P. v. Urrutia

Filed 6/6/07 P. v. Urrutia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Pat Zaharopoulos, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Carlos Rodriguez Urrutia was acquitted of murder and attempted murder, but was convicted of criminal street gang terrorism in violation of Penal Code section 186.22, subdivision (a). Defendant argues his conviction on that single count must be reversed. For the reasons specified post, we disagree and affirm the judgment.

Defendant argues there was insufficient evidence of his active participation in a criminal street gang to support the street terrorism conviction. Defendant was seen in a car with other known, admitted gang members at the site of the shooting. The prosecutions gang expert testified that anyone in a car with known gang members, who are in possession of guns or are committing crimes, is himself or herself an active gang member. The evidence was sufficient to support defendants conviction.

Defendant next argues the trial court abused its discretion by admitting into evidence a note written by him while he was incarcerated and awaiting trial. The court did not abuse its discretion in determining the note was relevant and its probative value outweighed its prejudicial impact.

Finally, defendant contends several portions of the prosecutors rebuttal closing argument constituted misconduct. We disagree. The prosecutors argument was fair comment on the evidence and the inferences that could be drawn from it. The trial court admonished the jury that argument was not evidence and could not be considered in rendering its verdict. In any event, it is not reasonably probable the outcome would have been in defendants favor had the comments by the prosecutor not been made.

Statement of Facts and Procedural History

On April 12, 1999, five members of the Plas street gang were in an alley located in territory claimed by Plas in Placentia. They were assaulted by four members of the Lennox 13 street gang, who were running and yelling Lennox is here. One member of the Plas gang Gilbert Mejia was shot and killed, and another Plas member Jose Miranda was shot and wounded. The Lennox 13 gang members fled.

While investigating the April 2005 murder of Luis Segura, Placentia Police Sergeant Daron Wyatt interviewed Luis Servin, a Plas gang member who had been in the alley with Mejia and Miranda the night they were shot. Servin told Sergeant Wyatt the same people who killed Mejia were involved in the Segura shooting. Servin also told Sergeant Wyatt a gray Honda Accord he recognized as belonging to defendant was cruising the neighborhood before Mejia was shot. Defendants brother and two other people were in the car with defendant. At some point, defendant stopped the car, the passengers got out, and Servin heard Lennox is here, followed by three shotgun blasts.

Servin admitted he was a member of the Plas street gang, which was a rival of the Lennox 13 gang. Servin knew defendant and his brother were members of Lennox 13. The parties stipulated defendant was a member of Lennox 13 on April 12, 1999; Lennox 13 was a criminal street gang on April 12, 1999; and members of said gang had knowledge that members of Lennox engage in a pattern of criminal activity.

In April 1999, defendant was living with his girlfriend, their two children, and his girlfriends father, Pat Jones. Jones recalled that on an evening between April 5 and April 15, defendant left the house after 6:00 p.m. and returned about 10:00 p.m. in an agitated state. When he returned, defendant told Jones he and his brother had gotten someone back, and [w]e might have hurt someone. Defendant also told Jones he had exited the car, the situation escalated, and someone had been shot before defendant got back into the car and fled. Jones confirmed defendant usually drove a silverish gray Honda Accord.

Sergeant Wyatt testified as a gang expert. He explained Hispanic street gangs are usually territorial and claim specific geographic areas. If a rival gang enters another gangs claimed territory, it is considered an act of disrespect. If a gang is disrespected, it must retaliate with equal or greater force. Sergeant Wyatt testified that he would consider anyone in a car with gang members when weapons are present to be an active participant in that gang, and would also consider someone who is with gang members during the commission of a crime to be an active participant in the gang. Sergeant Wyatt also opined that if a gang had been disrespected, and members of that gang then chased and shot into a group of rival gang members who had committed an act of perceived disrespect, the shooting would be for the benefit of the gang.

Defendant was charged in an information with murder (Pen. Code,  187, subd. (a) [count 1]); attempted willful, deliberate, and premeditated murder (id.,  664, subd. (a), 187, subd. (a) [count 2]); and street terrorism (id.,  186.22, subd. (a) [count 3]). The information alleged that with respect to counts 1 and 2, the crimes were committed to benefit a criminal street gang (id.,  186.22, subd. (b)(1)), and defendant personally used a firearm causing death (id.,  12022.5, subd. (a), 12022.53, subds. (d) & (e)(1)).

A jury acquitted defendant of counts 1 and 2, but convicted him of count 3. The trial court sentenced defendant to the middle term of two years in state prison, to be served concurrently with any other sentence then being served.[1]

Discussion

I.

There was sufficient evidence of defendants active participation in a criminal street gang to support the jurys verdicton count 3.

Defendant argues his count 3 conviction must be reversed because there was insufficient evidence of his active participation in a criminal street gang. In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Penal Code section 186.22, subdivision (a) provides: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (Italics added.) The California Supreme Court has defined the italicized language as meaning involvement with a criminal street gang that is more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747.)

In People v. Castenada, supra, 23 Cal.4th at pages 752‑753, the police officers had seen the defendant in the company of known gang members on seven occasions during the 14 months before the crimes at issue, and had given the defendant written notice under the Street Terrorism Enforcement and Prevention Act four times. The defendant had bragged to police officers about being associated with or being a member of the gang. (Id. at p. 753.) The commission of the specific crimes at issue was typical of crimes committed by the gang to put residents on notice of the gangs claimed control over the neighborhood. (Ibid.) Ultimately, the court concluded, through evidence of the crimes defendant here committed, his many contacts on previous occasions with the Goldenwest criminal street gang, and his admissions by bragging to police officers on those occasions of gang association or membership, the prosecution presented sufficient proof that defendant actively participate[d] in a criminal street gang within the meaning of [Penal Code] section 186.22[, subdivision ](a). (Ibid.)

In People v. Schoppe‑Rico (2006) 140 Cal.App.4th 1370, 1378 and footnote 8, the appellate court concluded the prosecution had produced ample evidence of the defendants active participation in a criminal street gang through the following: appellants own statements to Smith [the defendants girlfriend] that he was a gang member; Smiths testimony that appellant had engaged in a verbal altercation with a group of men wearing the color of a rival gang, and had pointed his gun at them and fired a shot in the air to chase them away; appellants numerous tattoos indicating affiliation with the Norteno gang; and the presence in appellants bedroom of gang graffiti and photographs of appellant with gang members. The prosecution also called a gang expert who testified that appellant had been validated by the police as a Norteno gang member in 1996, and described the nature, culture, and violent criminal behavior of the Norteno gang.

In In re Jose P. (2003) 106 Cal.App.4th 458, 467‑468, the court found there was substantial evidence to support a finding of the defendants active participation in a criminal street gang based on the following: [H]e admitted to Officer Patterson that he associated with the NortenÌ