, police Munoz was the killer and In return he Munoz. was agreed testify against allowed to to a lesser plead after the fact—with CYA offense—accessory if recommendation he testified with his statement to conformity police. trial, theAt time of Ramirez had entered his and was sen- plea awaiting tencing.

This witness was contradicted Munoz and at least by independent five unimpeached witnesses. Not was a only Ramirez contradicted multitude mendacious, but stories were independent admittedly witnesses his own retelling.1 account more with each

vacillating self-serving as testimony Whether Ramirez an or a much principal, “accomplice” indicate, would or an after the fact as he “accessory” pleaded only before for his out for corroboration cry his statements bargain testimony, credence can be any evidence. given testimony

The rules are clear “To corroborate accomplices: which, an must evidence accomplice, prosecution present independent rea without aid from tends testimony or direction accomplice, crime charged. to connect the defendant with the commission sonably than if it does no more evidence is insufficient Corroborating [Citation.] accused, him with the cast a or connects ‘grave suspicion’ merely upon evidence need not corroborating crime’s While the perpetrators. [Citation.] testified, it must tend to fact to which the has every support accomplice which relate to some act implicate defendant therefore must fact (1975) 47 Mardian is an element crime. [Citations.]” 269]; added.) The reasons for italics Cal.App.3d Cal.Rptr. of a rule are An corroboration because clear. equally accomplice requires his own free rational inherent who bargains most distrust of witness (In re L. Miguel dom in for the conviction of another. exchange 703].) Whether accessory in, He Ramirez is is no moment. is immersed technically an of accomplice an with the that surround accom endowed all attributes of untrustworthiness plice. of The

The was as a fact. question issue submitted accomplice as well as the cor- instructions instructions cautionary include the requisite Mu- an of accomplice if Ramirez was found be roboration requirements that Ramirez finding noz. review rules the Appellate jury’s implied require cor- testimony was: an if an his accomplice, either not or accomplice, be not the substan- roborated Such concession does however end respected. tial evidence issue. L., confronted re the Court

In In Miguel Supreme in juvenile rule found the no-requirement-of-corroboration-of-accomplice alibi, the on Munoz. he blamed murder police, claiming 1Ramirez first lied to the an then a demand for magistrate about Munoz police preliminary hearing He did not tell the or the his, Ramirez’, until day shooting after the possession gun wallet the Klima’s or of he explained he was afraid preliminary trial. He after the examination—two weeks before stranger is not made story implicate a implicated. or a friend be How this would would shooting. At trial seeing gun after the preliminary hearing denied clear. At Ramirez day he a .22 caliber gun night he he did find a but the next found said not in his car that gun glove compartment. pistol rug put a in the under back seat. He and reversed a true of face of proceedings finding burglary (wardship) the direct of an admitted Court could testimony accomplice. have well been of Ramirez when it said: “Evidence speaking 18-year-old an from is it is to have accomplice regarded untrustworthy likely because been influenced Ac- motives the witness. self-serving [Citation.] is complice testimony hope, leniency or given expectation ‘often ’ or immunity. result, a an a strong As has motive accomplice [Citations.] to fabricate testimony which incriminates innocent or minimizes persons in the offense and oth- participation transfers crime to responsibility ers. [Citation.]

“It is not an unusual for incriminate innocent falsely accomplice per- sons to seek revenge or to protect actually friends who committed crime Further, minor, him. an one who a accomplice, especially [Citation.] be under ‘may and to great testify social parental pressure lay blame for certain a conduct or certain condition on the accused.’ [Cita- {Id., 108-109; added; at omitted.) The court pp. tion.]” italics fn. said: “The Fourteenth Amendment guarantees United States Constitution due of law process ‘no . mandates that shall . . suffer the onus person of a criminal conviction sufficient ... to convince a trier except upon proof of fact a beyond reasonable doubt of the existence of element of the every offense.’ {Id., at on this constitutional p. premise [Citation.]” concluded: “To affirm would appellant’s adjudication require wardship court to hold finding may criminal conduct be based on an solely accusation which trustworthiness, not only lacks the indicia of traditional but also comes an unreliable source. Constitutional requirements from due process preclude this court from reaching holding. such [Citation.]

“As a law, matter of {Id., there was . . insufficient evidence . .” Ill; added.) italics Ramirez’ of testimony suffers from all traditional indicia untrustworthi- ness. Our duty under the due process clause of the federal Constitution precludes a of finding felony substantial evidence to murder support verdict. To find substantial evidence here an role as a accept appellate is mechanistic, robot, preset where no evaluative is authorized once process fact is made the lower court. Our which finding by justice-oriented process demands the evidence from a source be law-designated analyzed, suspect in weighed substance. This here of no duty especially light heavy corroborating evidence contradic- unchallenged plus multiple independent of tions Ramirez’ Corroboration have testimony. great signif- requirements in icance this mandated due analysis. gross deficiency This process errors, evidence must be in viewed the context of trial court multiple again not addressed by Court decision. controlling Supreme

II or Dillon by not addressed On the issue of issue gang membership—an Donaldson, v. Cardenas seeks to majority distinguish 569], but holds questions Cal.3d 897 ante, opn., (Majority asked—if not reversal. require improper—do court were trial Several condemned errors committed tape with which the does not majority opinion grapple.

Error No. re- had and requested Outside the presence jury, prosecutor concern- ceived the defense witnesses court’s to cross-examine permission he could he admitted though in even youth Mexican ing membership gangs, 2 In face membership not direct produce gang evidence proving Code section concession the based on Evidence court overruled objections such questions or faith asking lack relevance hearsay good use word could not he ruling but restricted prosecutor’s vocabulary, to ask then but the “club” The proceeded term instead. “gang” prosecutor the “club” or members of Munoz Salas whether were Rodriguez, they or the “Océano Trece.” “association” named the “Pee Wee Locos” Error No. Mu- knowing The three witnesses denied consistently belonging se- was sworn to denied he noz’ association with these groups. Rodriguez 13” on hand. but admitted he had a “Ocean tattoo crecy saying on cross-examination: had this with Munoz prosecutor exchange the existence talk about Rodriguez Did hear Mr. you “[Prosecutor]: an from Océano? association among group people Yes, I did.

“[Munoz]: Are that association? you “[Prosecutor]: No, I’m not. “[Munoz]: were? him Did hear you testify you

“[Prosecutor]: No.” “[Munoz]: sound initial and the court’s attorney proof 2The no of to overcome district made offer (Dist. La Barbera any . . .?” Mr. you prepared back-up to evidence

concern “Are have membership].’’ testify gang Atty.): get anybody [to “I come in and don’t think we would to 1023 law, As a general of a show proposition may by witness be a impeached ing of bias relationship party that reflects the witness’ or prejudice. (Jefferson, 28.8, 458; 2 (1972) Cal. Evidence Benchbook Wharton p. § (13th 464, 405; Code, 780, Criminal 1972) Evidence subd. ed. Evid. § § (f); 876, People (1976) 733].) v. James 56 886 Cal.Rptr. Cal.App.3d [128 And it has been held is it to show a fraternal or permissible relationship, otherwise exists between the witness in he is and the whose behalf party called as tending credibility. affect his v. Pickens 61 405, However, Cal.App. P. there are foundational re to be quirements met before such evidence becomes relevant and admissi ble. Pickens,

As was said in 405: supra, Stone’s Cal.App. “[T\he fact of in membership the Ku Klux Klan without whom any witnesses proof it was to show sought were biased thereby had any knowledge being a member was irrelevant clearly . . The of external range issue. . circumstances from which be bias inferred too probable may reasonably limitation, great legal but the reason for evidence bias and admitting interest is that the existence such emotions renders witness untrust- It is worthy. self-evident, in order that one be by an emotion may influenced due to some circumstance such relationship, the thus must person affected have had 408-409; added.) knowledge {Id., (See at italics pp. fact.” also Austin v. (D.C. United States 1969) 459-460.) Cir. 418 F.2d

In In re Y.Wing 390], Cal.App.3d trial court admitted evidence that boys seven were members of Chinese youth (Wah gang over Ching) on the a common irrelevancy objection theory with the membership minor showed bias of the witness. The court held: “Thus, the in the prosecution instant case could of wit- properly inquire Tam, nesses Sammy Lee and Kenny the minor called by Wing, regarding their friendship Wing, including their common as membership, group a means of witnesses, attacking their credibility by establishing a bias in However, favor of the minor. at that into Wah point inquiry Ching should have {Id., 76-77; ended.” added.) italics pp.

In an attempt of the defendant’s alibi witnesses impeach credibility bias, Y., showing In re Wing Cal.App.3d called a officer police who testified the defendant and his alibi witnesses were reputed Chinatown of Los to be members community Angeles of the “Wah Ching” held the trial court erred gang. Court of Appeal overruling to this evidence. hearsay objection reputation defendant’s “Officer Lou in Wah as to the testify membership competent Lee, knowl Ching gang only personal Tam and the minor but Wing, from Thus, that, edge. (a), Evidence un Code section subdivision provides 1024 of ‘the testimony, testimony of subject expert

less the matter pertains has per he is inadmissible unless matter particular a witness concerning per such party, objection knowledge Against sonal of the matter. of concerning testify may the witness must be shown knowledge sonal before ” 78; added.) (Id., at p. the matter.' italics wit- of the defense trial cross-examination The court erred permitting Trece without or Océano Pee Wee Locos about in the nesses membership or without knowledge) (personal first the witnesses’ competence showing foundation. other proper

Error No. bias, showing basis for is a valid While membership recognizing group The objec- here presented. the problems In re Y. does not address all Wing but also Evidence foundation, not or lack just hearsay, irrelevancy tion is Furthermore, cross- witnesses were just not 352 was urged. Code section concerning Munoz, defendant, also questioned but questioned “club” membership. issue on the ever present is When a cross-examined defendant/witness found in In re membership questions

veracity, justification gang is Y., Gang membership absent. is Wing totally supra, Cal.App.3d are ... an organization “the such then relevant unless not affairs added.) 405; Evidence, italics Wharton, (2 Criminal issue.” (hg. 619] In Cal.App.3d Perez evidence con- any rule to 1981) Ct. Mar. applied den. be relevant shown unless cerning gang membership defendant in the case.3 some issue Perez, in the “CV3” gang membership

In defendant’s People argued with this “We agree to an at trial. court responded: was relevant issue membership that evidence gang at the outset basic and state proposition the test it meet admissible must In order be is not se inadmissible. per relevancy. defendant, ‘CV3’ gang membership

“The asserted active in reason’ Valdemar, ‘tendency any have did not to by Deputy testified Cardenas, supra, People v. in the dissent of 3People approval cited with also Perez 897. 1025 e., a prove disputed fact, i. the who committed the identity person of charged in an does not lead Membership organization reasonably offense. Hence, any as to the conduct a a member on occasion. given inference of allowed, the evidence was not relevant. It on the unreasonable contrary, to be made by guilty trier was inferences the of fact defendant of ’ charged on the theory by association. ‘guilt [Citation.]” offense of {Perez, 114 Cal.App.3d In People (1981) 20, 652, v. 29 Cal.3d 27-28 623 Cal.Rptr. Szeto [171 213], this was when principle in the “Joe applied gang membership was Boys” gang used to a prove motive to on another Chinese gain revenge youth gang of one Joe slaying Boys {Ibid.) member. Thus in gang issue; affairs of the Szeto were in organization therefore member- gang of defendant ship (See was relevant.4 also v. Frausto 135 People 314].) 129 Cal.App.3d Cal.Rptr. [185

The People have made no the “club” showing whatsoever membership of Munoz tended to or prove disprove any issue case. No offer of or proof any a attempt lay foundation relevancy showing preceded improper No hint of questioning. relevance is to this court. presented

The admission of irrelevant evidence is not left to the sound discretion of irrelevant, trial judge. evidence is it must be excluded. The trial “[Iff ” has no judge discretion to admit irrelevant evidence. v. Slone (1978) 76 611, 61]; added; Cal.App.3d italics Cal.Rptr. People Hall 616 P.2d What fact disputed or issue is of proved by evidence Munoz’ disproved tendered; gang None membership? none The is conceived. trial court erred in any permitting as to questions Munoz’ “club” membership.

Error 4No. Further error was committed in the of cross-examination Munoz. It was 887; James, observed in “It is estab- Cal.App.3d that, lished law California from apart credibility, matters cross- affecting examination of a witness is limited to the of the direct examination. scope (Evid. Code, 773.) . . . § case, however, “A in a criminal not be examined may defendant Code,

cross-examiner beyond the scope direct examination. {Evid. 4The problem difficult proof gang membership. mode of A divided Szeto Supreme Court held opinion (hearsay) testimony timely admissible objection. absent a plurality opinion three to one to two leaves this issue unresolved. the cross-examination (d).) limitation on The basis subd.

§ against privilege constitutional in a criminal case is the self- defendant incrimination. the direct the scope to exceed To the prosecutor permit forcing would amount a criminal examining examination defendant (See also witness. to become the prosecution’s [Citation.]” such defendant 127, Collie, 43, 55; Bagwell, Cal.App.3d v. People v. 30 Cal.3d People 773, (a); v. Code, 17, People subd. 140; 1979); Evid. den. hg. Apr. § the defendant Schader, or club Gang membership 71 Cal.2d witness, contributing not, relationship tend to show a in the case of a does as called. The the witness is behalf bias in favor of the on whose party It testimony. direct the scope here clearly beyond cross-examination was to see what and fishing by judge “probing was described the trial aptly irrelevant issue. an you get”—on answers

Error No. evi- section 352 grounds—the on Evidence Code objected Munoz also unduly prejudicial. dence lacked force and probative Cardenas, 897, 904, the long-recognized 31 Cal.3d In v. People supra, raised, court the trial is objection “When a section 352 rule was repeated: in terms evidence carefully weigh challenged] ‘must the admission of [the the is than potentially evidence greater of whether the value probative If the defense.’ have on effect admission would [Citation.] its prejudicial value, the trial court should effect outweighs the prejudicial probative relevant evidence rule that evidence. fundamental exclude the [is] ‘[T]he not be effect should its by prejudicial value is outweighed whose probative (1980) Green (Italics added.) (See also v. People admitted.’ [Citation.]” 609 P.2d vested in the discretion invoked the Munoz By objection “specifically evidence relevant exclude otherwise Evidence Code section 352 to court by that its by substantially probability outweighed ‘if its value probative . . of undue . .’” danger prejudice will . . create substantial admission . Green, 1, 24.) v. 27 Cal.3d supra, such Concerning evaluation. court here made no such mandated The trial Green, 24): (at said failure, p. Court in the Supreme that the court out, not show the record does defendant correctly points “As by weighing circumstances in these statutory duty did in fact its discharge value and con- its against probative the statement’s potential prejudice former. by outweighed’ not ‘substantially that the latter was cluding motion and defendant’s Instead, that it would deny ruled court simply Said jury.” limiting with a admonition would admit the statement (at 25): Court “The General record Attorney responds in the case at bar does not contain a that the similar affirmative showing trial court misunderstood its val duty weigh probative prejudice against ue; here the record is on the simply point, Attorney silent General that in implies such event it should be assumed the court knew and per Moreover, its duty. The argument is untenable: .... since the formed Ford, enactment of section 352 the Ford 60 Cal.2d [People 801] requirement—i.e., that on a motion record must invoking ground affirmatively show that the trial did in judge weigh prejudice against fact probative value—has been reiterated both the courts by the [citation] (Italics added; writers omitted.) fn. [citation].”

The (if fact) value of probative Munoz’ it were a gang membership was zero for it did not in any way connect the with the crime itself. defendant (See In re B. Ricky (1978) 82 828].) 111 Cal.App.3d Cal.Rptr. Membership Pee Wee Locos or Océano Trece does not have any “tendency fact, i.e., in reason” to the of the prove disputed identity Perez, who person committed the murder. As was said in v. People supra, Cal.App.3d 477: in an does not “Membership organization lead reasonably to any inference as to the conduct of a member on a given Hence, occasion. allowed, the evidence was not It on the contrary, relevant. unreasonable inferences to be made the trier of fact that the defendant guilty offense on the charged ‘guilt by association.’ theory Evidence is not [Citation.]” admissible show defendant’s criminal pro- or bad pensity character as the means of an inference the raising defendant committed the charged (1969) crime. v. Sam 71 Cal.2d 454 P.2d

Thus value, not only does evidence lack any probative danger times, undue prejudice was In great. less violent an court could appellate observe that evidence a youthful of a was a member Hispanic youth gang Zammora, was not prejudicial. (See 166, 214.) People Cal.App.2d Perez, But as out in pointed People v. supra, at 479: Cal.App.3d page “Zammora was decided in In 1944. the decision on 215 it states ‘it page seems only reasonable to assume that the use of word referred “gang” only the usual and crowd of ordinary young living any people partic- ular who neighborhood, associate themselves and from time im- together, ’ memorial has been referred Thirty-six years to as a have “gang.” passed since Zammora. It is fair to that when say ‘gang’ the word is used Los one Angeles County, does not have visions of the characters from the ‘Our Little Gang’ series. The word as used in at bench the case connotes gang opprobrious implications.” Cardenas, 897, 905,

The Supreme Court in supra, 31 Cal.3d People accepted would infer reasoning, saying: improperly Perez “[T]he Flores (1) the El Monte because had a criminal appellant disposition acts; appellant commit criminal youth gangs

was a such gang, gang.” was a member of Flores consti- The gang membership questioning

The conclusion is inevitable. of mul- discretion; contravention it was in direct not an abuse of just tuted evidence. decided rules of statutory judicially tiple Ill v. Carden- and rule of the reasoning The avoids majority opinion Cardenas, as, here, did not In as prosecutor 31 Cal.3d 897. observed Court but the Supreme refer to the as a “gang,” specifically group either from their gang] identified the group the jury “undoubtedly [a of the witnesses’ from their in-court observations personal knowledge already es- {Id., testimony Other and tattoos.” age, ethnicity, and lived in same were friends Cardenas and defense witnesses tablished af- (gang) into group Court held inquiries neighborhood. cumulative, notwithstanding and unnecessary, filiations were prejudicial, bias to establish possible was offered evidence theory prosecutor’s 904-905.) {Id., at in the defendant. pp. “‘[T]he of the witnesses favor of creates a evidence which to cumulative has no prosecution right present 905; {Id., at p. to defendant.’” of undue prejudice substantial danger added.) italics of membership gang holds there no se rule for exclusion

Cardenas per Perez, Rather, supra, v. cites evidence. Court Evidence 470, 478, of the long-established for the Cal.App.3d application to and evaluate weigh a trial judge Code 352 duties imposed upon section against poten- value be weighed evidence. The must probative proffered of membership declares evidence effect. Cardenas prejudicial Finally, tially the jury could cause in California in 1981 in Chicano Southern youth gang has a criminal disposition. infer the defendant improperly court. Was the Cardenas that issue as divided We confront same er- “harmless testimony of the “club” membership erroneous admission some gives guid- the Cardenas While not binding precedent plurality ror”? Car- factually akin to issue, Munoz’ case is on the error ance harmless in many denas aspects. Cardenas) was the iden- (and in prosecution

The fact” this key “disputed Cardenas, the crime showing was no Here, there of the killer. tity the killer’s any hint of “club” membership gave was related gang (if admis- witnesses was from the Evidence of identity. gang membership sible) at best circumstantial evidence of Evidence of gang bias. membership was not relevant to not of simply testimony. and within the Munoz’ scope

This was a very close case which factually jury required choose between Munoz’ alibi witnesses and Ramirez’ several supported by varied past versions present confessions shooting multiple third unimpeached Corroboration of Ramirez’ con persons. testimony necting Munoz with an “act or fact an element of the crime” which is Thus, cannot be found in this “Cer record. was all credibility important. tainly a substantial showing value was probative required [italics ours] admission of justify this . evidence so that the . . could prejudicial jury dispassionately its function of the truth as to the perform events ascertaining Sam, involved in 206.) case.” The 71 Cal.2d deliberated some 12 hours. In Cardenas 12 hours of jury’s deliberation was a “graphic (Id., demonstration” the The case was close. at p. Cardenas court noted deliberations than six hours have been held to longer show the issue of is not guilt (Ibid.) and shut.” “open

The conclusion is inescapable. rulings trial court’s constituted an abuse discretion. The for at gang least five membership questions good and sufficient reasons should have been excluded. The effect these errors must next be examined in light “harmless error” rule.

IV Court, Under the rule Donaldson 28- Superior 34, Munoz’ recorded secretly house conversations with jail visitor telephone Aurora Galvan (This were admissible. recorded conversa- surreptitiously tion, along with a in transcript, was fact admitted without On objection.) this tape, Munoz and Galvan discussed their the and of day night activities the murder. At least one reasonable to be the inference drawn from con- versation was that Munoz was on Galvan to be an alibi witness coaching his behalf. This is one of the two weak reeds that rise to an inference gives of guilt the Ramirez supports evidence.

V Donaldson, Under direction of the Court in the Galvan discourse admissible, are yet even more errors occurred admission egregious of the and of tapes recording (See Munoz’ car conversations. police Major- ante, 3, 1016, ity opn., fn. being Three after arrested for pp. days murder, Munoz, the Klima and Raul were together Ramirez Galvan placed the back of a car and conversation recorded police patrol their a concealed recorder. Munoz not He tape had been was told yet arraigned. The record to court for arraignment.

he was to be the transported municipal on The or held that day. no set of that court shows arraignment proceedings courthouse, car for left alone in the patrol were to the three transported hour, surreptitiously an their conversations were of where three-quarters until nine arraigned days to was not then returned the Munoz taped, jail. already Ramirez had 1980). That Munoz knew after his arrest (May Munoz, and was at guilt talked to the had the police, pointed finger be from the conversation. leniency may for inferred bargaining into evidence at admitted A of this conversation were tape transcript of defendant’s privacy trial over defense based on violation objections inaudible and tape Munoz also claimed Fifth Amendment rights. inaccurate, section the preju- and under Evidence Code the transcript At the prelim- evidence. dicial effect value outweighed probative by stipulation. was admitted inary hearing, tape walls, are the jail yet not held within We confront here detainees pretrial (1980) 31 Court (De Superior The De Lancie Lancie v. custody. police 142])—no monitor- surreptitious 647 P.2d [183 extend, not declared for reasons—rule was security expressly ing except to communi- and visitors but also to conversations between detainees only “aperson grants rights cations between detainees. Section 2600 expressly added.) There is no (Italics in a state prison.” sentenced imprisonment to any specie of these rights particular restriction the exercise limiting unam- rights, by plain In short the custody within place prison. statutes, not to a place. granted person of the are biguous language to the individ- These adhere rights These are the prisoner’s personal rights. ual, bemay necessary provide to such limitation subject only public. and the security protection reasonable the institution Fourth Amend- This interpretations construction supported by (1967) 389 U.S. (See v. United States ment to the federal Constitution. Katz 576, 583, “Fourth Amendment S.Ct. L.Ed.2d 582]) L.Ed.2d at (Katz, p. not people places” protects The “uninvited I, 1 of California Constitution. as does article section rule, Amendment, whether to persons ear” on the Fourth applies resting taxicabs, reasoning The protection booths or wherever. telephone equal ain being transported De to detainees while Lancie should apply pretrial it does to just building arraignment to the court car police patrol cells, tank, hos- jail exercise yard, holding detainees held in the house jail area. pital booking

VI should avoid a court De Lancie followed the well-established principle can be decided upon if the case on constitutional grounds an issue resolving

1031 (See 12, statutory 877, Lancie.) fn. 31 premises. Cal.3d at De I p. agree However, with this approach. the facts here relative to the compel, recorded conversations, car Fourth, a police consideration of violations of the police Sixth and Fourteenth Amendments to the federal Constitution. Ramirez at time these conversations just had made a with the bargain prosecution to testify against Munoz. Most recent United States Court deci- Supreme Ramirez, sions a factual into whether require at the time the inquiry patrol made, car tape was (United was acting on States v. police. behalf of (1980) Henry 447 2183]; U.S. 264 L.Ed.2d 115 100 S.Ct. Rhode Island [65 (1980) Innis 446 297, 1682, 1689]; U.S. 291 L.Ed.2d 100 S.Ct. [64 Massiah v. United 246, States 377 U.S. 206 L.Ed.2d [12 84 1199].) S.Ct.

In Henry, the government’s informant, use of a who ostensibly was paid inmate, a fellow was held to render incriminating “deliberately statements elicited” from Henry by the informant inadmissible as violative the Sixth Amendment to right counsel. In Henry, the informant his “deliberately used to position secure incriminating information Henry from when counsel was not . .” present . . (Henry, 447 at 270 122].)5 U.S. L.Ed.2d at p. p. [65 Massiah,

In supra, 377 U.S. outfitted an informant’s government automobile with radio transmitting and instructed the informant equipment to engage defendant in conversations relating to crime. The state- ments were suppressed. The court held that the Sixth Amendment must apply indirect and surreptitious interrogations as well as those conducted at jail (Massiah, house. at 250].) L.Ed.2d at p. p. [12

The police car here taping was conducted three after Munoz’ days arrest and after Ramirez had agreed to with the cooperate police. United States Supreme Court admonished us that such confrontation must arranged be scrutinized carefully determine a whether was involved police “agent” and whether this involvement occurred aat critical stage prosecution to which the Sixth (See Amendment right assistance of counsel attaches. United States v. Henry, at 122].) U.S. L.Ed.2d at p. p. [65 5The United States distinguished prearrest investigation: quite Court “It is a different matter when the Government agents incriminating uses undercover to obtain state persons ments from custody activity not in but suspected prior charges of criminal the time (Henry, are filed.” at p. L.Ed.2d The Fourth Amendment not does protect wrongdoer’s misplaced person voluntarily belief that to whom he confides (See wrongdoing will not reveal it. United 385 U.S. States Hoffa 374, 382, 408, 413.].) L.Ed.2d implicated 87 S.Ct. The Fifth is not the use Amendment agents of undercover charges Henry before As court noted: Fourth and are filed. “[T]he Fifth Amendment inquiry claims made in under Sixth those cases are not relevant to the right Amendment here—whether of the Government has interfered with the to counsel by ‘deliberately (Henry, accused eliciting’ incriminating p. 447 272 statements.” U.S. 123].) L.Ed.2d at [65 1032 not been no arraigned; had

Munoz at the time of the car police bugging 13 days (May He been held three were him. had charges yet lodged against without provisions, in of statute and constitutional 16) to violation May until nine not in fact arraigned before a Munoz was taken being magistrate.6 his arrest. after days his interfered with necessarily Munoz

This failure to promptly arraign to a meaningful opportunity denied fundamental He was right liberty. (Van Atta counsel, on his own recognizance. bail or be released obtain post 149, 210].) 424, 613 P.2d (1980) 27 431 Cal.Rptr. v. Scott Cal.3d [166 arraign- await the availability may Notice of to counsel and counsel’s right Code sec- rule of Penal arraignment ment Violation the prompt process. deten- unreasonably an and unnecessary prolonged tion 825 also constitutes California Constitution I, 14 of the in contravention of article section tion “ without unnec- ‘be taken felony a of a which that accused requires person 27 Cal.3d (1980) a v. magistrate.’” (People Thompson before essary delay 303, 289, P.2d Cal.Rptr. [165 for this to be imposed sanctions are

The more critical what question breach official duty. 329-330): (27 Cal.3d at pp.

As was in Thompson, supra, stated People under detention illegal if a confession occurs during period “[E]ven A in delay inadmissible. render it' that fact alone does not section in deter- to be of the factors considered is treated ‘as one arraignment only To ex- voluntarily made.’ whether the statement was mining [Citations.] statement, ‘the detention illegal that the defendant must show clude between connection that there was an ‘essential admissions’ or produced detention and confession.’ illegal [Citations.]” 231, 244 People Pettingill Court Supreme 108], purposes held: "The principal 578 P.2d Cal.Rptr. interroga- secret police are arraignment prevent requirement prompt tion, a judicial before cause for the arrest the issue of place probable an officer, rights advice as to his provide defendant full bail him to apply and to enable to have counsel appointed, opportunity necessary. habeas when corpus or for at interro- attempts to cease all

“It follows the failure of police to remain right to waive he herein gation refused of defendant after 137], 6In v. Powell 67 Cal.2d be must in all cases defendant 825: “‘The interpreted Penal Code section Court event, days two unnecessary delay, any within magistrate before the without taken “[Sjection authorize even 825 does not Supreme Court: his arrest....’” Said the after {Ibid.) two-day detention in all cases . . . .” was not their with the laws by silent cured to comply subsequent failure such make a arraignment. right; Two do not requiring prompt wrongs abuses, they remain separate compounding infringement of defendant’s ” privilege against (Italics added.) self-incrimination. I, Thus the and failure with Penal Code section 825 article to comply section of the California have Munoz’ ex- may Constitution prevented ercise of his Sixth one Amendment to counsel. Thus the right statutory state constitutional more wrong—delayed greater, arraignment—produced federal constitutional Ramirez’ activities and profound wrong—if purpose within falls the Henry-Innis-Massiah prohibition.

These house and the car—were admitted with tapes—from jail police factual, foregoing statutory, unresolved constitutional issues. Even conviction, assuming substantial evidence a retrial supports required De admissible, under Lancie. The jail house to be be shown must tape, have been recorded for be Retrial would security required by purposes. Henry for this reason also and whether additionally into Ramirez inquiry awas he in police agent as sat car and elicited state- deliberately patrol States, ments from Munoz in violation rule of v. United Massiah 377 U.S. supra, 201.

VII The erroneously admitted be “gang” member evidence should assessed for reversible error under the Watson rule. Watson (People v. However, 243].)

Cal.2d the erroneous admission of the of a tape recordings pretrial detainee held violation of prompt arraign- ment rules presses statutory, as well as state and federal constitutional upon nerves. Federal constitutional error if court reversal is unable requires to declare its belief errors were harmless a reasonable doubt. beyond {Chapman 386 U.S. 18 L.Ed.2d 87 S.Ct. California rules,

Whether the test is under Chapman “harmless” error Watson or result is the on the entirely same. case Munoz rests believ- against ability Ramirez—a witness who is vulnerable to of men- charges patently bias, dacity, prejudice, self-interest and contradictions several by multiple admissible, witnesses. The corroboration of Ramirez’ if is weak to story, nonexistent. Green, case,

In a remarkably similar Court 1, 71-73, 27 was influenced the fact the conviction rested on the dubious doubt in the matter is en- of a “Our testimony cosuspect. hanced of the case at bar. . . . particular facts testimony that evidence a David single came from source—the

“[A]ll did Kahn’s Khan—cannot have much confidence. Not testi- inspired only uncorroborated, on these but on both direct and wholly remain mony points his thrown Thus on cross-examination was into serious credibility question. examination he he lied to the authorities in direct admitted that repeatedly his On cross-examination Khan conceded that he days following arrest. of the crime when the defendant changed story began accusing told him that be the murder He charged authorities he would himself. own that the trial he was for his acknowledged custody protection during been as the trial was over and had the authorities as soon promised by i.e., to live he would be he would be with a of his ‘placed,’ place provided Green, 71-72; omitted.) own choosing.” (People supra, v. fn.

VIII there is not errors in the admission critical Finally, one but multiple There no evidence. is litmus test to indicate whether the convicted on jury the basis of admissible inadmissible evidence. Therefore judgment or must be reversed. In Robinson 61 Cal.2d “When, 970], 392 P.2d as in this Court said: Cal.Rptr. instance, a the record whether reviewing court is unable determine from rejected convicted on that evidence con- jury admissible evidence received, on inadmissible it must the error victed evidence improperly find situation, been but where the have Under a different factual prejudicial. reprehensible this court said: ‘However equally principle applicable, accused, the conduct of an he is entitled to have its legal consequences Here, from instructed. determined evidence competent by jury properly that, cannot used not fairly say improperly we had the evidence improper and sentence been before the of its the verdict jury, impropriety, unadvised (To see People would have been the the same effect same.’ [Citation.]” Green, rule reversal 27 Cal.3d The Robinson-Green supra, requires if one evidence to be several areas any complained of found it convicted on inadmissible and cannot be determined whether the admissible evidence or evidence received. improperly on inadmissible evidentiary rulings may cumulative from the erroneous prejudice resulting 907.) Reversal (Cardenas, is also reversal. require harmless beyond when it be the combined errors were necessary cannot said 457, 470 doubt. re Rodriguez Cal.App.3d reasonable {In IX In his habeas Munoz corpus trial counsel with petition, charges ineffectiveness. The resolution of majority this issue cannot be faulted.

I would reverse the judgment.

Appellant’s petition for a Court hearing by was denied September 1984.

Case Details

Case Name: People v. Munoz

Court Name: California Court of Appeal

Date Published: Jun 28, 1984

Citation: 204 Cal. Rptr. 271

Docket Number: Docket Nos. 13964, 15029

Court Abbreviation: Cal. Ct. App.