Filed 2/5/14 P. v. Gastelum CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062985

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF18906)

JESUS RAMON GASTELUM,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Christopher

J. Plourd, Judge. Affirmed.

         Eric R. Larson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller,

Deputy Attorneys General, for Plaintiff and Respondent.

         Jesus Ramon Gastelum appeals a judgment after the trial court denied his motion

for new trial based on alleged ineffective assistance of counsel, and reinstated the
judgment based on a jury's verdict convicting him of first degree murder (Pen. Code,

§ 187, subd. (a)) and conspiracy to commit murder (§ 182). On appeal, he contends he

was denied effective representation of counsel in two regards: (1) counsel did not

investigate and introduce evidence that another person (Mr. Ruiz) admitted to being an

accomplice to the shooting, and (2) counsel did not investigate and introduce an expert to

attack the credibility of eyewitness identification evidence.

                                               I

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Evidence Against Gastelum1

       During the evening of September 15, 2001, Daniel Villa, a gang member and drug

abuser, went to Richard Armenta's house in Brawley to buy drugs from Armenta.

Armenta agreed to sell Villa drugs, but he asked Villa, and Villa agreed, to first

accompany him to a store to buy beer. On the way to the store, Armenta drove by a

house party on B Street in the Brole (i.e., Broleno) gang area. There were many gang

members on the patio outside the house. They recognized Armenta's car and turned

around. Armenta asked Villa whether he "would be willing to shoot" them if he gave

Villa his gun. Villa did not answer Armenta's question.

       On their return to Armenta's house, Gastelum (whose moniker is "Pookie") and

some other men were there. Armenta asked the group if someone would volunteer to do



1      In this appeal, both parties rely on this court's factual recitation from the prior
appeal of Gastelum's conviction in People v. Gastelum (D053935, Nov. 19, 2009),
(Gastelum I). Accordingly, our factual statement is taken from Gastelum I.
                                               2
a shooting of gang members at the house party. Gastelum answered that he would do the

job for his gang. Armenta went to another room and brought back a big speaker from

which he removed a black revolver. Armenta gave it to Gastelum, who then removed its

bullets. Armenta and Gastelum cleaned the gun and bullets. After Armenta reloaded the

gun, Gastelum put the gun in the waistband of his pants. Gastelum and Armenta left the

house and drove away in Armenta's mother's Camry (a different car than that Armenta

drove to the store earlier).

       At about 9:30 p.m. or 10:00 p.m., Francisco Hernandez, then 16 years old, arrived

at the house party. There were about 10 to 13 people there. Later, Hernandez was

standing in the front yard inside the fence when he saw someone coming down the street

who he initially believed was a friend. The person approached the gate and said, "Come

here." When Hernandez was about five to six feet from the gate, the person (identified at

trial as Gastelum) pulled out a gun and began firing it at him. As Hernandez turned and

ran away, he was shot in the back. Once inside the house, he learned he was bleeding.

Hernandez also saw that Jesse Garcia, his friend, had been shot and was lying on the floor

with blood pouring out of his head. A few months later, Garcia, also 16 years old, died

from his gunshot wounds.

       Villa, who had remained at Armenta's house, heard on a police scanner that there

had been a shooting on B Street. Within two to three minutes, Armenta and Gastelum

arrived back at Armenta's house. Gastelum appeared happy and described how he got out

of the car, knocked on the door of the house, and fired his gun at the head of the person

who opened the door while stating the name of his (Gastelum's) gang, Chicali Brasas.

                                             3
Gastelum stated he also fired his gun at and thought he hit another person near the door.

Armenta stated the people were gang members and were drinking and that what

Gastelum had done "was all fine." Gastelum told everyone in the room they were the

only ones who would know what had happened and, if someone said something, the

"same thing would happen to them." Gastelum and Armenta removed the remaining

bullets from the gun and then Armenta took the gun to another room.

       At about 8:00 p.m. or 9:00 p.m. on September 15, 2001, Armenta went to the

home of Israel Salazar, then an active Chicali Brasas gang member, and asked him

whether he would be willing to go with him to "get" (i.e., "blast" or shoot) some Broleno

gang members while they were "slipping" (i.e., unaware) at a party on B Street. Armenta

stated he was going over to Pete Castellanos's house to have a "kickback."2 Salazar did

not go with Armenta because he was arguing with his "old lady" at the time.

       A few hours later, Armenta returned to Salazar's home and asked him to hide a

gun and not to tell anyone. When Salazar asked him what happened, Armenta stated:

"Some shit went down on B Street." Armenta appeared scared. Salazar agreed to hold

the gun for Armenta, but he did not actually see the gun that night. Salazar apparently

told Armenta to hide the gun in a wood pile wherever he wanted to. When Salazar

learned the following day what happened on B Street, he asked a friend to tell Armenta to

pick up his gun. During telephone conversations, Armenta told Salazar that during the B


2       Castellanos was a Chicali Brasas gang member who had been shot and paralyzed
by a Broleno gang member, and Armenta stated that somebody "had to pay back for it"
(i.e., be shot) in retaliation for Castellanos's shooting. (Gastelum I, supra, D053935, at
p. 4.)
                                             4
Street incident someone got shot in the head. When Salazar asked Armenta if he was the

shooter, Armenta replied, "No. It was Pookie," i.e., Gastelum. Armenta stated that the

reason for the shooting was "[s]omebody paid back for what happened to Peter Boy," i.e.,

Castellanos. A few days after Salazar hid the gun, Armenta and two other gang members

came to Salazar's home and retrieved the gun, which was wrapped in a bandana, and

ammunition in a plastic bag. Salazar saw the gun was a faded black revolver with a six-

inch barrel, and the bullets bore the markings ".38 S&W."

       At a joint trial on the charges against Gastelum and Armenta (who was charged

with the same offenses as Gastelum), Villa, Hernandez and Salazar testified substantially

as described above. Testimonies of two witnesses were also admitted showing that on

conclusion of the first day of Villa's testimony, Gastelum threatened Villa, stating "I'm

going to kill you, puto." Salazar testified that while he was incarcerated with Gastelum,

Gastelum asked him not to testify as a "favor" and to tell the judge he (Salazar) was

"high" and talking "nonsense." The prosecution also presented the testimony of Luis

Santoyo, a Chicali gang member, who stated he was at Armenta's house about two years

earlier when Armenta mentioned a shooting in the presence of Gastelum and Armenta's

brother. Armenta stated that a man named Santos took the gun to Mexico. Armenta

spoke a lot about the shooting and was happy while doing so. Although Gastelum was

present while Armenta spoke about the shooting, he remained silent except for telling

Armenta to be quiet and not talk about it. Armenta stated the motive for the shooting was

to get someone back for Pete, i.e., Castellanos, who got shot. When asked what Armenta

told him about the shooting, Santoyo testified: "He just told me they were kicking it at

                                             5
my friend Pete Castellanos'[s] house. Right there it was him, Jesse [i.e., Gastelum], and

some other guy, Happy. They left and they went around cruising somewhere, wherever it

was at. And then he parked the car and Jesse [i.e., Gastelum] got off and he had did what

he did and came back to the car. And they took off." Santoyo also testified that on

another occasion he spoke with Gastelum "on the streets" about the shooting and

Gastelum admitted shooting Garcia.

       In his defense, Gastelum testified that he did not shoot Garcia because he was in

Huntington Park the night of the shooting. He also testified he was a member of the

Imperial gang and socialized with both Broleno and Chicali gang members. Gastelum's

father, sister and grandmother testified that he lived in Huntington Park during the time

period of the shooting. Gastelum's sister also testified he stayed at home the weekend

after the terrorist attacks of September 11, 2001. Erik Portugal testified he was a member

of the Broleno gang and asked Hernandez if he knew who shot him. Hernandez told him

he did not know, explaining it was too dark, he was not paying attention, and he was busy

having a good time at the party. Hernandez stated he really did not see anything.

       B. The Verdict and Gastelum I

       The jury found Gastelum guilty of the charged offenses, and the trial court

sentenced Gastelum to a term of 25 years to life in prison on count 1 and, pursuant to

Penal Code section 654, stayed execution of the term it imposed for count 2. In Gastelum

I, this court rejected the majority of Gastelum's claims, but found the trial court erred by




                                              6
not conducting a Marsden3 hearing on his request for substitute counsel to represent him

in investigating the grounds for, and filing a motion seeking, a new trial based on

ineffective assistance of counsel. (Gastelum I, supra, D053935, at pp. 27-32.) This court

reversed and remanded the matter with directions that the trial court conduct a postverdict

Marsden hearing to allow Gastelum to state his reasons in support of his Marsden

motion, to request a response from his trial counsel, and then exercise its discretion to

grant Gastelum's request for substitute counsel to represent him on a motion for new trial

based on ineffective assistance of counsel. This court further instructed that if the trial

court denied Gastelum's Marsden motion after conducting a Marsden hearing, or granted

that motion but then denied a motion for new trial filed by substitute counsel (or if

substitute counsel after investigation decides there is no basis on which to file a motion

for new trial), the trial court should reinstate the judgment with specified modifications.

(Gastelum, at pp. 34-35.)

                                              II

                                 THE CURRENT APPEAL

       A. The Evidentiary Hearing on Gastelum's New Trial Motion

       On remand, the trial court held a Marsden hearing and appointed new counsel.

New counsel then moved for a new trial alleging Gastelum's trial counsel (Mr. Storey)

provided ineffective assistance of trial counsel in several particulars, including (1) failure

to investigate and introduce an expert on the vagaries of eyewitness identification to



3      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
                                              7
undermine the credibility of Hernandez's eyewitness identification of Gastelum as the

shooter, and (2) failure to investigate other witnesses and to introduce evidence of

(among other things) that another person (Ruiz) stated he accompanied Armenta to the

attack and it was Armenta who opened fire on the victims.

       The court held an extensive evidentiary hearing over several sessions during

which numerous witnesses testified. Gastelum's testimony, which the trial court found

was not credible, asserted he asked Storey to hire an expert on eyewitness identifications

and Storey affirmed he would hire an expert but never did. Gastelum also asked Storey

to locate and interview numerous witnesses, including Mr. Espinoza and Ruiz, but

Gastelum believed Storey did not investigate those witnesses or interview them.

Gastelum also testified he asked Storey to locate and interview several other witnesses,

but Storey did not do so, and Storey deflected some of Gastelum's inquiries by stating he

was too busy. Gastelum also claimed he told Storey he wanted to testify, and Storey

advised him not to testify, but then without warning put Gastelum on the stand without

preparing him.

       Storey testified he had practiced criminal law for 27 years, and had visited

Gastelum 16 to 18 times to prepare for trial. Gastelum often suggested people who he

thought might help his case, and Storey's general practice was to obtain the person's name

and contact information and give the information to Storey's investigator (Mr. Wallet) for

Wallet to contact the witness. Wallet tried contacting all of these people, although he

was unable to find some of them and others refused to talk to him. When Wallet could



                                             8
not find specific people, Storey would follow up with Gastelum and try to get additional

information to help locate them.

       Storey considered using an expert on eyewitness identification but rejected the

idea because Gastelum had been picked out of a lineup and there were not any "cross-

racial situations." Storey believed an expert could have been harmful to Gastelum

because the lineup and identification of Gastelum was "solid" and Storey believed an

expert would have "been more for the prosecution than for the defense" and Storey did

not want to "make [the identification] any [more] solvent than it already was." Storey

explained there are many other ways to impeach an eyewitness and he used some of those

approaches during trial.

       Storey apparently was not specifically asked about his efforts to locate Espinoza or

Ruiz. Gastelum testified that among the discovery from police given to him by Storey

was a summary of an interview by Sergeant Myers of a Mr. Espinoza, in which Espinoza

claimed that a Mr. Ruiz admitted Ruiz had been involved with Armenta in the shooting

incident. Gastelum asked Storey to look into this lead but, to Gastelum's knowledge,

Storey did not follow up on interviewing or subpoenaing Espinoza or Ruiz. Although

Storey's memory had faded and he could only recall some of the people he directed his

investigator to locate, he explained that it was pattern and practice to have his

investigator try to locate all witnesses at the scene, and to also have his investigator try to

locate and interview all people that Gastelum suggested might be helpful to the defense.

       Wallet, Storey's investigator, also did not have a specific recollection of all of the

people he tried to locate and interview. He had no specific memory of reading the police

                                               9
report containing Espinoza's claimed conversation with Ruiz, or of discussing Espinoza

with Storey, or of trying to develop the lead any further, but he explained that "it's not

that it didn't happen, I just don't remember it." Wallet testified he conducted over 20

interviews in connection with his investigation, some of which may have involved

multiple persons during a single interview, although many of the times the people refused

to speak with him. Wallet accompanied Storey for most of Storey's meetings with

Gastelum, and Wallet did investigate witnesses that Gastelum asked to be interviewed as

well as witnesses Storey suggested and that Gastelum had not identified. As a general

rule, Wallet tried to locate all of the persons mentioned in the discovery.

       B. The Trial Court's Ruling

       The trial court addressed and rejected Gastelum's claim--Storey did not adequately

investigate and interview other witnesses, and that constituted ineffective assistance of

counsel. The court noted Storey "made efforts to interview a number of people" and was

"dealing with a cold case that was four or five years old by the time he got it." The trial

court, after noting Gastelum had not located anyone or shown that "had they been called

they would have said something favorable or significant that would have made a

difference in this particular case," found Storey tried to interview all of the persons at the

scene of the shooting, which was "a good way to investigate a case and at least start out

and then . . . develop the case from there." Based on the trial court's review of the

discovery and the trial record, the trial court found Storey was "faced with a very

challenging case . . . an overwhelming case that appeared to be against [Gastelum]," and

Storey spent significant time investigating and preparing but did not finding "anything

                                              10
significant. In fact, as time goes on, the evidence gets worse" because Gastelum (in

addition to his "admissions to a number of witnesses") threatened a witness during trial.

       The trial court stated the "only argument . . . even coming close . . . [is] the issue

regarding the eyewitness identification expert." After noting Strickland 4 requires a

showing that failure to call an eyewitness identification expert fell below the standard of

care, the court concluded Storey made a judgment call on whether to call such an expert

and Strickland does not permit second-guessing of tactical decisions. The court noted

one of the eyewitnesses against Gastelum was Mr. Villa, who knew Gastelum and saw

him leave with Armenta and a gun and, within minutes of hearing about the shooting on a

police scanner, saw Gastelum and Armenta return and heard Gastelum brag about the

shooting. The trial court concluded there was nothing an eyewitness expert could have

accomplished because Villa knew Gastelum. The court also noted the other eyewitness,

Mr. Hernandez, was just feet from, and recognized, Gastelum when he fired the gun at

Hernandez. Based on all of the facts, the court was satisfied that Storey made an

informed decision not to call an expert because it could have harmed Gastelum's case.

       The court also noted the evidence against Gastelum was "overwhelming," because

a percipient witness placed Gastelum with Armenta immediately before and after the

shooting, another percipient witness at the scene identified Gastelum as the shooter,

witnesses heard his admissions about being the shooter, Armenta's letter implicated

Gastelum in the shooting, and Gastelum attempted to intimidate witnesses before and



4      Strickland v. Washington (1984) 466 U.S. 668.
                                              11
during trial. The trial court reasoned that, even had Storey made errors, they would have

to be deemed harmless.

                                             II

                                        ANALYSIS

       To establish ineffective assistance of counsel, Gastelum has the burden of showing

both that counsel's performance was deficient because it fell below an objective standard

of reasonableness under prevailing professional norms, and that it is reasonably probable

the verdict would have been more favorable to him absent counsel's error. (See, e.g.,

People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)

       When evaluating the first prong, "[w]e presume that counsel rendered adequate

assistance and exercised reasonable professional judgment in making significant trial

decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) "In evaluating a defendant's

claim of deficient performance by counsel, there is a 'strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance' [citations], and

we accord great deference to counsel's tactical decisions. [Citation.] . . . Accordingly, a

reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the

record on appeal affirmatively discloses that counsel had no rational tactical purpose for

his act or omission.' " (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on

other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To demonstrate

ineffective assistance based on an alleged failure to investigate, the defendant "must

prove that counsel failed to make particular investigations and that the omissions resulted



                                             12
in the denial of or inadequate presentation of a potentially meritorious defense." (In re

Sixto (1989) 48 Cal.3d 1247, 1257.)

       When assessing prejudice, the defendant must also "carry his burden of proving

prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors

or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.) In an

appropriate case, we may resolve an ineffectiveness claim on the ground of lack of

prejudice without determining whether counsel's performance was deficient. (Strickland

v. Washington, supra, 466 U.S. at p. 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)

       A. Failure to Call Eyewitness Expert

       Gastelum argues Storey's not calling an expert on eyewitness identification was

ineffective assistance of counsel. We are not persuaded by this argument for several

reasons.

       First, Storey explained he has used eyewitness experts in the past and considered

but rejected use of an expert, and explained his reasons for doing so: he believed the fact

that multiple witnesses identified Gastelum as the shooter, none of whose identifications

might have been impeded by cross-racial identifications and one of whom personally

knew him, coupled with the fact Gastelum was identified in a lineup, could have made an

eyewitness expert more helpful to the prosecution than to the defense. Storey determined

the safer approach was to cross-examine the witnesses to impeach the credibility of their

identifications, and did so in this case, and to employ closing argument to point out why

those identifications should be distrusted. Because we accord great deference to



                                              13
counsel's tactical decisions and will not second-guess those decisions, Gastelum has not

shown the first prong required to establish ineffective assistance of counsel.

       Second, Gastelum's showing below also did not establish the second prong,

because there was no evidence that not calling an expert resulted in the failure to present

a potentially meritorious defense. (In re Sixto, supra, 48 Cal.3d at p. 1257.) Gastelum's

new trial motion contained no expert declaration outlining what evidence an expert could

have been presented that would have undermined Villa's and Hernandez's identification

of Gastelum as the shooter, or that the "expert witness approach" (which apparently

attempts to show the witnesses honestly but mistakenly believed Gastelum was the

shooter) was so clearly superior to the strategy employed by Storey (which appeared to

attempt to show the witnesses were motivated to lie about Gastelum's involvement) that

Storey's tactical decision to pursue the latter rather than the former approach deprived

Gastelum of a potentially meritorious defense.

       We conclude Gastelum has not satisfied his burden of showing Storey's decision

not to call an eyewitness expert fell outside the wide range of reasonable professional

assistance to which Gastelum was entitled, or that the decision resulted in the failure to

present a potentially meritorious defense.

       B. Failure to Introduce Third Party Culpability Evidence

       Gastelum argues Storey provided ineffective assistance of counsel because he did

not investigate a report, made by a Mr. Espinoza when Espinoza was interviewed by

police in 2001, in which Espinoza claimed that some time after the shooting Mr. George

Ruiz told Espinoza that Ruiz and Armenta had been the persons who went to the party

                                             14
and it was Armenta who was the shooter. Gastelum argues that Storey's failure to

investigate and locate Espinoza and/or Ruiz, and to then subpoena them for trial to

introduce Ruiz's confession into evidence, constituted ineffective assistance of counsel.

       Gastelum correctly notes that failure to investigate potentially exculpatory

evidence can form the basis for an ineffective assistance claim. However, his claim here

is not persuasive because we are unconvinced Gastelum established either prong

necessary to an ineffective assistance claim.

       The first prong required him to show Storey "failed to make particular

investigations." (In re Sixto, supra, 48 Cal.3d at p. 1257.) Gastelum's argument on

appeal appears to be based on a factual predicate--i.e., Storey made no efforts to locate

Espinoza and/or Ruiz--apparently rejected by the trial court. Although the record

contains no express finding as to Storey's efforts to locate Espinoza and/or Ruiz, it does

contain a general recitation of the trial court's reasons for rejecting Gastelum's challenge

to the adequacy of Storey's attempts to locate a number of witnesses. Because we

indulge all intendments in support of the judgment, including implied factual findings for

which there is support in the evidence (see, e.g., People v. James (1977) 19 Cal.3d 99,

107 [on appeal all presumptions indulged in support of judgment and trial court's findings

whether express or implied must be upheld if supported by substantial evidence]), and

there was substantial evidence Storey made some efforts to find significant witnesses

identified by Gastelum, we presume the court impliedly found Storey made some efforts

to locate Espinoza and/or Ruiz. That finding is supported by the evidence that as a

general rule Wallet tried to locate all of the persons mentioned in the discovery, and

                                             15
Storey's testimony that it was his pattern and practice to have his investigator try to locate

and interview all people the defendant suggested might be helpful to the defense. To the

extent Gastelum's appellate argument on the first prong is based on the slightly distinct

argument that Storey made inadequate efforts to locate Espinoza and/or Ruiz, the trial

court specifically addressed and rejected Gastelum's claim that Storey failed to

adequately investigate and interview other witnesses, noting Storey "made efforts to

interview a number of people" and was "dealing with a cold case that was four or five

years old by the time he got it," and had spent significant time to investigate and prepare

but was unable to "find anything significant." This appears to constitute an implied

finding that Storey and his investigator did attempt to locate significant witnesses and

were simply unable to find Espinoza and/or Ruiz for purposes of subpoenaing them for

trial, and Gastelum produced no evidence in connection with his motion for new trial

showing that Ruiz and/or Espinoza was actually available and locatable. The trial court

rejected his showing on the first prong, and we defer to that factual determination.

       We are equally unconvinced Gastelum carried his burden as to the prejudice prong

from Storey's alleged failure to investigate, because we cannot conclude "there is a

reasonable probability--i.e., a probability sufficient to undermine confidence in the

outcome--that the additional evidence that might have been discovered would have

altered the result." (In re Fields, supra, 51 Cal.3d at pp. 1080-1081.) Gastelum's

showing below was that Espinoza claimed Ruiz told him Ruiz went to the scene with

Armenta, and that "Armenta pulled out a gun and opened fire." It is pure speculation

that, even assuming Storey had been able to locate and subpoena him for trial, Ruiz

                                             16
would have been willing to waive his Fifth Amendment privilege and testify he was with

Armenta when Armenta pulled out the gun and opened fire.5 (People v. Williams, supra,

44 Cal.3d at p. 937 [appellant must carry burden of proving prejudice as demonstrable

reality, not simply speculation as to the effect of counsel's errors].) Moreover, even

assuming evidence that Ruiz admitted to being present at the scene had been introduced

at trial, that evidence (although potentially inculpatory as to Ruiz) was not necessarily

exculpatory as to Gastelum because there was no evidence Ruiz told Espinoza that it was

only Ruiz and Armenta who went to the scene, and therefore it was not necessarily

inconsistent with Gastelum also accompanying Armenta to the scene.

       Finally, the second prong for an ineffective assistance of counsel claim requires

Gastelum to show that, but for counsel's purported error, there is a reasonable probability

the result of the proceeding would have been different. (People v. Sapp (2003) 31

Cal.4th 240, 263.) At the original trial, the defense introduced testimony from numerous

witnesses testifying (1) Gastelum was not there, (2) there were reasons to disbelieve


5       Gastelum asserts on appeal that, if Ruiz had been subpoenaed and either asserted
his Fifth Amendment privilege or was otherwise unavailable to testify, Espinoza could
have been subpoenaed to testify to Ruiz's statements because they would fall within an
exception to the hearsay rule as a declaration against Ruiz's penal interest under Evidence
Code section 1230. However, even ignoring that this argument speculates Storey could
also have located Espinoza, there was nothing in the police report showing Ruiz's
statements manifestly fell with the declaration against penal interest exception to the
hearsay rule. Ruiz's statements to Espinoza contained his admission he accompanied
Armenta to the scene; however, Ruiz's statements to Espinoza did not contain his
admission he accompanied Armenta knowing of Armenta's purpose or plan, which would
be an essential fact before Ruiz's statement would constitute an admission against his
penal interest. Accordingly, it is speculation that a court might have overruled a hearsay
objection to Espinoza's testimony about Ruiz's statements under the declaration against
penal interest exception.
                                             17
Hernandez's identification of the shooter, and (3) there were reasons to disbelieve Villa's

and Santoyo's testimonies implicating Gastelum.6 However, the jury apparently rejected

their testimonies and instead credited the testimony of Villa (who testified Gastelum left

with Armenta before the shooting and returned with Armenta minutes after the shooting,

and admitted to Villa to being the shooter), Hernandez (who identified Gastelum as the

shooter), and Santoyo (who testified that both Armenta and Gastelum told him Gastelum

was the shooter). It is not reasonably likely the result of the proceeding would have been

different even had the defense called another witness (Ruiz) to testify Gastelum was not

there and someone else was the shooter.

                                      DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


McINTYRE, J.




6     For example, a witness testified he was with Armenta at Armenta's house that
evening and neither Gastelum nor Villa was there, and a police witness testified Santoyo
changed his statement about Gastelum's admission to being involved.
                                            18
