P. v.
Filed 9/4/13 P. v. Campos CA4/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOE ANTHONY CAMPOS,
Defendant and
Appellant.
G046717
(Super. Ct.
No. 09CF1800)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Steven D. Bromberg, Judge. Affirmed.
James M. Crawford, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr.,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Joe Anthony
Campos guilty of being a felon in possession
of a firearm (Pen. Code, § 12021, subd. (a)(1))
for the benefit of, at the direction of, or in association with the Santa Nita
criminal street gang and active participation in the Santa Nita criminal street
gang. The trial court found true
allegations Campos had prior
serious felony convictions and had served three prior prison terms. After exercising its discretion to dismiss
one of the prior serious felony convictions for sentencing (§ 1385, subd.
(a)), the trial court imposed a total prison term of 19 years.
Campos
claims the trial court violated his Sixth Amendment right to confront adverse
witnesses by admitting a statement made by another Santa Nita gang member to a
police officer and by prejudicially failing to give instructions on the
necessity defense. He also challenges
the sufficiency of the evidence to support the
claims are meritless and affirm the judgment.
FACTS
Evidence
a. Circumstances of the Offense
In the early morning
hours of July 18, 2009,
Santa Ana Police Officer Oscar Lizardi and his partner drove through a
residential area claimed by the Santa Nita gang. They were on patrol in that area specifically
because there had recently been a gang-related drive-by shooting and murder at
a particular house. When they drove by
this house, Lizardi saw a group of three men drinking beer in front of the
house. He knew the men were loitering
and drinking beer in public in violation of the Santa Ana Municipal Code, and
he decided to stop and ask the men some questions. As Lizardi and his partner got out of their
patrol car, two of the three men, Campos
and Enrique Zamudio, ran to the backyard.
Lizardi gave chase and detained Campos
and Zamudio as they were trying to climb over a wall. Both men had loaded guns. Lizardi saw Campos
throw a semiautomatic handgun over the wall.
He tased Campos and Zamudio,
and a chrome revolver fell out of Zamudio’s pants. The third man, Alfred Vera, was detained
without incident.
Lizardi arrested Campos
and Zamudio and transported them to the Santa Ana Police Department. During his interview with Lizardi, Zamudio
admitted he was a Santa Nita gang member.
Campos also admitted he had
been “walked†into the gang because he grew up in the neighborhood.
b. Gang Expert Testimony
Ana Detective Gil Hernandez testified as the prosecution’s gang expert. Hernandez, an 11-year veteran with over a
hundred hours of formalized gang training with an emphasis in traditional
Hispanic street gangs, testified that he had spoken with innumerable gang
members, their families and friends, and other law enforcement officers to
ascertain the customs, habits, and traditions of criminal street gangs. Hernandez said traditional Hispanic
street gangs claim a specific geographic location
as their turf, and they use gang-related graffiti to mark this turf. Signs and symbols used in graffiti are also
used as tattoos that represent the gang, and individual gang members use
nicknames or monikers to refer to each other.
Hernandez explained the
importance of respect to gang members, something which is often gained through
acts of violence. He also said criminal
street gangs thrive in an environment of fear and intimidation. According to Hernandez, the tool of the trade
for street gangs is the gun, and a traditional Hispanic
street gang will collect guns to be used by
individual gang members.
Hernandez testified
there were over 50 members in Santa Nita in July 2009. The gang uses several symbols including, an
abbreviation for Santa Nita (SN), “Ese Ene,†which represents the letters SN in
Spanish, and a cane and top hat. The
gang also claims the color baby blue.
Hernandez testified Santa Nita is a traditional Hispanic
street gang.
The gang claims a territory within Santa Ana
that includes the neighborhood where the instant offenses occurred as well as
the previous gang-related drive-by shooting.
Based on his research
into Santa Nita, Hernandez said the gang’s primary activities are
he had personally arrested Santa Nita gang members for vehicle theft. He also testified about two predicate
crimes. One occurred in May 2007 when
Jonathan Gabriel Martinez pled guilty to vehicle theft and active participation
in the Santa Nita criminal street gang.
The other occurred in August 2007 when Elias Diaz was convicted of
vehicle theft and active participation in the Santa Nita gang.
In anticipation of his
testimony, Hernandez reviewed field identification cards and other records that
documented Campos’s numerous
contacts with law enforcement between 1996 and 2007. According to his research, Campos
was often in the gang’s claimed territory despite the fact he had moved to
Anahiem in 2003 or 2004. When contacted
by police, Campos frequently
admitted his membership in Santa Nita, and he was often found in the company of
other Santa Nita gang members. He admitted
having the gang moniker “Crazy Joe.â€
Based on his research
and personal experience, Hernandez opined Campos was an active participant in
Santa Nita in July 2009. Hernandez also
testified the instant offenses were committed in association with and for the
benefit of the Santa Nita gang. He
explained that Zamudio and Campos’s armed presence at the scene of a recent
gang-related homicide was an act of respect for a fallen Santa Nita gang
member, and it also proved their continued allegiance to the gang.
When asked a
hypothetical question based on the facts of the case, Hernandez testified, “In
my opinion [Campos’s actions] both benefits the gang and it’s in association
with the gang. It benefits the gang,
because, like I said, other members of the gang, whether it’s younger members,
members of that generation, rival gang members, they note that the gang is
still standing tall, they’re still out there, they’re not afraid, they’re
willing to retaliate if someone else comes in their neighborhood. The community sees them out there. The community is aware of that the homicide
just took place and there is no change, gang members are still out in front
possibly for another homicide or for some type of retaliation. And so people recognized this and they benefit
because they continue their intimidation and instilling fear in the community,
instilling fear and gaining respect for other rival gangs. That’s how they benefit from it. [¶] In association with when you’re standing
with other members of the gang, standing tall together representing you gang at
that location, despite the threats to your life or to anybody that is there
with you, that is a symbol. It’s
symbolism. It’s a sign that, like I
said, regardless of the circumstances you’re willing to be there together with
your fellow gang members regardless of the threat.â€
Defense Evidence
Vera testified on
Campos’s behalf at trial. Vera said he
met Campos about 22 years before this incident when they were young and
belonged to different street gangs. Vera
got out of the gang life and believed Campos had too. Vera had come back to the neighborhood to
visit a relative, and then decided to pay his respects to the murdered victim’s
family. The police officers drove up
about 20 minutes after he started talking to Campos and Zamudio.
Campos, who was 45 at
the time of the instant offenses, testified he moved to Santa Ana at the age of
four and joined the Santa Nita gang during high school. Tony Lopez, the Santa Nita gang member who
had been murdered, was his childhood friend.
He said he moved to Anaheim in 2003 or 2004 and ceased his association
with Santa Nita. But he admitted
pleading guilty to possession of ammunition and active participation in Santa
Nita in 2001. He also admitted stealing cars
and possessing firearms for the benefit of the Santa Nita gang.
Campos’s attorney
questioned him at length about his many tattoos. Campos said some of these tattoos symbolized
Southern California, others memorialized various family members, and some are
just works of art. He did admit to
having at least one gang-related tattoo, “ESE ENE,†but claimed to have tried
to block out this tattoo in 2006 or 2007.
Campos testified his
sole purpose for going into Santa Nita gang territory on July 18, 2009 was to
pay his respects to Lopez’s family. He
said he had not brought the gun with him, but that he had found it stashed in a
beer carton in the Lopez’s garage.
Fearing Lopez’s son would use the gun in an act of retaliation, Campos
decided to put the gun in his pants pocket, grab some beer, and walk out to the
front yard of the house. Vera arrived
sometime later, and the police followed soon after.
Campos denied being a
current active participant in Santa Nita, and he claimed he did not possess the
gun in an effort to benefit the gang.
Although he claimed to have grabbed the gun to protect Lopez’s son, he
also admitted knowing how to remove the magazine and shells from the gun, and
he acknowledged that simply moving and hiding the gun could have made the
situation safer.
DISCUSSION
Evidence
During a pretrial
Evidence Code section 402 hearing and later during trial, defense counsel
objected on the prosecution’s anticipated use of Zamudio’s statement to Lizardi
violated his Sixth Amendment right to confront and cross-examine adverse
witnesses under Crawford v. Washington (2004)
541 U.S. 36 (Crawford). The following colloquy is the sum total of
the challenged testimony at trial: “[The
prosecutor] Did you interview Mr.
Zamudio? [¶] [Lizardi] Yes, sir.
[¶] And did he admit to being a member of the Santa Nita street
gang? [¶] . . . [¶]
[Lizardi] Yes, sir, he did.†The trial court admitted this evidence. On appeal, Campos argues Zamudio’s hearsay
statement was admitted to prove his own active participation in Santa Nita, and
the introduction of this evidence through Lizardi’s testimony denied him the
right to cross-examine Zamudio.
The confrontation clause
provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him.†(U.S. Const., 6th Amend.) The object of the confrontation clause is to
“ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an
fact.†(Maryland v. Craig (1990)
497 U.S. 836, 845.)
States Supreme Court held where testimonial evidence was involved, “the
Sixth Amendment demands what the common law required: unavailability and a
prior opportunity for cross-examination.â€
(Crawford, supra,
541 U.S. at p. 68.) The Supreme Court
did not present a comprehensive definition of “testimonial†evidence, but
stated the confrontation clause is triggered by “‘statements that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’†(Id. at p. 52.) At a minimum, the term “testimonial†applies
“to police interrogations.†(Id.
at p. 68.)
clause is implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated
that the confrontation clause “does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.†(Crawford, supra, 541 U.S. at p. 59, fn. 9.) This is so because hearsay relied upon by an
expert in forming his opinions is “examined to assess the weight of the
expert’s opinion,†not the validity of its content. (People v. Thomas (2005) 130
Cal.App.4th 1202, 1210 (Thomas.)
The evidence of
Zamudio’s statement to Lizardi which was relied upon by Hernandez was not
offered to establish the truth of the matter asserted, but merely to explain
the bases for Hernandez’s expert opinion on Campos’s gang
membership. Thus, the confrontation
clause, as interpreted in Crawford, is inapplicable. (See Thomas, supra, 130 Cal.App.4th at p. 1210.) “Crawford does
not undermine the established rule that experts can testify to their opinions
on relevant matters, and relate the information and sources upon which they
rely in forming those opinions. This is
so because an expert is subject to cross-examination about his or her opinions
and additionally, the materials on which the expert bases his or her opinion
are not elicited for the truth of their contents; they are examined to assess
the weight of the expert’s opinion.†(
Furthermore, even if the
trial court erred in allowing the admission of the experts’ challenged
testimony, Crawford error is not reversible per se. Rather, any error is subject to scrutiny
under the harmless beyond a reasonable doubt standard of Chapman v.
California (1967) 386 U.S. 18. (
673, 681-682; People v. Anderson (1987) 43 Cal.3d 1104, 1128, superseded
by statute on another ground as stated in People
v. Letner and Tobin (2010) 50 Cal.4th 99, 163, fn. 20.) We conclude any error in admitting evidence
of Zamudio’s membership in Santa Nita was harmless beyond a reasonable doubt in
Campos’s trial.
The
prosecution presented ample evidence Campos was an active participant in Santa
Nita in July 2009, and that he possessed a gun to further and promote the
gang’s interests. Campos was arrested at
a home in Santa Nita’s claimed territory where a gang-related murder had
occurred the week before. He and
Zamudio, an admitted Santa Nita member at the time, were armed and standing in
front of the home. As Hernandez
described it, they benefited or promoted the gang by protecting the gang’s
turf. The admission of Zamudio’s
statement to Lizardi did not assist Campos, but a single statement amidst a sea
of Campos’s own claims of gang membership hardly renders Campos’s trial a
miscarriage of justice. In this case,
any error in the admission of Zamudio’s hearsay statement in conjunction with
the prosecution’s gang expert testimony was harmless beyond a reasonable doubt.
Sufficiency of the Evidence
Campos does not
challenge the sufficiency of the evidence to prove Santa Nita is a criminal
street gang as defined in section 186.22, subdivision (f), or that he
actively participated in this gang as defined in section 186.22, subdivision
(a). He limits his challenge to the
sufficiency of the evidence to whether the prosecution proved beyond a
reasonable doubt he possessed a gun “with the specific intent to promote,
further, or assist in any criminal conduct by gang members†as required by
section 186.22, subdivision (b)(1).
The standard of review
that governs a criminal defendant’s challenge to the sufficiency of the
evidence to support a conviction also applies when a criminal defendant
challenges the sufficiency of the evidence to support a gang
enhancement finding. (People v.
Villalobos (2006) 145
Cal.App.4th 310, 321-322.) When
considering a challenge to the sufficiency of the
in the light most favorable to the judgment to determine whether it contains
evidence that is reasonable, credible, and of solid value (People v. Avila
(2009) 46 Cal.4th 680, 701), and “[w]e must presume in support of the judgment
the existence of every fact that the trier of fact could reasonably deduce from
the evidence. [Citation.]†(People v.
Medina (2009) 46 Cal.4th 913, 919.)
“Substantial evidence includes circumstantial evidence and the
reasonable inferences flowing therefrom.â€
(People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) Further, “[w]e ‘must accept logical
inferences that the jury might have drawn from the circumstantial
evidence. [Citation.]’ [Citation] . . . . ‘[I]t
is the jury, not the appellate court that must be convinced of the defendant’s
guilt beyond a reasonable doubt.
[Citation.]’†(People v.
Zamudio (2008)
Cal.App.4th 327, 357-358.)
To prove a
subdivision (b)(1), the prosecution must prove (1) that the defendant
committed the crime for the benefit of, at the direction of, or in association
with a criminal street gang, and (2) that the
conduct by gang members.
(§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
186.22, subdivision (b) requires the prosecution to prove that the
intent to promote, further, or assist in any criminal
conduct by gang members.â€
The specific intent required
under the gang-enhancement statute is the specific
v. Morales (2003) 112 Cal.App.4th 1176, 1198;
People v. Villalobos, supra,
145 Cal.App.4th at p. 322.) This
requirement is satisfied when the evidence demonstrates the defendant committed
a crime “in concert with known gang members.†(People v. Villalobos, supra, 145 Cal.App.4th at p.
322, citing Morales, supra,
112 Cal.App.4th at p. 1198.)
Here, Campos and
Zamudio, both active Santa Nita participants armed with loaded guns, stood
watch over the home where their fellow Santa Nita gang member had been shot and
killed just days earlier. Hernandez
testified their actions reinforced the gang’s presence in the neighborhood and
demonstrated the gang was still together and prepared to defend itself.
186.22, subdivision (b). (Morales, supra, 112 Cal.App.4th at p.
1198; People v. Villalobos,
supra, 145 Cal.App.4th at p. 322.)
The fact Campos testified he intended to prevent violence
by confiscating the gun is irrelevant because the jury was free to reject his
explanation. In this case, substantial
to promote, further, or assist criminal conduct by gang members.
Instructional Error
Campos
claims the trial court had a duty to give instructions on the necessity
defense. We disagree.
A
trial court must instruct on “general principles of law that are commonly or
closely and openly connected to the facts before the court and that are
necessary for the jury’s understanding of the case. [Citations.]â€
(People v. Montoya (1994) 7
Cal.4th 1027, 1047.) In addition, the
trial court must instruct upon “every theory of the case supported by
substantial evidence, including defenses that are not inconsistent with the
defendant’s theory of the case.
[Citations.]†(
On appeal, “[w]e determine whether a jury instruction correctly states
the law under the independent or de novo standard of review. [Citation.]
Review of the adequacy of instructions is based on whether the trial
court ‘fully and fairly instructed on the applicable law.’ [Citation.]
‘“In determining whether error has been committed in giving or not
giving jury instructions, we must
consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions
which are given.†[Citation.]’ [Citation.]
‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]†(People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
A
criminal defendant is entitled to instructions “concerning a defense
support the defense. [Citations.]â€
256, 267.) A criminal defendant
seeking to rely on the necessity defense must demonstrate he or she
significant evil, (2) with no adequate alternative, (3) without creating a
greater danger than the one avoided, (4) with a good faith belief in the
reasonable, and (6) under circumstances in which
did not substantially contribute to the emergency.†(People v. Pepper (1996) 41
Cal.App.4th 1029, 1035.) The evidence in
this case is lacking with respect to all of these elements.
First,
moving a gun from where it has been secreted and putting it in your pants
pocket does not make it less likely
the gun will be used. Second, Campos
himself testified he could have disassembled the gun, or hidden it somewhere
not as accessible as the box of beer, both of which were adequate
alternatives. He also admitted he could
have asked someone else, presumably someone without limitations on their use
and possession of guns, to remove the gun from the scene. And finally, if safety truly had been
foremost on Campos’s mind, he could have waited for the police officers to
contact him and then told them about the gun.
Instead, Campos pocketed a gun with full knowledge he was prohibited
from doing so and then ran away when police officers stopped to talk to
him. Under these circumstances, Campos
substantially increased the likelihood of someone being injured or killed by
the gun he purportedly sought to make safe.
Thus, there was insufficient evidence to trigger the trial court’s sua
sponte duty to give instructions on the necessity defense
DISPOSITION
The
judgment is affirmed.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P.
J.
MOORE, J.
name="_ftn1" title=""> [1] All subsequent
statutory references are to the Penal Code unless otherwise noted.
