P. v. Rodriguez

Filed 4/1/09 P. v. Rodriguez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
SALVADOR RODRIGUEZ,
Defendant and Appellant.
B196535
(Los Angeles County
Super. Ct. No. YA062740)
APPEAL from a judgment of the Superior Court of Los Angeles County,
William R. Hollingsworth, Judge. Affirmed, as modified.
Patricia A. Scott, 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, Senior Assistant Attorney General, Linda C.
Johnson, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________

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Salvador Rodriguez appeals from the judgment entered after his conviction by a
jury on one count of murder and three counts of attempted murder with true findings by
the jury on related gang and weapon enhancement allegations. Rodriguez contends he
was prejudiced by the erroneous admission of a videotaped interview of a witness who
testified against him at trial and by the trial court‟s refusal to allow him to reopen
testimony. He also challenges the calculation of his sentence. We modify the judgment
to correct his sentence and, as modified, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting
On the night of December 19, 2004 Rene Elias and Alberto Aragon, members of a
tagging crew known by its initials “SAP,” were spray-painting walls on Imperial Avenue
near Van Buren Street in south Los Angeles. Rene‟s brother, Luis Elias,1 and Alex
Contreras were parked and waiting for them nearby in a green Buick. As a white van
with brown stripes drove by, Rene and Aragon headed back to the waiting car. The van
stopped in front of the Buick about 30 to 40 feet away; and two people, a tall, brown-
skinned male with a shaved head, wearing a white shirt and holding a chrome revolver,
and a short, Hispanic male wearing a hooded sweater, got out. The man with the gun
began shooting as Rene climbed into the back seat and Aragon reentered the front
passenger seat of the Buick.2 Luis, the driver, ducked to avoid the gunshots, and began
backing down the street. After driving away, the young men flagged down a police car.
Aragon, who had been hit in the head by a single gunshot, was dead.
1 Because Rene and Luis share the same last name, we refer to them by their first
names, not out of disrespect but for convenience and clarity. (Cruz v. Superior Court
(2004) 120 Cal.App.4th 175, 188, fn. 13.)
2 A woman driving past the scene largely confirmed this account of the shooting,
although she mistook Rene, who wore his hair long, for a woman. Some testimony
suggested there may have been a third person who got out of the van and that at least two
weapons were fired. These factual variances do not affect the resolution of this appeal.

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2. The Investigation
In an initial interview with Los Angeles Sheriff‟s Department detectives after the
shooting, Rene described the shooter as a tall, slim, dark-complexioned male about 18
years old wearing a white shirt and gray pants. Luis gave a similar description, adding
that the shooter‟s head was shaved. The second shooter, also a brown-skinned male, was
very short, “almost like a kid.” Rene reviewed some photographs in a book provided by
the detectives but stated he could not identify anyone.
Several days after the shooting deputy sheriffs observed graffiti in two different
places in the neighborhood that appeared to refer to the shooting. The first stated, “RIP
SAP Jackel,” which was understood to mean “Rest in peace, SAP tagger Jackel,” the
moniker for Aragon. The second featured the letters “CRS,” a reference to a local gang
known as the Crazy Riders, followed by the letters “SAP,” which had been crossed out,
and the number 187, a reference to the Penal Code section for murder. A deputy reported
this graffiti to the detectives investigating the Aragon murder, who interpreted it to mean
a CRS member had killed, or had wanted to kill, an SAP member.
About the same time, Detective Michael Valento, a deputy sheriff assigned to the
Lennox station gang detail, reviewed another deputy‟s report of a December 1, 2004
incident at a home three blocks from the scene of the shooting. The deputy had
interviewed a number of young men at the home, including Rodriguez, who admitted his
membership in the CRS gang, and Gabriel Flores, who was a member of a tagging crew
known as a rival of SAP‟s. In a conversation with the reporting deputy, Valento was told
the deputy had logged the license plate of a white van parked in front of the home. After
tracing the license plate, Valento learned the van was registered to Flores‟s father.
Valento drove to the residence and photographed the van.
In an interview with detectives on December 29, 2004, Rene identified the van in
the photograph as the one involved in the shooting and stated he was certain about the
identification. He also stated he had seen someone who looked like the shooter with
other members of the CRS gang at an automobile body shop located on Vermont Avenue

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at 95th Street.3 According to Rene, CRS and SAP had been “slashing” or crossing out
each other‟s graffiti for the past month.
On the evening of December 30, 2004 a patrolling sheriff‟s deputy saw fresh
graffiti on a bus stop depicting the letters “CRS.” The deputy approached a group of
Hispanic males standing nearby to inquire about the graffiti. When they saw the patrol
car, the members of the group scattered into an adjacent parking lot. Because the deputy
had observed one of the men, later identified as Edwin Morales, holding a revolver that
he discarded as the deputy approached, the deputy chased Morales and detained him.
Morales, who was on probation for felony possession of a sawed-off shotgun, was
arrested on a charge of possession of a loaded handgun while on probation. Rodriguez
was also interviewed at the scene and acknowledged his membership in the CRS gang,
but was not arrested.
The revolver recovered from the parking lot, a stainless steel .357 magnum,
contained six bullets and matched the description of the gun used in Aragon‟s murder.4
The next day Morales was interviewed by Detective Valento and two detectives from the
sheriff‟s homicide unit investigating Aragon‟s murder. In a videotape that was played for
the jury at trial, Morales denied he was a member of CRS and claimed to know nothing
about the gun, insisting he had never touched it. Instead he told the detectives he had run
because he had been smoking marijuana, also a potential probation violation, and had
thrown the joint, not the gun, to the ground as he ran toward the parking lot. The
detectives pressured him to talk more openly, warning him the revolver had been used in
a murder and had been seen in his possession and clearly implying he could be charged
with the murder, even though they later acknowledged at trial he did not resemble the
3 According to testimony at trial, Rodriguez‟s father owned the body shop, which
was frequented by Rodriguez and at least four of his brothers, in addition to other CRS
members.
4 At trial a ballistics expert testified the bullet fragments retrieved from Aragon‟s
head were fired by the gun recovered on December 30, 2004. No fingerprints were found
on the gun or on the bullets.

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description of either perpetrator. Morales continued to deny any knowledge about the
gun or the murder, and the interview was terminated.
Detective Valento initially left the room with the other detectives. When he
returned to escort Morales back to his holding cell, Morales offered to talk to Valento if
Valento would help him. After Valento restarted the video camera, Morales told him his
mother lived in the apartment building he had been standing near when he was arrested.
While waiting for his mother, Morales said, he had been with his nephew, a CRS gang
member; Rodriguez, a CRS member Morales knew as “Lazy”; Rodriguez‟s brother
Manuel, known as “Flaco”;5 and another gang member Morales knew as “Red Eyes.” As
they stood and talked, Flaco raised his shirt to reveal a gun tucked into his waistband; and
Lazy said he had “done another job with that one.” Lazy, Flaco and Red Eyes had been
driving around and saw some “enemies” tagging a wall on Imperial. Lazy got out and
shot someone from SAP in the head. Morales told Valento Lazy and Flaco were CRS
members and he was afraid they would target him or his family for retribution. He also
identified photographs of Lazy, Flaco and other CRS gang members and told Valento
Lazy stayed with his girlfriend, the sister of Gabriel Flores, at the Flores home. After the
interview, Morales directed Valento to the Flores home where the white van was parked.
On January 4, 2005 Detective Valento and the homicide detectives again
interviewed Rene and Luis Elias. Valento inserted photographs of the Rodriguez
brothers in the collection of photographs for Rene to review. Rene, however, refused to
look at the book, stating he was afraid to leave his children without a father. He would
not indicate whether he recognized a particular photograph Valento pointed out to him.
A search warrant was executed at the Flores home on January 11, 2005. Deputies
found two notebooks containing gang symbols and graffiti and photographs depicting
Salvador Rodriguez displaying CRS gang signs. The white van, in which spray paint
5 A deputy sheriff testified Manuel Rodriguez had acknowledged his gang
membership and moniker in a stop some months before the murder. The deputy recorded
Manuel‟s height at the time as 5 feet, 4 inches. Manuel Rodriguez was tried concurrently
with Salvador Rodriguez but is not a party to this appeal.

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cans were found, was also impounded. Rodriguez was arrested following the search.
Another search warrant was executed at the Rodriguez family home, where deputies
found bullets for a .357 magnum revolver.
On January 13, 2005 Detective Valento, accompanied by the assistant district
attorney assigned to the case, again interviewed Morales. This interview was also
videotaped. During the first portion of the interview, Morales recounted the statements
he had previously made to Valento concerning Rodriguez‟s description of the shooting.
After Morales finished answering questions about the case, Valento and the prosecutor
advised him he would have to testify in court and that Rodriguez, his brother Manuel and
Gabriel Flores had been arrested and charged with murder “because of a bunch of other
circumstances.” Because Morales‟s name was not yet “out there,” they said, if he was
willing to work with them, he and his family could be moved to a different residential
area for their safety. When Morales admitted he was afraid, the prosecutor explained,
“move your mom, move you, and then, you know, we‟re hoping that you‟ll cooperate
with us, because . . . you‟ve been totally truthful, you said what happen[ed], you said
your prints weren‟t going to be on the gun, they‟re not on the gun. And so . . . we‟ll
never have to file the case on you, but we do want to know that you‟re going to cooperate
with us.” The prosecutor continued, “We‟re just trying to tell you that, you know, you
were helpful, you were honest, so we‟re going to let the gun thing slide, but we got to
know that you‟re going to cooperate. So do you feel like either of us are threatening you
in any way?” Morales answered he did not feel threatened but wanted to talk with his
mother before committing to testify for the prosecution. The prosecutor reiterated the
suspects did not yet know about Morales; and Valento concurred, stating he would never
do that because “they” could go “switch” his mother “right now.” Valento and the
prosecutor also warned Morales to stay out of the gang life when he moved because he
would be killed if he came back to the neighborhood. They concluded the interview after
discussing logistics related to moving Morales‟s family.

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3. The Trial
Rene and Luis Elias and Alex Contreras all testified reluctantly at trial and
professed to remember little about the night of the shooting. Rene volunteered he was
drunk that night and had been drunk frequently during that period of time. None of the
victims identified Salvador Rodriguez or his brother Manuel as the perpetrators.
Excerpts from the videotapes of Rene‟s and Luis‟s interviews with the detectives were
played for the jury, and transcripts of those excerpts were marked as exhibits and
provided to the jury.
Morales testified for the prosecution. In support of his testimony, and with no
objection from the defense, the prosecutor played the entire videotape of his first
interview with detectives. Predictably, he was subjected to intensive cross-examination,
most of it focused on his own motivation to avoid being charged with murder and the
People‟s grant of immunity in exchange for his testimony. The defense also impeached
him with inconsistent statements he had made during his second interview with Detective
Valento and the prosecutor. The prosecutor then called various sheriff‟s deputies as
witnesses, who recounted the results of their investigation. Finally, she called Valento to
testify and proffered the videotape of the second interview she and Valento had
conducted of Morales. Defense counsel objected to use of the videotape, arguing it was
improper on numerous grounds, particularly because it included the prosecutor‟s
statements vouching for Morales‟s truthfulness. The trial court overruled the objections.
After the tape was played, the court denied a defense motion to strike the tape in its
entirety but offered to caution the jury not to consider as evidence any statements made
by the prosecutor. The defense accepted the instruction, albeit reserving multiple
objections to the evidence.6 At the close of the People‟s case, defense counsel renewed
their objections. The prosecutor offered to submit herself for cross-examination and
justified the admission of the tape under Evidence Code section 356, relating to use of an
6 The transcript of the videotape provided to the jury was edited to remove the
prosecutor‟s statements related to Morales‟s truthfulness.

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entire communication after a part has been received in evidence, or as a prior consistent
statement. The court denied the defense motion to exclude the tape.
Rodriguez did not testify in his own defense. One of his brothers, Ismael, a former
CRS member, and a second CRS member each testified Morales himself was a member
of CRS known as “Diablo,” an allegation Morales had denied under cross-examination.
Rodriguez‟s sister, Maria, testified she saw Detective Valento speaking to Rene, Luis and
Contreras in an aggressive manner. According to her, Valento swore at them and
directed them to accuse Rodriguez. On redirect Valento denied swearing at the
witnesses, stating he had always had a friendly relationship with them.
The jury convicted Rodriguez on one count of murder (Pen. Code, § 187, subd.
(a))7 and three counts of attempted murder (§§ 187, subd. (a), 664) and also found true
the allegations a principal had personally discharged a firearm causing death or great
bodily injury as to the murder count (§ 12022.53, subds. (d), (e)(1))8 and had personally
discharged a firearm in the commission of the attempted murders (§ 12022.53, subds. (c),
(e)(1)). In addition, the jury found true the allegation the offenses had been committed
for the benefit of a criminal street gang (§ 186.22, subd. (b)). Rodriguez was sentenced
to an aggregate state prison term of 165 years to life.
CONTENTIONS
Rodriguez contends (a) numerous statements in the unredacted videotape were
inadmissible hearsay and unduly prejudicial under Evidence Code section 352, and their
admission into evidence violated his federal constitutional rights to due process and
confrontation; (b) the trial court‟s cautionary instruction did not cure the prosecutor‟s
7 Statutory references are to the Penal Code unless otherwise indicated.
8 Section 12022.53, subdivision (e)(1), creates an exception to the personal use
requirement of section 12022.53, subdivisions (b) through (d), stating, “The
enhancements provided in this section [concerning use or discharge of a firearm] shall
apply to any person who is a principal in the commission of an offense if both of the
following are plead and proved: [¶] (A) The person violated subdivision (b) of Section
186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision
(b), (c), or (d).”

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improper vouching for Morales‟s credibility; (c) the court erred in refusing to allow his
counsel to reopen the defense case and examine a final witness; (d) the court improperly
sentenced him to a consecutive 10-year term on the criminal street gang enhancement;
and (e) the abstract of judgment must be corrected to reflect the proper terms of the
restitution and parole revocation fines.
DISCUSSION
1. Admission of the Entire Videotape Did Not Unduly Prejudice Rodriguez or
Violate His Constitutional Rights
We review a trial court‟s determination as to the admissibility of evidence for
abuse of discretion (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Karis (1988)
46 Cal.3d 612, 637) and the legal question whether admission of the evidence was
constitutional de novo (People v. Cromer (2001) 24 Cal.4th 889, 893-894; People v.
Mayo (2006) 140 Cal.App.4th 535, 553).
a. There was no violation of Rodriguez’s right to confrontation9
Rodriguez contends the admission of the videotape, which itself constituted
hearsay10 and was inadmissible unless admitted pursuant to a valid exception, violated his
Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S.
36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). In Crawford the United States
Supreme Court held use of an out-of-court statement that is testimonial in nature is
prohibited by the Sixth Amendment‟s confrontation clause, whether or not the statement
is inherently reliable or meets an established exception to the hearsay rule, unless the
witness is unavailable and the defendant has had a prior opportunity to cross-examine the
9 We do not separately address Rodriguez‟s contention his due process rights were
violated because that argument presumes the evidence was inadmissible under some state
rule of evidence. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65
L.Ed.2d 175] [misapplication of state law constitutes deprivation of liberty interest in
violation of due process clause].)
10 See Evidence Code, section 1200, subdivisions (a) (“„[h]earsay evidence‟ is
evidence of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter asserted”); and (b) (“[e]xcept
as provided by law, hearsay evidence is inadmissible”).

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witness. (Crawford, at p. 61 [“[w]here testimonial statements are involved, we do not
think the Framers meant to leave the Sixth Amendment‟s protection to the vagaries of the
rule of evidence, much less to amorphous notions of „reliability‟”].) The Supreme Court
later provided some guidance as to when statements are testimonial and when they are
not: “Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822
[126 S.Ct. 2266, 165 L.Ed.2d 224].)
The statements contained in the challenged videotape were unquestionably
testimonial in nature. Nonetheless, “when the declarant appears for cross-examination at
trial, the Confrontation Clause places no constraints at all on the use of his prior
testimonial statements. . . . The Clause does not bar admission of a statement so long as
the declarant is present at trial to defend or explain it. . . .” (Crawford, supra, 541 U.S. at
p. 59, fn. 9.) Both Morales and Detective Valento testified at trial and were cross-
examined at length about various inconsistencies in their testimony. Moreover, although
it is rare for a prosecutor to be called as a witness, the prosecutor stated she was willing
to be cross-examined about her statements, an opportunity defense counsel declined.
Cognizant of this limitation, Rodriguez argues the declarants‟ citation of
statements made by other witnesses during the course of the interview constitute separate
Crawford violations. Rodriguez, however, fails to identify particular statements he
believes were made by those otherwise unknown declarants. The portion of the
videotape defense counsel most vigorously opposed was the discussion among Morales,
Valento and the prosecutor regarding the need to relocate Morales and his family. The
underlying assumption of danger to Morales and his family did not result from an
uncredited, out-of-court statement but instead from the experience of all three individuals

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with criminal street gangs. There was no single statement or threat that would violate the
tenets of Crawford or the confrontation clause.11
b. The trial court did not abuse its discretion in refusing to strike the
prosecutor’s comments about Morales’s truthfulness
Rodriguez challenges as improper vouching the prosecutor‟s taped comments to
Morales that he had been “totally truthful” and “honest” in his statements about the
murder. “„[A] prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her
office behind a witness by offering the impression that [he or] she has taken steps to
assure a witness‟s truthfulness at trial. [Citation.] However, so long as a prosecutor‟s
assurances regarding the apparent honesty or reliability of prosecution witnesses are
based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,” [the prosecutor‟s] comments cannot be
characterized as improper vouching.‟” (People v. Stewart (2004) 33 Cal.4th 425, 499,
quoting People v. Frye (1998) 18 Cal.4th 894, 971, italics omitted.)
The trial court concluded the prosecutor‟s comments here, made in the context of
negotiating immunity for Morales in exchange for his testimony against Rodriguez, did
not cross the line described by the Supreme Court in Stewart and Frye. We agree. A
claim similar to Rodriguez‟s argument was rejected by the Supreme Court in People v.
Williams (1997) 16 Cal.4th 153. The defendant contended the prosecutor had improperly
vouched for a prosecution witness who testified about the defendant‟s involvement in the
charged crime when the prosecutor stated the witness had “cut a deal” with the
prosecution, agreeing to testify “truthfully and honestly” in return for being allowed to
plead guilty to robbery on certain charges pending against him. As the Court stated in
11 Detective Valento‟s disclosure “they all went to jail and . . . got filed on for
murder today because of a bunch of other circumstances” is not such a statement.
Defense counsel was free to cross-examine Valento about that statement but elected not
to do so for obvious reasons.

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Williams, “„[i]mpermissible “vouching” may occur where the prosecutor places the
prestige of the government behind a witness through personal assurances of the witness‟s
veracity or suggests that information not presented to the jury supports the witness‟s
testimony.‟” (Id. at p. 257.) On the other hand, “„Prosecutorial assurances, based on the
record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be
characterized as improper “vouching,” which usually involves an attempt to bolster a
witness by reference to facts outside the record.‟” (Ibid.)
Rodriguez does not address this important distinction and seems to argue any
comment by a prosecutor regarding the truthfulness of a witness is inherently forbidden.
That is not the law. Furthermore, even were we more troubled by the nature of the
prosecutor‟s comments on the tape, the trial court prudently (and correctly) admonished
the jury the statements of the prosecutor (or any other lawyer) did not constitute evidence
to be considered by the jury in reaching its decision. We find no abuse of discretion by
the trial court on this ground.
c. The trial court did not abuse its discretion in admitting Morales’s
statements under Evidence Code sections 1236 and 791, subdivision (b)
Evidence Code section 1236 provides, “Evidence of a statement previously made
by a witness is not made inadmissible by the hearsay rule if the statement is consistent
with his testimony at the hearing and is offered in compliance with Section 791.”
Evidence Code section 791 provides, “Evidence of a statement previously made by a
witness that is consistent with his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is
inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen.”

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The People assert Morales‟s statements relating to his fear of retribution by CRS
against him and his family were properly admitted as prior consistent statements. We
agree. Defense counsel attempted to impugn Morales‟s professed fear of retribution by
suggesting Morales was simply trying to avoid a murder charge and to place
responsibility for the crime on the Rodriguez brothers. Unquestionably, some of
Morales‟s initial statements to Valento were susceptible to this interpretation. For
instance, Morales acknowledged he did not want to be charged with a murder he did not
commit and expressly requested “help” from Valento in a manner that could well be
understood as a request for immunity from prosecution, statements with which he was
properly impeached. However, the mere fact Morales harbored more than one motive to
fabricate is not determinative under section 791. “[A] prior consistent statement is
admissible if it was made before the existence of any one or more of the biases or
motives that, according to the opposing party‟s express or implied charge, may have
influenced the witness‟s testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609; see
People v. Cannady (1972) 8 Cal.3d 379, 388.)
The crux of the admissibility issue under Evidence Code section 791 is
Rodriguez‟s contention Morales‟s statements in the second interview were made after,
and not before, his motive to fabricate arose. However, Morales‟s fear of retribution
against himself or his family if he talked to detectives or testified at trial arose only upon
the prosecutor‟s decision to call Morales as a witness, thus revealing his identity to CRS.
In People v. Noguera (1992) 4 Cal.4th 599, 630, the Supreme Court cautioned that “the
focus under Evidence Code section 791 is the specific agreement or other inducement
suggested by cross-examination as supporting the witness‟s improper motive.” (See also
People v. Jones (2003) 30 Cal.4th 1084, 1106-1108 [trial court properly admitted
consistent statement of witness made before plea bargain struck and thus before existence
of one of alleged grounds for bias].) Here, Morales‟s statements during the second
interview preceded the prosecutor‟s formal offer of immunity to Morales, and Morales‟s
acceptance of that offer.

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Rodriguez argues further Morales never articulated fear of retribution on his own
behalf until Valento and the prosecutor fostered that fear during the second interview.
Although we read Morales‟s testimony less narrowly, even had Morales failed to specify
a fear of retribution, Evidence Code section 791, subdivision (b), would authorize
admission of his statements during the second interview. To borrow from our colleagues
in Division Two, “given the negative nature of counsel‟s impeachment” of Morales, “the
timing of the proffered prior consistent statement loses significance.” (People v.
Williams (2002) 102 Cal.App.4th 995, 1011.) The Williams court acknowledged “an
exception to the Evidence Code section 791 requirement that the prior consistent
statement must have been made before an improper motive is alleged to have arisen.”
(Williams, at p. 1011.) “„Different considerations come into play when a charge of recent
fabrication is made by negative evidence that the witness did not speak of the matter
before when it would have been natural to speak,‟ and the witness‟s silence is alleged to
be inconsistent with trial testimony. [Citation.] In this scenario, the evidence of the
consistent statement becomes proper because „“the supposed fact of not speaking
formerly, from which we are to infer a recent contrivance of the story, is disposed of by
denying it to be a fact, inasmuch as the witness did speak and tell the same story.”‟”
(Id. at pp. 1011-1012.) Seen in this light, the vigorous impeachment of Morales‟s
motivation opened the door for the prosecutor to demonstrate the scope of Morales‟s
concerns. (Cf. Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 2008) [¶] 8:1355, p. 8D-88 (rev. #1, 2007) [“[u]nless the witness‟[s] credibility
has been attacked (by evidence of an inconsistent statement or charge of bias or improper
motive), there is no foundation to permit the introduction of the witness‟[s] prior
consistent statement”].) On such a record we are reluctant to second-guess the decision
of the court to admit Morales‟s statements concerning his fear of retribution during the
second interview.

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d. Evidence Code section 356 authorized the trial court to admit the portion of
the videotape concerning Morales’s immunity from prosecution
The People justify the admission of the remainder of the videotape, in particular
the comments of Detective Valento and the prosecutor relating to potential retribution
against Morales for his testimony, under Evidence Code section 356. This section
provides, “Where part of an act, declaration, conversation, or writing is given in evidence
by one party, the whole on the same subject may be inquired into by an adverse party;
when a letter is read, the answer may be given; and when a detached act, declaration,
conversation, or writing is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be given in evidence.”
Rodriguez protests this section does not justify admission of these portions of the
videotape because his own counsel limited his use of the interview during cross-
examination to a specific portion of the videotape (impeaching Morales‟s assertion at trial
Flaco was present at the shooting) unrelated to the detective and prosecutor‟s later
comments.
Rodriguez, however, misperceives the scope of section 356 in this situation. As
our colleagues in Division Eight have explained, “Section 356 is sometimes referred to as
the statutory version of the common law rule of completeness. [Citation.] According to
the common law rule: „“[T]he opponent, against whom a part of an utterance has been
put in, may in his turn complement it by putting in the remainder, in order to secure for
the tribunal a complete understanding of the total tenor and effect of the utterance.”‟”
(People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3 (Parrish).) “The statute is
founded on the equitable notion that a party who elects to introduce a part of a
conversation is precluded from objecting on confrontation clause grounds to introduction
by the opposing party of other parts of the conversation which are necessary to make the
entirety of the conversation understood. Section 356 is founded not on reliability but on
fairness so that one party may not use „selected aspects of a conversation, act,
declaration, or writing, so as to create a misleading impression on the subjects
addressed.‟” (Id. at pp. 272-273.)

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Consequently, “„“[i]n applying Evidence Code section 356 the courts do not draw
narrow lines around the exact subject of inquiry. „In the event a statement admitted in
evidence constitutes part of a conversation or correspondence, the opponent is entitled to
have placed in evidence all that was said or written by or to the declarant in the course of
such conversation or correspondence, provided the other statements have some bearing
upon, or connection with, the admission or declaration in evidence. . . .‟”‟” (People v.
Harris (2005) 37 Cal.4th 310, 334-335; accord, Parrish, supra, 152 Cal.App.4th at
p. 274.)
For purposes of analysis here, the “subject of inquiry” initiated by the defense
included both Morales‟s motivation to testify against Rodriguez, a motivation the defense
had characterized as focused on avoiding a murder charge, and his acceptance of the
prosecutor‟s offer of immunity. Toward that end, the defense elicited testimony from
Morales that he knew he could have been charged with unlawful possession of the gun
and, possibly, the murder committed with the gun, and had been granted immunity from
prosecution for his testimony at trial. Because those statements potentially presented a
misleading picture of Morales‟s motivation, as well as the basis for the immunity offered
by the prosecutor, the prosecutor was in turn permitted to offer evidence necessary to
make those out-of-context statements understood. (Cf. People v. Harris, supra, 37
Cal.4th at pp. 334-335 [statements of unavailable victim made to police in subsequent
conversation admissible “for the nonhearsay purpose of placing [the victim‟s] statements
into context”; “the jury is entitled to know the context in which the statements . . . were
made”].)
The need to correct a misimpression left by the defense‟s cross-examination using
selective excerpts of a witness‟s prior statements is a matter particularly within the trial
court‟s discretion. We are unwilling to find an abuse of that discretion in this instance.
e. The trial court did not abuse its discretion in admitting the tape over
defense counsel’s objection under Evidence Code section 352
Under Evidence Code section 352 a court “may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate

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undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” Rodriguez argues the portion of the tape
discussing the need to relocate Morales‟s family was unduly prejudicial and was largely
fostered by Detective Valento and the prosecutor. We disagree. Morales consistently
expressed fear for his mother and pregnant girlfriend and conceded in later conversations
a corresponding concern for the rest of his family, including himself. Morales‟s concerns
were validated by the conduct of the victims, whose palpable reluctance to testify
candidly at trial reinforced the inference of a tangible threat from CRS. The trial court
apparently concluded defense counsel‟s impeachment of Morales‟s motives justified
admission of the tape and vitiated any unduly prejudicial impact on the jurors.
2. The Trial Court Did Not Abuse Its Discretion in Refusing To Reopen
Testimony
Rodriguez argues his right to present witnesses in his defense was improperly
curtailed when the trial court refused to allow him to reopen testimony, the morning after
his defense had rested, to rebut Detective Valento‟s denial he had cursed and yelled at
Rene Elias. In support of the request to reopen, Rodriguez‟s counsel stated the proposed
witness, a lawyer who had represented Gabriel Flores at the preliminary hearing, would
testify he heard Rene state that Valento had been “threatening and cursing me.” As the
trial court later explained, he denied the motion because “the offer of proof was he was
going to quote [Rene Elias], and I kept it out . . . .”
“In determining whether a trial court has abused its discretion in denying a defense
request to reopen, the reviewing court considers the following factors: „(1) the stage the
proceedings had reached when the motion was made; (2) the defendant‟s diligence (or
lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord
the new evidence undue emphasis; and (4) the significance of the evidence.‟” (People v.
Jones, supra, 30 Cal.4th at p. 1110.)
Under the circumstances in this case, we see no abuse of the court‟s discretion.
Whatever corroboration this testimony may have offered to support Maria Rodriguez‟s
testimony Valento had pressured Rene Elias to lie on the stand, as proffered, the

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testimony would have been inadmissible hearsay. It was not the court‟s responsibility to
advise counsel how the evidence might be presented in an admissible form or introduced
in a different manner.12
3. The Trial Court Erred in Sentencing Rodriguez to a Consecutive Term of
10 Years on the Gang Enhancement
Section 186.22, subdivision (b)(1), requires the trial court to impose certain
additional, consecutive terms of imprisonment to the punishment prescribed for a felony
committed for the benefit of a criminal street gang—the additional term being 10 years
for a violent felony (§ 186.22, subd. (b)(1)(C)), except as specified in section 186.22,
subdivision (b)(4) or (5). In place of the 10-year sentence enhancement, section 186.22,
subdivision (b)(5), provides any person who for the benefit of a criminal street gang
commits a felony punishable by an indeterminate life term “shall not be paroled until a
minimum of 15 calendar years have been served.”
Rodriguez contends, and the People agree, the trial court erred in sentencing him
to a consecutive term of 10 years for the section 186.22, subdivision (b)(1)(C)
enhancement on count 1 (first degree murder).
An unauthorized sentence may be corrected at any time regardless of whether an
objection was made in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 854.)
Section 186.22, subdivision (b)(5), provides for a minimum parole eligibility term of
15 years for “any person who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life.” Because Rodriguez was
sentenced to a 25-years-to-life term for first degree murder on count 1, the parole
eligibility restriction contained in subdivision (b)(5) applied; and the 10-year sentence
enhancement set forth in subdivision (b)(1)(C) should not have been used. (See People v.
12 Much of Rodriguez‟s argument on this point is directed to the prosecutor‟s
reference to the defense‟s failure to call a different witness who had been identified as
present during Valento‟s alleged tirade. The appeal, however, challenges the court‟s
evidentiary ruling, not the prosecutor‟s comments. Accordingly, we do not address those
comments.

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Lopez (2005) 34 Cal.4th 1002, 1009-1011.) Accordingly, the 10-year enhancement must
be stricken.
Whether the abstract of judgment with respect to the sentence for count 1 must be
corrected not only by striking the 10-year enhancement but also by including the
minimum parole eligibility term of 15 years pursuant to section 186.22, subdivision
(b)(5),13 as Rodriguez and the People suggested in their original briefing, however,
depends on whether imposition of that minimum parole eligibility term is barred by
section 12022.53, subdivision (e)(2), which provides, “An enhancement for participation
in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of
Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or personally discharged a
firearm in the commission of the offense.”14 As discussed, although the case was tried on
the theory Rodriguez was the shooter with respect to at least some of the victims (there
was some testimony at least two weapons were fired), the jury was asked to determine
only whether Rodriguez was a principal in each of the offenses and in each offense one of
the principals had personally discharged a firearm in violation of section 12022.53 within
the meaning of subdivision (e)(1). Accordingly, subdivision (e)(2) precludes imposition
of both the firearm-use enhancement and the minimum parole eligibility term in count 1
(and counts 2, 3 and 4, as well) if section 186.22, subdivision (b)(5) creates “[a]n
enhancement for participation in a criminal street gang.”15
13 “Imposition” of a 15-year minimum parole eligibility term on count 1, for which
Rodriguez received a 25-years-to-life base term plus a 25-years-to-life firearm
enhancement, will not extend the minimum parole date per se but is a factor that may be
considered when the Board of Parole Hearings determines his release date. (See People
v. Lopez, supra, 34 Cal.4th at p. 1009.)
14 We invited the parties to discuss this issue at oral argument and permitted the
filing of supplemental letter briefs addressing the effect, if any, of section 12022.53,
subdivision (e)(2), on Rodriguez‟s sentence. (See Gov. Code, § 68081.)
15 Striking the concededly improper 10-year street gang enhancement on count 1
reduces Rodriguez‟s aggregate sentence to, in effect, 155 years to life. A decision the 15-
year minimum parole eligibility term is inapplicable to the consecutive life terms for

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The Supreme Court has in several cases emphasized the difference between an
“enhancement”—“an additional term of imprisonment added to the base term” (Cal.
Rules of Court, rule 4.405(c))—and an “alternate penalty provision” specifying a
different, increased sentence for the underlying offense itself. (People v. Jefferson (1999)
21 Cal.4th 86, 101; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-899.) The
Court has expressly held the 15-year minimum parole eligibility term now found in
section 186.22, subdivision (b)(5), is an alternate penalty provision, not an enhancement,
“because it is not an „additional term of imprisonment‟ and it is not added to a „base
term.‟” (Jefferson, at p. 101; accord, People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7
[“[s]ection 186.22, subdivision (b)(5) is an alternate penalty provision that applies to any
gang-related underlying felony „punishable by imprisonment in the state prison for
life‟”]; Robert L., at pp. 899-900 [the subdivision provides “an alternate increased
sentence in the form of a higher minimum eligible parole date, for certain felonies
punishable by life that were committed for the benefit of a criminal street gang”].)
Accordingly, although we acknowledge the issue is not free from doubt (see, e.g., People
v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 [§ 12022.53, subd. (e)(2), prevents
imposition of the 15-year minimum term specified in § 186.22, subd. (b)(5), as well as
expanded liability under § 12022.53, subd. (e)(1), unless defendant personally used the
firearm]), we conclude imposition of the 15-year minimum parole eligibility term
pursuant to section 186.22, subdivision (b)(5), is proper as to all four counts in this case.16
4. The Abstract of Judgment Must Be Corrected To Reflect the Proper Fines
Rodriguez contends, and the People concede, the abstract of judgment incorrectly
reflects restitution and parole revocation fines in the amount of $800. At the time of
sentencing, the trial court imposed a $200 fine as to each component. Because the
attempted premeditated murder imposed on counts 2, 3 and 4, which were each further
enhanced by 20 years pursuant to section 12022.53, subdivisions (c) and (e)(1), would
further reduce his sentence to, in effect, 131 years to life—a difference with no practical
significance.
16 A closely related issue is currently pending in the Supreme Court in People v.
Brookfield, review granted January 17, 2007, S147980.

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abstract of judgment must conform to the trial court‟s pronouncement of judgment (see
People v. Boyde (1988) 46 Cal.3d 212, 256), we order the abstract of judgment corrected
to include imposition of a $200 restitution fine pursuant to section 1202.4, subdivision
(b), and imposition and suspension of a $200 parole revocation restitution fine pursuant
to section 1202.45. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of
judgment that does not accurately reflect judgment of sentencing court is clerical error
that may be corrected by appellate court on its own motion or upon application of
parties].)
DISPOSITION
The judgment is modified to strike the 10-year enhancement imposed on count 1
pursuant to section 186.22, subdivision (b)(1), and to reflect instead imposition of a
15-year minimum parole eligibility date pursuant to section 186.22, subdivision (b)(5).
As modified, the judgment is affirmed. The abstract of judgment is ordered corrected to
reflect (a) on count 1 the imposition of a 25-years-to-life life term, with a minimum
eligible parole date of 15 years pursuant to section 186.22, subdivision (b)(5), plus a
consecutive term enhancement of 25 years to life pursuant to section 12022.53,
subdivision (d); (b) imposition of a $200 restitution fine pursuant to section 1202.4,
subdivision (b); and (c) imposition and suspension of a $200 parole revocation restitution
fine pursuant to section 1202.45. The superior court is directed to prepare a corrected
abstract of judgment and to forward it to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
ZELON, J. JACKSON, J.

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