Filed 6/15/15 P. v. Valiente CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

THE PEOPLE,                                                          B257032

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA400361)
         v.

VLADIMIR OSVALDO VALIENTE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Henry J. Hall, Judge. Affirmed.
         Vladimir Osvaldo Valiente, pro. per.; and Linn Davis, under appointment by the
Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                          _______________________
       Vladimir Osvaldo Valiente was convicted following a jury trial of attempted
murder with related firearm-use and criminal street gang enhancements. Valiente’s
appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d
436, which raised no issues and asked this court to independently review the record. At
our invitation Valiente has filed a 32-page brief identifying several purported errors
committed by the trial court. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1 Information
       In April 2013 an information charged Valiente with the attempted willful,
deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664)1 of Marelin
Martinez with special allegations he had committed the crime to benefit a criminal street
gang (§ 186.22, subd. (b)) and a principal had personally used and discharged a firearm
causing great bodily injury (§ 12022.53, subds. (b), (c), (d) & (e)(1)).
       The jury was unable to reach a verdict at Valiente’s first trial, and a mistrial was
declared. The case was retried to a jury in February 2014.
       2. Requests To Substitute New Counsel
       Edward Esqueda represented Valiente as retained counsel at his first trial.
Following the mistrial, Edqueda’s request to be appointed as Valiente’s counsel pursuant
to Harris v. Superior Court (1977) 19 Cal.3d 786 was denied. Esqueda then told the
court he would represent Valiente on a pro bono basis.
       Immediately before the start of voir dire at the second trial (day 59 of 60), the trial
court received Valiente’s written request that Esqueda be relieved and new counsel be
appointed, specifically deputy public defender Laurie Jones. When the court inquired
about his reason for changing lawyers, Valiente replied he was dissatisfied with
Esqueda’s failure to obtain certain discovery. The court observed that Jones was not
present in court and had not moved to replace Esqueda as Valiente’s counsel. The court
also pointed out that Esqueda’s efforts in the first trial had produced a positive outcome.

1
       Statutory references are to this code unless otherwise indicated.

                                              2
In addition, the court reminded Valiente that he had refused the court’s offer to appoint
the public defender to represent him, at which point Esqueda had agreed to represent
Valiente on a pro bono basis. Esqueda interjected that Valiente’s family had since
retained him on a sliding scale.
       The trial court denied Valiente’s request for new counsel as untimely and a ploy to
stall the case. The trial court explained the victim, Marelin Martinez, was in custody for
having failed to appear at the first trial in response to the People’s subpoena. Apparently
she and her family had been subjected to gang intimidation in relation to this case.
Valiente had not expressed a desire for new counsel before Martinez was taken into
custody. A delay at this point in the proceedings, the court observed, either would cause
Martinez to remain in custody for a longer period of time or, if released, would
exacerbate her fear of testifying.
       On February 4, 2014 Valiente again expressed to the trial court his dissatisfaction
with Esqueda as counsel. Deputy public defender Jones was in the courtroom. In
response to the court’s inquiry, Jones stated she was not prepared to proceed immediately
to trial if she were appointed to represent Valiente. The court again denied Valiente’s
request for new counsel as untimely.
       3. Summary of Trial Evidence
       Martinez testified she was sitting outside her apartment complex on the evening of
June 17, 2012 when Valiente, who had previously told Martinez he was a Mara
Salvatrucha 13 (M.S. 13) gang member, approached in a wheelchair. Valiente was
accompanied by three men. Because Martinez belonged to Rebels 13, a rival gang,
Valiente told his confederates that she was the enemy and ordered them to shoot her.
Only one of the men, Hugo Beltran, 2 was armed; he pointed his gun at Martinez’s face.
Martinez pushed the gun down; and Beltran fired, shooting her in the stomach. Valiente
instructed Beltran to shoot Martinez again and kill her, but Beltran was interrupted by



2
       Hugo Beltran was charged as a codefendant. His case was resolved prior to trial.

                                             3
Martinez’s father. Valiente and his confederates fled. Martinez was treated at the
hospital and released with a bullet lodged near her spine.
       Martinez explained she had not cooperated with police initially or appeared in
court at the first trial because she was frightened. She still feared M.S. 13 would harm
her family. However, Martinez decided to cooperate with police after Valiente
threatened her father on June 29, 2012. Additionally, Los Angeles Police Officer Bill
Wilson, the investigating officer, told Martinez on July 2, 2012 that she and her family
would be placed in a witness protection program if she testified. According to Martinez,
she and her family had not entered the program at the time of her testimony; they still
lived at the same apartment complex.
       Several residents of the apartment complex, including Martinez’s father and
brother, had corroborated Martinez’s account of the shooting to the police. At trial,
however, they either recanted or claimed they could not recall certain statements they
had made to the officers. All of these witnesses expressed fear of retaliation by the
M.S. 13 gang. None identified Valiente as having ordered the shooting.
       Officer Wilson testified on cross-examination that he told Martinez several times
he could arrange for her and her family to be relocated and their rent paid for a period of
time. The offer was not conditioned on Martinez’s agreement to cooperate with the
police. Martinez said she would think about the offer; her father declined it.3
       Los Angeles Police Officer Debbie Monico testified as the People’s gang expert.
She described the history and primary activities of the M.S. 13 gang and its rivalry with
the Rebels 13. After reviewing police reports and officers’ statements, Monico opined
Martinez was a member of the Rebels 13 gang and Valiente was a member of the M.S. 13
gang. Her opinion was also based on an in-court examination of photographs of
Valiente’s tattoos. In response to a hypothetical attempted murder committed under
circumstances similar to this case, Monico testified the crime would have been intended


3
      The prosecutor and Esqueda told the trial court they were unaware of Officer
Wilson’s relocation offer.

                                             4
to benefit the M.S.13 gang. On cross-examination Monico acknowledged she had never
had any personal contact with Valiente and there were no field interview reports
identifying him as a gang member and no information in the gang database that he had
committed a gang-related crime.
        4. Motion for a Mistrial
        Following Martinez’s testimony Esqueda moved for a mistrial, arguing the offer to
relocate Martinez and her family prior to trial had not been disclosed to the defense as
required by Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215]
(Brady).) At an evidentiary hearing Officer Wilson testified that on numerous occasions
he had discussed with Martinez and her father the possibility of placing them in a witness
protection program for their safety, telling them the district attorney’s office would pay
their moving expense and rent for a limited period. Both Martinez and her father
ultimately rejected the offer although Martinez also said she would think about it.
Wilson believed the last time he had discussed the possible relocation with Martinez was
when he delivered the subpoena for her to testify. Wilson had not spoken to Martinez
about relocating since she had been taken into custody for failing to comply with the
subpoena for the first trial. Wilson had never given any funds to Martinez or her father.
        At the conclusion of the hearing the trial court denied the motion, finding that
Valiente had suffered no prejudice from the People’s failure to disclose the relocation
offer before trial because the information was made known during trial. The court agreed
with the prosecutor that, if the offer were intended as a reward for cooperating with the
People, Martinez had certainly rejected it by refusing to respond to the subpoena to
testify at trial.
        5. Sentencing Hearing
        After denying Valiente’s motion for a new trial, the trial court imposed an
aggregate state prison term of life for attempted premeditated murder, plus a consecutive
term of 25 years to life for the section 12022.53, subdivisions (d) and (e), firearm-use
enhancement. Sentencing on the remaining firearm-use enhancements was stayed.


                                              5
                                     DISCUSSION
       We appointed counsel to represent Valiente on appeal. After examination of the
record counsel filed an opening brief in which no issues were raised. On December 11,
2014 we advised Valiente he had 30 days within which to personally submit any
contentions or issues he wished us to consider. After granting several extensions of time,
on March 16, 2015 we received a typed 32-page supplemental brief in which Valiente
challenged his conviction on multiple grounds: The evidence is insufficient to support
the conviction and the gang enhancement; the court erred in denying Valiente’s request to
substitute counsel; the court erred in denying a mistrial following Martinez’s testimony;
and the court committed prejudicial error in compelling Martinez to testify and admitting
Martinez’s hearsay testimony.
       1. Substantial Evidence Supported the Conviction and the Gang Enhancement
       There was sufficient evidence to support the attempted murder conviction based
on Martinez’s testimony alone, which was neither physically impossible nor inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; see People v. Zamudio
(2008) 43 Cal.4th 327, 357; People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       With respect to the gang enhancement, Valiente challenges the sufficiency of the
evidence to prove the offense was committed for the benefit of a criminal street gang,
focusing on what he claims was a lack of evidence he was an active member of M.S. 13
at the time of the shooting. Expert testimony that Valiente was an active gang member
and Valiente’s admission of gang membership to Martinez in 2012 constituted sufficient
evidence that he was an active gang member. (See, e.g., People v. Martinez (2008)
158 Cal.App.4th 1324, 1331 [sufficient evidence of active gang membership where gang
expert relied on, among other things, defendant admitting he was gang member after
arrest and gang tattoo over defendant’s eyebrow]; People v. Williams (2009)
170 Cal.App.4th 587, 626 [sufficient evidence that defendant was active gang member
based on, among other things, defendant’s gang tattoos and his prior admission of gang
membership].) And Martinez’s testimony that Valiente had said she was the enemy
before ordering his confederates to shoot her, coupled with the expert’s opinion regarding

                                            6
the significance of the crime within the gang culture, was more than sufficient to
establish the requisite elements of the section 186.22, subdivision (b), enhancement.
       2. Denial of the Request for Substitute Counsel Was Not an Abuse of Discretion
       The denial of Valiente’s request to relieve counsel as untimely was not an abuse of
discretion. (People v. Verdugo (2010) 50 Cal.4th 263, 311[court has discretion to deny
motion if untimely, that is, if discharge “‘will result in “disruption of the orderly
processes of justice”’”].) Valiente’s second jury trial was imminent, and there was no
indication his proposed substitute counsel was available. Discharging Esqueda,
therefore, would have left Valiente unrepresented; and he had never expressed a desire to
represent himself. Additionally, the proceedings would have been significantly delayed
to enable new counsel to become familiar with the evidence and the record of the first
trial. Finally, in assessing timeliness, the court properly considered that the delay in
changing counsel would either prolong the victim’s stay in custody or intensify her
reluctance to testify. (See People v. Maciel (2013) 57 Cal.4th 482, 512-513.)
       3. The Motion for a Mistrial Was Properly Denied
       Valiente contends the trial court erred in failing to grant his motion for a mistrial
for Brady error—the People’s failure to timely disclose the offer to relocate Martinez,
impeachment evidence favorable to him. In Brady the United States Supreme Court held
that due process requires the People to disclose to the defense evidence that is both
favorable to the defendant and material to either the issue of guilt or punishment. (Brady,
supra, 373 U.S. at p. 87; see also In re Sassounian (1995) 9 Cal.4th 535, 543.) “Evidence
is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching
one of its witnesses.” (In re Sassounian, at p. 544.) “Thus, a true Brady violation occurs
only when three conditions are met: ‘. . . The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.’ [Citation.] Under this standard prejudice focuses on ‘the materiality of the
evidence to the issue of guilt or innocence.’ [Citation.] In the case of impeachment
evidence, materiality requires more than a showing that ‘using the suppressed evidence to

                                              7
discredit a witness’s testimony “might have changed the outcome of the trial.”
[Citation.]’ Rather, the evidence will be held to be material ‘only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” (People v. Lucas (2014) 60 Cal.4th 153, 274.)
       The record fails to demonstrate the relocation offer was suppressed by the People,
within the meaning of the Brady rule, because it was disclosed during Martinez’s and
Officer Wilson’s testimony at trial. (People v. Lucas, supra, 60 Cal.4th at p. 274
[“‘[e]vidence that is presented at trial is not considered suppressed, regardless of whether
or not it had previously been disclosed during discovery’”].) Furthermore, as the trial
court observed, Martinez and her father did not accept the relocation offer. Therefore,
while perhaps relevant, the offer was not a basis for impeaching Martinez’s credibility on
the theory advanced by the defense—that she had been induced by the offer of protection
to testify falsely against Valiente. Instead, its impeachment value was limited to
undermining her direct testimony that she was afraid of retaliation by the M.S. 13 gang.
Finally, the record shows Esqueda vigorously cross-examined Martinez on her failure to
accept the relocation offer, notwithstanding her purported fear of the gang harming her
and her family. Because Valiente was able to make effective use of the relocation offer
at trial, there was no prejudice stemming from its untimely disclosure.
       4. Martinez Was Properly Compelled To Testify
       Martinez testified she was currently in custody after failing to comply with a
subpoena in this case and acknowledged, if she refused to testify, she would be found in
violation of probation on two misdemeanor cases. According to Valiente, Martinez’s
testimony was therefore improperly coerced and tainted.
       As the victim of the attempted murder charge, Martinez was a material witness
who had failed to comply with the People’s subpoena. The People invoked section 1332,
which permits the court to order a reluctant material witness to enter into an undertaking
to appear and testify and, in appropriate cases, to be taken into custody. (§ 1332; see
People v. Louis (1986) 42 Cal.3d 969, 992-993; In re Francisco M. (2001)
86 Cal.App.4th 1061, 1064-1065 [innocent individual with knowledge of a crime

                                              8
properly detained without bail as a material witness]; People v. Roldan (2012)
205 Cal.App.4th 969, 981 [same].) Given Martinez’s failure to appear at the first trial,
the court had few options to secure her appearance.4 The record shows Martinez was
cross-examined extensively; and nothing suggests she testified falsely because she was
compelled to appear at trial.
       5. Martinez’s Challenged Testimony Was Properly Admitted
       On direct examination Martinez testified she had decided to cooperate with the
police because she was afraid of retaliation by Valiente and his confederates. The
prosecutor asked her, “Did anyone tell you whether or not something happened to them
that caused you—” Martinez interrupted and answered, “Oh, yes. My father.” When the
prosecutor asked Martinez what her father had told her, attorney Esqueda objected. In
overruling the objection the trial court admonished the jury that Martinez’s answer was
not being admitted “for the truth of the matter asserted, [but] only to explain why this
witness did what she did.” Martinez then testified her father had been told by Valiente
that, if he went to the police, Valiente and his confederates “would finish the job.”
       Valiente now argues Martinez’s testimony concerning his purported threat to her
father constituted inadmissible hearsay.5 As the court correctly determined, the evidence
was properly admitted for a nonhearsay purpose—to explain Martinez’s state of mind and
motivation for deciding to cooperate with the police. (See People v. Thornton (2007)
41 Cal.4th 391, 447 [“‘“‘Whenever an utterance is offered to evidence state of mind
[that] ensued in another person in consequence of the utterance, it is obvious that no
assertive or testimonial use is sought to be made of it, and the utterance is therefore
admissible. . . .’”’ [Citation.] Such evidence is not hearsay.”].)


4
      Martinez was represented by counsel and, following her testimony, was released
from custody and placed under house arrest on electronic monitoring.
5
       “‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200.) Subject to certain exceptions, hearsay evidence is
generally inadmissible. (Evid. Code, § 1201.)

                                              9
       None of the claims asserted by Valiente in his supplemental brief has merit. In
addition, we have examined the record and are satisfied Valiente’s appellate attorney has
fully complied with the responsibilities of counsel and no arguable issue exists. (Smith v.
Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly
(2006) 40 Cal.4th 106, 112-113; People v. Wende, supra, 25 Cal.3d at p. 441.)
                                     DISPOSITION
       The judgment is affirmed.



                                                 PERLUSS, P. J.

       We concur:



              ZELON, J.



              STROBEL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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