People v. Zumaya
| Decision Date | 09 July 2010 |
| Docket Number | B215810,No. GA068911,GA068911 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL ZUMAYA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Nguyen, Judge. Affirmed with directions.
A jury found Jose Zumaya guilty of the attempted first degree murder of Traveon Jones and found true the enhancement allegations that he personally used a firearm in commission of the crime, committed the crime for the benefit of, at the direction of, and in association with a criminal street gang, and participated in a crime in which a coprincipal intentionally discharged a firearm. He was sentenced to life in prison on the attempted murder charge, plus a consecutive sentence of 20 years for the co-principal's discharge of a firearm, and given delayed parole eligibility as a gang enhancement.
Zumaya contends the trial court improperly allowed the prosecution to admit new evidence in its rebuttal case and amend the information late in the proceedings. He further contends the trial court improperly imposed the delayed parole eligibility term.
We affirm.
On February 25th, 2007, Jones was walking on Huntington Drive in Duarte when he saw two men in a stopped car looking at him. Two to three minutes later he saw the car again, now ahead of him, stopped in the middle of the street. The car had "two to three" other people in it. Defendant emerged from the car and approached with his hand under his shirt. Thinking defendant had a gun, Jones turned and ran away. He heard five or six gunshots from behind but was not injured. The shooting was witnessed by Juanita Small, who was driving on Huntington Drive and had come to a stop behind the car defendant had exited. After the shooting, the driver got out of the car and opened the back door on the driver's side to let defendant get in. Small testified the car held three people, including defendant. Defendant and the driver, Gordy Abriel, were arrested in Pomona later that day.
The one-count information charged defendant with attempted murder. (Pen. Code, §§ 664, 187, subd. (a).)1 It was alleged defendant personally used a firearm within themeaning of section 12022.53, subdivision (b), committed the crime in association with and for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C), and participated in a crime in which "a principal" personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1). Defendant pleaded not guilty and denied the enhancement allegations.
At trial, Jones and Small identified defendant as the shooter. Detective Rodriguez testified, as a gang expert, that defendant was a member of the Duarte Eastside street gang. Defendant had identified himself as a member of the gang to police on two prior occasions and had several tattoos stating his gang affiliation. Defendant's companions in the car, Abriel and Virginia Gallagher, defendant's fiance, were also members of Duarte Eastside. At the time of the attack, the Hispanic members of Duarte Eastside were rivals with the Du Roc Crips, a primarily Black gang. The shooting occurred "right in the middle of both gangs' areas." Detective Rodriguez opined that any acts of aggression carried out by Duarte Eastside members against Blacks would benefit the gang. Jones is a Black man.
The defense was mistaken identity. Defendant admitted he was present at the shooting, driving a two-door Honda Civic that also included Gallagher, two young children, Abriel, and a friend of Abriel's. Abriel's friend rode in the front passenger seat and Gallagher, Abriel and the two children (in car seats) rode in the back seat, Gallagher on Abriel's lap. Defendant testified that when he stopped at a stoplight, Abriel's friend left the car without warning and started shooting at Jones. Abriel followed. Defendant called Abriel back to the car and then himself got out so he could pull the driver's seat forward to let Abriel back in. He then drove away, leaving Abriel's friend behind. Defendant did not know the friend's name. Defendant denied being a member of Duarte Eastside.
The jury found defendant guilty as charged and found the enhancement allegations to be true. The trial court sentenced defendant to prison for life with a minimum parole eligibility of 15 years for the attempted murder conviction, plus 20 years for the gun enhancement.
Defendant contends the trial court erred in allowing the prosecution to introduce evidence concerning his telephone conversations from jail, that was not produced in discovery until the end of trial. We disagree.
While defendant was in jail awaiting trial he had made several telephone calls to Gallagher and at least one to his sister. The conversations were recorded. After conclusion of defendant's testimony, the prosecution indicated it intended to call Detective Rodriguez as a rebuttal witness to testify about statements defendant had made about his gang membership while in jail. The prosecution admitted it had not produced audio recordings of defendant's jail conversations between November 2007 to January 23, 2008 because the recordings had been purged in the regular course of business. Concerning those conversations, the prosecution possessed only notes detective Rodriguez had made while listening to the recordings. The recording of conversations occurring from January 23 to March 23, 2008 had not been purged. The prosecution contended it produced this recording, but the defense contended it never received it. The prosecution untimely produced Rodriguez's notes and another copy of the recording.
Defendant's counsel moved to exclude all testimony concerning defendant's jail conversations on the ground that evidence of the conversations was not produced until very late in the trial. Counsel argued that if he had received the discovery earlier, defendant's testimony would have addressed issues raised by the conversations, or he might not have testified at all. The court denied the motion to exclude but granted the defense a continuance to review the evidence and gave defense counsel an opportunity to reopen his direct examination of defendant to "front" the issues raised by the jail conversations. Defense counsel opted not to reopen.
On further cross-examination, defendant was asked whether in a phone conversation from jail he referred to a fellow inmate as a "nigger." Defendant responded, He testified on redirect examination that he had had a phone conversation with his sister while in jail, in which he referred to her as "nigga." He testified his sister is not Black.
Defendant was asked by the prosecution whether he went by the gang moniker "Villain" when speaking to Gallagher on the phone. He said he did not.
Finally, defendant was asked whether he had talked to Gallagher about gang members in jail being obligated to contribute to a "kitty," i.e., make a payment of goods to a high-ranking gang member in jail. He denied any such conversation took place, testifying that in jail, a kitty is simply a collection of gambling stakes, and has nothing to do with gang membership.
After close of defendant's testimony, Detective Rodriguez testified as a rebuttal witness. He stated that in a conversation occurring on January 15, 2008, defendant had told Gallagher he was in charge of the "kitty," goods collected from gang members for the benefit of a high-ranking gang member in jail. Detective Rodriguez testified only gang members were obligated to contribute and only a gang member who was held in high esteem would be put in charge of the goods. According to Rodriguez, defendant also expressed concern about Gallagher testifying in his upcoming trial. She reassured him she would "plead the Fifth," i.e., not testify.
At the close of evidence, the trial court instructed the jury regarding the prosecution's untimely disclosure of evidence, as follows: (CALCRIM No. 306.)
At least 30 days before trial, the prosecuting attorney must disclose to the defendant "[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged." (§§ 1054.1, subd. (c), 1054.7.) If it fails to do so, the court may make "any order necessary," including ordering immediate disclosure or delaying or prohibiting the testimony of a witness or presentation of evidence. (§ 1054.5, subd. (b).) "The court may prohibit the testimony of a...
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