Filed 2/5/14 P. v. Gastelum CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JESUS RAMON GASTELUM, Defendant and Appellant. D062985

(Super. Ct. No. JCF18906)

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys Ge neral, for Plaintiff and Respondent. Jesus Ramon Gastelum appeals a judgment after the trial court denied his motion for new trial based on alleged ineffective as sistance of counsel, and reinstated the2 judgment based on a jury's verdict convictin g him of first degree murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (§ 182). On appeal, he contends he was denied effective representation of coun sel in two regards: (1) counsel did not investigate and introduce evid ence that another person (Mr. Ruiz) admitted to being an accomplice to the shooting, and (2) counsel did not investigate and introduce an expert to attack the credibility of eyew itness identificat ion evidence.
I FACTUAL AND PROCEDUR AL BACKGROUND A. Evidence Against Gastelum 1 During the evening of Sept ember 15, 2001, Daniel Villa, a gang member and drug abuser, went to Richard Armenta's house in Brawley to buy drugs from Armenta. Armenta agreed to sell Villa drugs, but he asked Villa, and Villa agreed, to first accompany him to a store to buy beer. On the way to the store, Armenta drove by a house party on B Street in the Brole (i.e., Broleno) gang area. There were many gang members on the patio outside the house. They recognized Arme nta's car and turned around. Armenta asked Villa whether he "wou ld be willing to shoot " them if he gave Villa his gun. Villa did no t answer Armenta's question. On their return to Armenta's house, Ga stelum (whose moniker is "Pookie") and some other men were there. Armenta asked the group if someone would volunteer to do

1 In this appeal, both parties rely on th is court's factual recitation from the prior appeal of Gastelum's conviction in People v. Gastelum (D053935, Nov. 19, 2009), ( Gastelum I ). Accordingly, our factual statement is taken from Gastelum I.3 a shooting of gang members at th e house party. Gastelum answered that he would do the job for his gang. Armenta went to anothe r room and brought back a big speaker from which he removed a black revolver. Armenta gave it to Gastelum, who then removed its bullets. Armenta and Gastelum cleaned the gu n and bullets. After Armenta reloaded the gun, Gastelum put the gun in the waistband of his pants. Gastelum and Armenta left the house and drove away in Armenta's mother's Camry (a different car than that Armenta drove to the store earlier). At about 9:30 p.m. or 10:00 p.m., Francisc o Hernandez, then 16 years old, arrived at the house party. There were about 10 to 13 people there. Later, Hernandez was standing in the front yard in side the fence when he saw someone coming down the street who he initially believed was a friend. The person approached the gate and said, "Come here." When Hernandez was ab out five to six feet from the gate, the person (identified at trial as Gastelum) pulled out a gun and began firing it at him. As Hernandez turned and ran away, he was shot in the back. Once insi de the house, he learned he was bleeding. Hernandez also saw that Jesse Garcia, his friend, had been s hot and was lying on the floor with blood pouring out of his head. A few months later, Garc ia, also 16 years old, died from his gunshot wounds. Villa, who had remained at Armenta's hous e, heard on a police scanner that there had been a shooting on B Street . Within two to three mi nutes, Armenta and Gastelum arrived back at Armenta's house. Gastelum appeared happy and desc ribed how he got out of the car, knocked on the door of the house, and fired his gun at the head of the person who opened the door while stating the name of his (Gastelum's) gang, Chicali Brasas.4 Gastelum stated he also fired his gun at and thought he hit another person near the door. Armenta stated the people were gang memb ers and were drinking and that what Gastelum had done "was all fi ne." Gastelum told everyone in the room they were the only ones who would know what had happened and, if so meone said something, the "same thing would happen to them." Gast elum and Armenta removed the remaining bullets from the gun and then Arment a took the gun to another room. At about 8:00 p.m. or 9:00 p.m. on September 15, 2001, Armenta went to the home of Israel Salazar, then an active Ch icali Brasas gang member, and asked him whether he would be w illing to go with him to "get" (i.e ., "blast" or shoot) some Broleno gang members while they were "slipping" (i.e ., unaware) at a party on B Street. Armenta stated he was going over to Pete Cast ellanos's house to have a "kickback." 2 Salazar did not go with Armenta because he was argui ng with his "old lady" at the time. A few hours later, Armenta returned to Salazar's home and asked him to hide a gun and not to tell anyone. When Salazar asked him what happened, Armenta stated: "Some shit went down on B Street." Armenta a ppeared scared. Salazar agreed to hold the gun for Armenta, but he did not actually se e the gun that night. Salazar apparently told Armenta to hide the gun in a wood p ile wherever he wanted to. When Salazar learned the following day what happened on B St reet, he asked a friend to tell Armenta to pick up his gun. During telephone conversa tions, Armenta told Salazar that during the B

2 Castellanos was a Chicali Brasas ga ng member who had been shot and paralyzed by a Broleno gang member, and Armenta stated that somebody "had to pay back for it" (i.e., be shot) in retaliation fo r Castellanos's shooting. ( Gastelum I, supra, D053935, at p. 4.)5 Street incident someone got shot in the head . When Salazar asked Armenta if he was the shooter, Armenta replied, "No. It was Pookie, " i.e., Gastelum. Armenta stated that the reason for the shooting was "[s]omebody paid ba ck for what happened to Peter Boy," i.e., Castellanos. A few days after Salazar hid th e gun, Armenta and two other gang members came to Salazar's home and retrieved the gun , which was wrapped in a bandana, and ammunition in a plastic bag. Salazar saw th e gun was a faded black revolver with a sixinch barrel, and the bullets bore the markings ".38 S&W." At a joint trial on the charges against Gastelum and Armenta (who was charged with the same offenses as Gastelum), Villa, Hernandez and Salazar te stified substantially as described above. Testimoni es of two witnesses were al so admitted showing that on conclusion of the first day of Villa's testim ony, Gastelum threatened Villa, stating "I'm going to kill you, puto." Salazar testified th at while he was incarc erated with Gastelum, Gastelum asked him not to testify as a "fa vor" and to tell the judge he (Salazar) was "high" and talking "nonsense." The prosec ution also presented the testimony of Luis Santoyo, a Chicali gang member, who stated he was at Armenta's house about two years earlier when Armenta mentioned a shooting in the presence of Gastelum and Armenta's brother. Armenta stated that a man named Santos took the gun to Mexico. Armenta spoke a lot about the shooting and was happy while doing so. Although Gastelum was present while Armenta spoke about the shooti ng, he remained silent except for telling Armenta to be quiet and not talk about it. Armenta stated the motive for the shooting was to get someone back for Pete, i.e., Castellanos, who got shot . When asked what Armenta told him about the shooting, Sa ntoyo testified: "He just told me they were kicking it at6 my friend Pete Castellanos'[s] house. Right there it was him, Jesse [i.e., Gastelum], and some other guy, Happy. They left and they went around cruising somewhere, wherever it was at. And then he parked the car and Jess e [i.e., Gastelum] got o ff and he had did what he did and came back to the car. And they took off." Santoyo al so testified that on another occasion he spoke with Gastelum "on the streets" about the shooting and Gastelum admitted shooting Garcia. In his defense, Gastelum testified that he did not shoot Garcia because he was in Huntington Park the night of the shooting. He also testified he was a member of the Imperial gang and socialized with both Brol eno and Chicali gang members. Gastelum's father, sister and grandmother testified that he lived in Huntington Park during the time period of the shooting. Gastelum's sister also testified he stayed at home the weekend after the terrorist attacks of September 11, 20 01. Erik Portugal testified he was a member of the Broleno gang and asked Hernandez if he knew who shot him. Hernandez told him he did not know, explaining it was too dark, he was not paying attention, and he was busy having a good time at the party. Hernandez stated he really did not see anything. B. The Verdict and Gastelum I The jury found Gastelum guilty of th e charged offenses, and the trial court sentenced Gastelum to a term of 25 years to life in prison on count 1 and, pursuant to Penal Code section 654, stayed execution of the term it imposed for count 2. In Gastelum
I , this court rejected the majority of Gastel um's claims, but found the trial court erred by7 not conducting a Marsden 3 hearing on his request for subs titute counsel to represent him in investigating the grounds for, and filin g a motion seeking, a new trial based on ineffective assistance of counsel. ( Gastelum I, supra , D053935, at pp. 27-32.) This court reversed and remanded the matter with directions that the trial court conduct a postverdict Marsden hearing to allow Gastelum to st ate his reasons in support of his Marsden motion, to request a response from his trial counsel, and then exercise its discretion to grant Gastelum's request for substitute counse l to represent him on a motion for new trial based on ineffective assistance of counsel. This court furthe r instructed that if the trial court denied Gastelum's Marsden motion after conducting a Marsden hearing, or granted that motion but then denied a motion for new trial filed by substitute counsel (or if substitute counsel after investigation decides there is no basis on which to file a motion for new trial), the trial court should reinstate the judgment w ith specified modifications. ( Gastelum, at pp. 34-35.)
II THE CURRENT APPEAL A. The Evidentiary Hearing on Gastelum's New Trial Motion On remand, the trial court held a Marsden hearing and appointed new counsel. New counsel then moved for a new trial alle ging Gastelum's trial counsel (Mr. Storey) provided ineffective assistance of trial counsel in several particulars, including (1) failure to investigate and introduce an expert on th e vagaries of eyewitness identification to

3 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).8 undermine the credibility of Hernandez's eyew itness identification of Gastelum as the shooter, and (2) failure to investigate othe r witnesses and to in troduce evidence of (among other things) that anot her person (Ruiz) stated he accompanied Armenta to the attack and it was Armenta who op ened fire on the victims. The court held an extens ive evidentiary hearing ov er several sessions during which numerous witnesses testified. Gastel um's testimony, which the trial court found was not credible, asserted he asked Storey to hire an expert on eyewitness identifications and Storey affirmed he would hi re an expert but never did. Gastelum also asked Storey to locate and interview numerous witnesses, including Mr. Espinoza and Ruiz, but Gastelum believed Storey did not investig ate those witnesses or interview them. Gastelum also testified he asked Storey to locate and interview several other witnesses, but Storey did not do so, and St orey deflected some of Gastel um's inquiries by stating he was too busy. Gastelum also claimed he told Storey he wanted to testify, and Storey advised him not to testify, but then withou t warning put Gastelum on the stand without preparing him. Storey testified he had practiced crim inal law for 27 years, and had visited Gastelum 16 to 18 times to prepare for trial. Gastelum often sugg ested people who he thought might help his case, and Storey's gene ral practice was to obtain the person's name and contact information and give the informati on to Storey's investigator (Mr. Wallet) for Wallet to contact the witness. Wallet tried contacting all of these people, although he was unable to find some of them and others re fused to talk to him. When Wallet could9 not find specific people, Storey would follo w up with Gastelum and try to get additional information to help locate them. Storey considered using an expert on eyewitness identificati on but rejected the idea because Gastelum had been picked out of a lineup and there were not any "crossracial situations." Storey believed an expert could have been harmful to Gastelum because the lineup and identifi cation of Gastelum was "so lid" and Storey believed an expert would have "been more for the prosec ution than for the defense" and Storey did not want to "make [the identification] any [m ore] solvent than it already was." Storey explained there are many other ways to impeac h an eyewitness and he used some of those approaches during trial. Storey apparently was not specifically as ked about his efforts to locate Espinoza or Ruiz. Gastelum testified that among the di scovery from police given to him by Storey was a summary of an interview by Sergeant Myers of a Mr. Espinoza, in which Espinoza claimed that a Mr. Ruiz adm itted Ruiz had been involved with Armenta in the shooting incident. Gastelum asked Storey to look in to this lead but, to Gastelum's knowledge, Storey did not follow up on in terviewing or subpoenaing Es pinoza or Ruiz. Although Storey's memory had faded and he could only recall some of the people he directed his investigator to locate, he explained that it was pattern and practice to have his investigator try to locate all witn esses at the scene, and to also have his investigator try to locate and interview all people that Gastelum suggested might be helpful to the defense. Wallet, Storey's investigator, also di d not have a specific recollection of all of the people he tried to locate and interview. He had no specific memory of reading the police10 report containing Espinoza's claimed conversati on with Ruiz, or of discussing Espinoza with Storey, or of trying to develop the lead any further, but he ex plained that "it's not that it didn't happen, I just don't remember it ." Wallet testified he conducted over 20 interviews in connection with his investig ation, some of which may have involved multiple persons during a single interview, a lthough many of the tim es the people refused to speak with him. Wallet accompanied Stor ey for most of Stor ey's meetings with Gastelum, and Wallet did investig ate witnesses that Gastelum asked to be interviewed as well as witnesses Storey suggested and that Gastelum had not identified. As a general rule, Wallet tried to locate all of the persons mentioned in the discovery. B. The Trial Court's Ruling The trial court addressed and rejected Ga stelum's claim--Storey did not adequately investigate and interview other witnesses, an d that constituted ineffective assistance of counsel. The court noted Storey "made effo rts to interview a number of people" and was "dealing with a cold case that was four or five years old by the time he got it." The trial court, after noting Gastelum ha d not located anyone or shown that "had they been called they would have said something favorable or significant that would have made a difference in this particular ca se," found Storey tried to inte rview all of the persons at the scene of the shooting, which was "a good way to investigate a case and at least start out and then . . . develop the case from there." Based on the trial court's review of the discovery and the trial record, the trial c ourt found Storey was "faced with a very challenging case . . . an overwhe lming case that appeared to be against [Gastelum]," and Storey spent significant time investigating an d preparing but did not finding "anything11 significant. In fact, as time goes on, the evidence gets worse" because Gastelum (in addition to his "admissions to a number of w itnesses") threatened a witness during trial. The trial court stated the "only argument . . . even coming close . . . [is] the issue regarding the eyewitness identific ation expert." After noting Strickland 4 requires a showing that failure to call an eyewitness identification expert fell below the standard of care, the court concluded Storey made a judgm ent call on whether to call such an expert and Strickland does not permit second-guessing of ta ctical decisions. The court noted one of the eyewitnesses against Gastelum was Mr. Villa, who knew Gastelum and saw him leave with Armenta and a gun and, within minutes of hearing ab out the shooting on a police scanner, saw Gastelum and Armenta re turn and heard Gastel um brag about the shooting. The trial court concluded there was nothing an eyewitness expert could have accomplished because Villa knew Gastelum. The court also noted the other eyewitness, Mr. Hernandez, was just feet from, and rec ognized, Gastelum when he fired the gun at Hernandez. Based on all of the facts, the court was satisfied that Storey made an informed decision not to call an expert because it could ha ve harmed Gastelum's case. The court also noted the evidence against Gastelum was "overwhelming," because a percipient witness placed Gastelum with Armenta immediately before and after the shooting, another percipient witness at th e scene identified Gastelum as the shooter, witnesses heard his admissions about bein g the shooter, Armenta's letter implicated Gastelum in the shooting, and Gastelum at tempted to intimidate witnesses before and

4 Strickland v. Washington (1984) 466 U.S. 668.12 during trial. The trial court reasoned that, ev en had Storey made errors, they would have to be deemed harmless.
II ANALYSIS To establish ineffective assi stance of counsel, Gastelum has the burden of showing both that counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and that it is reasonably probable the verdict would have been more favorable to him absent counsel' s error. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) When evaluating the first prong, "[w]e presume that counsel rendered adequate assistance and exercised reasonable professiona l judgment in making significant trial decisions." ( People v. Holt (1997) 15 Cal.4th 619, 703.) "In evaluating a defendant's claim of deficient performance by counsel, th ere is a 'strong presumption that counsel's conduct falls within the wide range of reason able professional assistance' [citations], and we accord great deference to c ounsel's tactical decisions. [Citation.] . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmativel y discloses that counsel had no rational tactical purpose for his act or omission.' " ( People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To demonstrate ineffective assistance based on an alleged fa ilure to investigate, the defendant "must prove that counsel failed to make particular investigations and that the omissions resulted13 in the denial of or inadequate presentati on of a potentially meritorious defense." ( In re Sixto (1989) 48 Cal.3d 1247, 1257.) When assessing prejudice, the defendant must also "carry his burden of proving prejudice as a 'demonstrable rea lity,' not simply speculation as to the effect of the errors or omissions of counsel." ( People v. Williams (1988) 44 Cal.3d 883, 937.) In an appropriate case, we may reso lve an ineffectiveness claim on the ground of lack of prejudice without determining whether co unsel's performance was deficient. ( Strickland v. Washington, supra, 466 U.S. at p. 697; In re Fields (1990) 51 Cal.3d 1063, 1079.) A. Failure to Call Eyewitness Expert Gastelum argues Storey's not calling an expert on eyewitness identification was ineffective assistance of counsel. We are not persuaded by this argument for several

reasons. First, Storey explained he has used eyew itness experts in the past and considered but rejected use of an expert, and explained his reasons for doing so: he believed the fact that multiple witnesses identified Gastelum as the shooter, none of whose identifications might have been impeded by cross-racial identifications and on e of whom personally knew him, coupled with the fact Gastelum was identified in a lineup, could have made an eyewitness expert more helpful to the prosecution than to the defense. Storey determined the safer approach was to cro ss-examine the witnesses to im peach the credibility of their identifications, and did so in this case, and to employ closi ng argument to point out why those identifications should be distrusted . Because we accord great deference to14 counsel's tactical decisions and will not se cond-guess those decisions, Gastelum has not shown the first prong required to estab lish ineffective assistance of counsel. Second, Gastelum's showing below also did not establish the second prong, because there was no evidence that not calling an expert resulted in the failure to present a potentially meritorious defense. ( In re Sixto, supra, 48 Cal.3d at p. 1257.) Gastelum's new trial motion contained no expert declarat ion outlining what evidence an expert could have been presented that wo uld have undermined Villa's and Hernandez's identification of Gastelum as the shooter, or that the "e xpert witness approach" (which apparently attempts to show the witnesses honestly but mistakenly believed Gastelum was the shooter) was so clearly superior to the strate gy employed by Storey (which appeared to attempt to show the witnesses were motivated to lie about Gastelum's involvement) that Storey's tactical decision to pursue the latter rather than the former approach deprived Gastelum of a potentially meritorious defense. We conclude Gastelum has not satisfied his burden of showing Storey's decision not to call an eyewitness expert fell outside the wide range of reasonable professional assistance to which Gastelum was entitled, or that the decision resulted in the failure to present a potentially meritorious defense. B. Failure to Introduce Th ird Party Culp ability Evidence Gastelum argues Storey provided ineffectiv e assistance of counsel because he did not investigate a report, made by a Mr. Espi noza when Espinoza was interviewed by police in 2001, in which Espinoza claimed th at some time after the shooting Mr. George Ruiz told Espinoza that Ruiz and Armenta ha d been the persons who went to the party15 and it was Armenta who was the shooter. Gast elum argues that Storey's failure to investigate and locate Espinoza and/or Ruiz, and to then su bpoena them for trial to introduce Ruiz's confession into evidence, constituted ineffec tive assistance of counsel. Gastelum correctly notes that failure to investigate potentially exculpatory evidence can form the basis for an ineffective assistance clai m. However, his claim here is not persuasive because we are unconvin ced Gastelum established either prong necessary to an ineffec tive assistance claim. The first prong required him to show Storey "failed to make particular investigations." ( In re Sixto, supra, 48 Cal.3d at p. 1257.) Gastelum's argument on appeal appears to be based on a f actual predicate--i.e., Storey made no efforts to locate Espinoza and/or Ruiz--apparently rejected by the trial court. Although the record contains no express finding as to Storey's efforts to locate Espinoza and/or Ruiz, it does contain a general recitation of the trial court' s reasons for rejecting Gastelum's challenge to the adequacy of Storey's attempts to locate a number of witnesses. Because we indulge all intendments in support of the judgment, including implied factual findings for which there is support in the evidence (see, e.g., People v. James (1977) 19 Cal.3d 99, 107 [on appeal all presumptions indulged in support of judgment and trial court's findings whether express or implied must be upheld if supported by substantial evidence]), and there was substantial evidence Storey made some efforts to find significant witnesses identified by Gastelum, we presume the court impliedly found Storey made some efforts to locate Espinoza and/or Ruiz. That finding is supported by the evidence that as a general rule Wallet tried to locate all of the persons mentioned in the discovery, and16 Storey's testimony that it was his pattern and prac tice to have his investigator try to locate and interview all people the defendant suggeste d might be helpful to the defense. To the extent Gastelum's appellate argument on the fi rst prong is based on th e slightly distinct argument that Storey made inadequate efforts to locate Espino za and/or Ruiz, the trial court specifically addressed and rejected Gastelum's claim that Storey failed to adequately investigate and interview other witnesses, noting Storey "made efforts to interview a number of people" and was "dealing with a cold case that was four or five years old by the time he got it," and had spen t significant time to investigate and prepare but was unable to "find anyt hing significant." This app ears to constitute an implied finding that Storey and his investigator di d attempt to locate significant witnesses and were simply unable to find Espinoza and/or Ruiz for purposes of subpoenaing them for trial, and Gastelum produced no evidence in connection with his motion for new trial showing that Ruiz and/or Espinoza was actua lly available and locatable. The trial court rejected his showing on the first prong, an d we defer to that fa ctual determination. We are equally unconvinced Gastelum carri ed his burden as to the prejudice prong from Storey's alleged failure to investigate, because we cannot conclude "there is a reasonable probability--i.e., a probability sufficient to unde rmine confidence in the outcome--that the additional ev idence that might have be en discovered would have altered the result." ( In re Fields, supra, 51 Cal.3d at pp. 1080-1081.) Gastelum's showing below was that Espinoza claimed Ruiz told him Ruiz went to the scene with Armenta, and that "Armenta pulled out a gun and opened fire." It is pure speculation that, even assuming Storey ha d been able to locate and subpoena him for trial, Ruiz17 would have been willing to wa ive his Fifth Amendment privile ge and testify he was with Armenta when Armenta pulled out the gun and opened fire. 5 ( People v. Williams, supra, 44 Cal.3d at p. 937 [appellant must carry bur den of proving prejudice as demonstrable reality, not simply speculation as to the effe ct of counsel's errors ].) Moreover, even assuming evidence that Ruiz ad mitted to being present at the scene had been introduced at trial, that evidence (altho ugh potentially inculp atory as to Ruiz) was not necessarily exculpatory as to Gastelum because there wa s no evidence Ruiz told Espinoza that it was only Ruiz and Armenta who went to the scen e, and therefore it was not necessarily inconsistent with Gastelum also accompanying Armenta to the scene. Finally, the second prong for an ineffec tive assistance of counsel claim requires Gastelum to show that, but for counsel's pur ported error, there is a reasonable probability the result of the proceeding would have been different. ( People v. Sapp (2003) 31 Cal.4th 240, 263.) At the original trial, the defense introduced testimony from numerous witnesses testifying (1) Gastelum was not ther e, (2) there were reasons to disbelieve

5 Gastelum asserts on appeal that, if Ruiz had been subpoenaed and either asserted his Fifth Amendment privilege or was otherw ise unavailable to testify, Espinoza could have been subpoenaed to testify to Ruiz's statements be cause they would fall within an exception to the hearsay rule as a declaration against Ruiz's penal interest under Evidence Code section 1230. However, even ignoring th at this argument speculates Storey could also have located Espinoza, there was nothi ng in the police re port showing Ruiz's statements manifestly fell with the declaration against pena l interest exception to the hearsay rule. Ruiz's statem ents to Espinoza contained his admission he accompanied Armenta to the scene; however, Ru iz's statements to Espinoza did not contain his admission he accompanied Armenta knowing of Armenta's purpose or plan, which would be an essential fact before Ruiz's statem ent would constitute an admission against his penal interest. Accordingly, it is speculatio n that a court might ha ve overruled a hearsay objection to Espinoza's testim ony about Ruiz's statements under the declaration against penal interest exception.18 Hernandez's identification of th e shooter, and (3) there were r easons to disbelieve Villa's and Santoyo's testimonie s implicating Gastelum. 6 However, the jury apparently rejected their testimonies and instead credited the test imony of Villa (who tes tified Gastelum left with Armenta before the shooting and returned with Armenta minutes after the shooting, and admitted to Villa to bein g the shooter), Hernandez (who identified Gastelum as the shooter), and Santoyo (who testified that both Armenta and Gastelum told him Gastelum was the shooter). It is not r easonably likely the result of th e proceeding would have been different even had the defense called another witness (Ruiz) to testify Gastelum was not there and someone else was the shooter.
DISPOSITION The judgment is affirmed.

McDONALD, J. WE CONCUR:
NARES, Acting P. J.

McINTYRE, J.

6 For example, a witness testified he wa s with Armenta at Armenta's house that evening and neither Gastelum nor Villa was th ere, and a police witness testified Santoyo changed his statement ab out Gastelum's admission to being involved.