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CRIMINAL LAW AND PROCEDURE
Criminal Law Case Summaries

■ People v. Sisneros, No. B205535

The jury found defendant Joseph Sisneros guilty of the first degree murder of Luis Charles (Pen. Code, § 187, subd. (a))[1] by intentionally and personally discharging a firearm (§ 12022.53, subds. (b)-(d)).  He was also convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and actively participating in felonious criminal conduct to benefit a criminal street gang (§ 186.22, subd. (a)).[2]  Defendant admitted the truth of recidivist enhancement allegations, which included two “strikes.”  The trial court imposed a 10-year determinate term for the two section 667 recidivism enhancements, plus indeterminate terms of 75 years to life pursuant to the three strikes law, and 25 years to life for the firearm enhancement.  Upper terms of three years were imposed for the felon in possession and the gang participation convictions; both were stayed pursuant to section 654.

            In his timely appeal, defendant raises various contentions of error arising out of the trial court’s decision to permit the prosecution to call Gloria Luna as a witness with the knowledge that she would refuse to be sworn and submit to questioning:  (1)  In violation of Evidence Code section 600, there was no admissible, nonspeculative inference that could be drawn from Luna’s refusal; (2)  the jury’s consideration of her refusal violated defendant’s right to confront adverse witnesses under the Sixth Amendment; (3)  the jury’s consideration of Luna’s silent conduct also violated Evidence Code section 710 and defendant’s right to due process under the state and federal Constitutions because convictions cannot be based on unsworn testimony; and (4)  the court abused its discretion under Evidence Code section 352 in permitting Luna to be called as a witness.  Defendant also raises two interrelated arguments arising out of Agent Daniel Evanilla’s expert testimony[3] as to defendant’s status as a Mexican Mafia associate, contending first, the gang expert’s reliance on hearsay reports resulted in the expert’s passing off the opinions of nontestifying experts as his own in violation of Evidence Code section 801, and second, the hearsay materials on which Agent Evanilla relied were improperly admitted for their truth, in violation of his constitutional rights to confront adverse witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).  Additionally, defendant contends (1)  his trial counsel rendered constitutionally ineffective assistance by effectively alerting the prosecution of the availability of recidivist enhancements against defendant; (2)  the court improperly admitted unduly suggestive and unreliable identification evidence through the testimony of prosecution witness Victor Davila, thereby violating his constitutional due process rights; and (3)  the above issues, if not prejudicial singly, amounted to a miscarriage of justice when considered cumulatively.  Finally, defendant contends the imposition of a state court construction penalty was improper under Government Code section 70372.  We agree with the final contention, but otherwise affirm.

■ HELD:

Conviction for first degree murder and other crimes is affirmed where the trial court did not abuse its discretion in permitting the prosecution to call a witness knowing that she would refuse to be sworn and submit to questionings, as there was no state law evidentiary error or constitutional violation arising out of the refusal, and any error would have been harmless.
People v. Sisneros -B205535-5/21/09 CA2/5
People v. Sisneros -B205535-5/21/09 CA2/5-PDF  

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