P. v. Duran

Filed 3/16/07 P. v. Duran CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Francisco Duran appeals from a judgment of conviction entered after a jury found him guilty of two counts of attempting to dissuade a witness by force (counts 1 and 2 - Pen. Code, 136.1, subd. (c)(1)),[1]assault with a deadly weapon (count 3 -  245, subd. (a)(2)), and possession for sale of methamphetamine (count 4 - Health & Saf. Code, 11378). The jury also found that defendant committed these crimes to benefit a criminal street gang ( 186.22, subd. (b)(4)) and that he personally used a firearm in the commission of count 3 ( 12022.5, subd. (a)). The trial court sentenced defendant to life imprisonment and a consecutive term of 17 years. On appeal defendant contends: (1) there was insufficient evidence to support the convictions of witness dissuasion; (2) CALJIC No. 7.15 incorrectly stated the applicable law; (3) CALJIC No. 2.02 incorrectly stated the law regarding circumstantial evidence to prove specific intent; (4) evidence of his recorded jail conversations violated his Sixth Amendment right to confront and cross-examine witnesses; (5) the trial court abused its discretion by admitting evidence of his recorded jail conversations; (6) there was insufficient evidence to support the gang enhancement findings as to counts 1 and 2; (7) the cumulative effect of these errors mandates reversal; and (8) the trial court erred by sentencing him to separate life terms for counts 1 and 2. The life term on count 1 is stayed pursuant to section 654. As modified, the judgment is affirmed.

I. Statement of Facts

Javier Droopy Ayala was a member of the Vario Meadow Fair (VMF), which was a Norteno criminal street gang in San Jose. Defendant, who had a tattoo of Norteno on his chest and was known as Gangster, was also a member of VMF. VMF is a sister gang to Vario Norte Catorce (VNC). VMF and VNC cooperated with each other and were enemies of Sureno criminal street gangs. When Javier Ayala was stabbed, members of VMF and VNC retaliated against the Surenos by attacking 15-year-old Christian Jimenez on April 24, 2003. Alexander Tiny Diaz, a VNC member, shot Jimenez in the chest and killed him.

Defendant was in custody from April 21, 2003 until April 29, 2003. On April 25, 2003, defendant spoke to Diaz and Isaac Bones Cortinas in a tape-recorded phone call from jail. Diaz told defendant that he took defendants safe and hid it, and that defendants father took defendants other things. Diaz also told defendant that Javier Ayala was stabbed by a Sureno gang. He told defendant that its been going down live right here and to read the news. The first newspaper article about Jimenezs death appeared the following day. During the same call, Cortinas told defendant about Javier Ayalas stabbing and to watch the news. The story was on television on April 25.

On April 27, 2003, defendant spoke to a female and Jorge Wino Ayala, a fellow VMF member, in a tape-recorded phone call from jail. Defendant stated that he had read the news about the 15-year-old boy, who was not identified as a gang member. Defendant also said that he smoked his methamphetamine, which was his profit. Defendant told Jorge Ayala to tell Diaz to get a bigger tattoo, because defendant had seen the police sketch of the suspected killer showing a tattoo near his eye.

Sometime around May 5, 2003, Diaz, Brigena Cartier, Diazs girlfriend, defendant, and other gang members were at Mary Mendozas house. When Cartier made a flippant remark about the Nortenos, defendant became very angry, pointed a rifle at her head, and told her to retract her comment. Cartier was scared, because it was obvious defendant was serious.

On May 9, 2003, Diaz was arrested at Mendozas home. The police searched the home and found two safes and some guns. One of the safes contained methamphetamine in two different sized packages. There was also extra packaging and a scale in the living room. Defendant slept in the living room of the Mendoza house. The walls of this room were covered with gang graffiti and there was a photograph of defendant and Diaz with a red bandana around it. According to Mendoza, defendant sold methamphetamine from her home.

After his arrest, Diaz gave a statement to the police in which he identified Jesse Salinas, Jonathan Pipkin, Jorge Ayala, and Robert Sanchez as involved in Jimenezs murder. Diaz also spoke with Cartier and told her that he had killed Jimenez. Cartier then told the police that Diaz had said that he shot Jimenez because he was a Sureno and that he left the weapon at Mendozas house. She also told the police that Javier Ayala had said that Diaz had done him a favor by taking care of Surenos. After giving statements to the police, Cartier was considered to be a witness in the Jimenez case.

Defendant was in jail on an unrelated matter between July 12, 2003 and July 17, 2003. Around midnight on July 18, 2003, Cartier and her cousin Violet Rosario were walking near a nightclub in downtown San Jose. Defendant called Cartiers name. Cartier, who was concerned for Rosarios safety, told her to remain where she was. Cartier then went to where defendant was standing. Jorge Ayala stood a short distance away from them and acted as a lookout. Defendant, who was very serious and angry, accused Cartier of snitching on him and that Diaz had told him that she was telling cops a whole bunch of stuff. Cartier denied it and said that it was his boy that snitched on him first before I even said anything. Cartier was afraid that if Diaz continued to tell stuff to defendant, she might be killed. Defendant referred to Diaz as a snitch and stated more than once that he was going to kill that fool for implicating him in the Jimenez murder. Cartier told defendant that Diaz had written her a letter that showed that Diaz was the snitch. When a police car drove by, Jorge Ayala gave a signal to defendant and they left by car. Cartier felt that her dispute with defendant was unresolved. Cartier returned to Rosario. She looked sad and scared, and told Rosario that she had been accused of being a snitch and threatened. At trial, Cartier testified that she did not want to be in court and she was concerned for her safety.

As of July 18, 2003, there was an ongoing police investigation in the Jimenez case as to the uncharged defendants, and the charged defendants in that case were still awaiting prosecution.

On July 24, 2003, Cartier told the police about the incident when defendant put a gun to her head and told her to retract her comment about the Nortenos. She also told them about the July 18, 2003 incident. She stated that defendant ordered her to come to him, accused her of being a snitch, and blamed both her and Diaz for his recent arrest. Cartier reported that she lied to defendant and denied talking to the police. Defendant said that he would kill Diaz and implied that he was going to kill her as well, because they were a couple. Cartier was afraid, and stated that it was more likely that defendant would kill her than he would kill Diaz. She also stated that Jorge Ayala looked at her in a threatening manner.

Sergeant Byron Jones testified as an expert in Hispanic criminal street gangs. Jones testified that anyone that provides any information at all to the police is a snitch and that the threat hanging over people that cooperate and speak to the police is extremely grave. According to Jones, Cartier had been a reluctant witness, because it was difficult to talk with her about the case and to get her to come to court. Jones also testified that fool is a term of endearment among gang members, that is, the individual may be considered reckless or violent by societys standards, but is acceptable by gang standards.

Detective Gregory Lombardo also testified as an expert in Hispanic criminal street gangs. He testified about the crimes that VMF and VNC have committed, including assaults, murders, narcotics trafficking, and witness intimidation. According to Lombardo, criminal street gangs thrive by intimidating people and preventing them from cooperating with the police. When an individual speaks to the police or the district attorneys office, they are considered a snitch. This is a very serious offense among gang members, and a snitch will probably be harmed . . . even be killed. In Lombardos opinion, defendants pointing the gun at Cartier was done for the benefit of VMF, because it demonstrated the gangs dominance over people who make disparaging remarks about it. This act also increased defendants stature as a gang leader by showing that he was doing what was necessary to support the gang. Lombardo further opined that defendants selling of methamphetamine would benefit VMF, because gang members sold drugs to get money to buy more drugs and weapons for gang use. Lombardo also gave his opinion that defendants threats to Cartier would benefit VMF, because it showed that gang members would hurt or kill potential witnesses against them.

Defense Evidence

Frank Duran, defendants father, testified that he picked up defendant at the jail on July 17, 2003, and took him to his house. The following day, he took defendant to the flea market and then to the Department of Motor Vehicles. They returned home and later went to a movie at about 7:30 p.m. Defendants father knew that defendant had tattoos, but did not know whether defendant was a gang member.

Vanessa Magdaleno, defendants girlfriend, testified that defendant spent most of the day on July 18, 2003 with her. After they went to the movies with defendants father, they eventually went to his grandmothers house where they stayed until 4 a.m. Defendant then took her home, and they talked on the phone for an hour. During the time that she spent with defendant that day, she did not hear him threaten anyone. Magdaleno was aware that defendant was in a gang, but she was not aware that he was selling drugs. Magdaleno was impeached with her prior statements that she did not remember whether she spent the night of July 18, 2003 with defendant, and that she did not remember the specific date of his release from jail.

II. Discussion

A. Sufficiency of the Evidence

Defendant contends that there was insufficient evidence to support his convictions of witness dissuasion in counts 1 and 2.

Counts 1 and 2 charged defendant with attempting to dissuade victims and witnesses, Cartier and Diaz, pursuant to section 136.1, subdivision (c)(1). This subdivision makes it unlawful to knowingly and maliciously use force or implied threats of force or violence in attempting to prevent or dissuade a victim or witness from doing any of the acts in section 136.1, subdivisions (a) or (b). ( 136.1, subd. (c).) Subdivision (a) prohibits attempts to prevent or dissuade a witness or victim from attending or giving testimony at a trial or other proceeding. ( 136.1, subd. (a).) Subdivision (b) prohibits attempts to prevent or dissuade a witness or victim from making reports to law enforcement personnel ( 136.1, subd. (b)(1)) or assisting in the prosecution of charges ( 136.1, subd. (b)(2)). Witness dissuasion is a specific intent crime. (People v. Brenner (1992) 5 Cal.App.4th 335, 339.)

Generally, [t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Jones (1990) 51 Cal.3d 294, 314.) We also review the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v.Griffin (2004) 33 Cal.4th 1015, 1028.)

However, in cases in which a defendant raises a plausible First Amendment defense, this court conducts an independent review. (In re George T. (2004) 33 Cal.4th 620, 632.) Independent review is not restricted to specific First Amendment contexts, and includes fighting words, inciting imminent lawless action, and clear and present danger to integrity of court. (Ibid., internal citations omitted.) Moreover, this type of review is not the equivalent of de novo review in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes the outcome should have been different. Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue. . . . [U]nder independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. (Id. at p. 634, internal citations and quotation marks omitted.)

Defendant contends that the context in which he made his accusations and threats demonstrate that he blurted [them] out in a moment of exasperation at learning his long time friend was falsely accusing him of being involved in the Jimenez murder, and thus they constituted speech that is protected by the First Amendment. He points out that he did not display any physical violence when he made his statements. He further asserts that Cartier did not take his statements seriously, because she did not report the incident until the following day and did not return phone calls from the police.

Under either the substantial evidence or the independent review standard, we conclude that there was sufficient evidence to support defendants convictions. Defendants fellow gang member, Diaz, was in jail for murdering a Sureno gang member. Defendant had heard that Cartier, Diazs girlfriend, was providing information about defendant to the police. When defendant saw Cartier on a street in downtown San Jose late at night, he ordered her to come to him. Defendant then called both Diaz and Cartier snitches while a fellow VMF gang member stood watch. Defendant was very serious and angry, and stated more than once that he would kill that fool. The fact that defendant did not display any physical violence is irrelevant, because a snitch will probably be harmed . . . even be killed in the gang community. Defendant expressly threatened to kill Diaz and implied that he would kill Cartier as well, because they were a couple and he blamed both of them for implicating him in Jimenezs murder. Defendants threats left Cartier concerned for her safety and a reluctant witness at trial. Thus, a rational trier of fact could have found defendant guilty beyond a reasonable doubt of counts 1 and 2.

Defendant argues, however, that there was no evidence that his statements were intended to obstruct an investigation or legal proceeding. He claims that the police were aware that he was not involved in the Jimenez murder, because he was in custody when it occurred. The record does not support defendants position. Though Diaz had pleaded guilty in the murder case, the investigation and prosecution of other gang members was ongoing. Thus, when defendant accused both Cartier and Diaz of being snitches, that is, speaking to the police about him and implicating him in the murder, he believed that the police and prosecutor considered him a suspect. While the record does not disclose what defendant thought Cartier and Diaz had told law enforcement authorities, he might have believed that they were informed that defendant was involved in the planning stages of the murder or that he aided other gang members in avoiding arrest. In any event, there was substantial evidence that defendant intended to obstruct an investigation or legal proceeding.

Relying on People v. Bolin (1998) 18 Cal.4th 297, 339 and In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, defendant argues that his statements did not convey an immediate intent to inflict injury. However, these cases involved criminal threats to harm people in violation of section 422, while the present case involves criminal threats to intimidate victims and witnesses in violation of section 136.1. In contrast to section 422, section 136.1 does not prohibit specific expressions of intention immediately to inflict injury . . . .. (People v. Bolin, supra, 18 Cal.4th at p. 339.)

B. CALJIC No. 7.15

Defendant next contends that the trial court erred in instructing the jury as to the elements of dissuading a witness.

The trial court instructed the jury pursuant to CALJIC No. 7.15: The defendant is accused in Counts 1 and 2 of having violated Section 136.1 Subdivision (c) (1) of the Penal Code, a crime. Every person who knowingly and maliciously prevents or dissuades or attempts to prevent or dissuade any witness from giving testimony at trial or inquiry authorized by law, making any reports of such victimization to any peace officer, state or local law enforcement officer, probation, parole or correctional officer, any prosecuting agency or to any judge, causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted and from assisting in the prosecution thereof by means of force or by express or implied threat of violence upon the person or property of the witness or victim or any third person is guilty of a violation of Penal Code Section 136[.1] Subdivision (c) (1), a crime. [] Each must be proved: One, Bridgina C [.] and/or Francisco Diaz was a victim; two, another person with the specific intent to do so prevented or dissuaded or attempted to prevent or dissuade the above-named people from attending or giving testimony at any trial, proceeding or inquiry authorized by law, making a report to any peace officer, causing a complaint, indictment or information to be sought and prosecuted, and from assisting in the prosecution thereof; arresting or causing or seeking the arrest of any person in connection with such victimization; three, the person acted knowingly and maliciously; and four, the act of preventing, dissuading or the attempt thereto was accompanied by force or implied threat of force or violence of the witness or victim or any third person.

Defendant argues that this instruction is an erroneous statement of the law, because it instructs the jury that it may convict defendant if it finds that another person perpetrated the act of dissuasion.

The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law [citations] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jurys consideration [citations]. (People v. Posey (2004) 32 Cal.4th 193, 218.)

Here the trial court read the information to the jury. It alleged that Francisco Duran committed counts 1 and 2. The trial court then instructed the jury pursuant to CALJIC No. 7.15 that defendant [was] accused in Counts 1 and 2 of having violated Section 136.1 Subdivision (c) (1). We presume that jurors are intelligent people who are capable of understanding and correlating all instructions. (People v. Tatman (1993) 20 Cal.App.4th 1, 11.) Since they were instructed to consider the various instructions as a whole and each in light of all the others, they would have understood that the subsequent reference in CALJIC No. 7.15 to another person was to defendant.

Defendant next challenges CALJIC No. 7.15 as given in the instant case, because it did not inform the jury as to which manner of violating section 136.1 applied to which victim.

Section 136.1, subdivision (c) defines the offense: Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances is guilty of a felony . . . [] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness or any third person. Section 136.1, subdivision (a) provides that the offense is committed by any person who . . . [] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. ( 136.1, subd.(a).) Section 136.1, subdivision (b) provides that the offense is committed by every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from . . . [] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer . . . or prosecuting agency or to any judge. ( 136.1, subd. (b).)

CALJIC No. 7.15 correctly follows the language of the statute. However, assuming that this instruction should have been modified to address the fact that defendant was charged with violating section 136.1, subdivision (c) against two individuals in two different ways, the error was harmless.

Here the information, which was read to the jury, identified how defendant violated section 136.1 as to each individual. Count 1 of the information alleged that defendant attempted to dissuade victim Cartier from cooperating with the investigation and prosecution, while count 2 alleged that defendant attempted to dissuade witness Diaz from giving testimony. Thus, the jury was informed that defendant was alleged to have violated subdivision (a) as to Cartier and subdivision (b) as to Diaz. The verdict forms stated that defendant had been found guilty of violating section 136.1, subdivision (c) as charged in counts 1 and 2. Any confusion generated by CALJIC No. 7.15 was eliminated by the verdict forms and the information, because, when read together, the jury identified which manner of violating section 136.1 applied to which victim. Accordingly, even if we apply the federal harmless error standard, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

C. CALJIC No. 2.02

Defendant also argues that his convictions for dissuading a witness (counts 1, 2) and possession for sale of methamphetamine (count 4) must be reversed, because the trial court erroneously instructed the jury regarding circumstantial evidence of specific intent. He claims that CALJIC No. 2.02 lightens the prosecutions burden of proving beyond a reasonable doubt that he had the specific intent to commit these offenses.

In the present case, the trial court instructed the jury with CALJIC Nos. 2.00, 2.01 and 2.02, which are the standard instructions on circumstantial evidence and specific intent.[2] Defendant claims that CALJIC No. 2.02 is an erroneous statement of law, because it omits a paragraph that is included in CALJIC No. 2.01. This paragraph states: Further, each fact essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilty may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt.

As previously discussed, the absence of a critical element in one instruction may be supplied by another instruction or cured by the instructions as a whole. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) When CALJIC Nos. 2.01 and 2.02 are read in conjunction with the reasonable doubt instructions (CALJIC Nos. 2.90, 2.91), the jurors in the instant case would have understood that in order to find defendant guilty in counts 1, 2 and 4, they were required to find under the reasonable doubt standard that defendant had the specific intent to commit the charged offenses. (See People v. Bradford (1997) 14 Cal.4th 1005, 1054.) We find no error.

D. Admissibility of Jail Conversations

Defendant argues that his convictions of counts 1 and 2 must be reversed, because admission of evidence of his recorded jail conversations violated his Sixth Amendment right to confront and cross-examine witnesses. He also argues that the admission of this evidence was more prejudicial than probative under Evidence Code section 352.

1. Background

The prosecutor sought to admit two recordings of defendants telephone conversations while he was in jail. The transcripts established that defendants fellow gang members informed him about gang activities, including the murder of a rival gang member, and the disposition of defendants possessions, including his safe containing gang photos and drugs. Defendant objected on the grounds of undue prejudice since the jury would learn that he had been in custody. Defendant also argued that there were hearsay statements in the recordings and he did not have the ability to call the declarants as witnesses to question them. The prosecutor argued that the recordings were relevant to show defendants association with gang members and his knowledge of the Jimenez murder, which was relevant to proving defendants intent when he threatened Cartier and Diaz. Defendant countered that the evidence was not sufficiently relevant.

The trial court denied defendants motion to exclude the evidence, stating: Accordingly, after having carefully consider[ed] the prejudicial effect and the probative value I find as follows: [] The fact that the defendant was in jail for some unknown matter is slightly prejudicial but I dont think its unduly so, especially when compared with the other facts that the jurors are likely to learn about gang membership and other sorts of things. I think we can deal with that with an appropriate limiting instruction. [] The fact that Mr. Duran is asking questions is not so significant to me as much as the conversations may show particular knowledge of particular subjects. Taken as a whole, the conversation[s] show that the defendant converses with certain folks who may be gang members, depending on other evidence, that he may have certain knowledge, based on what is told to him during his conversations, at a time prior to the alleged threats in this case. And it may even show the extent of his association or practical equivalent of membership in a particular street gang which is one of the things the People are going to have the burden of proving. [] Accordingly, and even though there is hearsay material provided to the defendant, I think we can also deal with that with an appropriate limiting instruction.

2. Sixth Amendment Right of Confrontation

In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held that testimonial out-of-court statements are barred by the confrontation clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

We first consider whether defendants Crawford claim has been preserved for appeal. Since defendant objected to the admission of this evidence on the grounds that it was more prejudicial than probative (Evid. Code, 352) and hearsay (see Evid. Code,  1200), we conclude that defendant has forfeited his Crawford claim by failing to object on the ground that his Sixth Amendment rights had been violated. (Evid. Code, 353; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 [confrontation clause claim not preserved].)

Even assuming defendant preserved his claim, it is without merit. The challenged statements were not testimonial in nature, and [o]nly statements of this sort cause the declarant to be a witness within the meaning of the Confrontation Clause. [Citation.] (Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266, 2273].) While the Crawford court did not define testimonial, it provided some guidance by stating: Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (Crawford, at p. 68.) In addition to these examples of testimonial statements, the court provided three examples of nontestimonial statements: (1) business records (id. at p. 56); (2) statements in furtherance of a conspiracy (ibid.), and (3) casual remark[s] to . . . acquaintance[s]. (Id. at p. 51.) Here the police neither interrogated defendant and his fellow gang members nor arranged for one of them to pose questions to the others. Unbeknownst to these individuals, the police merely taped their conversations. Thus, their statements consisted of casual remark[s] to acquaintenance[s], and were nontestimonial in nature. (Id. at p. 51.) Accordingly, defendant was not deprived of his Sixth Amendment right to confront and cross-examine the witnesses against him.

3. Evidence Code Section 352

Defendant also argues that the trial court abused its discretion under Evidence Code section 352, because the evidence of the recorded conversations was more prejudicial than probative. Defendant asserts that his statements indicated that he had a callous attitude toward the Jimenez murder, because he said, Im loving it, when Diaz told him to read the news about the murder and joked that Diaz needed a bigger tattoo.

A trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . . (Evid. Code, 352.) The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence . . . . The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. (People v. Karis (1988) 46 Cal.3d 612, 638.) A reviewing court will reverse the trial courts determination as to the admissibility of evidence only where there has been an abuse of discretion. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)

Here defendant concedes that the statements informing him of Diazs role in the Jimenez murder were relevant to proving that he knew of the murder when he made his threatening statements. Defendants responses were also highly probative of his intimate involvement in VMF and VNC, which was relevant to prove the gang enhancement allegations on each count. Though prejudicial, defendants statements would not have generated an emotional bias against defendant in light of other evidence presented at trial. Thus, the trial court did not abuse its discretion in admitting this evidence.

E. Sufficiency of Evidence to Support Gang Enhancements Findings

Defendant argues that there was insufficient evidence that his threats were made for the benefit of, at the direction of, or in association with a criminal street gang. ( 186.22, subd. (b).)

In order to determine whether there was substantial evidence to support a gang enhancement finding, we review the record in the light most favorable to the judgment a trier of fact could reasonably find the accused guilty beyond a reasonable doubt. (People v. Duran (2002) 97 Cal.App.4th 1448, 1456.)

Defendant was an active member of VMF as shown by his tattoos, photographs and graffiti in his room, and conversations from jail with other gang members. Defendant also expressed his strong allegiance to fellow gang members when he pointed a rifle at Cartier after she made a derogatory remark about Nortenos. The fact that he reacted in such a violent manner to a casual remark indicated that he would treat more serious challenges to the gang in even harsher terms. A gang expert testified that anyone who provided information about gang activities to the police would be harmed, or even killed. Another gang expert explained that criminal street gangs thrive by intimidating others. Since any criminal investigation or prosecution involving him would negatively affect VMF, his threats to kill Diaz and Cartier were made not only to protect himself, but also to protect the gang. Thus, there was sufficient evidence to support the jurys findings that defendants threats were made for the benefit of a criminal street gang.

Defendant argues, however, that the record did not support gang expert testimony that criminal street gangs survive by intimidating witnesses. He asserts that neither Diaz nor Cartier were intimidated from testifying. However, Cartier testified at trial that she did not want to be in court and that she was concerned for her safety. Jones also testified that he had difficulty getting Cartier to talk about the case and to come to court. Thus, there is no merit to this argument.

F. Cumulative Error

Defendant contends that even if the errors were not sufficiently prejudicial individually, they were so cumulatively. Since we have not found multiple errors in defendants trial, we find no merit to his claim that cumulative errors require reversal of the judgment.

G. Section 654

Defendant also contends that one of his life terms must be stayed under section 654. The trial court sentenced defendant to separate life terms for counts 1 and 2.

Section 654 provides in relevant part: (a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, section 654 precludes multiple punishment where the convictions arise out of an indivisible transaction and have a single intent and objective. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) The trial courts determination that a defendant maintained multiple criminal objectives is a question of fact that must be upheld if supported by substantial evidence. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Here counts 1 and 2 arose out of an indivisible course of conduct with a single objective. Defendant called Cartier and Diaz snitches, and threatened to kill Diaz, which the jury interpreted as a threat against both Diaz and Cartier. Defendants objective was the same as to each victim, that is, to dissuade them from cooperating in the investigation and prosecution of the Jimenez murder.

However, the People argue that defendant also sought to stop Cartier from cooperating with the police regarding the incident in which he pointed a rifle at her, and thus he harbored a different objective in threatening her. First, we note that the prosecutor never presented this theory at trial. Second, Cartier testified that defendant was concerned about her cooperating in the investigation of the Jimenez murder. Since there was no evidence that defendant had multiple objectives in threatening her, there was insufficient evidence to support the trial courts finding. Thus, the trial court erred in imposing separate life terms for counts 1 and 2.

III. Disposition

The life term on count 1 is stayed. As modified, the judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, Acting P.J.

_____________________________

Duffy, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The trial court instructed the jury pursuant to CALJIC No. 2.00: Evidence consists of the testimony of witnesses, writing, material objects or anything presented to the senses and offered to prove the existence or nonexistence of a fact. Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact. It is evidence which, by itself, if found to be true, establishes the fact. [] Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. It is not necessary that facts be proved by direct evidence. They may be proved by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.

The trial court instructed the jury pursuant to CALJIC No. 2.01: However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime; but two, cannot be reconciled with any other rational conclusion. Further, each fact essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which the inference necessarily rests must be proved beyond a reasonable doubt. [] Also, if the circumstantial evidence as to any particular count permits two reasonable [ ] interpretations, one of which points to the defendants guilt and the other to his innocence, you must adopt that interpretation which points to the defendants innocence and reject the interpretation that points to his guilt. [] If, on the other hand, one of the interpretations appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.

The trial court instructed the jury pursuant to CALJIC No. 2.02: The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crimes charged in Counts 1, 2 and 4 or the lesser crimes to Counts 1 and 2 or find the allegations concerning gangs to be true unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent but two, cannot be reconciled with any other rational conclusion. [] Also, if the evidence as to any specific intent permits two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must adopt that interpretation which points to its absence. [] On the other hand, if one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.