P. v. Alcaraz
Filed 7/10/13
P. v. Alcaraz CA4/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
YANIRA BARAJAS ALCARAZ,
Defendant and Appellant.
G047088
(Super. Ct. No. 10CF1368)
O P I N I O N
Appeal from a judgment
of the Superior Court of
County, W. Michael Hayes, Judge.
Affirmed.
Arielle Bases, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood, Marvin E. Mizell and
Charles Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
Introduction
Defendant
Yanira Barajas Alcaraz was convicted of two counts of
using tear gas and a tear gas weapon.
She challenges her conviction, arguing on appeal that the trial court
erred by admitting evidence that defendant had taxed individuals in territory
claimed by the Lopers criminal street gang.
We conclude there was no error in admitting the evidence. The evidence was relevant to defendant’s
claim that she acted under duress when committing the robberies. Even if there had been error, it was not
prejudicial, given the weakness of the evidence supporting defendant’s duress
defense. We therefore affirm.
Statement of Facts
I.
Case
On
July 17, 2007, Maricella Josemaria and Jose Palacios were working in their
produce truck. Defendant approached the
open window of the truck and asked Josemaria if she sold shampoo. Josemaria showed defendant the shampoos that
she had available; defendant left, claiming she needed to speak to her
boyfriend. Defendant returned with a
young man to the window of the truck, and told Josemaria and Palacios to give
them all their money, or the young man would kill them. The young man tried to enter a door on the
side of the truck, but was prevented from doing so by Palacios. Defendant pepper sprayed Josemaria through
the truck window.
Josemaria
ran out of the truck, followed by Palacios, and screamed for help. Defendant ran after Josemaria and tried to
take her phone. Defendant grabbed
Josemaria by the shirt and they both fell to the ground. Defendant also ripped off a medallion that
Josemaria was wearing around her neck.
At
the same time, the young man who had approached the produce truck with
defendant, having been joined by two other men, attacked Palacios and threw him
to the ground. Defendant and the three
men then got into a car and drove away.
A pair of sunglasses found at the scene contained DNA consistent with
defendant’s DNA profile.
II.
Case
When
interviewed by the police and again at trial, defendant admitted her
involvement in the robbery, but claimed she was acting under duress. Defendant contended that, at the time of the
robbery, she had been in a dating relationship with Jorge Gomez, a member of the
Lopers criminal street gang. According
to defendant, Gomez was abusive, physically attacked her, and threatened her
and her family. Defendant claimed Gomez
beat her two times a week, and threatened every day to kill her. She also said that on more than one occasion,
Gomez had locked her in a room and refused to let her out. Defendant claimed Gomez had stabbed her,
threatened her by holding a knife to her throat, hit and punched her in the
face and the body, beaten her with a bat, handcuffed her, and hit her on the
head, “popp[ing]†it open. She also
claimed Gomez repeatedly threatened to cut off her son’s head. Defendant testified Gomez told her that if
anything happened to him or his neighbors, he would blame her and her family.
Defendant
never reported Gomez’s abuse to the police.
On the few occasions when Gomez’s parents called the police, defendant
denied Gomez had assaulted her.
Defendant testified she tried to leave Gomez but he prevented her from
doing so.
Defendant
further testified as follows: On the day
of the robbery, defendant was driving Gomez’s car; Gomez was in the front
passenger seat, and two other Lopers gang members, Chucky and Trouble, were in
the backseat. Gomez needed money, so he
decided to commit a robbery, and planned the crime. When Chucky tried to enter the truck to steal
Palacios’s money, defendant thought Palacios was trying to stab her or Chucky,
so she pepper sprayed Palacios. The
pepper spray accidentally hit Josemaria.
As Josemaria ran from the truck, Gomez or Trouble ordered defendant to
go after her. When defendant caught up
with Josemaria, defendant told her not to call the police because she feared
Gomez and the others would hurt Josemaria.
Defendant did not want to hurt Josemaria. When Gomez and Trouble drove up, defendant
did not feel she had any choice but to get back in the car with them. Defendant believed Gomez took her share of
the proceeds from the robbery.
Defendant
told the police officer who interviewed her that she felt trapped in the
relationship with Gomez, which she described as “worse than jail.†Defendant testified she only participated in
the robbery because of her fear of Gomez, and that she felt she had no choice
but to do what he told her to do.
After
leaving Gomez in 2008, defendant never told the police about Gomez’s assaultive
behavior. By 2010, defendant no longer
had contact with the Lopers street gang.
She had moved away so no one in the Lopers gang could find her. When contacted by the police, Gomez denied
any knowledge of or involvement in the robbery of the produce truck. Chucky and Trouble either declined to speak
to the police or provided no useful information.
III.
The
prosecution offered the testimony of a gang expert to rebut defendant’s claim
of duress. The expert testified the
Lopers street gang is a traditional Hispanic criminal street gang, whose
members are involved in shootings, homicides, robberies, murders, attempted
murders, and narcotics dealing. A Lopers
gang member would only commit a crime with someone whom he or she trusts. Several field interview cards and police
contacts documented defendant’s activities in 2008 in territory claimed by the
Lopers gang and with individuals in the Lopers gang. One police report from 2008 stated that
defendant had taxed transvestite prostitutes, demanding money from them in
order to operate in the territory claimed by the Lopers gang.
The
gang expert opined that defendant was an active participant in the robbery of
Josemaria and Palacios’s truck because it occurred in territory claimed by the
Lopers gang, Lopers gang members had been involved in similar robberies,
defendant made contact with Josemaria at the truck, and defendant sprayed
pepper spray into the truck. The gang
expert further opined that defendant was an active member of the Lopers gang on
the date of the robbery, based on her conduct during the robbery, tattoos, and
uncharged criminal conduct.
IV.
History
Defendant
was charged in an information with two counts of second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c)) (counts 1 and 2), and one count of
using tear gas and a tear gas weapon (id.,
§ 12403.7, subd. (g)) (count 3).
A jury convicted defendant of all counts. The trial court sentenced defendant to the
low term of two years on count 1, the low term of two years on count 2,
and the low term of 16 months on count 3; the court imposed the sentences
on counts 2 and 3 to run concurrently to the sentence on
count 1. Defendant timely appealed.
Discussion
Defendant
argues the trial court committed prejudicial error by admitting the gang
expert’s rebuttal testimony regarding taxing.
We review the court’s admission of evidence for abuse of
discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.)
Duress
is a defense to the crimes charged when defendants “committed the act or made
the omission charged under threats or menaces sufficient to show that they had
reasonable cause to and did believe their lives would be endangered if they
refused.†(Pen. Code, § 26,
subd. Six.) The jury was instructed
as follows regarding duress: “The
defendant is not guilty of second-degree robbery if she acted under
duress. The defendant acted under duress
if, because of threat or menace, she believed that her life would be in
immediate danger if she refused a demand or request to commit the crime. The demand or request may have been express
or implied. [¶] The defendant’s belief
that her life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief
was reasonable, consider all of the circumstances as they were known to and
appeared to the defendant and consider what a reasonable person in the same
position as the defendant would have believed.
[¶] A threat of future harm is not sufficient; the danger to life must
have been immediate. [¶] The People must
prove beyond a reasonable doubt that the defendant did not act under
duress. If the People have not met this
burden, you must find the defendant not guilty of second-degree robbery.†(CALCRIM No. 3402.)
Defendant
argued that her guilt was negated due to duress because she reasonably believed
her life or the lives of her children would be in immediate danger from Gomez
if she did not participate in the crime.
On rebuttal, the prosecution offered the following testimony of the gang
expert:
“Q Have you had a chance to do that kind of
background investigation on the defendant, Yanira Alcaraz?
“A Yes.
“Q And did you find police contacts during your
investigation?
“A I did.
“Q Okay.
And did you find field interview cards during your investigation?
“A Yes.
“Q Okay.
And, in general, and I’m not going to go through each one, were all of
those within the Lopers criminal street gang territory?
“A I believe roughly, yes.
“Q And were they mostly involving herself and
other criminal street gang members?
“A Yes.
“Q Okay.
Did any of them specifically stand out that you would base an opinion
on?
“A Yes.
“Q Which one?
“A There was an incident involving the defendant
where she confronted some transvestite prostitutes.â€
Defendant’s
trial counsel objected to the testimony on the ground of relevance.
counsel’s objections, and counsel never moved to strike the last response by
the gang expert. Following a conference
between the court and counsel in chambers, the gang expert’s testimony
continued as follows:
“Q By [the prosecutor]: Detective, did you review a police report in
which the defendant was alleged to have been taxing certain individuals?
“A Yes.
“Q Okay.
And when I say ‘taxing,’ in general, what does that mean?
“A Taxing is a term within the criminal street
gang world. Obviously, we all know about
taxing in the traditional method, but this is very similar in the sense that
criminal street gangs will contact either legitimate or illegitimate business owners,
people conducting either criminal conduct or legal conduct, within their
criminal street gang territory and tax them for monies, meaning money for
protection, money to not be harassed, money for a variety of things. But in the criminal street gang world, they
refer to it as taxing.
“Q And is that conduct that, based on your
training and experience, the Loper criminal street gang engages in within their
territory?
“A Yes, it is.â€
We
first consider whether the evidence was relevant to an issue in the case. To be relevant, evidence must have a tendency
in reason to prove or disprove a disputed issue in the case. Defendant correctly notes that her membership
in or participation with the Lopers gang was not directly at issue in the case
because she was not charged with street terrorism and there were no allegations
that she committed the robbery for the benefit of, at the direction of, or in
association with a gang. This does not
make the evidence irrelevant, however.
The Attorney General argues the evidence was relevant to show defendant
was not acting under duress when she committed the robbery, but rather was
acting freely when committing the crime with Gomez and other members of the
Lopers gang. Defendant counters that her
participation in other acts of criminal conduct is more proof that she was
living her life in fear of Gomez, and was subject to committing other crimes at
his behest to avoid further abuse.
There
is no direct evidence of a threat, relating to the crime charged, made by
Gomez, so the issue is whether defendant’s belief in an implied threat by
Gomez, due to his alleged history of abusing defendant, was reasonable. Evidence tending to disprove defendant’s
testimony of constant, ongoing abuse by Gomez has a tendency in reason to disprove
the reasonableness of defendant’s fear of immediate harm. Defendant’s trial counsel argued to the jury
that the culture of fear in and among gangs tended to show defendant’s fear was
reasonable.
We
conclude the trial court did not abuse its discretion by admitting the expert’s
testimony regarding taxing. The evidence
was relevant to refute defendant’s claim of duress. The evidence was not unduly prejudicial. It is true that, given its inflammatory
impact, evidence of gang membership or activity should not be admitted “if it
is only tangentially relevant to the charged offenses.†(People
v. Albarran (2007) 149 Cal.App.4th 214, 223, italics omitted.) In this case, however, the evidence of taxing
for the Lopers gang in 2008 in territory claimed by the Lopers gang was
directly related to the credibility of defendant’s testimony that she was
acting under duress when committing the robbery of Josemaria in 2007.
Defendant
argues the trial court abused its discretion by admitting the evidence of defendant’s
taxing to rebut her evidence of her own good character. Evidence of a defendant’s character is
generally inadmissible, unless it is offered to prove a fact such as motive,
opportunity, intent, plan, or knowledge.
(Evid. Code, § 1101.) If a
defendant offers good character evidence, the prosecution may rebut that
evidence with opinion or reputation evidence of the defendant’s bad character
(Evid. Code, § 1102, subd. (b)); evidence of a defendant’s specific
acts is not admissible to rebut good character evidence (People v. Felix (1999) 70 Cal.App.4th 426, 431-432). Evidence that a defendant committed specific
acts of taxing would be inadmissible to rebut any good character evidence.
The
Attorney General counters that the trial court did not admit the evidence of
taxing to rebut defendant’s good character evidence, apparently conceding it
would have been error for the trial court to admit the gang expert’s testimony
on this ground.
Even
if the trial court erred in admitting the gang expert’s testimony, we could
only reverse defendant’s conviction if it is reasonably probable defendant
would have received a more favorable result in the absence of the error. (People
v. Stewart (2004) 33 Cal.4th 425, 494; People
v. Watson (1956) 46 Cal.2d 818, 836.) The evidence supporting defendant’s duress
defense was weak. Her claim of duress
was supported only by her own testimony.
She offered no evidence that her life was in immediate danger. Defendant testified Gomez did not tell her he
would kill her if she did not commit the robbery. Josemaria testified that defendant never
asked for help, never apologized, and did not seem upset during the
attack. When Josemaria fled the truck after
being pepper sprayed, defendant chased her, grabbed her by the shirt, threw her
to the ground, and ripped a medallion off Josemaria’s neck because, in
defendant’s own words, she “just wanted to steal it.†Defendant never reported
Gomez’s abuse to the police (until she was questioned about the robbery in this
case), denied to the police that any abuse had occurred when it was reported by
others, and did not leave Gomez.
Disposition
The
judgment is affirmed.
FYBEL,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
that duress was a defense to the charge of use of tear gas, and defendant does
not claim this was error. The court
instructed the jury that it could consider the defense of self-defense for the
crime of use of tear gas and a tear gas weapon.
the ground of hearsay. Defendant does
not pursue this argument on appeal. An
expert witness may generally base his or her opinion on hearsay. (Evid. Code, § 801, subd. (b);
Cal.4th 605, 618.)
