Filed 12/10/15 P. v. Rosales CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B257795

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA420199)
         v.

ARMANDO ROSALES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Anne H.
Egerton, Judge. Affirmed.


         John P. Dwyer, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


                                  ________________________________
       Armando Rosales seeks review of a judgment which sentences him to state prison
for 50 years to life for the murder of Jose Chavez. He contends on appeal that a chief
witness’ testimony was rendered involuntary by the interrogation tactics of two detectives
from the Los Angeles Police Department (LAPD) and that the trial court should have
allowed defense counsel to impeach another witness’ testimony. We affirm the
judgment.
                                         FACTS
       Jose Chavez was shot seven times on June 27, 2012, while on a stairway linking
two streets in Echo Park. Rosales was arrested on June 29, 2012, and charged with
Chavez’s murder (Pen. Code, § 187, subd. (a)).1 The information also alleged firearm
and criminal street gang enhancements (§§ 12022.53, subds. (b)-(d) & 186.22, subd.
(b)(1)(C)).
       A jury trial began on April 22, 2014. The prosecution presented evidence that
Rosales shot Chavez because Chavez stole his black Nike shoes. When Rosales
confronted him, Chavez returned the shoes. However, Rosales remained angry at Chavez
and Rosales was incited to shoot him by 14-year-old Elvis Mejia. Statements to the
police by witnesses shortly after the shooting supported the prosecution’s theory of the
case. However, these witnesses, including Rosales’ friend, Eric Patterson, and Rosales’
fiancée, Maria Gamez, recanted their statements at trial, explaining they were coerced by
the police during the interviews into implicating Rosales.
       Patterson testified he heard gunshots, but otherwise did not know anything about
the shooting. However, Patterson previously told the LAPD detectives in an interview
that Rosales shot Chavez over the stolen shoes. At trial, Patterson admitted making those
statements, but explained he only did so because he felt threatened by the detectives.
When Rosales was arrested, he was a passenger in Gamez’s car, which contained a pair
of black Nike shoes belonging to Rosales. Gamez and Rosales had dated briefly during
high school and kept in touch. Gamez told the police Rosales admitted he shot someone

1      All further section references are to the Penal Code unless otherwise specified.

                                             2
and he was running away. At trial, Gamez, who was now Rosales’ fiancée, recanted her
statements to the police. She testified she repeated what the detectives told her to say
because they threatened to book her as an accessory to murder. In a videotaped interview
two days after the shooting, Mejia told the police Rosales shot Chavez because he stole
Rosales’ shoes. This videotape was shown to the jury. At trial, Mejia testified he was the
shooter, but otherwise refused to answer any questions.
       Selene Castellanos, Chavez’s ex-girlfriend, testified she saw Rosales and Mejia
follow Chavez down the stairway minutes before the shooting. Juan Segovia was in the
park across the street with his wife and son when he heard gunshots. He saw a body
lying on the stairs. He also saw two young Hispanic men of average build and height
with short hair running down the stairs and under a freeway overpass. One of them was
carrying a handgun. Segovia did not identify the men. Eight-year-old Rene V.
corroborated Segovia’s observations. He heard loud sounds “like fireworks” and saw
“two guys shooting another guy.” He then watched two men running away. Rene
observed that one of them had a gun. It was stipulated that Rene identified Patterson at a
field show-up as the man without the gun. Rene also identified Rosales in a photographic
lineup. However, Rene failed to identify Mejia in a photographic lineup and did not
identify Rosales at trial.
       Rosales’ defense centered on the theory that Castellanos, Rosales’ ex-girlfriend,
was angry that Rosales was in “her” neighborhood. As a result, she arranged for him to
be attacked by Echo Park gang members, but did not expect they would kill him. She
told police, “They didn’t have to kill him, they were looking for him.” Both Patterson
and Mejia told the police Chavez was afraid of the Echo Park gang.
       The jury returned a verdict finding Rosales guilty of murdering Chavez and further
found true the special firearm and street gang allegations. Rosales was sentenced to an
aggregate term of 50 years to life for the murder conviction and the firearm enhancement.
The gang enhancement was stayed. He timely appealed.




                                             3
                                       DISCUSSION
       Rosales contends two errors require reversal of his conviction. First, the trial court
erred when it admitted Patterson’s statements to the police into evidence because they
were coerced. Second, defense counsel should have been allowed to cast doubt on
Castellanos’ credibility with her sexual advances toward a detective during trial.
We conclude neither supports reversal.
I.     Patterson’s Statements
       A. Procedural Background
       Patterson was placed at the scene of the crime by the eight-year-old eyewitness.
Patterson had no criminal history. He was detained on the day of the shooting for
possession of brass knuckles, but was brought in for questioning about the shooting.
After waiving his Miranda2 rights, Patterson submitted to a recorded interview with the
police where he identified Rosales as the shooter.3 At trial, Patterson recanted his
statements to the police and testified he did not see the shooting but only heard a number
of gunshots. He denied knowing anything about the shooting. He testified he only
implicated Rosales because the police threatened him during the interview.
       By way of impeachment and as substantive evidence of guilt, the prosecutor
submitted into evidence a transcript of the prior statements made by Patterson to the
police. In the video-recorded interview, the detective indicated, “I’m pretty positive you
know why we’re here[,]” even before Patterson was Mirandized or questioned. The
detectives then advised Patterson, “I need to let you know that it’s going to be the only
time you have a chance to basically give your side of the story. I think, you know, you
just got screwed, basically at the wrong place at the wrong time.” Patterson initially
denied knowing anything about the shooting. He had just moved into the area a few
months ago. He heard five or six gunshots while walking around the neighborhood.


2      Miranda v. Arizona (1966) 384 U.S. 436.
3      At trial, Patterson testified he asked to speak to his father prior to the interview,
but that request was refused.

                                               4
       When Patterson continued to deny any knowledge of the shooting, the detectives
warned him, “right now we’re going down the accessory road, accessory to commit this
crime, because you continue to lie to us about it.” Patterson reluctantly admitted he had
been smoking marijuana with two guys, “Mando” and Elvis. They were joined later by a
fourth person, Chavez, with whom Mando and Elvis appeared friendly. He continued to
deny knowing who shot Chavez. At one point, however, Patterson admitted it was
“most likely” one of the “kids” he had been hanging out with that day.
       During the interrogation, Patterson acknowledged he was unwilling to identify
anyone as the shooter because he feared retaliation. The detectives assured him they
would not name him as the one who “talked” to the other suspects. When he continued to
deny knowing the shooter, the detectives again threatened him: “You know right now
you can be charged with a crime; right?” The detectives indicated witnesses placed
Patterson at the scene of the crime and Patterson had a picture of him with Rosales on his
phone throwing gang signs for Big Top. They also lied and told him that gunshot residue
had been recovered from his hand and arm. As a result, they believed Patterson was
“either a witness, a really good witness, or an accomplice to this.” They continued to
pressure him, telling him, “Somebody had a gun there. You know which one of these
guys had the gun. . . . If you want to sit here and keep shit to yourself, tell us. We’ll just
take you down and book you and photograph you, fingerprint you, and you go to trial.”
       After these threats, Patterson immediately identified Rosales as the shooter.
He explained he had been with Rosales and Mejia when they happened upon Chavez,
who complained to them about his girlfriend cheating on him. Chavez also believed she
and her brother were trying to get the Echo Park gang to “jump” him. At some point,
Chavez asked Rosales to buy blunt wraps at the medical marijuana dispensary for him.
Patterson accompanied Rosales on the errand. On the way, Rosales told Patterson that
Chavez stole his shoes from his back porch. When Rosales confronted Chavez, he gave
them back. However, Rosales was still angry about it. Patterson knew Rosales had a gun
because he had shown it to him earlier in the day.



                                              5
       After smoking marijuana with Rosales, Patterson and Mejia, Chavez left.
Rosales and Mejia discussed following him and shooting him. Patterson counseled
Rosales to drop the matter, but Mejia encouraged him to do it. Patterson saw Rosales and
Mejia standing and talking with Chavez. He also saw Rosales confront Chavez with a
gun but did not see him shoot the gun.
       B. Relevant Law and Standard of Review
       The “ ‘ “admission at trial of improperly obtained statements [of a third party]
which results in a fundamentally unfair trial violates a defendant’s Fifth Amendment
right to a fair trial.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 966.) Thus, “when the
defendant seeks to exclude a third party’s pretrial statement which was obtained through
unlawful police coercion the defendant need only prove the unlawful coercion. If he does
so, the evidence is deemed ‘inherently unreliable.’ ” (People v. Lee (2002) 95
Cal.App.4th 772, 788 (Lee) quoting People v. Badgett (1995)10 Cal.4th 330, 347
(Badgett).) “The statement of a suspect or witness is coerced if it is the product of police
conduct which overcomes the person’s free will.” (Lee, supra, at p. 782, fn. omitted.)
       In deciding if a defendant’s will was overcome, courts examine “ ‘all the
surrounding circumstances—both the characteristics of the accused and the details of the
interrogation.’ ” (In re Shawn D. (1993) 20 Cal.App.4th 200, 208.) Thus, the person’s
“age, sophistication, prior experience with the criminal justice system and emotional
state” are considered as well as whether officers deceived the witness, made promises of
leniency, employed psychological manipulation, or threatened to take official action
against the witness or someone close to him. (Id. at p. 210; Lee, supra, at p. 782; Lynumn
v. Illinois (1963) 372 U.S. 528, 534.)
       On the other hand, “California courts have long recognized it is sometimes
necessary to use deception to get at the truth. Thus, the courts have held, a ‘deception
which produces a confession does not preclude admissibility of the confession unless the
deception is of such a nature to produce an untrue statement.’ It is also well established
exhortations directed to the suspect or witness to ‘tell the truth’ are not objectionable.”
(Lee, supra, 95 Cal.App.4th at p. 785, fns. omitted.) Deception may be considered in

                                              6
deciding whether the totality of the circumstances indicate that the confession was
involuntary. (People v. Hogan (1982) 31 Cal.3d 815, 840-841 disapproved on different
grounds by People v. Cooper (1991) 53 Cal.3d 771, 836; People v. Engert (1987)
193 Cal.App.3d 1524.) “ ‘[M]ere questions, or exhortations to tell the truth or clear
[one’s] conscience or help [one]self by revealing facts as to the dominant part of
[a codefendant] or some other person in the criminal enterprise’ ” are insufficient:
“ ‘[I]ntellectual persuasion is not the equivalent of coercion.’ [Citation.]” (People v. Hill
(1967) 66 Cal.2d 536, 548-549.)
       As the facts regarding the interrogation are not in dispute, we independently
review the entire record to determine whether a witness’ statement was coerced, so as to
render the defendant’s trial unfair. (Lee, supra, 95 Cal.App.4th at p. 781; Badgett, supra,
10 Cal.4th at pp. 350-351.)
       C. Analysis
       Here, Patterson was questioned about the shooting because a witness identified
him as one the men fleeing the scene of the crime. Rosales complains that the officers
coerced Patterson into identifying him as the shooter by lying about the results of the
gunshot residue test and by threatening Patterson with arrest for being an accessory to the
crime. Further, Rosales contends Patterson’s fear of criminal prosecution, his youth, and
his lack of experience with the criminal justice system supports a finding that his
statements were involuntary.
       In Lee, supra, 95 Cal.App.4th at pp. 783-785, the court faced a similar issue—
whether to exclude a witness’ prior statement to the police which implicated the
defendant. There, the sole witness to a murder was interrogated by a polygraph
examiner, who initially extolled the accuracy of the polygraph technology to the witness.
He then misled the witness to believe the polygraph results indicated there was a 97
percent probability the witness was the shooter. (Id. at p. 783.) Finally, he threatened the
witness with a first degree murder prosecution unless he identified the defendant as the
killer. (Id. at pp. 784-785.) The polygraph examiner provided the witness with the name
of the defendant and the potential motive. (Ibid.)

                                              7
         The appellate court held the statements were inherently unreliable, highly
prejudicial to defendant, and had to be excluded under the Due Process Clause.
The officer went beyond mere deceit in accusing the witness of killing the victim.
The interrogation of the witness was not designed to produce the truth as the witness
knew it but to produce evidence to support a version of events the police had already
decided upon. (Lee, supra, at p. 786.) As a result, the trial court erred in admitting the
witness’ statement to the police. (Ibid.) Given the lack of evidence of defendant’s guilt,
the court found the error was not harmless beyond a reasonable doubt. (Id. at pp. 788-
789.)
         The interrogation in this case differs from the interrogation in Lee in an important
aspect: The interrogation was not designed to produce evidence to support a version of
events the police had already decided upon. Unlike in Lee, the officers did not provide
Patterson with Rosales’ name or a potential motive. Patterson, while initially reluctant to
tell the police anything, eventually identified Rosales himself and attributed a motive for
the shooting. The police did not urge him to adopt a version of events they had in their
minds.
         Moreover, the detectives did not deceive Patterson when they read Penal Code
section 32 to him and warned him, “right now we’re going down the accessory road,
accessory to commit this crime, because you continue to lie to us about it.” Under
section 32, “[e]very person who, after a felony has been committed, harbors, conceals or
aids a principal in such felony, with the intent that said principal may avoid or escape
from arrest, trial, conviction or punishment, having knowledge that said principal has
committed such felony or has been charged with such felony or convicted thereof, is an
accessory to such felony.” At the time of the interview, a witness had identified
Patterson as one of the men fleeing the scene of the crime. Further, Patterson was
discovered with a weapon—brass knuckles. The detectives had reason to believe
Patterson was involved in the shooting. Unlike in Lee, their factual description of the
potential criminal charges Patterson faced falls within the bounds of proper interrogation
technique. (See People v. Boyer (2006) 38 Cal.4th 412, 445 [“There is nothing

                                               8
improperly coercive about confronting a lesser participant in a crime with his or her
predicament, and offering immunity from prosecution for the witness’s criminal role in
return for the witness’s promise to testify fully and fairly.”].)
       Neither are we persuaded the detectives’ deception about the results of the gunshot
residue test rendered Patterson’s subsequent identification of Rosales as the shooter
involuntary. In People v. Parrison (1982) 137 Cal.App.3d 529, 537, the police falsely
told the defendant a gun residue test had produced a positive result. The court held this
did not overbear the defendant’s will; “[t]hey made no promises to him nor did they
threaten him. They simply informed him, albeit incorrectly, of the test results and waited
for his reaction.” (Id. at p. 537.) Although Patterson testified at trial he feared the threats
made by the detectives, he never communicated this fear during the interrogation.
Instead, he told the detectives he feared reprisal from Rosales and Mejia. Given the
totality of the circumstances surrounding Patterson’s statements, we conclude the
LAPD’s interrogation techniques did not overbear Patterson’s will.
       We likewise distinguish the cases relied upon by Patterson. In each, the police
employed overbearing and false tactics like those used in Lee to elicit a confession from
the defendant. In In re Roger G. (1975) 53 Cal.App.3d 198 (Roger G.), for example, the
defendant was a 17-year-old minor who possessed a pistol which ballistics testimony
concluded had a 50-50 possibility of being the murder weapon. Further, eyewitness
testimony was “somewhat equivocal” in identifying him as the shooter. (Id. at p. 200.)
       The officers told the defendant he could be tried as an adult and receive a life
sentence if he refused to confess. They told him he might be incarcerated for “ ‘seven or
eight or ten or life, you know . . .’ ” and said, “ ‘. . . it’s gonna help you out for a chance
of probation or getting parole if you are honest about the thing. . . . [but] if you go in
there . . . and . . . try to cover up, do you think we’d give you a chance at probation or
parole? No way.’ ” (Roger G., supra, at pp. 200-201.) They then told him he had a
chance of probation or parole if he confessed. (Id. at p. 201.) The appellate court found
the confession to be involuntary, reasoning. “While the interrogating officers used bare
language informing Roger that they could not promise probation or parole, they made it

                                               9
crystal clear to him that he had no hope of anything other than incarceration if he did not
confess. Worse, the interrogators sought to convey to the juvenile that as police, they had
the power to determine whether he would be tried as an adult and possibly sentenced to
state prison for life, and that they would exercise the power if he did not admit his part in
the crime.” (Id. at p. 203.)
         People v. McClary (1977) 20 Cal.3d 218 (McClary) overruled on another ground
by People v. CaHill (1993) 5 Cal.4th 478, 510 is also unpersuasive. McClary involved a
16-year-old suspect. During an interview, the interrogating officers ignored her repeated
requests to talk to a lawyer, and falsely told her that she would face the death penalty
unless she changed her statements she had not been involved. The officers also strongly
implied that she would be charged only as an accessory after the fact if she admitted mere
knowledge of the murder. (McClary, supra, 20 Cal.3d at p. 229.) The Supreme Court
found the confession was not voluntary. (Ibid.) This matter does not involve the same
level of deceit and threats detailed in Roger G. and McClary.
II.      Castellanos’s Conduct
         At trial, the jury learned that Castellanos and Chavez lived together for several
years and had three children. Castellanos testified she saw Rosales and Mejia follow
Chavez down the stairway minutes before the shooting. On the second day of her
testimony, a LAPD detective drove Castellanos to an appointment during the lunch
recess. That detective was also involved in the case, having participated in the
investigation into the shooting. On the way to and from the appointment, Castellanos
grabbed the detective’s crotch and asked, “are you down?” The detective rebuffed her
advances and explained to her that her conduct was inappropriate and could jeopardize
the case and his employment. He reported the two incidents to the LAPD and to the
court.
         Defense counsel sought to ask the detective about the incidents during his
testimony. The trial court sustained the prosecution’s objection on Evidence Code
section 352 grounds for undue consumption of time and the extensive collateral
proceedings that would be required. Rosales contends the trial court erred in excluding

                                              10
this evidence. He notes that Castellanos appeared on the stand to be genuinely grieving
Chavez; she cried each time his name was mentioned or his photograph shown.
He contends that precluding Rosales from admitting evidence that may have shown
Castellanos’ grief was contrived deprived him of “critical evidence that would have given
the jury a reason to believe the defense theory of the case that Castellanos was behind
Chavez’s death.”
       Evidence of the incident between the detective and Castellanos was relevant to
Castellanos’ credibility. A witness’ demeanor “bears on the credibility and weight the
trier of fact accords the witness’s testimony.” (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1358; Evid. Code, § 780.) The trial court, however, has discretion to
“exclude evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v.
Scott (2011) 52 Cal.4th 452, 493; Evid. Code, § 352.) We review a trial court’s ruling
under Evidence Code section 352 for an abuse of discretion. (People v. Mills (2010)
48 Cal.4th 158, 195.)
       Here, even if the trial court’s exclusion of the evidence was error, it was harmless.
We determine whether the erroneous exclusion of evidence is harmless under the
standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Welch
(1999) 20 Cal.4th 701, 749; see also People v. Cudjo (1993) 6 Cal.4th 585, 611.) Under
the Watson standard, Rosales must show a reasonable probability that he would have
received a more favorable result absent the error. (Watson, supra, at p. 36.)
       Evidence of Rosales’ guilt was strong. Multiple witnesses placed Rosales at the
scene. Patterson and Mejia reported to detectives that Rosales had a gun, had motive,
and had the opportunity to shoot Chavez. Each of them independently told detectives the
same story—that Rosales shot Chavez because he was angry about the stolen shoes.
Both Mejia and Patterson also indicated they feared retaliation for incriminating Rosales
and then recanted their statements at trial. Gamez supported their statements by telling



                                             11
the police Rosales admitted to shooting someone mere days after Chavez’s death. A pair
of black Nike shoes was also found in her car at the time Rosales was arrested.
       Segovia and Rene’s testimony further corroborated Patterson and Mejia’s account
of the shooting. They observed two young Hispanic men run down the stairs where the
shooting took place. Rene also was “100 percent sure” that Rosales was the man with a
gun in a photographic lineup. Although there were inconsistencies as to Rene’s
identification, such as his identification of Patterson as one of the young men running
down the stairs and failure to identify Rosales at trial, those factors were explored at trial.
       Moreover, the jury heard testimony Castellanos and Chavez had been broken up
for two years prior to the shooting. They did not have a friendly relationship; she did not
want him in her neighborhood and went so far as to ask her neighbors to alert her to his
presence in Echo Park. Chavez complained that Castellanos and her brother asked Echo
Park gang members to “jump” him. In fact, Rosales’ defense was centered on the theory
that Castellanos inadvertently orchestrated the shooting by sending Echo Park gang
members to harass Chavez. This evidence of Castellanos’ animosity towards Chavez at
the time of the shooting more powerfully impeached her credibility than evidence of her
sexual conduct two years after his death. Thus, there was not a reasonable probability
that he would have received a more favorable outcome absent the error.
       Rosales contends we must base our harmless error analysis on the federal standard
articulated in Chapman v. California (1967) 386 U.S. 18, because his constitutional rights
were violated. Given the facts stated above, it was harmless error to exclude the evidence
even under the higher Chapman standard.
III.   Cumulative Error
       For the reasons discussed above, we find the trial court did not err in admitting
Patterson’s statements to the police into evidence. Moreover, the exclusion of evidence
regarding the incident between Castellanos and the detective was harmless error. Thus,
we reject defendant’s contention that cumulative error mandates reversal. (People v.
Williams (2013) 56 Cal.4th 165, 201.)



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                                 DISPOSITION
     The judgment is affirmed.


                                               BIGELOW, P.J.
We concur:


             RUBIN, J.




             FLIER, J.




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