Filed 1/8/16 P. v. Lopez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050865

         v.                                                            (Super. Ct. No. 10CF3188)

ISRAEL LOPEZ,                                                          OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Diane E. Berley, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Defendant Israel Lopez and codefendant Frankie Esteban Giraldo were
charged together in the information with the murder of Alejando Sanchez on October 13,
2010 (Pen. Code,1 § 187, subd. (a); count one). Defendant was also charged with being a
felon in possession of a firearm on October 13, 2010 (former § 12021, subd. (a)(1),
repealed by Stats.2010, ch. 711, § 4, eff. Jan 1, 2012; count two), and a number of
offenses alleged to have occurred on October 14, 2010, including attempted murder (§§
664, subd. (a), 187, subd. (a); count four), shooting at an occupied motor vehicle (§ 246;
count five), felon in possession of a firearm (count six), possession of heroin for sale
(Health & Saf. Code, § 11351; count seven), battery (§ 242, a misdemeanor; count eight),
and active participation in a criminal street gang (§ 186.22, subd. (a); count nine).2
Giraldo was charged in a separate count with possession of ammunition by a felon
(former § 12316, subd. (b)(1), repealed by Stats.2010, ch. 711, § 4, eff. Jan. 1, 2012;
count three). Firearm enhancements were alleged in connection with the murder and
attempted murder counts (§ 12022.53, subds. (c), (d)), and counts four, five, and six,
were alleged to have been committed for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1).) Defendant was further alleged to have suffered a prior conviction for a
serious felony within the meaning of section 667, subdivision (a)(1) and the “Three
Strikes” law. (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), and Giraldo was
alleged to have suffered a juvenile adjudication for a serious felony within the meaning of
the Three Strike law.
              Defendant filed a motion to sever the trial of the murder and felon in
possession charge (counts one and two) from the remaining charges, and to sever his trial


              1All undesignated statutory references are to the Penal Code unless
otherwise indicated.

              Count nine was dismissed when the prosecution conceded defendant’s
              2
section 995 motion insofar as it related to that count.


                                              2
from Giraldo’s. The court ordered counts four through eight severed from the trial on
counts one through three. Defendant was tried with Giraldo. Over defendant’s
Aranda/Bruton3 objection, the court permitted the prosecution to introduce Giraldo’s out-
of-court statement that the video of the shooting showed defendant, known to him as
“Marcos,” shooting Sanchez.
                The jury found defendant guilty of first degree murder and found true the
allegation that he personally discharged a firearm, causing death or great bodily injury in
the commission of the murder. Giraldo was acquitted. The issue of defendant’s prior
conviction was tried to the court. The court found the prior conviction allegations true.
The court sentenced defendant on the murder charge to 25 years to life, doubled to 50
years to life under the Three Strikes law, imposed a consecutive term of 25 years to life
on the firearm allegation, and an additional five-year term under section 667, subdivision
(a)(1), because defendant was found to have suffered a prior serious felony conviction.
Immediately thereafter, defendant pled guilty to count five, admitted the offense was
committed for the benefit of a criminal street gang, and admitted his prior conviction in
exchange for a concurrent term in state prison. Counts four, six, seven, and eight, and the
attached enhancements were dismissed on the prosecutor’s motion.
                On appeal, defendant contends the trial court erred in admitting Giraldo’s
out-of-court statement in violation of Aranda/Bruton. We agree the trial court erred, but
we conclude the error was harmless beyond a reasonable doubt, given the particular facts
of this case.




                3   People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968)
391 U.S. 123.


                                               3
                                             I
                                         FACTS
              On October 13, 2010, at approximately 7:30 p.m., Sanchez entered a
Mexican bakery on West Edinger in Santa Ana. He was using his cell phone. Sanchez
went to the area where the coffee was kept. As he was preparing his coffee, a second
male, later identified as defendant, entered the bakery, approached Sanchez from behind,
pointed a gun at Sanchez, and shot him multiple times. Sanchez fell to the floor on his
back. Walking “a bit fast,” defendant left the bakery, but returned to where Sanchez was
on the floor, and aimed his gun at Sanchez again, but did not fire. Defendant then left the
bakery.
              The owner of the bakery called the police. When the police arrived,
Sanchez was on the ground next to a container of spilled milk, a number of spent bullet
casings, and a cell phone. Sanchez died at the scene from multiple gunshot wounds. A
search of Sanchez’s clothing produced three syringes, a clear baggie containing 45 small
bindles of heroin, another baggie containing 16 larger bindles of heroin, over $1,800 in
cash, an SD card for a cell phone, and two additional cell phones. A narcotics officer
stated Sanchez had possessed the heroin for sale.
              The bakery had a video surveillance system that recorded the shooting. It
showed a silver automobile enter the parking lot. Seconds later, a red Chevrolet Blazer
entered the parking lot. Shortly thereafter, Sanchez approached the bakery’s door that
opens onto the parking lot with what appears to be a cell phone in his left hand. He
appeared to be speaking into the cell phone. Sanchez then entered the bakery and walked
to the drink area to make himself a cup of coffee. During that time he appeared to be on
the cell phone again, cradling it to his left ear. Two men approached the bakery’s door to
the parking lot together as Sanchez turned to get milk for his coffee. One entered the
bakery and watched the other continue walking, where he apparently entered through



                                             4
another door to the bakery. The bakery had two doors, one facing Edinger Avenue and
the other facing the parking lot.
                As Sanchez was pouring the milk into his coffee, the male who entered
through the door facing Edinger Avenue approached Sanchez from behind, aimed a pistol
at him and shot him. The first male immediately left the bakery and quickly walked back
in the direction from which both had approached. The shooter exited right behind him,
walking in the same direction, and then turned around and reentered the bakery. A
witness said he returned to where Sanchez was on the ground and attempted to shoot him
again. The shooter exited the bakery again and ran in the direction from which he and the
other male had approached the bakery.
                Police found two cars in the parking lot and had them towed as possible
evidence. One of the vehicles was a silver Honda. The Honda had a set of keys on its
backseat. A fingerprint was lifted from the right side mirror. The print was from
defendant’s left thumb. DNA was obtained from exterior and interior areas of the Honda.
A buccal swab was obtained from defendant. Defendant could not be eliminated as the
source of DNA found on the steering wheel and the exterior of the driver’s door. The
chance that the DNA had been left by someone other than defendant was less than one in
one trillion.
                Police showed a witness to the shooting a photo lineup containing six
photographs, one of which was of defendant. The witness identified defendant and
appeared to become frightened. Another witness also identified defendant as the shooter.
                Police arrested defendant on October 14, 2010. At the time of his arrest, he
possessed two notebooks, about $232 in cash and eight grams of heroin divided into
separate bindles. A narcotics expert stated the notebooks contained what appeared to be
pay/owe sheets. The expert opined that defendant possessed the heroin for sale.
                On December 8, 2010, a detective contacted Giraldo at his residence a short
distance from the bakery. A red Chevrolet Blazer was parked in Giraldo’s driveway.

                                              5
Giraldo was taken into custody and questioned. After he was advised of and waived his
Miranda4 rights, Giraldo said the Blazer belongs to his father and identified a photograph
of the Blazer taken from the bakery surveillance video on the night of the shooting.
Giraldo admitted he drove the Blazer to the bakery that night. He also admitted he was at
the bakery on the night of the killing and identified himself on what must have been a
photograph taken from the bakery’s surveillance video. He said he ran into someone he
knew. Giraldo said he knows the person as “Marcos.” Marcos had been sitting in a
parked car before Giraldo met him that night, and was outside the car when they met.
They both entered the bakery and Giraldo got into line to buy bread.
             Giraldo said he knew Sanchez and that Marcos used to work for Sanchez,
selling heroin. When Marcos worked for Sanchez, Giraldo said he would call Marcos for
heroin and Marcos would either meet him at the bakery or, if no one else was home at
Giraldo’s residence, Marcos would bring the heroin to his residence. Giraldo said he saw
Marcos earlier that day and asked whether he had any heroin. Marcos told him he did
not, but that he was going to get some from Sanchez down the street from Giraldo’s
house. Knowing such exchanges were made at the bakery—Giraldo knew Sanchez buys
coffee at the bakery—Giraldo went there and decided to get some bread while he was
there.
             Sanchez was at the coffee station when Giraldo was standing in line for
bread. A “couple seconds” later, Giraldo heard gunshots. He said he turned and ran.
When he was shown a photograph apparently taken from the surveillance video and
asked what it showed, Giraldo said it showed Marcos shooting Sanchez.




             4   Miranda v. Arizona (1966) 384 U.S. 436.

                                            6
                                              II
                                       DISCUSSION
              Giraldo did not testify at the trial. During the joint trial, the prosecutor
introduced into evidence Giraldo’s statement that he met “Marcos” at the bakery and that
Marcos shot Sanchez. The jury was instructed the evidence was admitted solely against
Giraldo and admonished not to consider the evidence in deciding defendant’s guilt.
Defendant contends the introduction of Giraldo’s statement violated his right to
confrontation under the state and federal Constitutions.
              In Bruton v. United States, supra, 391 U.S. at pages 123-124, the issue was
“whether the conviction of a defendant at a joint trial should be set aside although the
jury was instructed that a codefendant’s confession inculpating the defendant had to be
disregarded in determining his guilt or innocence.” After recognizing that juries may
generally be relied upon to follow a court’s admonition to ignore specific inadmissible
evidence, the Bruton court stated: “Nevertheless, as was recognized in Jackson v. Denno
[(1964) 378 U.S. 368], there are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so vital to the
defendant, that the practical and human limitations of the jury system cannot be ignored.
[Citations.] Such a context is presented here, where the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial. Not only are the
incriminations devastating to the defendant but their credibility is inevitably suspect, a
fact recognized when accomplices do take the stand and the jury is instructed to weigh
their testimony carefully given the recognized motivation to shift blame onto others. The
unreliability of such evidence is intolerably compounded when the alleged accomplice, as
here, does not testify and cannot be tested by cross-examination. It was against such
threats to a fair trial that the Confrontation Clause was directed. [Citation.]” (Bruton v.
United States, supra, 391 U.S. at pp. 135-136, fns. omitted.)

                                              7
              People v. Aranda, supra, 63 Cal.2d 518, presaged the high court’s decision
in Bruton. In Aranda, a jewelry store was robbed by two men. (People v. Aranda, supra,
63 Cal.2d at pp. 521-522.) Police found fingerprints of Martinez at the store. Martinez
and Aranda were both subsequently arrested and Martinez confessed. (Id. at p. 522.)
The officer who took Martinez’s confession testified that Martinez said on the date of the
robbery “‘that he and Chop Chop, meaning defendant Aranda,’” robbed the jewelry store.
(Id. at p. 522, fn. 1.) It is evident from the officer’s testimony that Martinez never
referred to defendant by name and only referred to him as Chop Chop. (Ibid.) The
Aranda court held it was error, in a joint trial, to admit a confession of a nontestifying
codefendant implicating the defendant. The court concluded such an error is “not
necessarily cured by an instruction that it is to be considered only against the declarant.
[Citations.]” (Id. at p. 526.)5
              “The Aranda/Bruton rule addresses a specific issue that arises at joint trials
when the prosecution seeks to admit the out-of-court statement of a nontestifying
defendant that incriminates a codefendant. As we have observed, ‘“Aranda and Bruton
stand for the proposition that a ‘nontestifying codefendant’s extrajudicial self-
incriminating statement that inculpates the other defendant is generally unreliable and
hence inadmissible as violative of that defendant’s right of confrontation and cross-
examination, even if a limiting instruction is given.’ [Citation.]” [Citation.] The United
States Supreme Court “limited the scope of the Bruton rule in Richardson v. Marsh
(1987) 481 U.S. 200 . . . . The court explained that Bruton recognized a narrow
exception to the general rule that juries are presumed to follow limiting instructions, and
this narrow exception should not apply to confessions that are not incriminating on their
face, but become so only when linked with other evidence introduced at trial.


              5  To the extent Aranda precludes the introduction of evidence that would
not violate the federal Constitution, “it was abrogated in 1982 by the ‘truth-in-evidence’
provision of Proposition 8.” (People v. Fletcher (1996) 13 Cal.4th 451, 465.)

                                              8
[Citation.]”’ [Citations.] The high court went on to hold in Richardson that admission of
a nontestifying codefendant’s confession against the defendant does not violate the
defendant’s confrontation right if the confession is redacted to eliminate not only the
defendant’s name but any reference to his existence. [Citation.] ‘When, despite
redaction, the statement obviously refers directly to the defendant, and involves
inferences that a jury ordinarily could make immediately, even were the confession the
very first item introduced at trial, the Bruton rule applies and introduction of the
statement at a joint trial violates the defendant’s rights under the confrontation clause.’
[Citation.]” (People v. Capistrano (2014) 59 Cal.4th 830, 869, italics added.) “The
Aranda/Bruton rule ‘declares that a nontestifying codefendant’s extrajudicial self-
incriminating statement that inculpates the other defendant is generally unreliable and
hence inadmissible as violative of that defendant’s right of confrontation and cross-
examination, even if a limiting instruction is given.’ [Citation.]” (People v. Lopez (2013)
56 Cal.4th 1028, 1053.)
              Years after its decision in Bruton, the Supreme Court was called upon to
determine whether the confession of a nontestifying codefendant could be introduced in a
joint trial if the statement was “redacted to omit any reference to the defendant, but the
defendant is nonetheless linked to the confession by evidence properly admitted against
him at trial.” (Richardson v. Marsh (1987) 481 U.S. 200, 202.) In Richardson, three
individuals were involved in a multiple murder/robbery. (Ibid.) Marsh and Williams
were tried together, but the third individual, Martin, was a fugitive at the time of trial.
(Id. at pp. 202-203.) Williams did not testify at trial, but his confession was admitted
over Marsh’s objection. (Id. at pp. 203-204.) The confession had been redacted to
remove any reference to Marsh. As redacted, the confession stated Williams and Martin
committed the crimes and that Martin was the killer. (Id. at p. 203, fn. 1.) The jury was
instructed that Williams’s confession was admitted against him, but was not admitted into
evidence against Marsh. (Id. at p. 204.)

                                               9
              Marsh testified at trial. She said she was in a car with Martin and Williams
on the drive to the residence where the crimes took place and heard the two talking, but
did not hear what they were talking about. She claimed she did not know what was going
to happen at the residence. (Richardson v. Marsh, supra, 481 U.S. at p. 204.) The
Supreme Court found “an important distinction between” the facts in Bruton and those
present in Richardson, “which causes it to fall outside the narrow exception” of Bruton.
(Richardson v. Marsh, supra, 481 U.S. at p. 208.) The court stated the confession in
Richardson, unlike the confession in Bruton, “was not incriminating on its face, and
became so only when linked with evidence introduced later at trial (the defendant’s own
testimony).” (Ibid., fn. omitted.) Based on that distinction, the Supreme Court found the
trial court did not err in admitting Williams’s confession. (Id. at p. 211.)
              Richardson left open the question of whether of “the admissibility of a
confession in which the defendant’s name has been replaced with a symbol or neutral
pronoun.” (Richardson v. Marsh, supra, 481 U.S. at p. 211, fn. 5.) The high court
answered that question in Gray v. Maryland (1998) 523 U.S. 185, 196, when it held
Bruton applies to “statements that, despite redaction, obviously refer directly to someone,
often obviously [the defendant], and which involve inferences that a jury ordinarily could
make immediately, even were the confession the very first item introduced at trial.”
Giraldo’s statements come within Gray’s ambit. His statement clearly referred to another
individual. When asked what the video from the bakery showed, Giraldo said it showed
the person he knew as “Marcos” (defendant) shooting Sanchez.
              The Attorney General argues Giraldo’s statement did not implicate
defendant and consequently, it was not testimonial and therefore did not violate Bruton.
Additionally, it is argued the curative instructions given to the jury “cured any potential
harm,” and any error was harmless.
              Giraldo’s statement did implicate defendant. He referred to defendant by
the name he knew him, just as the codefendant in Aranda did in that case. (People v.

                                             10
Aranda, supra, 63 Cal.2d at p. 522, fn. 1 [identified Aranda as “Chop Chop”].) It is
evident from the transcript of Giraldo’s statement that he was shown a photograph from
the video of the shooting. The jury, of course, saw the video as well. Giraldo identified a
photograph from the video as the shooter, Marcos.
              The Attorney General’s argument that Giraldo’s statements were not
testimonial because the statements were not offered against defendant is without merit.
Such an argument, if accepted, would mean Bruton has become a dead letter. The
evidence in Bruton was not offered against Bruton. Just as in this matter, the jury in
Bruton was instructed the evidence was admissible only against the nontestifying
declarant who made the statement, not the other defendant. Absent a statement from the
United States Supreme Court overruling Bruton, we reject the argument.
              The fact that the jury was instructed to only consider the evidence in
determining the guilt of the nontestifying declarant and not to consider the evidence in
deciding the case against defendant does not render the error harmless. (Bruton v. United
States, supra, 391 U.S. at p. 137 [“in the context of a joint trial we cannot accept limiting
instructions as an adequate substitute for petitioner’s constitutional right of cross-
examination”].) We therefore must determine whether other facts demonstrate beyond a
reasonable doubt defendant was not prejudiced by admission of Giraldo’s out-of-court
statements. (Chapman v. California (1967) 386 U.S. 18, 24.)
              We conclude the error was harmless. The video showed the shooting of
Sanchez. His killer was in the video. The issue was the identity of the shooter.
Although Giraldo identified the shooter as the person known to him as “Marcos,” that
fact did not help the jury determine whether defendant was the person seen in the video
shooting Sanchez. That decision was informed by the jury’s viewing the shooter in the
video, looking at defendant in the courtroom, and considering the fact that defendant’s
fingerprint was on the outside and his DNA was found inside the silver Honda driven to
the scene by the shooter. The fact that Giraldo stated the photograph depicted Marcos

                                              11
shooting Sanchez did not add anything to the jury watching the video of the shooting. A
different result would follow if identity from the video was difficult and Giraldo
identified the shooter as Marcos after having been shown a photographic lineup in which
he identified defendant as the person he knows as “Marcos.” However, given the fact
that did not occur, defendant was identified by witnesses to the crime, the video showed
defendant shooting Sanchez, and defendant’s DNA was found in the vehicle driven to the
scene of the crime by the shooter, Giraldo’s statement that “Marcos” shot Sanchez does
not appear to have contributed to the jury’s verdict.
                                             III
                                      DISPOSITION
              The judgment is affirmed.




                                                   MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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