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Name: People v. Zepeda
Case #: H020849
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/20/2001
Subsequent History: Rev. den. 7/11/01

CALJIC No. 8.75 accurately instructs that the jury may not return a verdict on a lesser offense unless it has agreed that defendant is not guilty of the greater, but does not instruct that they may not consider or discuss the lesser offense before returning a verdict on the greater offense. Defendant’s involvement in a prior gang-related shooting was properly admitted to show intent and motive. A gang expert opinion concerning why a person would go the particular location and ask someone where they were from and then shoot him (which was to establish himself in a gang) was properly admitted as opinion evidence. CALJIC No. 8.75 was requested by defendant, so he may not object that it was given. There was no objection here sufficient to preserve the issue concerning admission of the expert opinion evidence. A wiretap on a telephone in defendant’s jail cell met statutory and constitutional requirements. Appellant had waived his Fourth and Fifth Amendment claims by failing to raise them in the trial court. In any event, he had no reasonable expectation of privacy in outbound calls from jail, and his recorded statements were not the product of custodial interrogation. The state wiretapping statute, Penal Code section 629.50 et seq. requires a showing that normal investigative procedures have been tried and have failed to permit wiretapping. The case involved a gang-related drive-by shooting. Two witnesses who wished to remain anonymous had provided very general descriptions of the shooter which were insufficient to identify the perpetrator. Information which connected appellant to the crime also came from an anonymous caller. The car identified in the shooting may have been used by defendant but was not owned by him. A cap and newspaper articles showed a connection of defendant to the crime but they were not strong evidence, and ballistics test could not determine if defendant was the shooter. In short, the case against defendant was entirely circumstantial, and it was unlikely that defendant would provide any additional evidence. The police believed defendant was likely to ask others to destroy evidence. Under these circumstances, the police had demonstrated a necessity for the wiretap. The 25-to-life firearm discharge enhancement did not constitute cruel and unusual punishment under either the state or federal constitution.