People v. Zavala

Decision Date22 October 2013
Docket NumberH036028
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MARK ANDREW ZAVALA, et al., Defendants and Appellants.
CourtCalifornia Court of Appeals


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County

Super. Ct. No. CC813723)

Following a jury trial, defendants Mark Andrew Zavala, Scott Alan Hensley, and Jonathan David Rodriguez were convicted of three counts of robbery (counts one through three) (Pen. Code, §§ 211-212.5, subd. (c))1 and defendants Zavala and Hensley were also convicted of assault with a firearm (count four) (§ 245, subd. (a)(2)). For all of the crimes of which defendants were convicted, the jury found true the criminal street gang allegations (§ 186.22, subd. (b)(1)(C)). As to counts one through three, the jury found true that defendant Zavala had personally and intentionally discharged a firearm (§ 12022.53, subd. (c) and (b)) and that both defendants Hensley and Rodriguez were principals in the offense and at least one principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) and (e)(1).) The jury also found true that defendantZavala had personally used a firearm in the commission of the assault (count four) within the meaning of section 12022.5, subdivision (a).

Defendant Hensley admitted a prior conviction within the meaning of Three Strikes law (§§ 667, subd. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and two prior prison term allegations (§ 667, subd. (b)). Defendant Rodriguez admitted a prior prison term allegation (§ 667, subd. (b)).

The court sentenced defendant Zavala to a total prison term of 33 years, defendant Hensley to a total prison term of 31 years, and defendant Rodriguez to a total prison term of 22 years.

Each of the defendants appeals and raises multiple contentions. We affirm the judgments.

IProcedural History

By first amended information filed on January 15, 2010, defendants were charged with committing three counts of second degree robbery (§§ 211-212.5) against three victims, specifically Mitchell French (count one), Richard Dowdy (count two), and Jeffrey McBee (count three), on or about July 23, 2008. Defendants Hensley and Zavala were charged with committing an assault with a firearm upon Joseph Esquibel (§ 245, subd. (a)(2)) on the same date (count four). The information contained gang and other sentence enhancement allegations against defendants and a Three Strikes allegation against defendant Hensley.

Before trial, defendant Hensley filed in limine motions to exclude hearsay evidence of prior offenses and activities allegedly connected to him and to bifurcate the trial of the gang enhancement allegation (§ 186.22, subd. (b)). Defendant Zavala also filed a motion in limine to exclude gang-related evidence on the ground that there was no evidence the charged crimes were gang related or alternatively, to bifurcate the trial ofthe gang enhancement allegations. Defendant Rodriquez's counsel joined in the other defendants' motions. The court denied the motions to exclude gang evidence and to bifurcate the trial.

Defendant Zavala then filed a separate motion to exclude all references by Sergeant Livingston, the prosecution's gang expert, to accusatory statements made by Kyle Moneyhun and recited in Campbell Police Department reports because their admission would violate his right to confrontation under the Sixth Amendment as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813 (Davis).

A jury was selected. Trial commenced on April 7, 2010.

On April 8, 2010, toward the end of the testimony of French, one of the alleged victims, an issue arose regarding his conduct in front of the jury while under oath as a witness. The trial court separately spoke with two jurors, Jurors No. 9 and 5, excused Juror No. 9, denied requests to excuse Juror No. 5 and Jurors No. 2, 3, and 6, and denied motions for mistrial.

On April 9, 2010, out of the presence of the jury, the trial court disallowed Sergeant Livingston from testifying as to Moneyhun's statements.

The jury returned guilty verdicts and true findings against all defendants.

A. Prosecution's Case

At trial, R.B., who was then 18 years old, testified that he had been a friend of Kyle Moneyhun, whose street name was Ghost. Before the robbery, R.B. was living on the streets and spending most of his time with Moneyhun. At that time, R.B. was "kick[ing] it with northerners." Most of the people with whom he hung out were affiliated with northerners.

Earlier on the day of the robbery, R.B. and Moneyhun went to Michelle's house, where they had been four or five times before, to drink. Everybody there was drinking. R.B. drank beer and smoked a joint.

While at Michelle's house, R.B. heard people "talking about doing a robbery." One of the people was Mark, who had dark skin and a ponytail called a "chongo" at the back of his head. R.B. had heard other people refer to Mark as "Little Savage."

Moneyhun was the person who came up with the idea of robbing a marijuana dealer named Mitch. Moneyhun had met Mitch through R.B. and both of them had bought marijuana from Mitch, who sold it from his garage. R.B. knew that Mitch had a safe, in which he kept his marijuana, in his garage. Around July 2008, R.B. was smoking marijuana daily, sometimes more than once a day. R.B. did not want to be involved in the robbery because Mitch was a "good drug dealer" and he wanted to continue buying from him. He was also concerned that Mitch would be able to identify him.

In addition to Mark, J-Dog, and Michelle were among those who "wanted in" on the robbery. R.B. had met Mark and J-Dog once or twice before. Mark and Michelle had an argument about her participation because "she had a little kid." Mark told Michelle that she could not go and Michelle seemed upset. There was discussion about the need for cars to get away. The plan was to call SJU, the San Jose United gang, to obtain one or two cars for the robbery. Michelle was going to make that call to a friend. R.B. heard talk about obtaining guns. Mark indicated that he was willing to shoot if he had to. Mark left Michelle's house to get a gun.

At some point, everybody else left Michelle's house. Moneyhun and R.B. went to the light rail station. R.B. received a call from his friend Gabby, who lived next door to Mitch, while they were waiting for the light rail. Gabby had been Moneyhun's girlfriend for a while. Barrgan and Moneyhun took the light rail downtown, where they waited to be picked up.

The next day, R.B. and Moneyhun returned to Michelle's house. As they were leaving, the police arrived and they were taken to the downtown Campbell Police Department. R.B. was interviewed by an officer. He remembered telling officers that someone named J-Dog had been part of the discussion. R.B. testified that he did not want to be a snitch then and he did not want to be a snitch at trial.

R.B. testified that he did not recognize Mark or J-Dog in court but R.B. also remarked that the men looked different because their hair had grown out. At trial, R.B. picked out Mark, who had been at Michelle's house, from a six-photograph lineup, which was admitted into evidence. R.B. initially denied mentioning the name Peanut to police. After looking at the transcript of his recorded police interview, R.B. acknowledged that it appeared he had said Peanut was the person who would get the cars but he did not remember saying so and he did not know Peanut.

Jeffrey Allen McBee testified that, at roughly 6 p.m. on July 23, 2008, he was at his friend Mitchell French's house on Jones Way in Campbell.2 French had a recording studio in his detached garage. A male named Richard (also known as Oso) was there.

Around 6 p.m., McBee left French's detached garage and walked to the street, where he came upon four people, one woman and three men. It was a very bright summer day. At trial, McBee had no doubt that the three defendants were the three men in that group. McBee "got a strange vibe" from the group and asked, "What's happening, guys?" McBee had known French since high school and he knew most of his friends but he had not seen these individuals before.

McBee followed the group, which had entered French's backyard unannounced. McBee heard someone asking in a loud voice for Craig. McBee peered into the backyard from the gate and saw French standing outside the doorway to the garage. The people inthe group were walking around the backyard, "checking out things," and asking for Craig. McBee estimated he was 15 to 20 feet from defendant Hensley and the others. French was telling them that there was no Craig there and they needed to get out of his backyard.

The group left the backyard and filed past McBee. McBee saw them head down the sidewalk toward the next door neighbor's house. When McBee asked who those people were, French said, " 'I have no idea who those guys were.' " McBee and Richard remained with French in the garage.

Sometime later, defendant Zavala, who McBee described as Hispanic, stepped into the garage, signaled them to be quiet by putting his finger to his lips, and pulled out a revolver, which "looked like a snub nose .38 caliber pistol." Richard hit the deck and lay down. Defendant Zavala ordered McBee to get down on the ground but McBee was paralyzed in fear. Defendant Hensley entered the doorway and blocked the exit. Hensley was holding a pistol and pointed it at French. Someone commanded McBee to " 'put his stuff out on the table.' " McBee complied and put his cell phone on an electrical spool table.

Defendant Zavala said to McBee, "Get the fuck down or I'll blow...

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