People v. Gallardo

• Decision Date: 06 December 2017
• Docket Number: B269034
• Citation: 18 Cal.App.5th 51,226 Cal.Rptr.3d 699
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Angel GALLARDO et al., Defendants and Appellants.

18 Cal.App.5th 51

226 Cal.Rptr.3d 699

The PEOPLE, Plaintiff and Respondent,

v.Angel GALLARDO et al., Defendants and Appellants.

B269034

Court of Appeal, Second District, Division 7, California.

Filed December 6, 2017

Neil Rosenbaum, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant Angel Gallardo.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Michael Gallardo.

Tracy J. Dressner, La Crescenta, under appointment by the Court of Appeal, for Defendant and Appellant Smith Garcia.

Xavier Becerra, Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Stacy S. Schwartz, Deputy Attorney General; and John Yang, Deputy Attorney General, for Plaintiff and Respondent.

ZELON, J.

Appellants Angel Gallardo, Michael Gallardo and Smith Garcia were charged with one count of murder, two counts of attempted murder and one count of shooting at an occupied car. The prosecution alleged the appellants and a fourth co-defendant, Felipe Ramos, had jointly conducted a drive-by shooting of three rival gang members, one of whom died. The primary piece of evidence at trial was a surreptitiously-recorded jailhouse conversation between Angel Gallardo and two paid informants who were posing as inmates. During the conversation, Angel claimed that Michael drove Garcia to shoot the victims, while he waited around the corner in a second "getaway" vehicle. Co-defendant Ramos was not mentioned on the tape.

The jury convicted Smith Garcia of first degree murder, and Angel and Michael Gallardo of second degree murder. The jury also found appellants guilty of the remaining three counts. The jury could not reach a verdict with respect to Ramos.

On appeal, Garcia and Michael Gallardo argue the admission of Angel's jailhouse statement violated their Sixth Amendment rights under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ) and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ( Bruton ). Alternatively, they contend that portions of Angel's jailhouse statements which implicate them in the crime were improperly admitted against them as declarations against Angel's penal interest. Angel Gallardo argues the court should have excluded the entire recording under Penal Code section 4001.1, which places limits on law enforcement's use of in-custody informants. He further contends the court erred in instructing the jury on attempted premeditated murder.

We reverse the judgments against Garcia and Michael Gallardo, concluding that certain statements Angel made to informants regarding his co-defendants' role in the shooting constituted inadmissible hearsay. We affirm the judgment as to Angel.

FACTUAL BACKGROUND

A. Summary of Facts Preceding Trial

1. Summary of the shooting

On November 8, 2013, Antonio Flores, Raul Rodriguez and Raymond Rodriguez traveled to the Lumar Recycling Center on Alameda Avenue in Compton, California. All three men were affiliated with the "Lynwood Varrio Paragons" gang. Raul Rodriguez had several gang tattoos visible on his body, including the letters "LVP" on one arm and one leg, and the letter "P" on the right side of his neck.

At 3:09 p.m., the three men left the recycling facility in a white truck, and traveled northward on Alameda Avenue. Raul Rodriguez was driving the vehicle, Flores was in the front passenger seat and Raymond Rodriguez was seated in the back. Approximately two blocks north of the recycling facility, several bullets struck the driver side of their vehicle. Raul Rodriguez suffered gunshot wounds

to his head, neck and chest, and died from his injuries. Flores was hit three times in his back, but survived his injuries; Raymond Rodriguez was not injured. Immediately after the shooting, their vehicle collided with a car in front of them, and then crashed into a storefront.

Jacko Esqueda was a passenger in a truck headed north on Alameda Avenue at the time of the shooting. After hearing several gunshots, the driver stopped the truck. Esqueda saw a "silver-colored SUV" pass on the right side, and then turn right from Alameda Avenue onto El Segundo Avenue. Esqueda then felt a vehicle collide into the rear of the truck. Rachel Hilchey, who was also driving north on Alameda at the time of the shooting, heard several gunshots, and then saw a white truck crash into a storefront. Shortly after the crash, Hilchey saw a black car pass at a high rate of speed. Law enforcement found five nine-millimeter bullet casings at the scene of the shooting.

2. Summary of police investigation

a. Surveillance videos

The lead investigating officer, Los Angeles Sheriff's Department Sergeant Ken Perry, obtained surveillance video from the recycling facility that showed a gray Ford Explorer pulling into the parking area at 2:28 p.m., approximately 40 minutes before the shooting occurred. At 2:30 p.m., Felipe Ramos and Michael Gallardo were standing together inside the facility. Three minutes later, a white Ford Expedition pulled into the lot near the gray Ford Explorer. At 2:36 p.m., Raul Rodriguez, Raymond Rodriguez and Flores arrived at the facility in a smaller white SUV, which parked behind the gray Ford Explorer, and next to the white Expedition. The three men removed various items from their vehicle, walked past the Explorer and Expedition and then entered the facility. Shortly thereafter, the white Expedition left the recycling facility, and headed north on Alameda Avenue. At 2:48 p.m., the cashier paid Felipe Ramos for the recyclable items he had deposited. Three minutes later, the gray Explorer left the facility, and headed north on Alameda Avenue.

At 3:07 p.m., Raymond Rodriguez received payment for his recyclable items. Two minutes later, at 3:09 p.m., the white truck Raymond, Raul and Flores had arrived in left the facility, and headed north on Alameda Avenue. Shortly after they pulled out, a gray Ford Explorer turned right onto Alameda Avenue from a cross street located south of the recycling facility, and then continued traveling north on Alameda Avenue, past the recycling facility, at a high rate of speed. The video did not capture any image of the driver or the license plate.

Sergeant Perry also obtained surveillance video from a store located on the corner of El Segundo Avenue, which intersects with Alameda Avenue two blocks north of the recycling facility, and Santa Fe Avenue, which runs parallel to Alameda Avenue, one block to the east. At 2:54 p.m., the video showed a gray Ford Explorer traveling closely behind a white Ford Expedition, heading eastward on El Segundo Avenue toward Santa Fe Avenue. Based on the videos, Sergeant Perry suspected that the gray Ford Explorer left the recycling facility with the white Expedition, and then circled back to the recycling facility, and committed the shooting.

b. Collection of evidence implicating defendants

Sergeant Perry obtained a copy of a purchase ticket from the recycling facility reflecting Felipe Ramos's transaction on the day of the shooting. Perry directed another officer to the address Ramos had provided to the recycling facility, and instructed the officer to search for a gray Explorer. The officer traveled to the address, and saw a gray Explorer parked near Ramos's house. The vehicle was registered to the mother of Michael Gallardo. Using a government license plate scanning system, Perry determined the same vehicle had been parked outside the home of Michael Gallardo's girlfriend on the morning of the shooting. Law enforcement also determined Angel Gallardo owned a white Expedition.

On January 23, 2014, a Long Beach police officer conducted a search of a residence where Smith Garcia, who went by the name "Happy," and Angel Gallardo were present. The officer found a nine-millimeter handgun in the backyard of the property, and recovered Garcia's cell phone from a vehicle parked at the house. Subsequent ballistics testing showed the handgun was the same weapon that had fired the bullet casings found at the scene of the shooting.

Law enforcement downloaded data from Garcia's cell phone, which showed he had made numerous calls to numbers associated with Michael Gallardo and Angel Gallardo.¹ The data also showed that in the days after the shooting, Garcia's phone had been used to conduct several searches on YouTube referencing "Compton shooting," "Compton car to car shooting" and "Compton shooting 11-8-13."

Law enforcement also obtained data from cell phone numbers associated with Angel, Michael and Ramos. The data showed that between 2:24 p.m. and 3:30 p.m. on the day of the shooting, all of the phones had placed calls that were received on cell phone towers in the area of the shooting. Between 2:36 p.m. and 2:44 p.m., Michael and Ramos had exchanged a series of text messages, and between 2:47 p.m. and 2:50 p.m., Michael and Angel had exchanged multiple calls. Ramos's phone was also found to contain photographs of Angel and Michael; Garcia's phone contained pictures of himself, Angel and others throwing gang signs. Facebook data found on Angel's phone contained chats asserting he was with "Happy."

3. Statements from Angel and Felipe Ramos

a. Angel's jailhouse conversation

On May 21, 2014, Angel was being held in a county jail on charges unrelated to the shooting.² Sergeant Perry arranged to have two informants, both former members of the "Sureno" gang, placed in the cell with Angel to elicit information about the shooting. Perry provided the informants with details about the investigation so that they would be familiar with some of the names they might hear Angel use, and "know when they might be on the right track." Each informant was wearing a recording device, and was paid for their services.

After being placed in the cell, the informants initially talked to each other about their respective charges. They then asked Angel where he was from. Angel responded that he was from "Compton Largo," and went by "S...