P. v. Alcantar
Filed
10/1/13 P. v. Alcantar CA5
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opinion has not been certified for publication or ordered published for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.
CALIFORNIA
THE PEOPLE,
Plaintiff and
Respondent,
v.
JORGE ARMANDO ALCANTAR,
Defendant and
Appellant.
F063665
(Fresno
Super. Ct. No. F11901601)
APPEAL from
a judgment of the Superior Court of
County. Jonathan B. Conklin, Judge.
Patricia J.
Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant
was charged with, and convicted of, second degree murder with a gang
enhancement. He contends that the
enhancement was not supported by substantial evidence at trial. He further argues that the court erroneously
and prejudicially denied his motion to bifurcate the gang enhancement. We disagree.
Defendant
also argues that he was improperly sentenced to a 10-year prison term on the
gang enhancement, and is entitled to five more days of
We strike
the 10-year prison term and order the abstract of judgment be modified to
reflect an additional 5 days of presentence custody credits. As modified, we affirm the judgment.
FACTS
I.
CHARGES AND ENHANCEMENT ALLEGATIONS
Defendant
Jorge Armando Alcantar (defendant) was charged with one count of murder in connection
with the death of Stephen Maciel (Maciel).
§ 187, subd. (a).) The
prosecution also alleged that defendant personally and intentionally discharged
a firearm, (§ 12022.53, subd. (c)) and did so proximately causing
death. (§ 12022.53,
subd. (d).) Finally, the
prosecution alleged that defendant committed the murder “for the benefit of, at
the direction of, or in association with any criminal street gang with the
specific intent to promote, further, or assist in any criminal conduct by gang
members ….†(§ 186.22,
subd. (b)(1).)
II.
VERDICT AND SENTENCE
A jury
convicted defendant of second degree
murder, and found all three enhancements true. (§§ 12022.53, subds. (c), (d);
186.22, subd. (b)(1).) On the
murder conviction, the court sentenced defendant to a term of 15 years to
life. On the enhancement for discharging
a firearm, (§ 12022.53, subd. (c)), the court sentenced defendant to
a term of 20 years, but stayed the punishment.
On the enhancement for discharging a firearm causing death
(§ 12022.53, subd. (d)), the court sentenced defendant to a
consecutive term of 25 years to life.
subd. (b)(1)), the court sentenced defendant to a consecutive term of 10
years. The court credited defendant with
223 actual days served.
III.
MOTION
TO BIFURCATE
Defendant
moved to bifurcate the gang enhancement from the second degree murder
charge. The court denied the motion,
stating:
“Motion Number
Three, motion to bifurcate the gang enhancements from the underlying
offense. They are appropriately alleged
in the information. I have read and
considered the information. I have read
and considered the preliminary hearing transcript. They appear to be appropriately alleged. They are language from the statute [
So I will let either of you be heard, if you have additional argument,
but otherwise, the the [sic] Motion
Number Three is denied, as far as bifurcation of the gang enhancements [
TRIAL EVIDENCE
A.
THE SHOOTING
Summary
Abraham
Leanos (Leanos) and Maciel were friends.
Together, they walked to a liquor store to buy beer. Maciel was wearing a red outer garment, a
shirt displaying a large image of a bulldog, and a Fresno State cap.
Defendant was in the liquor store
with his girlfriend before Maciel and Leanos arrived. As a teenager, defendant had joined the
Shelltown gang – an affiliate of the Sureno gang. The Surenos and Bulldogs are rival
gangs. Whether defendant was still a
member of the Shelltown gang at the time of the shooting was disputed at
trial.
Defendant and his girlfriend were
walking towards the exit of the liquor store as Maciel and Leanos entered. There was conflicting evidence as to what
happened in the crucial seconds that followed.
However, it was undisputed that
defendant raised his elbow at or near the time Maciel passed him near the
store’s exit (hereafter, the “elbow raise.â€)
Defendant claimed he was merely placing a cigar in his mouth. The prosecution contended that defendant
intended to bump Maciel as an inter-gang gesture of disrespect known as a “hit
up.†Eventually, defendant shot and
killed Maciel outside the liquor store.
Leanos’s Testimony
Leanos
testified at trial. Surveillance video
from the liquor store was admitted into evidence and shown to Leanos during
direct examination. The prosecutor asked
Leanos why the video depicts him looking over his left shoulder at one
point. Leanos testified that he was
speaking with Maciel at the time. At
this point, the only interaction between Leanos and defendant was defendant’s
“mugging†(i.e., “[l]ooking at you in a mad faceâ€).
Leanos
testified that it appeared on the video that defendant was holding what looked
to be a cell phone. The prosecutor asked
whether defendant was “mugging†in the direction of the cell phone or towards
someone in particular. Leanos replied,
“Well, he was looking in our direction.
You know, I – maybe he was – I don’t know, but he was looking in our
direction when I seen [sic] him.â€
The
surveillance video shows defendant raising his left elbow as Maciel and Leanos
pass by. Leanos had not observed the
“elbow raise†that night, and saw it for the first time on the surveillance
footage. He never saw defendant come
into physical contact with Maciel.
The video then shows defendant
begin to look over his left shoulder.
Maciel looked back at defendant.
Defendant “started say[ing] something†“[w]hen he stepped out the door.†When asked what defendant said, Leanos
testified: “He was like, ‘What’s up, Homie. You want some? Come here.
Come here. You want some?’ He
just kept trying to egg us on to go outside.â€
Maciel was still looking at defendant as he spoke. Defendant continued to look at Maciel and
Leanos while walking backwards. Maciel
then started walking towards defendant.
Leanos testified that defendant made a gesture with his hand “kind of
telling us to ‘come here.’ â€
name="_ftnref5" title="">[5] At or near the time of this gesture,
defendant said, “[C]ome here.†Neither
Maciel nor Leanos had said anything to defendant at this point.
Maciel and
Leanos exited the store. Leanos walked
out, hesitated, heard shots fired and ran back inside the store. He did so because he saw defendant “turning
around – reaching.†He told Maciel,
“No. No.
Don’t go. Run.†Leanos ran back inside the store. Maciel followed behind, but Leanos did not
notice him initially. Maciel then fell
to the floor and could not talk.
Abrego’s Testimony
Defendant’s
girlfriend at the time of the shooting was Maria Abrego (Abrego). Prior to arriving at the liquor store, she
and defendant ate pizza at a nearby restaurant.
Defendant consumed one pitcher of beer.
Afterwards, they went to the liquor store.
The
prosecutor showed Abrego the surveillance footage, and she identified herself
and defendant on the video. The
prosecutor asked if she recalled defendant raising his left elbow as depicted
in the video, and she responded, “No. I
didn’t see it.…â€
Once she and defendant exited the
liquor store, they began to walk back towards the nearby pizza restaurant. The video depicts defendant raising his right
hand, then walking away. Abrego turned
back and saw “those two men†(i.e., Maciel and Leanos) coming out of the liquor
store. She then said, “ ‘Oh,
they’re going to come looking for a fight or something.’ †She turned again, such that she could no
longer see Maciel and Leanos. That is
when she heard shots, became frightened, and crouched down. Defendant began running down the street, and
she followed.
They ended up at defendant’s house,
and spent the rest of the evening there.
She told a detective afterwards that defendant had said to her, “Don’t
worry. Everything is going to be
fine. That happens sometimes.â€
Defendant’s Testimony Regarding The
Shooting
title="">[6]
Defendant testified that he never
said anything to “the victims†that night.
Defendant testified that the “elbow raise†depicted in the video was him
placing his cigar in his mouth. His
girlfriend asked him what was going on and he replied, “Just ignore it. Just – nada.
Don’t listen†He then “kept on
walking.â€
Defendant had testified that he did
not bump Maciel intentionally, and he “didn’t think†he had bumped Maciel at
all. He never said anything to Maciel or
Leanos and “wasn’t even looking at them.â€
Defendant had walked outside the store, and Maciel and Leanos came out
afterwards. The “guy in the frontâ€
said, “What’s up now, mother f[**]ker?â€
Defendant thought one or both of them were going to “beat†him
“up.†He told his girlfriend to hurry
up, in Spanish. The “guy in front†ran after
defendant, with his left hand inside his pocket. Defendant believed the man had a knife or a
gun. Defendant testified, “That is when
I pulled out my gun and shot.†He shot
twice. He did not intend to kill, but he
was scared and thought the man “was going to get†him.
B.
POSTARREST
Search of Defendant’s Apartment
Defendant
was arrested the next night. The police
searched his apartment. They located a
holster and live ammunition under a refrigerator in the apartment. Defendant testified at the first trial that
the gun he used to shoot Maciel went into the holster found under the
refrigerator. One of the live rounds of
ammunition had a “soft primer strike†on it.
A police detective testified that soft primer strikes are caused when a
round of ammunition is ejected from the chamber of a firearm without firing it.
Cell Phone Evidence
A cell
phone was recovered from defendant’s person when he was arrested. The cell phone had a number of text messages
that were retrieved by law enforcement using computer software. The messages were transferred to a printout,
which became an exhibit.
One incoming text message, dated
March 20, 2011, at 10:45 a.m. read:
“Sooo..whats going on? *Neon~Moon*â€
The next text message on the exhibit was a “sent message†(i.e., outgoing
from defendant’s phone), dated March 20, 11:31 a.m., which read: “I f[**]ked upâ€
Another incoming text message,
dated March 20, 2011, at 12:13 p.m. read:
“Ur always doing sum stupid when ur drunk..why don’t u stop drinking n
spend more time with ur kids..just sayin
[¶] *Neon~Moon*†An outgoing text message dated March 20,
2011, at 1:04 p.m., read: “I know. This time it might b [sic] to [sic] lateâ€
In an outgoing text message dated
March 20, 2011, at 4:46 p.m., a text message read: “Nada.
Cuida bien a mis bebes.†A police
detective, who is a native Spanish speaker, translated the message as
follows: “It says, ‘Nada,’ which means
‘nothing.’ ‘Cuida bien amis [
my kids’ or ‘babies.’ â€
Another outgoing text message dated
March 20, 2011, at 9:07 was sent in Spanish.
The police detective translated the message as, “ ‘The police can
find me with my phone on…. I’m going to
turn it on from time to time.’ â€
Defendant’s Phone Calls From Jail
A police detective testified that
inmates of the county jail are given jail identification numbers referred to as
a “JID.†The detective was able to
retrieve all calls made with defendant’s JID and reviewed them. The parties stipulated to two translated
transcripts of defendant’s calls from jail on March 22, 2011, and August 3,
2011. Recordings of the two calls were
played for the jury. The stipulated
translation of the August 3, 2011, call between defendant and “ET†contains the
following pertinent statements by defendant:
“[Defendant]: Well what do you believe … he told me, I
talked to my lawyer and he told me to just tell the truth about what happened
and well I didn’t want to do nothing to them but [i]f they would have got me
can you imagine what the both of them would have done to me. They would have f[**]kin’ killed me right
there.
“ET: Um.
“[Defendant]: I didn’t do anything but defend myself … no,
no, no I didn’t want to kill nobody. It
was the last thing that … that what more … well I was left with no other.… [T]here was no other form. What else could I have done? If I would have run they would have caught
me.â€
Later in the call, defendant said,
“They would have put me nothing … they would have f[**]kin’ killed me between
the both of them. And they say that I
started all the shit I was on the damn phone.
I didn’t, I didn’t even look at them or pay attention to them.…â€
“[Defendant]: I was walking, and I didn’t even and he said
that I hit him with my elbow. I put my
damn cigar in my mouth and I didn’t even … and when they said something to me
well I turned around because I said what do these f[**]kers want? And I turned around to see what the f[**]k
they wanted. And they were … I don’t
know what they were telling me but I just said “mmhha†all I did was do this
with my hand like “mmhha†like [to say] go f[**]k yourself, right. I didn’t pay attention to them. And that’s when they came and well I went …
well there is the video. I got the
f[**]k out of there .…
“ET: Yes.
“[Defendant]: I was going to go into the pizzeria, but, but
when they were coming behind me I said I had no other choice ya. I wait another minute and they would have
gotten me there.â€
C.
GANG EVIDENCE
Photographs
Photographs
were taken from defendant’s cell phone and entered into evidence, including
Exhibits 77 and 79. Both defendant and
the gang experts testified regarding the photographs, as detailed below.
Officer Castro’s Testimony
Classification
of Defendant as a Gang Member
Rudy
Castro, a San Diego police officer, testified that he investigated defendant
and validated him as a member of the Shelltown 38 gang. Shelltown is considered a Sureno gang. Officer Castro testified that his criteria
for validating defendant as a member of the Shelltown 38 gang were: self-identification, tattoos, and prior
arrests for gang-related offenses in association with other gang members.
Officer Castro stated that in “July
of 28,â€
defendant was contacted by a police officer and claimed Shelltown gang
membership and a moniker of “Flacco.†A
field interview report indicates that in January 2007, defendant had “a 38 on
his right ring finger.†Officer Castro
testified that defendant’s tattoo reading “38†stood for “Shelltown 38 Street.â€
Officer Castro also testified
regarding defendant’s association with known Shelltown gang members. Defendant had been contacted by law
enforcement two or three times with a self-professed Shelltown gang member,
Eduardo Murillo.
Officer Castro testified that
defendant had been arrested for vandalism for spray painting “Shelltown 38†on
a business in National City. He told the
officer that he is an active member of Shelltown. Defendant last admitted gang membership in
2008.
Shelltown
Gang’s Predicate Offenses
Officer Castro testified regarding
predicate offenses for the Shelltown gang.
In May 31, 2009, Shelltown gang
member Cristobol Nare (Nare) was at a party, as was a Mr. Ochoa (Ochoa). Ochoa left the party and pulled into an
intersection. Nare and two other
individuals threw a brick through the window of Ochoa’s vehicle. Nare and another individual went to the
driver’s side of Ochoa’s vehicle and beat the victim. They displayed a handgun from the waistband,
and stole a jacket and an iPod.
On December 22, 2009, three
individuals were walking in the area of Shelltown. A couple “Hispanic males approached,†and
asked the individuals what they had in their pockets. One of the male suspects produced a knife and
“wanted the property they had on them.â€
As they were taking the property from the vicitim, the suspect “essentiallyâ€
told them, “This is Shelltown.†The
suspect was arrested and identified as Joey Negrette, a Shelltown gang member.
In August 2010, Johnny Nava (Nava)
and Orlando Aguilar (Aguilar) walked into a food store. Aguilar took some beer and attempted to leave
without paying for it. A security guard
confronted them at the door, and Nava said, “ ‘What are you going to
do? This is Shelltown.’ †Nava lifted up his shirt, showing a handgun
to the security guard. They were
arrested minutes later.
Exhibit
77
Officer Castro was shown Exhibit
77, a photograph depicting defendant and a female. He testified that defendant and the female
were displaying gang hand signs in the photograph. He said that defendant was making a sign
indicating the number “20.†This was a
gang-related symbol because the letters “S†and “T†are an abbreviation for
“Shelltown†and “T†is the twentieth letter of the alphabet. Officer Castro did not know whether the
Chargers played on the “file date†of the photograph, December 5, 2010.
Cross-Examination Regarding
Defendant’s Alleged “Move Out†from Shelltown Gang
The following colloquy occurred on
cross-examination:
“[Defense
counsel]: Do you know whether or not
[defendant] was ever jumped out [of the gang]?
“[Officer Castro]: No.
“[Defense counsel]: Do you know how a person leaves a gang?
“[Officer
Castro]: Either die or jump out or just
move out; there are several different ways.
“[Defense
counsel]: San Diego is how far from
Fresno?
“[Officer
Castro]: About eight hours.
“[Defense
counsel]: Would you consider that a
‘move out’?
“[Officer
Castro]: Yes.â€
Detective Kyle Kramer’s Testimony
Fresno City
Police Detective Kyle Kramer (Kramer) testified as a gang expert for the
prosecution. Detective Kramer validated
defendant as a gang member. Detective
Kramer located six jail classification questionnaires from 2000 to 2011, which
indicate that defendant identified himself as a gang member. In five of the questionnaires, the identified
gang was “San Diego Sureno.†In the
remaining questionnaire, the identified gang was simply, “Sureno.â€
Detective
Kramer said that a tattoo of the words Shelltown and “what appears to be a
shell,†are indicative of gang membership.
He continued to describe the remainder of
defendant’s tattoos as indicative of gang
affiliation.
Exhibit 77
Detective
Kramer was shown Exhibit 77. Detective
Kramer described defendant’s hand positioning as “putting up two fingers, and
with the remaining thumb and the pinky and the ring finger … forming … a
zero. The significance of that being
signifying the number 20, being the letter T for Shelltown, and the female
appears to be doing the same thing.â€
Detective Kramer testified that the photograph’s “file date†of December
5, 2010, was evidence of recent gang affiliation or identification.
Exhibit
79
Detective
Kramer was shown Exhibit 79, a photograph.
He described the photograph as depicting a headstone of one, Martin
Castro, Jr. Based on his conversations
with an Officer Castro, Detective Kramer testified that Martin Castro, Jr., was
a Shelltown gang member at the time of his death. On the headstone appears the number “192,â€
which references the 19th and 20th letters of the alphabet.
Gang
Colors
Detective
Kramer was asked whether there are any colors of clothing associated with
Surenos, other than blue. Detective
Kramer responded that he has seen the use of “all black clothing†for the
purposes of “trying to get away from the primary color of blue†and to “blend in
with the environment†“especially at nighttime.†He also said that someone could wear the
color black because they did not want to associate with gangs any longer.
Sureno
Gang’s Predicate Offenses
The
prosecutor acknowledged that there had already been testimony at trial
regarding the Shelltown gang’s primary activities. Nonetheless, because “Shelltown is a subset
of Surenos†the prosecutor asked for an example of Sureno criminal activity in
Fresno County. Kramer testified that
Sureno activities in Fresno County included “drive-by shootings, possession of
controlled substances and firearms, assault with deadly weapons, murders,
things of that nature.†He then
identified specific crimes committed by Sureno gang members, including an
assault with a deadly weapon on August 24, 2008; possession of a firearm on
July 20, 2006; attempted murder on March 31, 2009; and arson on November 18,
2008.
Gang Culture Testimony
Kramer
spoke about the importance of respect in gang culture, where a weak reputation will
lead to frequent victimization and the eventual demise of a gang. Conversely, a gang that has achieved
“respect†for being violent has a number of advantages. For example, individuals are less likely to
speak to the police out of fear of violent retaliation by the gang.
In order to
enhance their gang’s respect and reputation for violence, rival gang members
will physically or verbally challenge one another. These challenges are called “hit ups.†They are intentional signs of disrespect,
which demand a response. If the insulted
gang member does not respond to the “hit up,†it is a sign of weakness in gang
culture.
A physical hit up can be one gang
member bumping into a rival gang member.
Examples of verbal hit ups include saying, “What’s up? Come on,†or “What’s up essay [
The prosecutor asked Kramer how
shooting someone after a hit up would promote or further the Sureno gang. Kramer testified: “When you have these, the commission of these
violent crimes, whether it be against somebody who is perceived to be a rival
gang member, the status of the gang within the gang culture is enhanced. The violent reputation of the gang within the
gang culture itself is enhanced.
[¶] This does a couple of
things. It instills fear really and
intimidated [sic] not only the rival
gangs, but the community that exists within that area where crime occurs; the
people who frequent the area, customers, residents, things of that
nature.… The result of that being
they’re feared [sic], and … not
likely to cooperate with … law enforcement.
They’re not likely to come testify in court. They are not even likely to call the police
when they hear shots fired, or that somebody could potentially be the victim of
a crime. That is … what the benefit to
the gang is.â€
Testimony
Regarding Defendant’s “Elbow Raiseâ€
Kramer was shown the surveillance
video from the night of the shooting.
Kramer said that given Maciel’s clothing, he would look like a Bulldog
gang member to a Sureno.
name="_ftnref10" title="">[10] He testified that defendant’s elbow raise was
a physical hit up. He noted that
defendant does not challenge Leanos in the video, but instead “goes right to
and makes the contact with the one that is in all red.â€
Defendant’s Testimony Regarding Gang
Issues
Defendant testified he was not
“gang banging†on the night of the shooting.
He has had tattoos since he was a teenager that read: “Shelltown,†“38,†“Tres Ocho,†and
“SD.†He also had a tattoo of three
dots. Defendant testified that when he
got the tattoos, they showed his commitment to the Shelltown gang. He did not have the tattoos removed because
it would be expensive. He got the
“Shelltown†tattoo when he was 17 or 18.
At the time of trial he was 32.
Defendant acknowledged that he was
previously a member of the Shelltown gang.
At the previous trial, defendant testified that the shooting had nothing
to do with his prior membership in a gang.
Defendant testified that the “elbow
raise†depicted in the video was him placing his cigar in his mouth.
Defendant testified regarding
Exhibit 77. He testified that he
“believe[d]†that the photograph was taken December 5, 2010. Defendant was asked what he was doing with
his fingers in the photograph and he replied, “That was an away Chargers game,
and we just was – it was just victory; whatever you want to call it.â€
Amalia
Gonzalez
Amalia Gonzalez is defendant’s
sister. She testified that she was the
female depicted in Exhibit 77. She said
that she has never been a member of “the Shelltown crew†and has never been a
“gang banger.â€
She testified that defendant moved
to Fresno to “be there†for his kids and to “get away from his gang.†As far as she knew, defendant had “[n]othing
to do with Shelltown†after he left San Diego.
Physical Evidence
When law
enforcement searched defendant’s apartment, they located San Diego Chargers
paraphernalia, including a towel and multiple articles of clothing.
ANALYSIS
THERE
WAS SUFFICIENT EVIDENCE TO SUPPORT THE JURY’S TRUE FINDING ON THE
SECTION 186.22, SUBDIVISION (b)(1) ENHANCEMENT
Defendant contends that there was
insufficient evidence to support the jury’s true finding regarding the
section 186.22, subdivision (b)(1) enhancement. We disagree.
“When a defendant challenges the
sufficiency of the evidence, ‘ “[t]he court must review the whole record
in the light most favorable to the judgment below to determine whether it
discloses substantial evidence … such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.†’ [Citation.]†(People
v. Clark (2011) 52 Cal.4th 856, 942.)
Evidence is “substantial†when it is reasonable, credible and of solid
value. (Ibid.) Substantial evidence
may include circumstantial evidence and any reasonable inferences drawn
therefrom. (Id. at p. 943.)
Section 186.22,
subdivision (b)(1) applies to individuals who commit a felony “for the
benefit of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.â€
(§ 186.22, subd. (b)(1). )
In other words, it applies to “when a defendant has personally committed
a gang-related felony with the specific intent to aid members of that
gang.†(People v. Albillar (2010) 51 Cal.4th 47, 68 (Albillar).)
Thus, the provision has two
prongs. The first prong is that
defendant is convicted of a felony “committed for the benefit of, at the
direction of, or in association with a criminal street gang.†(Albillar,
supra, 51 Cal.4th at p. 67.) The second
prong is a scienter requirement that the defendant committed the gang-related
felony “ ‘with the specific intent to promote, further, or assist in any
criminal conduct by gang members.’ â€
(Id. at p. 64.)
A.
SUBSTANTIAL EVIDENCE SUPPORTED THE FIRST PRONG OF THE
GANG ENHANCEMENT
Defendant relies on a number of
cases for essentially the same proposition:
that the elements of section 186.22, subdivision (b)(1) are
not satisfied merely by evidence that
a gang member committed a felony.
name="_ftnref11" title="">[11] (See People
v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin);
People v. Ochoa (2009) 179
Cal.App.4th 650 (Ochoa);
Cal.App.4th 214 (Albarran); and
843 (Ramon).) In other words, not all crimes committed by
gang members are necessarily gang-related for purposes of
subdivision (b)(1).
It is true that a “gang enhancement
cannot be sustained based solely on defendant’s status as a member of the gang
and his subsequent commission of crimes.â€
(Ochoa, supra, 179 Cal.App.4th at p. 663.) But the jury’s verdict here was supported by
more. Not only was there evidence that
defendant became a member of a gang and thereafter committed a crime, there was
also evidence that the specific crime
was gang-related.
At trial, the parties offered two
competing theories as to the purpose of defendant’s “elbow raise†near the time
he passed Maciel in the store. Defendant
contended that he was merely placing his cigar into his mouth. Conversely, the prosecution offered their
expert’s testimony that the “elbow raise†was in fact a “hit up†(i.e., gang
challenge) directed to Maciel. The
prosecution’s suggested inference is reasonable, as we explain
In the surveillance video, Leanos
does not appear to be wearing any red or any depictions of bulldogs. There appears to be no physical interaction
between defendant and Leanos as they pass each other. It is only when defendant passes Maciel that
physical interaction occurs.
name="_ftnref12" title="">[12] Defendant raised his elbow while passing
Maciel, who was wearing red outerwear, a black shirt depicting a bulldog, and a
California State University – Fresno
hat. This evidence gives rise to the
inference defendant perceived Maciel to be a member of a rival gang.
The evidence showed defendant was,
at least at one point in his life, a member of a the Shelltown gang, a subset
of the Sureno gang. There was also
evidence the Surenos and Bulldogs are rival gangs. Viewed together, this evidence gives rise to
the inference defendant perceived Maciel to be a rival gang member and
intentionally “hit†him “up.â€
When the inference supporting the
judgment is reasonable, any contrary inferences are irrelevant.
v. Kraft (2000) 23 Cal.4th 978, 1058.)
Moreover, the jury could have even accepted both sides’ proposed
inferences, and concluded that defendant’s elbow raise was both a “hit up†and
a manner of placing the cigar in his mouth.
Regardless, we draw whichever
inference supports the judgment on appeal.
(See People v. Whalen (2013)
56 Cal.4th 1, 56, fn. 22.) Here,
the judgment-supporting inference is that defendant intentionally raised his
elbow in an act of hostility towards someone displaying a rival gang’s color
(red) and symbol (bulldog). We presume
that inference is correct and that defendant did “hit up†Maciel in the seconds
before the shooting. (See
564 [on review, “we presume the existence of every fact in support of the
verdict that reasonably could be inferred from the evidenceâ€].)
Given that there was
crime-specific evidence of gang-relatedness, Detective Kramer permissibly
offered his opinion that a similarly-described hypothetical crime would be
gang-related. (See People v. Xue Vang (2011) 52 Cal.4th 1038, 1052 [“[N]o statute
prohibits an expert from expressing an opinion regarding whether a crime was
gang related. Indeed, it is settled that
an expert may express such an opinion.â€].)
On this topic, Detective Kramer
testified that a post “hit up†shooting benefits the shooter’s gang. He testified that, “[w]hen you have … the
commission of these violent crimes, whether it be against somebody who is
perceived to be a rival gang member, the … violent reputation of the gang … is
enhanced.†This testimony was
sufficient. “Expert opinion that
particular criminal conduct benefited a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of … a[] criminal street gang’ within the meaning of
section 186.22(b)(1).†(
See also People v. Xue Vang,
B.
SUBSTANTIAL EVIDENCE SUPPORTED THE SECOND PRONG OF THE
GANG ENHANCEMENT
Kramer’s Opinion
Defendant argues Kramer’s opinion
that he “specifically intended to promote Surenos†lacks evidentiary
support. This characterization of
Kramer’s opinion is inaccurate. Kramer
testified as to how, hypothetically,
a post-“hit up†shooting would benefit the shooter’s gang. We see no indication in the record that
Kramer directly testified as to defendant’s intent.
Rather, Kramer offered an
explanation of defendant’s “elbow raise†based on his knowledge regarding gang
culture and habits. And, contrary to
defendant’s apparent contention on appeal,
Detective Kramer was entitled to offer that explanation. (In re
Frank S., supra, 141 Cal.App.4th
at p. 1196 [expert may testify to gang culture and habits].) “It is well settled that a trier of fact may
rely on expert testimony about gang culture and habits to reach a finding on a
gang allegation.†(Ibid.) “ ‘It is
difficult to imagine a clearer need for expert explication than that presented
by a subculture in which this type of mindless retaliation promotes
“respect.†’ †(
There is an important difference
between an expert’s testimony that “a specific individual possessed a specific
intent,†and testimony that “give[s] meaning to the defendant’s actions.†(In re
Frank S., supra, 141 Cal.App.4th
1192, 1197-1198. Cf.
explanation of defendant’s elbow raise (i.e., that it was a gang “hit
upâ€). He did not baldly assert that
defendant had a particular intent.
As we will explain, Kramer’s
testimony gave meaning to defendant’s conduct and, in conjunction with the
evidence of defendant’s conduct itself, was sufficient to support the intent
requirement of the gang enhancement statute.
“ ‘[I]ntent is inherently
difficult to prove by direct evidence.
Therefore, the act itself, together with its surrounding circumstances
must generally form the basis from which the intent of the actor may
legitimately be inferred.’ †(
1092, 1099.) “ ‘[W]e routinely draw
inferences about intent from the predictable results of action. We cannot look into people’s minds directly
to see their purposes. We can discover
mental state only from how people act and what they say.’ †(People
v. Miranda (2011) 192 Cal.App.4th 398, 411-412.) That is why we have recognized that “[p]roof
of intent may be made by way of inferences from a defendant’s volitional acts
which are done with knowledge of the probable consequences .…†(People
v. Pitts (1990) 223 Cal.App.3d 606, 892-893.)
Detective Kramer’s testimony went
to the “predictable results†and “probable consequences†of hitting up a rival
gang member and then shooting them. The
result is the gang’s reputation for violence is elevated which enhances the
gang’s ability to commit future crimes.
There was also evidence that
defendant acted with knowledge of those probable consequences. “Knowledge, like intent, is rarely
susceptible of direct proof and generally must be established by circumstantial
evidence and the reasonable inferences to which it gives rise.†(People
v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) Here, the evidence that defendant was, at a
minimum, a former gang member gives rise to a reasonable inference that
defendant was familiar with gang culture and knew of the probable consequences
of a “successful†hit up.
name="_ftnref18" title="">[18] Thus, “although no direct evidence showed
defendant acted with the required knowledge … there was substantial evidence
from which a rational trier of fact could have found he in fact possessed such
a mental state.†(People v. Hill (1998) 17 Cal.4th 800, 851, overruled on other
grounds by Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.)
In sum, there is substantial
evidence supporting all of the following:
(1) defendant intentionally “hit up†Maciel; (2) that a “successful†hit
up enhances a gang’s reputation for violence and ability to commit future
crimes; and (3) defendant was, at a minimum, a prior gang member, which gives
rise to the inference that he knew the benefits of a “successful†hit up to a
gang. This was sufficient because, as we
noted earlier, a “defendant’s intentional acts, when combined with his
knowledge that those acts would assist crimes by fellow gang members, afford[s]
sufficient evidence of the … specific intent†required by section 186.22,
subdivision (b)(1). (
THE
TRIAL COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION TO BIFURCATE
Defendant contends that the trial
court’s denial of his motion to bifurcate the gang enhancement from the
substantive offense was erroneous and prejudicial. We disagree.
A trial court’s bifurcation ruling
is reviewed for abuse of discretion.
(See People v. Hernandez (2004)
33 Cal.4th 1040, 1048.) A trial court’s
discretion to deny bifurcation of a gang enhancement is broader than its
discretion to admit gang evidence when no gang enhancement is charged. (Id. at
p. 1050.)
Defendant argues that “the
prosecut[ion’s] entire theory was centered on the fact this was a gang offense
motivated by gang rivalry that benefitted the Surenos and relied on gang
evidence and expert opinion to do so.â€
There is nothing wrong with what defendant describes.
There are multiple ways gang
evidence is used at trial. Some uses are
appropriate and others are not. For
example, it is improper to introduce gang evidence to establish “the defendant
has a criminal disposition and is therefore guilty of the offense charged.†(People
v. Williams (1997) 17 Cal.4th 148, 193.)
But, it is not improper to introduce gang evidence to establish a
defendant’s motive. Even in cases where
no gang enhancement is charged, “[e]vidence of the defendant’s gang affiliation
… can help prove … motive … specific intent … or other issues pertinent to
guilt of the charged crime.†(
admissible if relevant to motive … so long as its probative value is not
outweighed by its prejudicial effect.†(
See also People v. Funes (1994)
23 Cal.App.4th 1506, 1518.) Here, the
gang evidence was used in a permissible manner:
to establish motive and intent.
Defendant claimed he acted in
self-defense when he shot Maciel. The
gang evidence contradicted this theory.
If defendant believed Maciel was a rival gang member and “hit†him “upâ€
seconds before the shooting, the theory of self-defense becomes far less
plausible. The prosecution was entitled
to make this argument and present evidence supporting it. It was not inadmissible evidence of a
defendant’s criminal disposition, (see Evid. Code § 1101), but rather
evidence of motive and intent.
As noted above, there was also
evidence introduced regarding “predicate offenses†of the Surenos and Shelltown
gangs. There is no question that this
evidence was relevant to the gang enhancement.
(See § 186.22, subd. (e).)
However, as defendant points out, there was no evidence that he was
involved in the predicate offenses identified by the gang experts. Thus, the predicate offense evidence had
little probative value, if any, with respect to the second degree murder
charge. But, defendant’s noninvolvement
in the predicate offenses also reduces the likelihood of undue prejudice. The evidence does not directly implicate
prior criminal activity by defendant, and is therefore less likely to
facilitate improper “criminal propensity†reasoning by the jury.
Ultimately, the question of whether
the predicate offense evidence would have been admissible in the absence of the
gang enhancement is not dispositive.
“Even if some of the evidence offered to prove the gang enhancement
would be inadmissible at a trial of the substantive crime itself – for example,
if some of it might be excluded under Evidence Code section 352 as unduly
prejudicial when no gang enhancement is charged – a court may still deny
bifurcation.†(People v. Hernandez, supra,
33 Cal.4th at p. 1050.) Here, the
predicate offense evidence was not particularly inflammatory.
for which a defendant might have escaped punishment.†(Id. at
p. 1051.) To the contrary, there was no
evidence defendant was implicated in the predicate offenses at all.
Additionally, the court instructed
the jury on the limited purposes for which the gang evidence could be
considered. The court stated, “You may
consider evidence of gang activity only for the limited purpose of deciding
whether the defendant acted with the intent, purpose and knowledge that are
required to prove malice aforethought and/or the gang-related enhancement
charged.†“[W]e presume the jury
faithfully followed the court’s limiting instruction.†(People
v. Ervine (2009) 47 Cal.4th 745, 776.)
“Even if some of the expert
testimony would not have been admitted at a trial limited to guilt, the
countervailing considerations that apply when the enhancement is charged
permitted a unitary trial.†(
THE
10-YEAR PRISON SENTENCE ON THE GANG ENHANCEMENT MUST BE STRICKEN
Defendant argues, and respondent
concedes, that the 10-year prison term on the gang enhancement must be
stricken. We agree.
The additional 10-year term of
“[s]ection 186.22(b)(1)(C) does not apply … where the violent felony is
‘punishable by imprisonment in the state prison for life.’ [Citation]
Instead, section 186.22, subdivision (b)(5) … applies and imposes a
minimum term of 15 years before the defendant may be considered for
parole.†(People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
DEFENDANT
IS ENTITLED TO FIVE ADDITIONAL DAYS OF SENTENCE CUSTODY CREDIT
Defendant argues, and respondent
concedes, that he is entitled to five additional days of presentence custody
credit. We agree.
Defendant was arrested March 21,
2011, and sentenced on November 3, 2011.
Yet, he was credited with 223 days in custody rather than 228 days.
DISPOSITION
The abstract of judgment shall be
amended to reflect five additional days of custody credit. The sentence shall be modified to delete the
10-year gang enhancement imposed under Penal Code section 186.22,
subdivision (b)(1)(C). (See
The judgment is affirmed, as modified.
The matter is remanded to the trial court to amend the abstract of
judgment accordingly and to transmit certified copies of the amended abstract
to all appropriate parties and entities.
______________________
Poochigian, Acting P.J.
WE CONCUR:
______________________
Detjen, J.
______________________
Franson, J.
This appeal is taken from a retrial. At
the initial trial, the jury acquitted defendant of first degree murder,
attempted murder, and attempted voluntary manslaughter. The court declared a mistrial as to second
degree murder. The charging document in
the clerk’s transcript contains a second count for attempted murder. Thus, it appears the prosecution elected not
to file a new information after the initial trial. Regardless, both parties agree that defendant
was not retried on the second count (attempted murder)
All further statutory references are to the Penal Code unless otherwise noted.
