P. v. Avalos

Filed 10/12/06 P. v. Avalos CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Francisco P. Briseno, Judge. Affirmed as modified.

A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Javier Avalos, Jr., was convicted of six counts of robbery and burglary and one count of street terrorism, as well as multiple enhancements. He challenges the admissibility of his confession, the admissibility of a statement made by his mother to a police officer, and the sufficiency of the evidence as to the street terrorism counts and gang enhancements. We find none of these arguments to be persuasive and affirm the judgment.

He also makes two claims of clerical error as to the minute order, one of which appears to be well-taken. We direct the clerk of the superior court to modify the minute order accordingly.

I

FACTS

On the night of June 1, three Santa Ana businesses were robbed within a 22-minute period. The first robbery was at a Kentucky Fried Chicken. Two men perpetrated the robbery, one of whom had a gun. They removed cash from the register and then fled. A drive-through customer later gave the cashier, Patricia Moyado, a piece of paper with the robbers’ license plate number on it. A video camera captured the robbery on tape.

The second robbery was at a Papa John’s pizza restaurant. Two men entered the restaurant, one of whom pointed a gun at employee Robert Zerby. Zerby, who was familiar with guns, recognized it as a black .45 caliber semi-automatic handgun. The two men ordered Zerby to open the cash drawers, and the two men fled with approximately $150. A video camera recorded the two robbers entering and leaving the restaurant.

The third robbery took place at a Donut Star. Two men entered and pointed a gun at employee Maria Jaramillo. They took the money inside the cash register after Jaramillo struggled to open it. As the robbers fled, the one with a gun fired a shot. Again, a video camera recorded the robbery.

Apparently, a call about the robbery at the Kentucky Fried Chicken led to a pursuit of the suspects by police officers, including Santa Ana Police Officer Charles Elms. Elms had a camera crew from the television show “Cops” with them that night, and events were videotaped. While Elms was at the Kentucky Fried Chicken, the third robbery took place. From the surveillance tape, Elms was able to call in a description of the two suspects. Using the vehicle description, the police picked up the suspects’ trail and pursued. Defendant and an individual named David Maldonado were arrested at approximately 10 p.m., and a third suspect, Jose Flores, was arrested at a later date. Defendant directed officers to a location where the gun was found. Later testing matched it to the bullet fired at the Donut Star.

Detective James Rose of the Santa Ana Police Department began an investigation, interviewing defendant at approximately 3:00 or 4:00 a.m. on the morning after the robberies. The interview was recorded and later played in redacted form for the jury. In sum, defendant admitted to participating in the robberies but denied they were related to gang activities. He denied knowing the other two suspects.

When asked, defendant told Rose that he had a “Delhi” tattoo and others. He told Rose he had the tattoo done “at the [] prison.” He stated he had been with Delhi since he was 12. The detective asked, “How old are your tats, your DEHLI stuff?” Defendant responded that his tattoos were “[Inaudible] pretty old [inaudible] 14.”

Moyado picked Maldonado out of a photographic lineup the following day, but did not pick out defendant. Jaramillo identified defendant to police that night, and picked him out of a photographic lineup several weeks later. A second witness at the Donut Star identified Maldonado as the man with the gun. Approximately a week after the robberies, the drive-through patron at Kentucky Fried Chicken, Robert Seeley, identified one of the robbers in a photographic lineup, although he had some reservations.

Defendant was charged with seven felony offenses. In counts one, three and five, he was charged with second degree robbery. (Penal Code §§ 211, 212.5 subd. (c).) (Subsequent statutory references are to the Penal Code.) In counts two, four, and six, defendant was charged with second degree burglary. (§§ 459, 460, subd. (b).) In count seven, he was charged with street terrorism (promoting, assisting and benefiting a street gang through felony conduct.) (§ 186.22, subd. (a).) With regard to counts one through six, it was alleged the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) It was also alleged defendant personally used a firearm in the commission of counts one and three (§ 12022.53, subd. (b)) and that he personally discharged a firearm in the commission of count five (§ 12022.53, subd. (c)). The information also alleged that defendant had previously been convicted of five “strike” offenses (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds (b) and (c)(2)(A)) and a prior serious felony conviction (§ 667, subd. (a)(1).)

At trial, Detective Mauricio Estrada testified as an expert on gangs and gang subculture. Defendant was an active member of the “Delhi” street gang, an active gang with over 200 members, and had the gang’s name tattooed on his abdomen. The primary activities of the Delhi gang are murder, firearms violations, robberies, and assaults. On the night of the robberies, defendant was wearing clothing consistent with gang member attire.

The other suspects, Maldonado and Flores, were members of the “Sycamore Street” gang, which has an alliance with the Delhi gang. Estrada testified that both gangs stood to benefit from the robberies because they raised their reputation and brought them respect. The individual gang members stood to gain a reputation for being violent. He also stated that a gang member can commit a crime that does not benefit his gang.

Estrada testified about earlier police contacts with defendant that indicated gang involvement, primarily between 1996 and 1998. After 1998, he had no indication of defendant’s active involvement in the gang, but defendant was in custody during that period. Estrada interviewed defendant’s mother, who told Estrada that defendant got the Delhi tattoo on his stomach while he was in prison.

The jury convicted defendant of all substantive offenses and found the gang and firearm allegations to be true. The court later found defendant to have suffered five prior strike convictions.

At the initial sentencing hearing, three of defendant’s prior five strikes were stricken by the court. An indeterminate term of 75 years to life consisted of three consecutive terms of 25 years to life for the robbery counts. A consecutive determinate sentence of 40 years was comprised of a 20-year firearm enhancement on count five and two 10-year sentences for the firearm enhancements on counts one and three. The burglary counts were stayed pursuant to section 654. A concurrent term of 25 years to life was imposed on count seven, the street terrorism count. The gang enhancements under section 186.22 subdivision (b)(1) were converted to a 15-year minimum for parole eligibility. (§186.22, subd. (b)(5).)

The court later reduced the sentence on the firearm enhancements from 40 years to 26 years and 8 months by imposing one-third the midterm for the enhancements on counts one and three, rather than the entire term as previously imposed. Defendant was sentenced to state prison for 115 years to life. Thus, the revised sentence consisted of an indeterminate term of 75 years to life plus a consecutive determinate term of 26 years and 8 months, for a total term of 101 years and 8 months to life.

II

DISCUSSION

Defendant’s Confession - Voluntariness

Defendant claims that his confession was the subject of coercion and not voluntary. The state must prove the defendant’s confession was voluntary by a preponderance of the evidence. (People v. Weaver (2001) 26 Cal.4th 876, 920.) “Under both state and federal law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession. [Citations.] Among the factors to be considered are ‘”the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.] On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.]” (People v. Massie (1998) 19 Cal.4th 550, 576.)

Defendant focuses primarily on the fact that the hour was late and he was tired at the time of his questioning by Detective Rose. Defendant indicated that he would rather talk to the detective the next day, but then agreed to talk to him “real quick,” indicating that he wanted to get to a cell. Rose told defendant that he would get him to his cell after the interview. Toward the interview’s conclusion, defendant stated that he entered into an “agreement” for his confession in return for expediting the process of getting him to a cell so he could sleep.

The transcript and tape of the interview, however, do not bear out defendant’s assertion that any kind of “agreement” was entered into. Indeed, Rose tells defendant he cannot promise him any kind of “VIP pass,” merely that he would begin the paperwork in defendant’s presence if he wanted to talk further.

We look to the totality of the circumstances. Nothing about the physical conditions or Rose’s statements indicates the confession was not “essentially free” or that his “will was overborne.” (People v. Memro (1995) 11 Cal.4th 786, 827.) While 3:00 or 4:00 a.m. certainly constitutes a late night, and one would reasonably expect defendant to be tired, there is no indication that defendant was so physically or mentally compromised as to characterize the situation as one of “sleep deprivation.” Defendant’s comparison of this situation to cases in which the defendant had repeatedly asked for counsel is inapt. (See, e.g., People v. Neal (2003) 31 Cal.4th 63, 78-80.)

We also look at the characteristics of the defendant, a 24-year-old man with considerable experience in the criminal justice system, including a prior sentence to state prison. Despite being an admitted drug user, he was not displaying symptoms of being under the influence at the time of the interview. The videotape supports the assertion that he chose to answer the investigator’s questions and that his confession was not the product of coercion.

Defendant also asserts physical mistreatment because he appeared, in the videotape, to be cold, and because one hand was handcuffed to the wall behind him. At no time during the interview, however, does defendant complain about either matter. He cannot reasonably contend now that these factors, which were not even worth mentioning at the time, were of such import that his will was “overborne”and forced a confession. (People v. Memro, supra, 11 Cal.4th at p. 827.)^[1]

While we find no error, even if any existed, it was harmless beyond a reasonable doubt. (People v. Neal, supra, 31 Cal.4th at p. 86.) Defendant’s contention that this was a “close case” on counts one through six is purely wishful thinking. Defendant was arrested shortly after the last of three robberies in the vicinity where they occurred. Once in custody, he directed the police to the gun later determined to have been fired at the scene of the final robbery. He was identified by several witnesses as one of the robbers. Thus, there is no reasonable doubt that defendant would have been found guilty of the robberies even without his confession.

Defendant’s Confession - Miranda

Defendant next claims that his confession was in violation of the precepts set forth in Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Although somewhat convoluted, his primary argument seems to be that the police did not seek an express waiver of defendant’s constitutional rights.

We need not belabor this issue. Defendant was indisputably informed of his rights and asked if he understood each one. After defendant responded that he understood the final warning, Rose began asking questions, and defendant answered. A valid Miranda waiver can be express or implied, and a defendant’s willingness to answer questions after acknowledging an understanding of his rights constitutes an implied waiver. (People v. Whitson (1998) 17 Cal.4th 229, 247-248.)

Defendant claims that his stated preference for talking to Rose the next day, after he had slept, was an attempt to assert his right to remain silent. No reasonable interpretation of events supports this theory. He did not indicate that he wished to remain silent, just that he wanted to sleep first. Thus, defendant never attempted to invoke his right to remain silent. We find no violation of Miranda.

Testimonial Hearsay

Defendant’s next argument relates to purported testimonial hearsay. During the testimony of gang expert Estrada, he stated that he had talked to defendant’s mother, who told him defendant had obtained his “Delhi” tattoo while he was in prison. According to defendant, the purpose of this was to impeach defendant’s statement regarding when he obtained this tattoo.

Defendant argues the admission of this statement violates Crawford v. Washington (2004) 541 U.S. 36 (Crawford). That case held that the admission of hearsay that is testimonial in nature violates the Confrontation Clause unless certain requirements are met. (Id. at pp. 68-69.) Here, the truth of the matter was irrelevant. The prosecutor’s use of the statement was for the purpose of establishing the expert’s opinion regarding defendant’s membership in the gang and that his crimes benefited the gang. Thus, the statement was either not properly considered hearsay, as it was not offered for the truth of the matter asserted, or not testimonial hearsay implicating Crawford. (See People v. Thomas (2004) 130 Cal.App.4th 1202, 1208-1210.) In either case, the statement was admissible.

Even if we were to accept defendant’s premise that the statement was offered for the truth of the matter asserted, we do not understand why this statement was even relevant, much less prejudicial enough to require reversal of the judgment. First, defendant made ambiguous and possibly contradictory statements on this subject during the interrogation. Rose asked defendant: “What kind of tattoos do you have?” and defendant answered: “DELHI and [inaudible].” Rose asked when defendant had this done, and defendant answered: “At the [inaudible] prison.” An exchange then occurred about defendant’s other tattoos. One of them was an Ace of Spades, a symbol associated with the Delhi gang. Later, Rose asked: “How old are your tats, your DELHI stuff?” Defendant replied: “[Inaudible] pretty old [inaudible] 14.”

It was therefore unclear if, as defendant asserts, the prosecutor elicited his mother’s statement from Estrada to “impeach” defendant, when defendant’s own statement was ambiguous and could have been referring to the Ace of Spades tattoo, rather than the Delhi tattoo, as the one he obtained at age 14. The prosecutor’s question assumed that defendant meant the Delhi tattoo, but the transcript demonstrates defendant’s statement was unclear. As the jury was instructed, the prosecutor’s statements are not evidence.

Even if the jury believed defendant’s mother’s statement, at worst, it demonstrated defendant lied to his mother about when and where he obtained a tattoo.

At best, the jury believed the mother’s statement which only would have benefited defendant, suggesting that his gang involvement began only in prison, between the ages of 18 and 24, and not, as defendant’s own statements repeatedly established, at age 12 or 13. When he obtained the tattoo does not establish any fact relevant, much less critical, to this case. Had there been error, it would have been harmless beyond a reasonable doubt. (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.)

Sufficiency of the Evidence - Street Terrorism Count and Gang Enhancements

Defendant challenges the sufficiency of the evidence to support his conviction on count seven (§186.22, subd. (a))^[2] and the jury’s true findings on the gang enhancements.^[3] “Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury’s verdict. [Citation.] By this process we endeavor to determine whether ‘”any rational trier of fact”’ could have been persuaded of the defendant’s guilt. [Citations.]” (People v. Olguin (1999) 31 Cal.App.4th 1355, 1382.)

The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)

To support the conviction on count seven, the prosecution was required to prove defendant’s membership and active participation in a gang, his knowledge that the gang members engage in a pattern of criminal activity, and that he intended to promote, further, or assist the gang by his conduct, in this case, the commission of the robberies. (§ 186.22, subd. (a).) To support the enhancements, the prosecution was required to prove that defendant committed the robberies for the benefit of, at the direction of, or in association with a criminal street gang, with the intent to promote, further, or assist in criminal conduct by the gang. (§ 186.22, subd. (b)(1); People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

Further, a criminal street gang is “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in [subdivision (e)], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) The acts set forth in subdivision (e) include murder, robbery, burglary, and other felonies.

Defendant asserts a lack of evidence to support the contention that the “primary activities” of defendant’s gang were commission of crimes enumerated in the statute. The prosecution was entitled to rely on the three instant robberies as well as prior robberies. “Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group’s primary activities. Both past and present offenses have some tendency in reason to show the group’s primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id., § 351)” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)

Moreover, although Estrada testified about two specific crimes involving Delhi gang members, he also gave his expert opinion that Delhi’s primary activities were “murder, firerarms violations, robberies, and assaults.” This in itself is relevant, admissible evidence as to the gang’s primary activities. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Vy (2004) 122 Cal.App. 4th 1209, 1226.) Defendant’s citation to People v. Perez, (2004) 118 Cal.App.4th 151, is misplaced, as that case did not involve expert testimony on the gang’s primary activities. (Id. at pp. 157-158.) While not overwhelming, Estrada’s testimony was uncontradicted, and we find the evidence sufficient under the relevant standard of review. A rational trier of fact could have been persuaded that Delhi’s primary activities were the predicate felonies. (People v. Olguin, supra, 31 Cal.App.4th at p. 1382.)

Defendant next argues there was insufficient evidence the crimes were committed for the benefit of, at the direction of, or in association with the gang (§ 186.22, subd. (b)(1)) or specifically intended to promote, further, or assist the gang’s criminal conduct (§ 186.22, subds. (a), (b)(1)). Defendant relies on the fact that the witnesses did not report the robbers yelled out gang names or wore gang names on their clothing. Such direct evidence, however, is not required. Estrada testified that one of the robberies was within the territory of the Sycamore Street gang and the other two were a short distance away. Defendant’s companions were members of the Sycamore Street gang, which had an alliance with defendant’s gang. Defendant was wearing Delhi’s colors during the robberies.

In response to a hypothetical that included the facts of the robberies, Estrada testified that both the Delhi and Sycamore gangs stood to benefit because crimes of violence increase respect for gangs in gang subculture and enhance their reputation. The victims were likely to fear them and tell others. There is no dispute that defendant was a long-time member of the Delhi gang.

Defendant points to his repeated statements that the robberies were for drug money, and not for the benefit of his gang. This argument, while plausible, was not the one the jury adopted. The evidence provided by Estrada, while again, not overwhelming, was sufficient for a reasonable trier of fact to believe that the robberies were committed by gang members for the purpose of benefiting both gangs with the intent to further their future criminal activities. (People v. Olguin, supra, 31 Cal.App.4th at p. 1382.)

Clerical Error

Defendant argues the clerk’s minutes contain two clerical errors. As to the enhancement on count five, the minutes (sequence No. 32) read the sentence was “20 years to life” rather than the 20 year term the court actually imposed at sentencing. While a request to correct the minutes when the abstract of judgment is correct is relatively rare, it appears to be proper. (In re Roberts (1962) 200 Cal.App.2d 95, 97-99.) We shall therefore order the minute order corrected.

Defendant also claims the court’s minutes reflect a consecutive, rather than concurrent, sentence on count seven. It appears, however, to this court that the minute order first reflected a consecutive sentence, then vacated that order, then correctly reflected the concurrent sentence the court actually imposed. Thus, while the minute order contains an inaccuracy, it has already been corrected.

The abstract of judgment is correct as to both points and requires no correction.

III

DISPOSITION

The clerk of the superior court is directed to enter an order correcting the September 23, 2005 minute order to reflect the sentence for enhancement on count five is 20 years instead of 20 years to life. In all other respects, the judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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^[1] Defendant also claims his confession was coerced because the police refused to honor his attempt to invoke his right to silence. As this is duplicative of his argument under Miranda v. Arizona (1966) 384 U.S. 436, argument, we address it below.

^[2] Section 186.22, subdivision (a) states, in relevant part: “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 . . . .” Defendant was sentenced to a concurrent sentence of 25 years to life on this count.

^[3] Section 186.22, subdivision (b)(1) adds a sentence enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . .” Under section 186.22, subdivision (5), “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.” Thus, in this case, the gang enhancements did not add to defendant’s sentence, but set his minimum eligibility for parole at 15 years of his total sentence of 101 years and 8 months to life.