P. v. Pimental

Filed 3/19/07 P. v. Pimental CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Affirmed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Juan Pimental challenges his attempted murder and aggravated assault convictions on the grounds the trial court erroneously refused his request for instruction upon attempted voluntary manslaughter as a lesser included offense and his trial attorney rendered ineffective assistance. We conclude the court was not required to instruct upon attempted voluntary manslaughter because the evidence did not support a heat of passion theory. Although defense counsel should have objected to certain portions of the gang experts testimony, appellant failed to establish prejudice.

BACKGROUND AND PROCEDURAL HISTORY

Barrio Van Nuys gang member Isidro Sanchez rode his bicycle through a neighborhood claimed by the rival Vanowen Street Locos gang. A white car drove towards him, up onto the curb, and struck him from behind. He fell of his bicycle and attempted to run away. Two or three occupants of the car got out, chased Sanchez, knocked him to the ground, and kicked and beat him. As they did so, they made derogatory comments about Van Nuys. One of the men pulled a gun from beneath his shirt and shot Sanchez in the stomach and leg. Eyewitness Steven Rowlett identified appellant and a damaged car belonging to appellants sister.

A jury convicted appellant of attempted murder and two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury. The jury found that the attempted murder was willful, deliberate and premeditated and that all three crimes were committed 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. It further found a principal personally and intentionally discharged a gun, proximately causing great bodily injury; a principal personally and intentionally discharged a gun; and a principal personally and intentionally used a gun. The court found appellant had suffered a prior serious or violent felony conviction within the scope of the Three Strikes law and Penal Code section 667, subdivision (a)(1). The court sentenced appellant to prison for 60 years to life.

DISCUSSION

1. The trial court was not required to instruct upon attempted

voluntary manslaughter.

Appellant asked the trial court to instruct upon attempted voluntary manslaughter as a lesser included offense of attempted murder. The prosecutor objected, and the court denied the request. Appellant contends the trial court erred by refusing to give the instruction. He argues that the testimony of the prosecution gang expert and evidence that Sanchez purposely ventured into enemy gang territory was sufficient to support a heat of passion theory when coupled with his status as an aider and abettor. He argues a reasonable juror could easily have found that although appellant only intended to facilitate and encourage an assault, it was reasonably foreseeable one of his confederates would attempt to kill Sanchez upon a sudden quarrel or heat of passion. 

A trial court need not give a requested instruction unless it is supported by substantial evidence. (Peoplev.Marshall (1997) 15 Cal.4th 1, 39.) It need not instruct on lesser included offenses unless substantial evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Substantial evidence is evidence sufficient to deserve consideration by the jury, i.e., evidence a reasonable jury could find persuasive. (Ibid.)

Attempted voluntary manslaughter, which is a lesser included offense of attempted murder, consists of an attempted killing upon a sudden quarrel or heat of passion or in an actual, but unreasonable, belief in the need to defend against imminent death or great bodily injury. (People v. Williams (1988) 199 Cal.App.3d 469, 475.) If neither heat of passion nor unreasonable self-defense applies, attempted voluntary manslaughter is unavailable as a lesser included offense to attempted murder. (Id. at pp. 475-476; Peoplev.Ochoa (1998) 19 Cal.4th 353, 423.)

In order to establish sudden quarrel or heat of passion, the defendant must show that he or she actually acted in the heat of passion, following adequate provocation. (Peoplev. Wickersham (1982) 32 Cal.3d 307, 326-327, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186.) The claimed provocation must be sufficient to cause a reasonable person under the same circumstances to act rashly, without deliberation and reflection, from passion rather than from judgment. (Peoplev. Wickersham, supra, 32 Cal.3d at p. 326; People v. Barton, supra, 12 Cal.4th at p. 201.) The provocation must be sufficient to arouse homicidal rage or passion in an ordinarily reasonable person. (Peoplev. Pride (1992) 3 Cal.4th 195, 250.) A defendant may not   set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused.   (Peoplev.Wickersham, supra, 32 Cal.3d at p. 326.)

Here, there was evidence of neither adequate provocation nor the subjective element of acting from passion and without reflection. Although gang members might be expected to react as they did in this case, riding a bicycle through a defendants neighborhood is not the type of act that is sufficient to arouse homicidal rage in a reasonable person. Appellants argument requires application of a reasonable gang member standard, which is contrary to the law. Accordingly, the court did not err by failing to instruct upon attempted voluntary manslaughter.

2. Appellant has not established he was prejudiced by defense counsels

failure to object to improper expert testimony.

Los Angeles Police Department Officer Lucas Hamilton testified as an expert on criminal street gangs. With respect to guns possessed by gang members, he testified on direct examination as follows:

Q. And what can you tell us about how gang members hold guns and pass guns around?

A. Well, theres different types of guns that are owned by the gang or the gang members themselves. A gang can have a gun that actually belongs to the gang. And when they collect their taxes or their dues, they actually purchase guns or different types of weapons with the money and that gun itself belongs to the gang.

And a gun can be passed around from one gang member to another or from clique to clique within that gang and thats part of the reason that they have meetings.

So if one gang members going to need a gun or be in an area where he believes he needs a gun, he can make a phone call and get a gun for that night.

If theres a group of those individuals hanging out together and there is a gun inside the group, everybody knows who has that gun and they actually delegate who is going to be carrying the gun that night.

Q. And why?

A. One is because if theyre hanging out, they already have a plan if something happens or something goes down. Theres already some sort of plan set in place whether it be if the police come where theyre going to run to, who is going to run and who is not, and everyone needs to be aware of who has that gun.

Q. Why is it important for the other gang members to know who has the gun?

A. One, if the police approach they know who is going to be running and actually who needs to get away. So some gang members will just stay back if they are not wanted for anything, theyll just stay there.

If a rival gang member approaches, everybody else in that gang needs to know who has the gun so they know what type of actions going to take place or what is going to happen.

Q. And is it always a person who holds on to the gun for the entire evening?

A. No. Within the course of an evening, a gun can be passed around several times. Weve done surveillance operations where weve watched a group of gang members for two hours and out of that gang one gang member would have the gun, he would actually leave the location for a while but prior to leaving hed pass the gun off to another gang member and then after a little while they pass the gun to another gang member. So they would actually take turns holding that gun.

Q. And what about a situation in which gang members are in a car with a gun?

A. Each gang does it a little bit different. Speaking with the gang members, usually if theyre in the car going from one place to another and theyre going to be outside of their neighborhood or outside of a rival gangs neighborhood, the gun will be stashed inside the car somewhere where its concealed. They will conceal it inside the trunk or inside the glove box or up inside a seat or something like that so if theyre stopped by the police its hard to detect the gun.

But if theyre going to be in a rival gang area or within their own gang area where rival gangsters might be, theyll always have the gun accessible. One person will either hold the gun or hold it in their lap or stuffed somewhere where they can get access to it easily.

Q. Why does a gun need to be accessible if they are in their own neighborhood?

A. Even when theyre hanging out in their own neighborhood, theyre not sure who is going to come by. A rival gang may drive by and commit a crime against them.

Q. In your experience, if the gun is in the car, do all the members of the gang or occupants in the car know where the gun is?

A. Usually its the same way as if theyre carrying it. If they get into the car and they have a gun, theyll let their rival or their friends know. The other gang members know that they have a gun. And a part of the reason for that is they know what course of action theyre going to take. If they dont have a gun and theyre hit up by a rival gang, they may yell back and drive away. But if theyre armed with a gun, its going to be a different course of action.

Appellant contends his trial attorney rendered ineffective assistance by failing to object to the following portions of Hamiltons testimony: (1) If theres a group of those individuals hanging out together and there is a gun inside the group, everybody knows who has that gun and they actually delegate who is going to be carrying the gun that night; (2) Usually its the same way as if theyre carrying it. If they get into the car and they have a gun, theyll let their rival or their friends know. The other gang members know that they have a gun. He contends these portions were objectionable as improper opinion testimony under People v. Killebrew (2002) 103 Cal.App.4th 644, and it is highly likely the jury relied upon this testimony to conclude that the shooting was a reasonably foreseeable consequence of the assault.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of an objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (Peoplev.Ledesma (1987) 43 Cal.3d 171, 216-218.) Appellant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.)

An expert witness may testify to an opinion on a subject sufficiently beyond common experience that the opinion would likely assist the trier of fact. (Evid. Code,  801.) A criminal street gangs culture and habits constitute such a subject. (Peoplev.Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) Opinion evidence is admissible even if it encompasses the ultimate issue in the case. (Evid. Code, 805; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) The opinion must not, however, invade the province of the jury to decide a case. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.) No bright line rule exists to determine the admissibility of opinions encompassing an ultimate fact. (People v. Killebrew, supra, 103 Cal.App.4th at p. 651.) The admissibility depends upon the circumstances of the case and the simplicity or complexity of the matter stated, i.e., whether or not the expert could testify to a more limited or simplified point. (People v. Wilson (1944) 25 Cal.2d 341, 349.)

In People v. Killebrew, supra, 103 Cal.App.4th 644, the appellant was charged with conspiracy by gang members to carry a loaded gun in violation of Penal Code section 12031, subdivision (a)(2)(C). Darbee, the police officer serving as the prosecutions gang expert, testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (People v. Killebrew, supra, 103 Cal.App.4th at p. 652.) The appellate court distinguished Darbees testimony regarding the subjective knowledge and intent of each occupant in each vehicle from expert testimony in other cases regarding the expectations of gang members in general when confronted with a specific action. (Id. at p. 658.) The latter type of testimony generally has been found to be admissible, but in the context of the gun possession conspiracy charge, Darbees testimony was the type of opinion that did nothing more than inform the jury how Darbee believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. (Ibid.)

In People v. Gonzalez (2006) 38 Cal.4th 932, the California Supreme Court stated, [W]e read Killebrew as merely prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.  (Id. at p. 946.) Gonzalez continued, Obviously, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (Id. at p. 946, fn. 3.) The testimony challenged in Gonzalez, however, did not purport to address the knowledge or other subjective mental state of either specific or hypothetical persons. Instead, the expert testified that gang members would react in a particular way if the facts stated in the prosecutors hypothetical question were true: [T]he court permitted the witness to testify that, assuming a member of the Lott Stoner 13 gang was called to testify against a fellow gang member, there would be intimidation by the gang members. (Id. at p. 945.)

In the challenged portions of Hamiltons testimony, he testified in neither hypothetical nor personalized terms. The first challenged segment of his testimony was nonetheless essentially a statement regarding the subjective mental state of every person in a group of gang members. This was not testimony regarding how one or more gang members might be expected to react or explaining the significance of some act or statement within the gang culture. Hamilton purported to state, as an absolute fact, the state of knowledge of any individual in a group of gang members. This was equivalent to testifying that appellant knew of the guns presence if he was part of a group of gang members hanging out together and there is a gun inside the group. In the context of the charges and prosecution theories in this case, the testimony did not constitute an opinion on an ultimate issue, although it was an opinion on a fact upon which an ultimate issue depended. The first challenged portion of Hamiltons testimony was nonetheless improper opinion testimony, as it was outside the scope of Hamiltons expertise. He was permitted to testify as an expert on gangs. He did not establish his expertise as a clairvoyant or psychologist, and no aspect of his experiences with gang members or his training about gangs provided him with an ability to determine that every person in a group of gang members would necessarily know that a particular person in the group possessed a gun. The portion of the sentence addressing delegation is unobjectionable, however, as it addresses the culture and habitual behavior of gang members, which is permissible.

With respect to the other portion of Hamiltons testimony in issue on appeal, the first two sentences permissibly address the customary or expected behavior of gang members and are unobjectionable. The third sentence, however, purports to establish the subjective mental state of every gang member in a car if someone in the car has a gun. This is virtually identical to the testimony in Killebrew. It cannot be deemed merely a conclusion that follows from the first two sentences because the first sentence related to usual conduct and the second addressed informing their rival or their friends of the presence of a gun. In contrast, the third sentence addresses the knowledge of an indeterminate group of other gang members. It therefore suffers from the same infirmity as the prior testimony about individual members knowledge of a gun.

The record is silent as to whether appellants trial attorney refrained from objecting for a tactical reason. Respondent argues counsel may have believed he could use Hamiltons testimony regarding a gang members knowledge of gun possession to benefit the defense. Respondent cites, as an example of a benefit, defense counsels cross-examination of Hamilton, which elicited testimony that a gang member entering rival territory might arm himself. However, this testimony clearly pertained to the victim who, according to the prosecutions evidence, was a gang member in the territory claimed by a rival gang when the attack occurred. Respondent does not suggest how the defense could possibly have benefited from testimony that appellant and all other members of his group would know that someone in their group had a gun. Respondents failure to support its argument no doubt stems from the impossibility that such testimony would assist the defense in any way. Counsel simply could not have had a reasonable tactical basis for permitting Hamilton to testify, in essence, that appellant necessarily knew that someone in his group had a gun.

The use of a gun and knowledge of the presence of a gun were relevant only to the attempted murder charge. The prosecutor alleged a single offense with respect to each type of action against Sanchez: one aggravated assault count pertained to running him down with the car, the other aggravated assault count pertained to beating him, and the attempted murder pertained to shooting him. The question of prejudice is therefore limited to the verdict upon the attempted murder charge.

Because there was no evidence of who actually fired the gun, the prosecutor relied upon aiding and abetting and conspiracy theories to establish appellants criminal liability. The prosecutor argued alternative theories: the group acted with an intent to kill Sanchez, or the shooting was a natural and probable consequence of the intended crime of beating Sanchez. The latter theory was expressly based upon Hamiltons testimony that every gang member in the group would know if anyone in their group had a gun. The prosecutor cited this aspect of Hamiltons testimony five times in her argument. The fact that all members of the group would know of the presence of the gun was essential to the prosecutors theory that attempted murder was a natural and probable consequence of an aggravated assault upon Sanchez. A question asked by the jury indicates it relied upon the natural and probable consequences theory.^[1]

No other evidence tended to show appellants knowledge that someone in the group was carrying a gun or that there was a gun in the car. Eyewitness Sergio Herrera testified the gunman pulled the gun out from beneath his shirt.^[2]He also testified that all of the assailants were wearing loose clothing. The gun was therefore concealed and may not have been visible to a companion due to the looseness of the clothing.

Respondent also argues that the unchallenged portions of Hamiltons testimony quoted above established that some gangs own guns as a gang, gangs often carry guns in anticipation of meeting members of rival gangs, gangs delegate a person to carry a gun and have a plan of action in case they encounter a rival gang member or the police, and a gun may be passed around among members of a gang during the course of an evening. In addition, as previously noted, Hamilton permissibly testified that if gang members got into a car with a gun, they let their friends know. The jury therefore could reasonably infer from the proper and unchallenged portions of Hamiltons testimony that it was customary or habitual among gang members to let their fellow gang members know if they were in possession of a gun, and/or that possession of a gun would become obvious during the course of an evening, as the gun was passed around from one person to another. The jury permissibly could further infer that custom or habit was followed in this case, and the person in appellants group who carried the gun informed his companions of this fact or passed the gun to another member of the group at some point. Accordingly, appellant has not met his burden of establishing a reasonable probability that he would have obtained a more favorable result if defense counsel had successfully objected to the improper portions of Hamiltons testimony.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1] The jurys note stated, We are having a problem with 3.02, Liabilities for Natural and Probable Consequences. Lines 20-25: If a consequence is natural and probable, does probable mean greater than 50% chance? Some jurer [sic] have taken this position, so feel that the shooting is not a probable outcome of the beating.

^[2] Officer Richard Adair testified that Herrera told him the assailants ran back to the white car, and the shots were fired from the car.