P. v. Ortega

Filed 5/25/10 P. v. Ortega CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

______________

A jury convicted Uriel Ortega (appellant) of second degree murder (Pen. Code,  187, subd. (a)),[1] and found true the allegation that appellant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)). The jury found not true the allegations that appellant personally used a firearm, that appellant personally and intentionally discharged a firearm, and that appellant personally and intentionally discharged a firearm, which proximately caused great bodily injury and death ( 12022.53, subds. (b)-(d)). The trial court sentenced appellant to 15 years to life in state prison and awarded him 598 days in presentence custody credit.

On appeal, appellant contends substantial evidence does not support the murder conviction or the gang finding. We affirm.

BACKGROUND

I. Prosecution

On August 5, 2007, at approximately 2:00 p.m., Kareem Wafer (the victim) was shot in the area of Hoover Street and 46th Street in Los Angeles.[2] The victim subsequently died of a single gunshot wound to the torso. There were several accounts of what transpired on that date.

Kimberly Glen (Glen) testified that on the day of the shooting, she was in a parking lot of an apartment building on Hoover Street near 46th Street. She was with the victim, the victims cousin Michael McCullough (McCullough), and several other individuals. Two men of Hispanic origin carrying large automatic firearms entered the parking lot from the rear. From a distance of approximately two and a half feet, Glen saw one man stand in front of the victim and the other man stand behind him. The man who stood in front of the victim yelled Westside Hoover and the victim threw his hands up in the air. The victim began running and both men fired shots at him. As the victim was running away, Glen saw at least one of the men follow the victim and continue to shoot at him. The victim collapsed and died in front of the doorway of a nearby liquor store.[3]

At trial, Glen identified appellant as the man who yelled Westside Hoover, and as one of the two men who shot at the victim as he was running way.[4] Glen could not say, however, whether appellant fired the fatal shot that killed the victim. Additionally, Glen acknowledged that she had suffered prior convictions for domestic violence and battery against a spouse. At the conclusion of Glens testimony, the parties stipulated that Glen and the victim intended to move in together before the shooting, and that sometime prior to trial, Glen told the prosecution that the shooters guns possibly [had] silencers on them and that she had heard so many different rumors about what had transpired on the day of the shooting.

Deira Jones (Jones) testified that on the day of the shooting, she was sitting with the victim, McCullough, and some other individuals in the same parking lot. Jones went inside the apartment building and when she returned outside, she saw people running in various directions. Jones ran into the street and saw that the victim had collapsed some distance from the apartment building. McCullough was standing near the victim. Jones called 9-1-1 for assistance. Both Jones and McCullough stayed at the scene until police officers arrived. According to Jones, McCullough did not speak to any of the officers on the scene because he was too upset over the victims death. Jones testified at trial that she did not see who shot the victim and that even if she did see the shooter, she likely would not have remembered the shooters face given her general inability to recall faces.

The prosecution played for the jury an audio recording of an interview that took place between Jones and LAPD Detective Bertha Durazo and Detective Zambos on September 28, 2007.[5] In this recording, Jones told the detectives that on the day of the shooting, she drove into the apartment buildings parking lot and saw three men of Hispanic origin coming through the lot from the rear of the building. The men were approximately five feet five inches in height. One man had tattoos on his face and another man had black hair and a black mustache. As Jones exited her car, she heard five to seven gunshots and saw everyone in the lot, including McCullough and the victim, begin to run. Jones ran to the side of a parked car and kneeled for cover. From this position, she saw the man with the black mustache holding onto the victim to prevent him from running away. Jones continued to hear gunshots being fired. Jones initially stated during the interview that she did not know who had fired the shots. Later in the interview, however, Jones stated that she believed the man with the tattoos on his face was the shooter. At the conclusion of the interview, the detectives presented Jones with a six-pack photographic display that contained appellants photograph. Jones identified

appellant as the person who shot the victim and told the detectives that she had seen appellant driving through the neighborhood on several occasions before the shooting.[6] Jones emphasized to the detectives that she did not want her name used in the investigation because she did not want [anybody] coming after [her]. After the recording was played to the jury, Jones acknowledged that she had spoken to the detectives, but maintained that the detectives coerced her into implicating appellant. Jones also testified that she falsely implicated appellant so that authorities would release her on unrelated assault charges.[7]

McCullough testified that on the day of the shooting, he, the victim, and several friends were congregating in the parking lot when two Hispanic men and two Black men approached them. One of the men instigated a fight with the victim. Gunshots were fired and people began running out of the parking lot. McCullough testified that some of the men who had entered the parking lot were possibly responsible for the shooting, but he could not describe any of the individuals. After the shooting occurred, several officers, including LAPD Officer Paul Fedynich, attempted to talk with McCullough about what had transpired, but he refused to speak with them. McCullough remained at the crime scene for an extended period of time. One of the officers on the scene observed that McCullough was wearing a red T-shirt and displaying Bounty Hunters Blood gang tattoos in the middle of a neighborhood controlled by a rival Crip gang. McCullough admitted at trial that he was a member of the Bounty Hunters Blood gang at the time of the shooting.

McCullough further testified that approximately one month after the shooting, he was arrested on narcotics and firearm possession charges as part of a raid on a crack house. While incarcerated, on September 14, 2007, Officer Fedynich and Detective Zambos interviewed McCullough. They presented McCullough with a six-pack photographic display that included appellants photograph and directed him to identify appellant as the shooter. According to McCullough, Officer Fedynich told him that if he identified appellant as the shooter, he would be released from custody.[8] McCullough refused to identify appellant as the person who shot the victim and stated that he was not a snitch.

Officer Fedynich, a member of LAPDs 77th Division gang enforcement detail, testified that he met McCullough approximately five years before the date of the shooting. During those five years, he and McCullough had a friendly and cordial relationship, and would occasionally joke around with each other. On the day of the shooting, Officer Fedynich and his partner Officer Campagna arrived at the scene and found McCullough upset and crying. The officers asked McCullough what had taken place and, according to Officer Fedynich, McCullough replied: That Mexican shot my cousin. When prompted for more details, McCullough said: The one with the HC . . . The tattoos on his face. McCullough described the shooter as having the letters HGC tattooed on his face and referred to the shooter by the moniker Maniac.[9] Officer Fedynich, who had worked the areas gang enforcement detail and was acquainted with appellant, testified that appellant was the only Hispanic gang member he knew of in the area that had such a distinctive facial tattoo. Officer Fedynich did not report McCulloughs statements to LAPD Detective Monica Cross, the night watch detective on duty on the date of the shooting. Officer Fedynich did, however, report McCulloughs statements to the lead homicide investigator, Detective Zambos, sometime after the shooting.[10]

Officer Fedynich testified that on September 14, 2007, he and Detective Zambos interviewed McCullough while McCullough was in custody on unrelated charges. During the interview, the officers presented McCullough with a six-pack photographic display and asked McCullough to identify the person who shot the victim. McCullough nodded at appellants photograph but did not verbally identify appellant as the shooter. Officer Fedynich testified that he did not instruct McCullough to identify appellant as the shooter during the interview, nor did he offer McCullough money to falsely implicate appellant as the shooter.

LAPD Officer Bradley Nielson testified as the prosecutions gang expert. According to Officer Nielson, in 2007, the Five Deuce Hoovers Gangster Crip gang (Hoovers) had approximately 300 to 350 members. Its primary activities included such criminal offenses as murder, robbery, and firearm assault. At the time of the shooting, appellant was a member of the Hoovers gang and used the moniker Maniac. The Hoovers gang, which was part of the Crips criminal street gang, considered any Blood gang to be a rival. Officer Nielson testified that when members of the Hoovers gang commit violent crimes, such acts benefit the gang as a whole because they make the gang appear stronger and more powerful. When a gang is viewed as strong and powerful, it is able to maintain a larger territory, which in turn provides the gang with more drug distribution points. Gangs, including the Hoovers gang, earn money through drug sales and the more distribution points a gang has, the more money it will make.

The prosecutor used several hypothetical questions to elicit motive, as well as to inquire into Officer Nielsons opinion as to whether the shooting was committed for the benefit of the gang.

Q: If you knew nothing more than that a Five Deuce Hoover, in the company of another male, ran up to a person, that Five Deuce Hoover had prominently displayed tattoos and they said West Side Hoover and began shooting, in that limited hypothetical, would you still believe that the shooting was committed for the benefit of the gang, with the specific intent to promote criminal activity?

A: Yes, maam.

Q: And why is that?

A: Its very common for gang members, when theyre committing crimes, to call out their gang name; in this instance, Five Deuce Hoovers. It goes back to the respect issue. Not only is it that victimthat actual or directed or intended victim that day knows, Okay, these are Hoovers who are shooting at me, or  . . . beating me up, or whatever theyre doing to him, it also goes to the greater good of the gang, in terms of if you go set up shop in Hoover territory, theyre going to go shoot at you, in broad daylight, with very prominently displayed tattoos and then yelling out West Side Hoovers. Its, in no uncertain terms, saying this is justice being dealt out.

Q: Does that send a message to the witnesses and other people around?

A: Absolutely. If you live in a community where you watch, on a day-to-day basis, gang members committing crimes openly, in broad daylight, and the police can do nothing about it, it allows that gang to not only continue to exist, but also to open up into other things. If you do report a crime, youre placing yourself at significant risk.

II. Defense

Dr. Mitchell Eisen, a professor in psychology, testified on behalf of the defense. At the outset of his testimony, Dr. Eisen stated that he could not provide an opinion on the accuracy of the eyewitness testimony and identifications made in the underlying case. Rather, his testimony was limited to the general state of memory and recall science. Dr. Eisen went on to explain that eyewitnesses generally remember the big things but often forget tiny, little detail[s]. When asked to recall certain events, witnesses fill in memory gaps with information that makes sense to them even if the information is not necessarily accurate. Additionally, when an eyewitness undergoes a stressful or traumatic event, the witness will focus only on limited aspects of the event and will not process other information he or she normally would under less stressful conditions. When an eyewitness views a six-pack photographic display, the witness will often identify the person who best fits their memory of the perpetrator, regardless of whether the identified person is the actual perpetrator.

LAPD Detective Monica Cross testified that on the day of the shooting, she acted as the night watch detective, which meant that she assumed investigative responsibilities until the assigned detectives arrived at the scene. After the shooting occurred, Detective Cross tried speaking with McCullough to determine whether he was a possible witness, but McCullough was distraught and refused to speak with her. When Officer Fedynich arrived at the scene, she directed him to speak with McCullough. Detective Cross saw Officer Fedynich speak with McCullough, but she did not hear what they were saying and Officer Fedynich did not report the substance of their conversation to her after it was over.

Larry Clark, who lived next door to the apartment building in question, was in his front patio shortly before the shooting occurred. When the shots were fired, he heard people screaming. He saw one person running toward a nearby liquor store before collapsing in the street. From Clarks vantage point, he did not see anyone holding the person before the person collapsed.

DISCUSSION

I. Second Degree Murder Conviction

Appellant argues that substantial evidence does not support the jurys second degree murder conviction.

In People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court recently summarized the well-established standard of review. In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witnesss credibility. [Citation.] [Citation.] (Whisenhunt, at p. 200.)

Here, there was ample evidence to support the jurys finding that appellant was guilty of second degree murder. During the interview with Detectives Durazo and Zambos, Jones picked appellants photograph from a six-pack display and identified him as the person who shot the victim. Jones also stated that she did not want her name used in the investigation for fear of retaliation. Although she recanted her identification of appellant at trial, the jury was entitled to believe the statements she made to the detectives, which subjected her to possible retaliation, over the self-serving statements she made at trial. Additionally, according to Officer Fedynich, McCullough told him that the person who shot the victim used the moniker Maniac and had the letters HGC tattooed on his face. Appellant used the same moniker, had the same letters tattooed on his face, and was the only Hispanic member of the Hoovers gang known by Officer Fedynich to have such a distinctive tattoo. Although McCullough denied describing the shooter to Officer Fedynich, the jury was entitled to believe Officer Fedynich over McCullough, especially in light of McCulloughs statement that he did not want to be a snitch.

Appellant concedes that the testimony of a single witness, if believed, is sufficient to sustain a conviction. He argues, however, that we should disregard the identifying statements by Jones and McCullough altogether because their prior criminal convictions and reluctance to assist in the prosecution of the victims murder rendered them a motley discredited crew if ever there was one. Appellant is asking us to reweigh the credibility determinations made by the jury, which is outside our scope of review. The jury elected to credit the identifying statements made by Jones and McCullough, and their statements served as substantial evidence to support the murder conviction. (People v. Whisenhunt, supra, 44 Cal.4th at p. 200 [We do not reweigh evidence or reevaluate a witnesss credibility. [Citation.] [Citation.]]; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends].)

Appellant also argues that reversal is required because the jury convicted appellant on an aider and abettor theory of liability, and here there was no evidence that appellant aided and abetted in the shooting. According to appellant, the jury necessarily convicted him on an aider and abettor theory of liability because it found not true the personal firearm use allegations. Assuming, without deciding, that appellant is correct in maintaining that the jury proceeded under an aider and abettor theory of liability, appellants argument nonetheless fails because there was substantial evidence that he

aided and abetted in the victims murder.[11] Glen testified that she saw appellant and another man approach the victim with automatic firearms. After appellant yelled Westside Hoover, the victim threw up his hands and began to run. Both men began shooting at the victim at close range. Furthermore, Jones testified that she saw one of the men who approached the victim hold the victim in order to prevent him from running away so that the other man could shoot him. From this evidence, the jury could have concluded that even though appellant did not actually deliver the fatal shot, appellant shared the perpetrators criminal purpose (i.e., to kill the victim) and aided the perpetrator with the intent of facilitating the perpetrators commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259 [To prove that a defendant is an accomplice . . . [in] a specific intent crime, the accomplice must share the specific intent of the perpetrator; this occurs when the accomplice knows the full extent of the perpetrators criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrators commission of the crime].)

II. Gang Finding

Appellant contends that we should strike the gang enhancement because there was insufficient evidence that he acted with a specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).) We reject appellants argument.

Officer Nielson, the expert in this case, testified that when members of a criminal street gang, such as the Hoovers gang, commit violent crimes, such acts benefit the gang as a whole because they make the gang appear stronger and more powerful. When a gang appears strong and powerful, it is able to maintain a larger territory, which in turn provides the gang with multiple narcotic distribution points and increased revenue. Officer Nielson further testified that when a gang member shoots a victim in broad daylight while yelling his gangs name, the gang member specifically intends to promote criminal activity by sending a message to community members that his gang is immune to police authority and that if a community member reports a crime, he or she would be placed at significant risk. Officer Nielsons testimony, coupled with evidence that appellant yelled the name of his gang before shooting at the victim (the cousin of a rival gang member) in broad daylight within gang-controlled territory was sufficient to support the jurys finding that appellant acted with a specific intent to promote, further, or assist in criminal conduct by gang members.

In re Frank S. (2006) 141 Cal.App.4th 1192, cited by appellant, is inapposite. In that case, the juvenile court found that the minor was carrying a concealed dagger ( 12020, subd. (a)(4)) and found true a gang enhancement ( 186.22, subd. (b)(1)). The expert testified that by carrying a concealed dagger, the minor intended to promote criminal activity by providing protection against rival gang members. (Frank S., at p. 1199.) The Court of Appeal reversed the gang finding based on insufficiency of the evidence. According to the court, the prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense. (Ibid.) Here, in stark contrast, there was evidence that appellant was a gang member, that a rival gang member (McCullough) and his cousin (the victim) were in territory claimed by appellants gang, and that appellant yelled his gangs name before shooting at the victim.[12]

Relying on the majority opinions in Garcia v. Carey (9th Cir. 2005)395 F.3d 1099 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, appellant also asserts that the gang enhancement statute requires a showing of an intent to promote, further, or assist the gangs criminal activity beyond the charged crime. This court agrees with the decision in People v. Hill (2006) 142 Cal.App.4th 770, which specifically rejected the argument posed by appellant here. The plain language of section 186.22, subdivision (b)(1) requires a showing of a specific intent to promote, further, or assist in any criminal conduct by gang members, which can include the charged offense. (People v. Hill, supra, at pp. 773774; accord, People v. Romero (2006) 140 Cal.App.4th 15, 1920, and People v. Villalobos (2006) 145 Cal.App.4th 310, 322.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, P. J.

BOREN

We concur:

_____________________, J.

DOI TODD

_____________________, J.

ASHMANN-GERST

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

[2] This particular location falls within territory claimed by the Five Deuce Hoover Gangster Crip criminal street gang.

[3] Los Angeles Police Department (LAPD) Officer Christian Wecker testified that he observed what appeared to be three bullet holes on a wall near where appellant had collapsed. He could not state with certainty, however, that they were in fact bullet holes.

[4] After the shooting took place, police officers presented Glen with a six-pack photographic display that included appellants photograph. She identified appellant as one of the men who shot at the victim and wrote: Number 3 is one of the guys I witnessed that day. Sometime after this initial identification, Glen viewed the six-pack again and wrote the words the shooter underneath appellants photograph.

[5] At the time of the interview, Jones was in custody on assault charges. Jones admitted at trial that she had suffered a prior conviction for passing a false check.

[6] After identifying appellant as the shooter during her interview with the detectives, Jones wrote the following statement: Looking at Photograph Number 3, I recognize the boy as being the one standing outside the gate at the time of the shooting. I also believe he was the one doing the shooting. I would not like to be contacted or mentioned during this case, please. At trial, Jones acknowledged that the statement was written in her handwriting, but denied identifying appellant as the shooter or writing the statement.

[7] Jones acknowledged that she had been convicted of using false checks and that she was in custody at the time of the interview on assault charges.

[8] McCullough also claimed that Officer Fedynich had offered him $1,500 to identify appellant as the shooter on a prior occasion.

[9] At the time of the shooting, appellant was a member of the Five Deuce Hoovers Gangster Crip gang, had the letters HGC tattooed on his face, and assumed the moniker of Maniac.

[10] Officer Fedynich formally documented his conversation with McCullough on September 23, 2007, in a written report.

[11] The jury was instructed with aider and abettor liability. Appellant does not contend that the instruction was deficient in any way.

[12]People v. Killebrew (2002) 103 Cal.App.4th 644 is likewise inapposite. In that case, the defendant, who did not have a handgun in his possession, was convicted of conspiracy to possess a handgun. The only evidence linking the defendant to the handgun was expert testimony that defendant intended to possess the handgun simply because a fellow gang member was carrying the gun. The Court of Appeal held that the expert testimony was inadmissible because it went to the ultimate issue of subjective intent and knowledge to support the conspiracy count. (Id. at p. 658.) Here, the issue is not whether the experts testimony was admissible, but whether it constituted substantial evidence to support the gang enhancement.