P. v. Garcia

Filed 7/5/06 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

A jury convicted defendant Antonio Garcia of the first degree murder (Pen. Code, § 187, subd. (a))^[1] of the victim, Joe Delgado, and misdemeanor vandalism with a prior (§ 594, subds. (a), (b)(2)(B)). It also found true the special allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that Garcia personally discharged a shotgun causing death (§ 12022.53, subd. (d)). Garcia contends on appeal that the trial court should have excluded all gang-related evidence from trial of the substantive offenses by either (1) compelling the prosecution to accept his stipulation to all of the elements of section 186.22 gang allegation or (2) sua sponte ordering bifurcation of the section 186.22 gang allegation from trial of the substantive offenses. Garcia contends these errors deprived him of his federal and state constitutional rights to a fair trial.

I

FACTUAL BACKGROUND

A. The Murder

Delgado resided in an area of Oceanside, California, claimed as the territory of a criminal street gang known as the Center Street gang. Delgado was among a group of residents who tried to keep the area free of gang activity. Garcia was a member of the Center Street gang. There was "bad blood" between Delgado's grandson (Jacob) and the Center Street gang and, in particular, between Jacob and Garcia. Jacob apparently was associated with a rival gang.

On the evening of November 4, 2003, Garcia and other Center Street gang members gathered at a gang hangout near Delgado's home. They heard that one of their members was about to fight an outsider at a nearby location, and the group left to "back up" their fellow member in the fight. As the group passed Delgado's home, they saw parked in front of the home a car they associated with Jacob. Hoping to draw Jacob out of Delgado's house, Garcia and gang member Joel Dominguez vandalized the car by breaking the driver's side window and trying to smash the windshield. Delgado heard the commotion and came outside. He confronted the gang members as they were walking away, asking why they were breaking the windows, and threatened to call the police.

Dominguez, under a grant of immunity, testified he and Garcia turned to confront Delgado, who responded by picking up a stick. When Garcia pulled out a shotgun he was carrying in his pant leg, Dominguez told him not to shoot Delgado because the gang members would be "green lighted" (marked for retaliation by rival gangs) if he killed a civilian. However, Garcia stated Delgado had informed on some senior gang members, his confrontation with Delgado was "personal," and he was going to "blast" or "smoke" Delgado. Garcia then shot Delgado with the shotgun, and he and Dominguez fled.

Dominguez used a cellular telephone to call Alma Bravo, and asked her to pick them up. Bravo testified she picked them up and Dominguez directed her to drive them to a nearby Home Depot, where they rendezvoused with another friend (Jenny Gomez) whom Dominguez had summoned by a telephone call. As Garcia left Bravo's car, he hugged her and told her was now "on the run," did not know if he'd see her again, and was going to Tijuana. The two men got into the car driven by Gomez. Gomez, also under a grant of immunity, testified she received a telephone call from Dominguez, who asked her to meet at Home Depot with a car. The men appeared nervous or panicky when she arrived. She drove them to a place where they picked up some money, and to another location where Garcia could get a change of clothes, and she then dropped them off at a third location. Dominguez and Garcia arrived at her house the next day, and asked for a newspaper. When Dominguez told her that Garcia had "f----- up last night," she was unsure to what Dominguez was referring, but she subsequently saw her a newspaper article about the shooting of Delgado. She asked Garcia if he had shot the old man and Garcia responded "don't trip" several times before admitting he had shot Delgado. She asked why, and Garcia said Delgado had family from a rival gang and that "it was personal."

Another gang member, Jose Rayo, at trial initially denied telling authorities he had seen Garcia shortly before the shooting and that Garcia was carrying a shotgun, and denied telling police Garcia admitted shooting Delgado because Delgado was following them and was trying to "get crazy" with them. However, when Rayo was confronted at trial with his tape-recorded statement to police, he admitted making those statements to police and that he had been telling the truth at that time.

B. The Search Warrants

Police executed search warrants at Garcia's apartment and found, inside a locked drawer in his bedroom, a paper describing a Winchester 12-gauge shotgun. Police also found a newspaper, dated the day after Delgado's murder, from which articles relating to the murder had been removed.

Police also seized various photographs, drawings, compact discs and poetry relating to Garcia's gang affiliation.

C. The Gang Evidence

A gang expert, Detective Knowland, testified Center Street was a criminal gang, and Garcia, Dominguez and Rayo were members of that gang. Knowland examined several items seized from Garcia's apartment, including a composition book containing six poems written by Garcia, and explained that the lyrics in the poems showed Garcia was a confirmed Center Street gang member and showed his willingness to commit violent acts (including killing) to promote the gang. Knowland also testified about the importance of respect, and that when a gang member is shown disrespect by a third party, particularly in the presence of fellow gang members, it is necessary to retaliate against the disrespecting person to maintain status within the gang. A third party can show disrespect in innumerable ways, ranging from such minor infractions as bumping into a gang member on the sidewalk to informing on a gang member (the most heinous form of disrespect); retaliation for the latter offense ranges from physical assault to death. Knowland testified that a threat to call police to report gang members for criminal acts, and pursuit of them down the street while yelling at them would be a "huge sign of disrespect" and a direct challenge to them in their own neighborhood. Killing the disrespecting party would benefit the gang by instilling fear in others and thereby reinforcing their stranglehold on the neighborhood.

D. The Defense

The defense presented no witnesses. The defense instead argued there was reasonable doubt whether Garcia was the perpetrator because: (1) the witnesses who provided evidence of Garcia's culpability (Dominguez, Bravo, Gomez and Rayo) should be disbelieved because Dominguez was motivated to lie by the grant of immunity and Bravo and Gomez were motivated to lie to provide support for their friend Dominguez; (2) the stories provided by Dominguez, Bravo, Gomez were inconsistent; and (3) there was no evidence apart from Dominguez's statement that Garcia had a motive or reason to kill Delgado.

II

ANALYSIS

A. Exclusion of Gang Evidence

Garcia argues the trial court erred by refusing to compel the prosecutor to accept his stipulation to the truth of the gang enhancement allegation. Garcia asserts this error was prejudicial because the stipulation would have eliminated relevance of certain gang evidence, and the erroneous admission of this inflammatory evidence denied Garcia the right to a fair trial.

The Motions

Garcia sought to exclude the expert testimony and various items of gang-related evidence seized from his apartment by tendering a pretrial stipulation that he was a member of the Center Street gang, and the Center Street gang was a criminal street gang within the meaning of the enhancement statute. The gang enhancement allegation charged that Garcia had committed the murder for the benefit of his gang. The court denied the motion, reasoning that Garcia could not admit the charged enhancement without pleading guilty to the underlying murder, which he continued to deny, and the evidence would be admissible for purposes of showing Garcia's guilt of the underlying murder and of the enhancement.

During trial, Garcia again moved to stipulate to the gang enhancement, and to exclude the gang evidence as inadmissible on any remaining disputed issue. The prosecution argued that, even assuming Garcia could plead to the enhancement, the evidence remained admissible as relevant to issues of motive and opportunity because it showed Garcia to be a deeply entrenched member of the Center Street gang and its culture. The court again denied Garcia's motion to compel the prosecution to accept the stipulation.

Legal Framework

The courts have generally concluded that a trial court cannot compel a prosecutor to accept a stipulation that would deprive the state's case of its evidentiary persuasiveness or forcefulness. (People v. Waidla (2000) 22 Cal.4th 690, 723, fn. 5; People v. Edelbacher (1989) 47 Cal.3d 983, 1007; People v. Thornton (2000) 85 Cal.App.4th 44, 49.) However, in People v. Hall (1980) 28 Cal.3d 143 (overruled on other grounds in People v. Newman (1999) 21 Cal.4th 413, 415), the court held an exception should apply to a defendant charged with the offense of being an ex-felon in possession of a firearm. Hall concluded that, in this situation, the defendant may stipulate to one element of that offense--his status as an ex-felon--and thereby preclude the prosecution from introducing the highly prejudicial fact of his prior felony conviction, unless the prosecution showed (1) the evidence remained relevant to a disputed fact not covered by the stipulated facts, or (2) the stipulation would force the prosecution to elect between theories of guilt, or (3) excluding the evidence would hamper a coherent presentation of the evidence on the remaining issues. (People v. Hall, supra, at pp. 152-156.) Hall expressly cautioned, however, that "[n]o opinion is expressed on the application of this rule to any other section of the Penal Code." (Id. at p. 156.)

Analysis

Garcia argues that, under Hall, the court was required to accept his stipulation to the gang enhancement and, based on that stipulation, to exclude the gang evidence as inadmissible on any remaining disputed issue. We conclude the court's ruling was not error under Hall. First, Hall expressly limited its holding to offenses in which the defendant's status as an ex-felon is an element of the offense and would therefore require proof of his prior crimes, reasoning that the prejudicial effect of his prior conviction is great and its relevance to proving the charged offense would be nonexistent once the fact of his status was established by stipulation. The present crime does not fit within Hall's narrow holding.^[2]

More importantly, Hall recognized that "[i]f the facts to which the defendant has offered to stipulate retain some probative value [as,] . . . [f]or example, [where the evidence] remains relevant to an issue not covered by the stipulation or admission, the evidence is admissible on the remaining issue." (People v. Hall, supra, 28 Cal.3d at p. 152.) Although Garcia's stipulation may have rendered the gang evidence inadmissible if the only purpose for which it was relevant was to show the offense was committed for the benefit of the Center Street gang, the evidence was admissible for other purposes. The expert testimony was relevant to motive (Evid. Code, § 1101, subd. (b)), because it demonstrated why Center Street gang members would be in the area armed with a shotgun (e.g. to be prepared to back up a fellow gang member in the rumored fight), and it explained why those gang members would have precipitated the confrontation with Delgado by vandalizing the car (e.g. to intimidate and confront an opposing gang member who invaded the domain of the Center Street gang). Moreover, the expert testimony was relevant to motive and identity because it explained why Delgado's actions--confronting those who vandalized the car and threatening to call police--would motivate the "disrespected" gang member to commit murder (e.g. to consolidate power over the gang's domain by harshly retaliating against persons who openly challenged a gang member). (Cf. People v. Williams (1997) 16 Cal.4th 153, 191-194; see also People v. Butler (2005) 127 Cal.App.4th 49, 61 [evidence of prior confrontations admissible under Evid. Code, § 1101, subd. (b) to "explain appellant's motive for the otherwise unprovoked attack" on the victim].)

The complained-of evidence was also relevant to assist the jury in deciding whether, assuming it credited Dominguez's testimony and concluded Garcia was the shooter, the crime was first degree murder rather than a lesser offense. Garcia's stipulation did not encompass an offer to stipulate that the murder was first degree murder, and therefore the jury was required to determine whether the shooter killed Delgado with premeditation and deliberation rather than as the result of a sudden quarrel or while acting in heat of passion, or whether he accidentally killed Delgado while brandishing a weapon, or whether he acted with a reasonable or unreasonable belief that he needed to defend himself against Delgado. The expert's testimony on the general mentality of gang members toward those who challenge their authority, and Garcia's particularized writings evidencing his adherence to that mentality and praise for violent action toward those who challenged the gang, were relevant to fixing the mental state with which the shooter acted.

Finally, the expert's testimony about gang mores and mentalities, and Garcia's admission in his writings showing he enthusiastically subscribed to those mores, were relevant to another central issue: whether the gang witnesses (Dominguez, Bravo, Gomez and Rayo), whose trial testimony identified Garcia as the shooter, should be credited despite Garcia's attempt to discredit them by showing how their statements to police were inconsistent. The expert explained that those affiliated with gangs do not want to cooperate with police or inform on well-established gang members because that conduct can trigger severe retribution against the witness. A witness's fear of physical harm from retribution if he or she cooperates with police is evidence that can be relevant to evaluating the witness's credibility. (Cf. People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.)

The trial court properly rejected Garcia's stipulation because the evidence he sought to preempt by the stipulation would have remained admissible on other issues tendered to the jury by Garcia's denial of the substantive crime.

B. Bifurcation of the Gang Allegation from the Underlying Offenses

Garcia alternatively contends the trial court was required sua sponte to bifurcate the gang allegations from the underlying offense to prevent the inflammatory evidence from infecting the trial of the murder and vandalism charges.

In People v Hernandez (2004) 33 Cal.4th 1040, the court discussed bifurcation of a gang enhancement and noted that, in contrast to an enhancement such as a prior conviction allegation that may have no connection to the underlying charge, a gang allegation is "inextricably intertwined" with the underlying offense. (Id. at pp. 1048-1049.) Although the court concluded denial of bifurcation was not an abuse of discretion in that case, it noted a trial court retained discretion to bifurcate a gang allegation where proof of the predicate crimes (§ 186.22, subd. (e)) was unrelated to the charged offense and unduly prejudicial, or "some of the other gang evidence, even as it relates 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." (Id. at p. 1049.) Garcia argues the present case involved "other gang evidence" both so extraordinarily prejudicial and of so little relevance to the only disputed issue--the identity of the shooter--that sua sponte bifurcation was mandated.

We are not persuaded by Garcia's claim of error. First, Garcia cites no authority holding a trial court is obligated sua sponte to bifurcate gang allegations, and Hernandez's discussion--noting "no statute requires bifurcation" (People v. Hernandez, supra, 33 Cal.4th at p. 1048) and "the 'burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried' " (id. at p. 1050)--suggests the matter must be raised by the defendant or it is waived. Moreover, even had Garcia sought bifurcation, it would not have been an abuse of discretion to deny the request. This case did not involve the primary category of concern articulated by Hernandez--proof of predicate crimes that were unduly prejudicial and unrelated to the charged offense--because the parties' stipulation that the Center Street gang qualified as a street gang obviated that evidence. Although Garcia claims this action involved "other gang evidence" that was inflammatory (Garcia's gang paraphernalia and poetry), it was not unduly prejudicial because it was relevant to the disputed issue of the identity of the shooter and the shooter's mental state for first degree murder; the evidence was relevant to motive, intent, absence of accident or justification, and the credibility of the witnesses who identified Garcia as the perpetrator.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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

^[2] Garcia cites People v. Reza (1984) 152 Cal.App.3d 647, in which the court appeared to apply Hall outside the context of a "prior crime" element. However, Reza merely held that a court cannot preclude a defendant from pleading guilty to a charged offense. Reza held that the denial of the change of plea motion was harmless because evidence of the prior crime would nevertheless have been admissible on the remaining charge. (Id. at pp. 654-656.) As we likewise conclude, even had the court accepted the proffered stipulation, the prosecution would nevertheless have been entitled to introduce the same evidence that Garcia claims would have been mooted by the stipulation. Similarly, People v. Washington (1979) 95 Cal.App.3d 488 is inapplicable. Although Washington held a defendant can stipulate to factual elements of a charged offense and thereby prevent the prosecution from introducing evidence that would be prejudicial, Hall recognized the stipulation would not preclude introduction of the same evidence if relevant to other aspects of the prosecution's case not covered by the stipulation. (People v. Hall, supra, 28 Cal.3d at pp. 152-153.)