P. v. Arguello

















Filed 6/18/13
P. v. Arguello 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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. JEAN C. ARGUELLO, Defendant and Appellant.

B239996 (Los Angeles County Super. Ct. No. YA076083)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Lauren Weis Bernstein, Judge. Affirmed.

James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.





>

Jean C. Arguello appeals from his conviction of href="http://www.fearnotlaw.com/">first degree robbery, which was found to
have been committed for the benefit of a criminal
street gang under Penal Code section 186.22 (statutory references are to
the Penal Code unless otherwise indicated).
All of his arguments on appeal concern the admission of gang
evidence. He contends the trial court
abused its discretion in denying his motion to bifurcate the trial on the
enhancement and his motion for new trial
based on the gang evidence. He also
argues his attorney was ineffective because he did not object to testimony by
the prosecution’s gang expert that appellant’s gang had murdered police
officers.

We find no
basis for reversal and affirm.



FACTUAL AND PROCEDURAL SUMMARY

On the
early morning of September 13, 2009,
Chad Chapman was returning to his home in Inglewood
after work. He stopped to purchase Newport
cigarettes and again to buy food at a Popeye’s restaurant. The food was in a Popeye’s bag and the cigarettes
were still sealed. About 4:00 a.m. he parked his car on the street and
crossed toward the gate to his building.
A car rapidly pulled up in front of his building and two men jumped out
and headed toward him at a fast rate of speed.
He was aware there was a driver in the car, but could not see whether
the driver was male or female. Chapman
walked quickly toward the gate of his building in an effort to get away from
the men, and he was able to open the security gate with a code. He was accosted by the men inside the
gate. One had a knife and the other,
identified by Chapman as appellant, had a pump shotgun. The men stood on either side of him. The shotgun was aimed at Chapman’s href="http://www.sandiegohealthdirectory.com/">chest and head. Appellant asked Chapman “‘Where are you
from?’” Chapman replied “‘I don’t gang
bang.’”

The man
with the knife then took the Popeye’s bag out of Chapman’s hand and started
going through his pockets, taking the cigarettes and $116 (two $50 bills and
some other bills). He handed a $50 bill
to appellant. One or both of the men
told Chapman to lift up his shirt and told him to say “‘Fuck NHP’”. At that point, appellant was about five feet
away. The man with the knife felt around
Chapman’s neck and looked at Chapman’s stomach and arm. Appellant also looked at Chapman’s
stomach. When Chapman hesitated about
complying with a demand to turn over his watch, appellant jerked the shotgun
toward Chapman and asked the man with the knife whether he should shoot Chapman
in the leg. He had his finger on the
trigger of the shotgun. The man with the
knife said “No.”

Chapman
thought he was going to be shot and was so frightened he urinated on
himself. He feared for his life. He gave up the watch and asked the men to let
him go because he had a son upstairs. He
repeated that he did not gang bang.
Appellant walked out of the gate toward the car. The man with the knife demanded Chapman’s
keys and cell phone. Chapman said they
were for work, and he was allowed to keep them.
Chapman described the knife as having a black handle and a blade about
11 inches long.

Before the
men left, the man with the knife instructed Chapman to say “‘Fuck NHP.”’ He repeated this demand several times. Chapman understood NHP referred to the
Neighborhood Piru gang. The man with the
knife also said “‘Fuck NHP’” three or four times, and said this loudly enough
to be heard from 17 to 20 feet away.
Chapman did not recall appellant saying “‘Fuck NHP’” and appellant did
not instruct Chapman to say that phrase.


The two men
got back into the vehicle in which they had arrived, a white Toyota Solara or
Dodge Stratus. It drove away. Chapman called 911. An officer responded within five
minutes. Shortly after that, the officer
took Chapman to make a field identification.
Chapman identified appellant and the car which was involved in the
robbery.

Exhibit 2,
a knife, had a blade and handle similar to the knife used in the robbery, but
Chapman did not recognize a jagged edge (a hook) on the top part of exhibit
2. He described the shotgun as silver
and black and about three feet long. It
was not recovered. Chapman identified a
sealed Newport menthol box of
cigarettes later recovered from the car in which appellant was a passenger when
detained (People’s exhibit 3), as the brand he had purchased just before the
robbery. It appeared to be the same pack
taken from him in the robbery. Chapman
also identified appellant from a lineup.


Appellant
was charged with one count of first degree robbery (§ 211) with allegations
that a principal personally used a firearm in the commission of the robbery and
that it was committed for the benefit of a criminal street gang
(§§ 12022.53, subds. (b) and (e)(1), 186.22, subd. (b)(1)(C)). His motion to bifurcate the gang allegation
was denied. Appellant’s girlfriend,
Marisela Ricalde, testified to an alibi for the time of the robbery. Appellant testified in his own defense and
corroborated Ricalde’s version of their whereabouts at the time of the crime. A defense expert testified about the
inaccuracies of eyewitness identification under conditions like those presented
here.

The jury
found appellant guilty as charged and found the special allegations true. The trial court denied appellant’s motion for
new trial. Appellant was sentenced to
state prison for an aggregate term of 23 years.
He filed this timely appeal.



DISCUSSION

As we have
noted, all of appellant’s arguments on appeal arise from the trial of, and
evidence concerning, the gang enhancement.

A. Procedural Background

Prior to
trial, counsel for appellant moved to bifurcate the trial of the gang
enhancement from the robbery because of prejudice from the gang evidence. The trial court cited People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez) for the proposition that it is within the court’s
discretion to bifurcate trial of the gang enhancement. The court said: “You know, to me, this whole thing is
inexorably linked to the robbery. The
words that are used create fear. In
fact, the alleged victim in this case said that he peed on himself. He was so nervous. I think that you can’t really separate it out
from the charged offense, and in my discretion, I’m exercising my
discretion. [¶] I don’t think it makes the crime any more prejudicial
than it would be for the jurors to hear that he pointed a long barrel shotgun
and that the other guy had a knife. I
just think it is so linked and so closely connected, that I’m not going to
bifurcate it, but you made your motion for the record.”

Detective
Kerry Tripp of the Inglewood Police Department’s gang intelligence unit
testified as the prosecution gang expert.
He had known appellant for several years and knew that he was an active
member of the Inglewood 13 gang with the moniker “Wako.”href="#_ftn1" name="_ftnref1" title="">^[1] Detective Tripp identified photographs
depicting appellant with Inglewood 13 tattoos and throwing Inglewood 13 gang
signs.

At the time
of this robbery, the Inglewood 13 gang had between 400 and 500 members. When asked what kinds of crimes members of
the Inglewood 13 had committed in cases he had personally investigated,
Detective Tripp answered: “They had
committed crimes. They murdered police
officers. They shot.” Defense counsel made a continuing objection
“to the narrative,” which was overruled.
Detective Tripp expanded his answer:
“They have murdered police officers.
They have shot at police officers.
They have shot one of our police officers. They possess narcotics. They sell narcotics. They possess weapons. They transport weapons. They fight with the police. They fight with rival gang members. [¶]
They have murdered rival gang members.
They have attempted to murder rival gang members. They have attempted to murder police
officers. They have robbed people. They have burglarized and committed various
other crimes.” There was no objection to
this testimony.

Detective
Tripp testified that the primary activities of the Inglewood 13 gang are
murder, robbery, rapes, shootings, shooting and murdering police officers, gang
graffiti and trying to kill their own members suspected of snitching. The Inglewood 13 and Neighborhood Piru gangs
are rivals whose territories overlap.
There had been shootings and homicides between them. Neighborhood Piru abbreviates its name
“NHP.”

Detective
Tripp explained that “putting in work” means doing something for recognition,
usually a violent act against a rival member.
More recognition is gained from crimes committed against gang rivals or
police officers. The reputation of a
gang is important because if a gang is perceived as weak, it will be targeted
by other gangs for acts of violence and taking over territory. Detective Tripp explained that gangs commit
acts of violence such as robberies, rape, violence, or assaults so that people
in the gang’s neighborhood will be afraid to call the police. Crimes are committed openly to instill fear
and intimidation in rivals and citizens at large. This is true for the Inglewood 13 gang. According to Detective Tripp, if a gang
member asks somebody “where they’re from”, he or she is trying to find out
whether that person is a member of a rival gang: “If you are, depending on how you answer that
question can lead to a violent act of assault or even homicide.” This standard phrase is also used to threaten
and challenge someone.

Detective
Tripp was given a hypothetical question based on the facts of this case.href="#_ftn2" name="_ftnref2" title="">^[2] Based on those facts, Detective Tripp opined
that the robbery of Chapman was committed for the benefit of the Inglewood 13
gang. In his opinion, the perpetrators
were looking for an NHP rival gang member because Chapman was asked where he
was from, and the man with the knife said “‘Fuck NHP.’” The victim fit the racial and age profile of
members of the Neighborhood Piru gang.
In Detective Tripp’s opinion, asking Chapman to lift his shirt to be
examined meant that appellant and the man with the knife were looking for gang
tattoos. If Chapman had been a member of
Neighorhood Piru, assaulting him would have benefited Inglewood 13 by creating
notoriety. Based on the behavior of the
man with the knife, in Detective Tripp’s opinion, that man also was a member of
the Inglewood 13, acting in concert with appellant. This supported his opinion that the crime was
committed for the benefit of the gang.

Detective
Tripp testified that Inglewood 13 member Josa Jara was convicted of carrying a
loaded firearm in 2009. Member David
Felix was convicted of an attempted murder of a perceived rival gang member,
committed in June 2006. Inglewood 13
member Javier Lara was arrested for carrying a loaded firearm in April 2006 and
convicted of that crime.

After the
jury reached its guilty verdict, appellant moved for a new trial. Although a number of grounds were raised, his
only contention on appeal is that the
court erred in refusing to bifurcate trial of the section 186.22 gang
enhancement, and that this led to the admission of irrelevant and highly
prejudicial evidence through Detective Tripp’s testimony, which should have
been excluded under Evidence Code section 352.
At the hearing on the motion, defense counsel argued the gang evidence
was not relevant to motive or intent. As
a result, appellant contends, the trial was fundamentally unfair in violation
of the due process clause of the Fourteenth
Amendment to the United States Constitution. At the hearing on the motion, defense counsel
argued that apart from the gang evidence, there was insufficient evidence to
support appellant’s conviction for the robbery.


The trial
court disagreed with defense counsel. The court stated that it had reread portions
of the trial transcript and noted that the first words by appellant during the
incident were “‘Where are you from?’” It
also noted that Chapman was made to say “‘Fuck NHP’” three to four times during
the course of the robbery, which Detective Tripp testified was consistent with
behavior by gang members who wanted to increase their status within the
gang. The court did not credit Ricalde’s
alibi testimony. It also considered the
evidence found in the car when appellant was detained, including the Popeye’s
bag of food, knife, and Newport cigarettes in a sealed pack. In addition, appellant had a $50 bill in his
possession when arrested. The court
concluded that this was a gang related crime and that the gang evidence
provided the motive for the crime. The
motion was denied.

B. Bifurcation

The trial
court had discretion to bifurcate the trial of the section 186.22
enhancement. (Hernandez, supra, 33
Cal.4th at p. 1048.) The Supreme Court,
however, in recognizing that discretion, observed that “less need for
bifurcation generally exists with the gang enhancement than with a prior href="http://www.mcmillanlaw.com/">conviction allegation. [Citation.]”
(Ibid.) It contrasted bifurcation of a gang
enhancement from bifurcation of trial of the truth of an alleged prior
conviction. It observed that the
Legislature had “specifically recognized the potential for prejudice when a
jury deciding guilt hears of a prior conviction” by enacting section 1025,
subdivision (e).href="#_ftn3" name="_ftnref3"
title="">^[3] (Id.
at p. 1049.) In contrast, “the
Legislature has given no indication of a similar concern regarding enhancements
related to the charged offense, such as a street gang enhancement. Nothing in section 186.22 suggests the street
gang enhancement should receive special treatment of the kind given prior
convictions. [Citations.]” (Ibid.)

The >Hernandez court acknowledged bifurcation
may be appropriate because the predicate offenses offered to establish a
pattern of criminal gang activity need not be related to the charged offense or
the defendant, and that evidence of such offenses may be unduly prejudicial,
warranting bifurcation. (33 Cal.4th at
p. 1049.) It also recognized that other
gang evidence, even related to the defendant, “may be so extraordinarily
prejudicial, and of so little relevance to guilt, that it threatens to sway the
jury to convict regardless of the defendant’s actual guilt.” (Ibid.) But it concluded that, “[t]o the extent the
evidence supporting the gang enhancement would be admissible at a trial of
guilt, any inference of prejudice would be dispelled, and bifurcation would not
be necessary. [Citation.]” (Id.
at pp. 1049–1050.)

In >Hernandez, the court held that even if
some of the evidence to prove the gang enhancement would be inadmissible to
prove the charged offense, e.g. if it was excluded under Evidence Code section
352, bifurcation may still be denied. (>Hernandez, supra, 33 Cal.4th at p. 1050.)
It noted countervailing factors favoring a unitary trial, e.g. avoiding
confusing the jury with collateral matters.
(Ibid.) It concluded that “the
trial court’s discretion to deny bifurcation of a charged gang enhancement is
similarly broader than its discretion to admit gang evidence when the gang
enhancement is not charged.” (>Ibid.)
In Hernandez, the court found
that much of the gang evidence was relevant to the charged offense. The defendant told one of the robbery victims
that she did not know whom she was dealing with and identified himself as a
gang member. (Id. at p. 1083, 1050–1051.)
The court concluded that the defendant had attempted to use his gang
status in demanding money from the victim.
Although one of the defendants did not specifically identify himself as
a gang member, “the evidence showed the robbery was a coordinated effort by two
gang members who used gang membership as a means to accomplish the robbery.” (Id.
at p. 1051.) Under these circumstances,
the court reasoned that the gang expert’s testimony “helped the jury understand
the significance of [one defendant’s] announcement of his gang affiliation,
which was relevant to motive and the use of fear.” (Ibid.)

Similarly
here, Chapman’s response to appellant’s challenge asking “‘where are you from’”
demonstrates that he knew he had been accosted by gang members and was so
fearful he urinated on himself. The fact
that appellant and his accomplice checked him for tattoos supports the
inference that they suspected Chapman was a member of a rival gang,
particularly since he fit the profile of members of Neighborhood Piru. Finally, the accomplice forced Chapman to repeat
the phrase “Fuck NHP” and repeated it several times himself. Although appellant did not make this
statement, he had already interjected gang connotations into the incident by
asking Chapman, in gang parlance, for his gang affiliation. As in Hernandez,
Detective Tripp’s testimony helped the jury understand the significance of this
conduct, which was relevant to the fear element of robbery. Under these circumstances, the gang evidence
was relevant both to the crime charged and the enhancement, which were
intertwined. We find no abuse of discretion
in denial of the motion to bifurcate on this ground. In light of this conclusion, we need not
discuss respondent’s alternative arguments in support of denial of bifurcation.

C. Ineffective Assistance

Appellant
argues his trial counsel was ineffective in several respects. First, he complains that his attorney failed
to bring a pretrial motion in limine to exclude Detective Tripp’s anticipated
testimony that members of the Inglewood 13 had murdered police officers. Appellant contends his counsel should have
been aware that Detective Tripp would give this evidence because this was his
testimony at the preliminary hearing.
Appellant argues there is no rational excuse or tactical reason for this
omission. He also complains that counsel
failed to object and did not move to have this testimony stricken during
Detective Tripp’s testimony. Respondent
argues that appellant has failed to demonstrate that defense counsel’s
performance was prejudicially deficient.


A criminal
defendant has the right to effective
assistance of counsel under the Sixth Amendment to the federal Constitution
and article I, section 15 of the California Constitution. (People
v. Dunn (2012) 205 Cal.App.4th 1086, 1101.)
“A claim of ineffective assistances requires the defendant to establish
‘(1) that counsel’s representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for
counsel’s unprofessional errors, a determination more favorable to defendant
would have resulted. [Citations.] If the defendant makes an insufficient
showing on either one of these components, the ineffective assistance claim
fails.’” (People v. Homick (2012) 55 Cal.4th 816, 893, fn. 44, quoting >People v. Rodrigues (1994) 8 Cal.4th
1060, 1126.) “‘Prejudice is shown when
there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”’”
(In re Harris (1993) 5 Cal.4th
813, 832–833; see also People v. Ledesma
[(1987)] 43 Cal.3d [171,] 216–217; accord, Strickland
v. Washington (1984) 466 U.S. 668, 687.)”
(People v. Simmons (2012)
210 Cal.App.4th 778, 796.)

If a
defendant “cannot show prejudice, we may reject his claim of ineffective
assistance, and need not address the adequacy of trial counsel’s
performance. (Strickland, supra, 466
U.S. at p. 697; People v. Lawley (2002)
27 Cal.4th 102, 136.)” (>People v. King (2010) 183 Cal.App.4th
1281, 1298.) That is the situation
presented here. Chapman identified
appellant as the man who held the shotgun during the robbery on four separate
occasions: at the field identification,
the line-up, the preliminary hearing and trial.
When appellant was detained shortly after the robbery, he was in
possession of a $50 bill, which Chapman testified was given to appellant by the
accomplice, and a sealed cigarette pack of the brand taken from Chapman. A knife resembling the one used in the
robbery and a bag of Popeye’s food were recovered from the car in which
appellant was riding at the time of his detention. In light of this overwhelming evidence of
appellant’s guilt, he cannot show “‘that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different’ . . .”
(Id. at p. 1303.)

D. Denial of New Trial Motion

Appellant
argues we must review denial of his motion for new trial de novo, citing >People v. Albarran (2007) 149
Cal.App.4th 214, 224, fn. 7. But the
Supreme Court applies the deferential abuse-of-discretion standard. (People
v. Lightsey (2012) 54 Cal.4th 668, 729.) “‘“‘A trial court’s ruling on a motion for
new trial is so completely within that court’s discretion that a reviewing
court will not disturb the ruling absent a manifest and unmistakable abuse of
that discretion.’”’” (>Ibid, quoting People v. Thompson (2010) 49 Cal.4th 79, 140.)

Appellant
argues that Detective Tripp’s expert testimony was not relevant to what he
characterizes as the primary issue in the case, appellant’s identity as one of
the robbers. He also argues that the
gang evidence, especially testimony that Inglewood 13 members had murdered
police officers, was so inflammatory that it should have been excluded as more
prejudicial than probative under Evidence Code section 352. He also contends that Chapman’s
identification of him as one of the robbers was seriously undermined by the
testimony of defense expert Robert Shomer, who testified about the factors
which render an eyewitness identification inaccurate.

We have
concluded that the trial court did not abuse its discretion in denying
bifurcation of the gang enhancement because Detective Tripp’s testimony was
relevant to explain the fear element of the robbery. Although the evidence of the Inglewood 13
gang’s activities, including murders and shootings of gang rivals as well as
police officers was inflammatory, it was not so prejudicial as to warrant a
conclusion the trial court abused its discretion in denying the new trial
motion. As the trial court observed,
this was a gang-related crime.



DISPOSITION

The
judgment of conviction is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









EPSTEIN,
P. J.

We concur:







WILLHITE,
J.







MANELLA,
J.