P. v. Gonzalez

Filed 4/30/07 P. v. Gonzalez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ENRIQUE GONZALEZ,
Defendant and Appellant.
2d Crim. No. B186733
(Super. Ct. No. SA051323)
(Los Angeles County)
Enrique Gonzalez appeals his convictions for assault with a semiautomatic
firearm (Pen. Code, § 245, subd. (b)),1 discharge of a firearm with gross negligence
(§ 246.3), carrying a loaded firearm with a prior misdemeanor conviction (§ 12031,
subds. (a)(1) & (a)(2)(A)), second degree robbery (§ 211), and exhibiting a firearm in
public (§ 417, subd. (a)(2)). The jury found true allegations that he personally used a
firearm in the assault (§ 12022.5), and in the robbery (§ 12022.53, subd. (b)). Gonzalez
contends that admission into evidence of hearsay portions of a videotaped police
interrogation violated his right to a fair trial. He also challenges the imposition of an
upper term sentence based on aggravating factors that were not found true by the jury.
We affirm the judgment, but remand for resentencing.
1 All statutory references are to the Penal Code unless otherwise stated.

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FACTS
Gonzalez met two women in a bar in Hawthorne, California. While playing
pool together, one of the women felt a gun in Gonzalez's pocket. The women left the bar
and went across the street into a restaurant. Gonzalez followed them. In the restaurant, a
man identified as a "tall, black man" had a bottle of vodka. When he offered to sell
Gonzalez some vodka, Gonzalez got angry and the two men got into an argument.
Gonzalez took the vodka bottle from the other man and threw it at him. The other man
ran out of the restaurant and Gonzalez pursued him. Gonzalez reached for his gun which
was wrapped in a sock, and fired several shots at the "tall, black man" as Gonzalez
chased him down the street.
Gonzalez encountered a teenager riding a bicycle and threatened to kill the
teenager if he did not give Gonzalez the bicycle. A security guard who had run towards
Gonzalez pulled out his weapon and confronted Gonzalez. Gonzalez hit the teenager and
got on the bicycle. The security guard grabbed Gonzalez from behind and the two men
struggled on the ground. Gonzalez got away from the guard but was apprehended shortly
thereafter. The gun used by Gonzalez was found behind the license plate of a car.
DISCUSSION
No Error in Admission of Interrogation Videotape
Gonzalez contends that he was deprived of a fair trial by the trial court's
erroneous admission of portions of a videotaped police interrogation consisting of his
responses to accusatory statements by a police officer. (U.S. Const., 5th & 14th
Amends.) He argues that the officer's statements were prejudicial and irrelevant hearsay
and, contrary to the trial court's ruling, did not qualify as the predicate for an adoptive
admission under Evidence Code section 1221. We disagree.
"Evidence of a statement offered against a party is not made inadmissible
by the hearsay rule if the statement is one of which the party, with knowledge of the
content thereof, has by words or other conduct manifested his adoption or his belief in its
truth." (Evid. Code, § 1221.) An adoptive admission requires certain foundational facts.

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The defendant must understand the nature of the accusatory statement and its
circumstances must permit and normally call for a response. If those predicate or
foundational facts exist, the accusatory statement is admissible for the purpose of
interpreting the defendant's response, and any response by the defendant adopting the
statement as true is admissible as an admission. (People v. Combs (2004) 34 Cal.4th 821,
843; People v. Riel (2000) 22 Cal.4th 1153, 1189.)
As with other rulings on the admission of evidence, we will uphold the
admission of a statement as the predicate for an adoptive admission unless the trial court
has abused its discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725.) In
addition, even the erroneous admission of evidence violates due process only if it renders
the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70; People v.
Partida (2005) 37 Cal.4th 428, 439.) We conclude that there was no abuse of discretion
in this case.
During the interrogation, the police officer recited some of the facts
obtained during his investigation. He stated to Gonzalez that, after drinking in a bar,
Gonzalez and two women walked to a restaurant.2 When a man tried to sell him vodka,
2 The exchange in its entirety is: "[Officer:] From all of our accounts, what happened
was, you were at The Den, and meeting two females. [¶] And uh, your wife's going to
find out eventually, anyway, because she's going to be going into trial with you[.] One of
the black girls you kind of take a liking to. You kept trying to kiss her and get close to
her, and then eventually, you guys walked across the street to KFC. She goes to the
restroom at KFC, you kind of tried to follow her in there, get a little lovin' in the
restroom. She says, no, no, no. She comes back out, she goes in, comes back out. [¶]
You guys go up to the front, order food. This victim comes in—the black guy—uh, tries
to sell a bottle of vodka. And you give him a dollar bill and tell him to get on his way.
He gives it back and says he doesn't want your sympathy or pity. You guys get in a big
ole' argument. You have a beer, chuck it at him, you miss, it smashes. Then you pull out
your gun in the video and you point it at him, and he kind of backs out like this, out the
door. And you, just fucking go right after him. [¶] And you start shooting at him and it
looks like your gun gets jammed or something, do you remember any of this?
"[Gonzalez:] I don't [followed by inaudible words].
"[Officer:] You clear it, and you chase him, he runs. Eventually you walk down the
street, and there's some little kid on a bike, and you point the gun at the kid, you tell him
to get the fuck off his bike . . . . He's getting off—or you'll kill him you say, or shoot him,
you say. 'I'll kill you, get off the bike.' [¶] He gets off; you take the bike. The security
guard sees this. He comes and tackles you. You guys struggle. During the struggle you
must have put the gun behind the thing, behind the license plate. And then you're
struggling with him with his gun—that's the gun you remember seeing. [¶] Eventually

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Gonzalez chased the other man down the street "shooting at him." The officer then
asked, "do you remember any of this," and Gonzalez responded: "I don't [followed by
inaudible words]." The officer resumed by stating, among other things, that Gonzalez
was tackled by a security guard after taking a bicycle from a boy. The officer ended by
stating: "And that's a nutshell of what happened." Gonzalez said: "Yeah."
At trial, Gonzalez objected to admission of the statement that Gonzalez
chased the other man down the street, and the officer's statement during another portion
of the interrogation that intoxication was legally irrelevant to the charges. Gonzalez did
not object that any statement by the officer failed to qualify as a predicate for an adoptive
admission. Defense counsel also was silent when the court treated the Gonzalez
objections as being based on Evidence Code section 352, and overruled the objections on
that ground.
Based on this record, we conclude that Gonzalez waived the adoptive
admission issue by failing to object at trial. Evidentiary objections must specify the
ground for objection being raised on appeal. (Evid. Code, § 353, subd. (a); People v.
Waidla, supra, 22 Cal.4th at p. 717.) Gonzalez did not object to the entire exchange with
the officer or otherwise challenge admission of the evidence as part of an adoptive
admission.
Even if the issue had been preserved on appeal, there was no error.
Gonzalez's responses could be interpreted reasonably as an adoption of the officer's
accusations as true. Although he claimed memory loss due to intoxication, the record
shows that Gonzalez understood the critical statements made by the interrogating officer
and the need for a response.
another guy comes in, out of the restaurant, pulls the gun out and takes it; and you escape
and run down the street where you're caught by police. And that's a nutshell of what
happened.
"[Gonzalez:] Yeah."

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Moreover, the trial court told the jurors to listen to the tape and decide for
themselves what was being said and by whom. Thus, it was up to the jury to decide what
words defendant spoke and whether through his words or silence he adopted the
comments by the interrogating officer. In doing so, the jury could have considered
factors such as tone of voice and body language that are not reflected in the transcript.
(See People v. Edelbacher (1989) 47 Cal.3d 983, 1011[whether a defendant's words and
conduct constitute an admission is a question for the jury].)
Gonzalez argues that it is fundamentally unfair to use the officer's
statements as the basis for adoptive admissions because the statements were in the form
of a long narrative of multiple facts that reasonably could not be admitted or denied on a
point-by-point basis. In so doing, he relies on People v. Sanders (1970) 75 Cal.App.3d
501. In Sanders, the trial court allowed the jury to review a 36-page transcript of a police
interrogation including damaging admissions by the defendant. The transcript contained
long narrative passages of facts obtained by the police during their investigation. (Id., at
pp. 507-508.)
The court concluded that it was “fundamentally unfair to expect point-by-
point denials of long narrative statements, containing several facts as well as theories and
inferences--particularly where the statements are not in question form.” (People v.
Sanders, supra, 75 Cal.App.3d at p. 508.) The court explained that the statements
enabled the People to restate its case through double hearsay, and rehabilitate "badly
impeached witnesses." (Ibid.) Nevertheless, the court declined to rule that admission of
the statements was prejudicial error apart from an instructional error which the court
called a "worse problem." (Id., at pp. 508, 511-512.)
The Sanders case is readily distinguishable. The instant case involved no
instructional error, all of the statements by the interrogating officers were supported by
witness testimony, and there were no "badly impeached witnesses" who needed
rehabilitation. In addition, although including multiple facts not in question form, the
accusatory statements in the instant case were much shorter and to the point than the

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narrative in Sanders. They also did not include the inflammatory conclusions that were a
significant part of the Sanders narrative.
Gonzalez also argues that the trial court improperly admitted a statement by
the police officer regarding the effect of his intoxication. In commenting on Gonzalez's
claim that he was too drunk to remember, the officer stated: "[W]hether you were drunk
or whether you were stone sober, it doesn't matter. . . . Intoxication isn't an excuse . . . ."
Although not entirely correct as a matter of law, this comment was substantially accurate.
Also, the jury was properly instructed on the law regarding voluntary intoxication, and
there is no basis in the record to conclude that the jury could have been misled by the
officer's comments.
Remand Required for Resentencing
The trial court imposed an upper term sentence on Gonzalez. He contends
that the sentence was based on sentencing factors not tried by a jury in violation of his
Sixth Amendment right to jury trial and due process. Subsequent to the briefing of the
case, the United States Supreme Court invalidated the portion of California's Determinate
Sentencing Law that permits a judge to impose an upper term sentence based on
aggravating sentencing factors that are not determined by a jury. (Cunningham v.
California (2007) ___ U.S. ___ [127 S.Ct. 856], overruling People v. Black (2005) 35
Cal.4th 1238 in part.) Accordingly, we will vacate the sentence and remand for
resentencing consistent with the Cunningham case.
DISPOSITION
Gonzalez's upper term sentence is vacated and the matter remanded for
resentencing consistent with Cunningham v. California, supra, 127 S.Ct. 856. The trial
court is directed to prepare an amended abstract of judgment in accordance with this
disposition and deliver it to the Department of Corrections. In all other respects the

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judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.

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James R. Brandlin, Judge
Superior Court County of Los Angeles
______________________________
Joanna Rehm, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Larry M. Daniels,
Supervising Deputy Attorney General, Michael C. Keller, Beverly K. Falk, Deputy
Attorneys General, for Plaintiff and Respondent.

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