P. v. Alvarez
Filed 9/6/13 P. v. Alvarez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ADAM MANUEL ALVAREZ,
Defendant and Appellant.
B243218
(Los Angeles County
Super. Ct. No. KA096105)
APPEAL from a judgment of the
Superior Court of
County, George Genesta, Judge.
Affirmed.
Philip I. Bronson for Defendant,
under appointment of the Court of Appeal, for Defendant and Apellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Shawn McGahey Webb and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Adam Manuel Alvarez challenges his convictions for
of firearms, and unlawful possession of ammunition. He maintains that the gang allegations accompanying his
convictions for certain gun-related offenses must be reversed due to insufficiency
of the evidence and evidentiary error.
We reject his contentions and affirm.
On March 29, 2012, an amended information was filed, containing
seven counts numbered 1, 2, and 4 through 8.
The information charged appellant in counts 1 and 4 with possession of a
firearm as a convicted felon (former Pen. Code, § 12025, subd. (a)(1)), in count 2 with possession of
cocaine with a loaded weapon (Health & Saf. Code, § 11370.1, subd. (a)), in count 5 with possession of a firearm
(former Pen. Code, § 12021.1), in count 6 with possession of an assault weapon
(former Pen. Code, § 12280, subd, (b)), in count 7 with the sale,
transportation, or offer to sell cocaine (Health & Saf. Code, § 11352, subd.
(c)), and in count 8 with unlawful possession of ammunition (former Pen. Code, § 12316, subd. (b)(1)).
each count were allegations that appellant committed the offense for the
benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)), and that he had suffered prior
convictions (Pen. Code §§ 667, subd. (a)(1), 667.5, subd. (b)), including one “strike,†for purposes
of the Three Strikes law (§§ 667, subds. (b) - (i), 1170.12, subds. (a) - (d)). Under count 7, the information also alleged that appellant was personally armed
during the offense ( Pen. Code § 12022, subd. (c)), and that he had been
convicted of possession of a controlled substance for sale (Health & Saf. Code,
11370.2, subd. (a)). Appellant
pleaded not guilty and denied the special allegations.
The trial was bifurcated with respect
to the special allegations concerning appellant’s prior convictions.
regarding the offenses charged against appellant, counts 4 through 8 in the
amended information were re-numbered counts 3 through 7. The jury was asked to make gang findings only
with respect to the offenses related to the possession of firearms and
ammunition, as alleged in counts 1, 3 through 5, and 7 (as re-numbered). On April 11, 2012, the jury found appellant guilty as
charged, and
found the pertinent gang and gun use allegations to be true. Appellant stipulated to the truth of the prior conviction
allegations. On August 9, 2012, the trial
court
sentenced appellant to an aggregate prison term of 29 years and four months.
A. Prosecution
Evidence
1. Evidence
Regarding Offenses
On
November 10, 2011, several members of the Los Angeles County Sheriff’s
Department conducted a surveillance operation regarding appellant’s Covina
residence, where narcotics activity was suspected. Deputy Sheriff Mario Garcia watched the house
from an undercover unmarked van. Nearby
were two vehicles containing the rest of the surveillance team, including
Deputy Sheriff Steve Busch, who waited in a black-and-white patrol car.
Between
1:00 and 1:30 p.m., Garcia saw appellant’s girlfriend, Marissa Godina, leave
the residence and drive away in a black Chevrolet Suburban. Garcia later noticed that appellant was a passenger
in the Suburban. While Garcia followed
the Suburban, Godina pulled over, let Garcia pass, and then began to follow
him. Garcia concluded that Godina was
engaged in “countersurveillance†tactics.
To ensure his safety, he asked the other team members to watch the
Suburban.
Busch
saw Godina drive through a red light, and stopped the Suburban. The other deputy sheriffs soon arrived. When Busch instructed the Suburban’s
occupants to show their hands, Godina was cooperative, but appellant moved his
hands continuously between the Suburban’s center console and his seat. As Busch moved close to the vehicle, he
smelled fresh marijuana inside it and saw what appeared to be a plastic bag
containing marijuana in a cup holder in the center console.
Busch detained the Suburban’s
occupants and advised appellant of his Miranda
rights.
title="">[3]
When Garcia asked appellant whether the bag found in the Suburban
belonged to him, appellant replied, “it’s ours.†Appellant stated that he belonged to the East
Side Duarte gang and owned the Suburban.
Appellant denied there were guns or other narcotics in the
Suburban, and permitted the deputy sheriffs to search it. Inside the vehicle, the deputy sheriffs found
a bag containing .40 grams of cocaine and a loaded handgun in the center
console. On or near the front passenger
seat was appellant’s wallet, which held $1,285 in cash.
Garcia
showed the handgun to appellant, who said, “Oh, shit. I forgot it was there. . . . You know how it is out there, Duarte,
everybody’s getting shot up.†Appellant
further stated that he “didn’t want to get shot up by the blacks.†When Garcia asked whether appellant’s house
held any guns, appellant said that he had an assault rifle there.
The deputy
sheriffs made a protective sweep of appellant’s house to ensure no one was
present to destroy evidence. They
thereafter obtained a search warrant and conducted a search. In the kitchen, they found a digital scale
and a bill displaying appellant’s name.
Under a bedroom dresser was an assault rifle. The dresser also contained a “pay-owe†sheet
and other paperwork bearing appellant’s name.
Within the bedroom’s closet, the deputy sheriffs found a handgun,
ammunition, a bullet-resistant “flak†vest, and a plastic storage container
holding what appeared to be marijuana.
The handgun was later determined to have been reported stolen following
a robbery committed by East Side Duarte gang members.
When
booked, appellant said he was unemployed.
Two cell phones, including appellant’s, were taken into evidence. During a supplemental search of the Suburban,
deputy sheriffs found a second hand gun hidden in the center console. In addition, a digital scale and a bank
statement bearing appellant’s name were found in the glove box.
2. Gang
Evidence
Los Angeles County Sheriff’s
Department Deputy Sheriff David
Cortinas, a gang expert, testified that East Side Duarte is a Hispanic gang
whose territory lies within Duarte. The
gang’s most important rival is an African-American gang known as the Duroc
Crips. Appellant belongs to the East
Side Duarte gang.
Cortinas
further testified that the East Side Duarte gang engages in many crimes,
including theft, possession of weapons, possession of narcotics, selling of
narcotics, robberies, assaults, attempted murders, and murders. He opined that the crimes charged against
appellant related to the possession of firearms were committed for the benefit
of that criminal street gang. (Pen. Code
§ 186.22, subd. (b)(1)(A).)
B. Defense
Evidence
Appellant presented no evidence.
A.
Appellant
contends the gang enhancements accompanying his convictions for possession of
firearms and ammunition fail for want of substantial evidence. Penal Code section 186.22, subdivision
(b)(1), provides a sentence enhancement for a defendant convicted “of a felony
committed 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 . . . .†To establish the enhancement, the prosecution
relied primarily on expert testimony from Deputy Sheriff Cortinas. Appellant argues that Cortinas’s testimony
and the other evidence was insufficient to show that his offenses were
committed for the benefit of the East Side Duarte gang. For the reasons discussed below, we disagree.
1.
Our
inquiry follows established principles.
“In
determining whether the evidence is sufficient to support a conviction
. . . , ‘the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citations.] Under this standard, ‘an appellate court in a
criminal case . . . does not ask itself whether it believes that
the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.]
Rather, the reviewing court ‘must review the whole record in the light
most favorable to the judgment below to determine whether it discloses
substantial evidence -- that is, evidence which is reasonable, credible, and of
solid value -- such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’
[Citation.]†(
1209, 1224.)
Here,
appellant’s challenge targets Cortinas’s testimony. Generally, expert testimony may be presented
to establish the culture and habits of criminal street gangs and related
matters (People v. Gardeley (1996) 14
Cal.4th 605, 617), including whether the defendant possessed a gun for the
benefit of his gang (People v. Garcia
(2007) 153 Cal.App.4th 1499, 1512-1514 (Garcia)). As with other types of expert witness, the
prosecution is authorized to elicit testimony from a gang expert by asking
hypothetical questions. (
932, 946.) Thus, a gang expert may
render an opinion on the basis of a hypothetical question that asks the expert
to assume the truth of specified facts, provided the hypothetical is “rooted in
facts shown by the evidence . . . .†(
2. Expert
Testimony
Cortinas, a
gang investigator with the Operation Safe Streets Bureau, testified that
although Hispanic gangs such as the East Side Duarte gang are territorial,
their members sometimes live outside their claimed territory. According to Cortinas, the East Side Duarte
has approximately 339 documented members, who “put[] in work†by engaging in
narcotics-related crimes and crimes involving the possession of weapons. They wear baseball caps bearing the letter
“D,†display distinctive tattoos, and make graffiti markings involving the
numeral “13,†which discloses the gang’s affiliation with the Mexican Mafia. Cortinas stated that in order to use that
numeral, “you have to basically acknowledge that you are aligning yourself with
the Mexican Mafia and doing work and paying them some of the money you make for
the gang.†Cortinas noted that appellant
had visible tattoos reading “Duarte†and “E.S.†on his head.
Responding to
hypothetical questions, Cortinas opined that appellant committed the
gun-possession offenses for the benefit of the East Side Duarte gang with the
specific intent to promote its criminal activities. In support of that opinion, Cortinas pointed
to the evidence that appellant’s Suburban contained both narcotics and guns,
and stated, “Narcotics sellers usually have guns to protect themselves from anybody
[who is] trying to rip them off or kill them.â€
Cortinas maintained that appellant’s drug sales funded the East Side
Duarte gang and enhanced its reputation.
In addition, observing that a hand gun reportedly stolen by other East
Side Duarte members was found in appellant’s house in Covina, Cortinas opined
that the residence functioned as a “safe house†for the East Side Duarte gang,
where its members could hide stolen goods outside Cortinas’s investigative
area.
Cortinas also
opined that the pay-owe sheet found in appellant’s residence evidenced that his
gun possession was for the benefit of his gang.
According to Cortinas, unlike a usual pay-owe sheet, which records funds
owed by individuals for drug transactions, appellant’s pay-owe sheet listed
sums that individuals owed with respect to certain gangs in the Hacienda
Heights-La Puente area. Cortinas
explained: “This paper here is not your
typical pay-owe sheet for selling narcotics.
This looks like somebody collecting taxes on behalf of the Mexican
Mafia. [¶] . . . [¶] Every gang makes money, and . . . if
you’re aligning yourself with the Mexican Mafia, you have to pay money to them
to be aligned with them. So it’s called
taxes.â€
In
cross-examining Cortinas, defense counsel asked whether appellant’s remark that
he “didn’t want to get . . . shot up by the blacks†showed that appellant
had placed the guns in his Suburban solely for his own self-protection. Cortinas replied that the evidence
established that appellant was significantly involved in gang activities,
including the sale of narcotics. He also
maintained that appellant possessed the hand gun and assault rifle found in the
house for the benefit of his gang.
During
the re-direct examination of Cortinas, the prosecutor inquired whether
appellant might have placed the guns in the Suburban to benefit his gang, even
though he also derived a personal benefit from their presence. Noting that there were two guns in the
Suburban, Cortinas responded in the affirmative, explaining that if a gang
member with two guns was contacted by another who needed a gun, he could
provide a gun and remain “good.â€
3. Analysis
Appellant
maintains there was insufficient evidence to establish that he possessed the
firearms and ammunition in his vehicle and residence “for the benefit of†his gang
(Pen. Code, § 186.22, subd. (b)(1)(A)).
We disagree.
In
driven by the defendant, a gang member, because the truck’s tail light was
out. (Garcia, supra, 153 Cal.App.4th at pp. 1502-1504.) After the officers smelled marijuana, the
defendant admitted that he had smoked some marijuana, and consented to a search
of the truck, which disclosed a concealed handgun. (Id.
at p. 1503.) Although the defendant had
a history of gang activity, he denied active gang membership, yet demonstrated
a knowledge of recent shootings by members of his gang, including where they
hid guns. (Id. at p. 1504.) The charges
against the defendant included carrying a loaded unregistered weapon in public,
accompanied by a gang allegation. (
defendant possessed the gun for the benefit of his gang, as it enabled him to
protect himself and fellow gang members from rival gangs, and thus enhanced his
gang’s reputation. (Id. at pp. 1505-1506.)
After a jury convicted the defendant and found the gang allegation to be
true, the appellate court held there was sufficient evidence to support the
gang finding. (Id. at pp. 1507, 1511-1512.)
Here, the
evidence is significantly stronger that appellant possessed guns and ammunition
to benefit his gang. The evidence at
trial showed that appellant belonged to the East Side Duarte gang, whose rivals
include an African American gang. Two
firearms, cocaine, a digital scale, and a large amount of cash were found in
appellant’s Suburban, and two more firearms, ammunition, a second digital
scale, and a pay-owe sheet were discovered at his Covina residence. When stopped by the deputy sheriffs, appellant
acknowledged his gang membership and admitted that one of the firearms in the
Suburban was there because he “didn’t want to get shot up by the blacks.†In addition, one of the guns in appellant’s
house was reported stolen following a robbery by appellants’ fellow gang
members.
On
the basis of this evidence, Cortinas opined that appellant was engaged in three
activities beneficial to his gang, namely, narcotics sales, the operation of a
safe house where stolen goods could be kept, and collecting “taxes†for the
Mexican Mafia, with which appellant’s gang was aligned. Cortinas further opined that appellant’s guns
protected him in the course of his narcotics sales and other activities that
funded his gang, and also enabled him to assist other gang members. In our view, the evidence was sufficient to establish that
appellant possessed the guns and ammunition to benefit his gang.
Appellant’s reliance on
650, People v. Ramon (2009) 175
Cal.App.4th 843, People v. Albarran
(2007) 149 Cal.App.4th 214 and In re
Frank S. (2006) 141 Cal.App.4th 1192 is misplaced. Those cases stand for the proposition that
when an expert’s opinion that the defendant’s crime benefited the pertinent
gang relies solely on the defendant’s gang membership, the opinion will not support
a gang enhancement. (
175 Cal.App.4th at pp. 849-853; People v.
Albarran, supra, 149 Cal.App.4th
at p. 227; In re Frank S.,
1195-1199.) That proposition is
inapplicable here, as Cortinas’s opinions were based on facts beyond
appellant’s gang membership and his possession of the firearms and ammunition.
In sum, there was sufficient evidence to support the gang enhancements
accompanying appellant’s convictions for possession
of firearms and ammunition.
B. Text Messages
Appellant
maintains the trial court erred in admitting Detective Cortinas’s testimony
regarding the existence of text messages requesting narcotics. His sole contention is that the testimony
constituted inadmissible hearsay. As
explained below, we disagree.
1. Governing
Principles
Evidence Code
section 1200 defines hearsay evidence as evidence of an out-of court statement
“that is offered to prove the truth of the matter stated.†As our Supreme Court has explained, an
out-of-court statement is hearsay when “it is used testimonially, i.e., it is
offered for the purpose of inducing the trier of fact to believe in the truth
of the assertion itself . . . .†(
fn. 9, italics omitted, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 232-238.) Under this principle, requests ordinarily do
not constitute hearsay because “[a] request, by itself, does not assert the
truth of any fact . . . .†(
117 (Jurado).)
California
courts have commonly regarded evidence that a defendant received requests to
buy narcotics as admissible circumstantial evidence that the defendant sold
contraband, rather than as hearsay. In
447, 449-450 (Nealy), the defendant
was charged with possession of cocaine
for sale. Over hearsay objections,
police officers were permitted to testify that while they searched the
defendant’s residence, they answered several phone calls from persons
interested in buying “doves,†a slang term for rock cocaine. (Id. at
pp. 450-451.) The appellate court
concluded that the calls were not hearsay, but circumstantial evidence
supporting the inference that the cocaine found in the defendant’s residence
was for sale. The court stated: “[S]ubject to Evidence Code section 352, and
appropriate editing, when a police officer participates in a telephone
conversation where he is lawfully executing a search warrant and hears a third
person offer to purchase a controlled substance, testimony thereon is not made
inadmissible by the hearsay rule and may be received as circumstantial evidence
tending to show the controlled substance seized at that location was possessed
for purposes of sale.†(
1515, 1517-1519 [reaching same conclusion on similar facts];
402, 405 [phone calls to defendant requesting that bets be placed on horse
races properly admitted over hearsay objection as circumstantial evidence that
defendant operated illegal betting enterprise].)
In
935, 945 (Morgan), the appellate
court recognized the “well established†principle that such evidence is
properly admitted over a hearsay objection, but adopted an alternative theory
to support the principle, namely, that requests to buy drugs are admissible
hearsay. In offering the theory, the
court observed that any inference from the request to the defendant’s sales
activity necessarily relies on some implications from the words of the request,
namely, that the speaker desires drugs and believes that the defendant can
provide them. (Id. at p. 943.) The court
reasoned that those implications are properly classified as “implied
assertions†that constitute hearsay. (
Nonetheless,
the court concluded that the hearsay rule does not bar the admission of such
“implied assertions,†as they do not display the untrustworthiness
characteristic of assertions subject to exclusion under the hearsay rule. (Morgan,
supra, 125 Cal.App.4th at p. 944.)
The court stated: “The rationale
for not treating an implied assertion as an assertion subject to the hearsay
rule is that is it primarily conduct and not intended as an assertion. To the extent conduct
. . . rather than simply words are involved, the implied
assertion is more reliable. . . . [¶] This rationale applies to the [request by
phone] in this case. The caller was not
intending to assert that [the defendants] were selling methamphetamine; rather,
he was attempting to purchase methamphetamine.
Because actions speak louder than words, the caller’s statements were
more reliable than the usual hearsay statement.†(Ibid.)
2.
Near the
completion of Cortinas’s testimony, after he stated that gang members often
communicate by cell phone and text messages in order to obtain guns, the
following exchange occurred:
“[Prosecutor:] Going back . . . briefly to the drug sales,
if . . . cell phones [were] recovered, and during [the]
investigation[] those cell phones were constantly alerting [that] text messages
. . . were being received . . . that related to drug activity,
would that affect your opinion in any way?
“[Cortinas:] In terms of gang [sic] or sales?
“[Prosecutor:] In terms of the possession of those drugs for
the benefit of the gang.
“[Cortinas:] Absolutely.
“[Prosecutor:] Why?
“[Cortinas:] Because
the text messages themselves are asking specifically for narcotics. Now, a gang member who’s selling drugs for
his gang --†(Italics added.)
At this point,
the trial court remarked that Cortinas’s answer assumed facts not in evidence,
and defense counsel objected that the prosecutor’s question exceeded the scope
of the cross-examination. The court
conducted a bench conference, during which the prosecutor stated that her
question anticipated a stipulation regarding text messages on a cell phone that
the deputy sheriffs discovered.
According to the prosecutor, she and defense counsel had tentatively
agreed to stipulate that the cell phone “was alerting as to multiple text
messages that were related to drug activity.â€
Defense counsel replied that the stipulation would merely be that “the
phone was ringing and ringing, which would be consistent with drug
activity.â€
In discussing
the proposed stipulation, the court observed that the relevance of any such
cell phone evidence to the issue of drug sales resided “not [in] the ringing,â€
but in “what . . . the texting [is] for . . . .†Defense counsel argued that “all that stuffâ€
was hearsay and inadmissible under Evidence Code section 352. In response, the court stated: “I don’t think it’s hearsay.
. . . [W]e can talk about whether it’s correctly characterized
as hearsay evidence or [an] exception to the hearsay rule, but [it is] circumstantial
evidence in the case law.†The
prosecutor offered to present testimony from Cortinas regarding the content of
the text messages, and asked whether the court would admit his testimony. After noting that Evidence Code section 352
might bar that testimony because there was other evidence that appellant sold
drugs, the court stated: “[W]e’ll
address it later,†and asked the prosecutor to “[c]lose it out.â€
The prosecutor
immediately ended her examination of Cortinas.
No stipulation regarding the cell phone was introduced, and no
additional evidence was presented regarding the text messages on it.
3. Analysis
Appellant
targets Cortinas’s remark that “the text messages themselves [were] asking
specifically for narcotics,†arguing that “the text messages are ‘classic
hearsay’ because they are relevant solely to prove the truth of what they imply
. . . .†He maintains that because no
further evidence was submitted regarding wording of the text messages or the
cell phone on which they were found, the text messages were “too unreliable†to
be admissible under the theories stated in Nealy
and Morgan. He is mistaken.
Viewed
in context, Cortinas’s remark appears to be an assertion that text messages
“specifically asking for narcotics†were discovered on the cell phones booked
into evidence during the investigation of appellant’s crimes. So understood, the remark constituted
evidence of the existence of requests for narcotics that was admissible over a
hearsay objection. Under
exclusion because requests for narcotics are not hearsay. Furthermore, under Morgan, the remark was not subject to exclusion because a person’s
request for narcotics, even if considered hearsay, is “primarily conduct†that
reliably conveys the person’s desire for narcotics and belief that the
request’s recipient can supply them. (
Accordingly, the hearsay rule did not render Cortinas’s remark
inadmissible.
name="_ftnref5" title="">[5]
Appellant
argues that in the absence of other evidence regarding the details of the text
messages and their surrounding circumstances, Cortinas’s remark was subject to
exclusion under the hearsay rule. We
disagree. Neither Nealy nor Morgan suggests
that evidence regarding the precise wording of a request for narcotics and the
circumstances of its discovery are necessary predicates for admission of the
request over a hearsay objection, although they recognize that the admission of
the request is also subject to other requirements that appellant has not
invoked, including those stated in Evidence Code section 352. (Nealy,
supra, 228 Cal.App.3d at p. 453; see
details of the text messages affected the evidentiary weight attributable to
Cortinas’s remark and potentially opened it to other objections, but did not
render the remark vulnerable to a hearsay objection. In sum, appellant has shown no evidentiary error.
DISPOSITION
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
name="_ftn1" title="">[1] The Legislature has
repealed several provisions of the Penal Code under which appellant was
convicted and replaced them with new statutes carrying over the repealed
provisions without substantive change. (Cal. Law Revision Com. com., 51D pt. 1 West’s Ann. Pen. Code (2011 supp.) foll. § 12000, p. 32.)
name="_ftn2" title="">[2] Appellant stipulated
to a prior felony conviction, for purposes of the jury trial on the offenses
that included a prior conviction as an element.
