Opinion
F050524
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR GUZMAN ALVAREZ, Defendant and Appellant.
Richard L. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
On May 3, 2005, an information was filed in the Superior Court of Stanislaus County charging appellant Salvador Guzman Alvarez with count I, murder (Pen. Code, § 187, subd. (a)), with two special circumstances: that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)); and the murder was committed to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)). It was further alleged as to count I that appellant personally and intentionally discharged a firearm (§ 12022.53, subd. (d)). In count II, appellant was charged with robbery (§ 211), with enhancements for personally and intentionally discharging a firearm, and committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
On February 27, 2006, appellants jury trial began. On March 15, 2006, appellant was convicted of count I, first degree murder, with both special circumstances and the firearm enhancement true; and count II, robbery, with the firearm and gang enhancements true.
On May 25, 2006, appellant was sentenced to life without the possibility of parole for count I, murder with special circumstances, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. As to count II, the court imposed the midterm of three years, plus terms of 25 years to life for the firearm enhancement and 10 years for the gang enhancement, and stayed all terms pursuant to section 654. Appellants sentence in this case was ordered to run consecutively to determinate terms imposed in three unrelated cases.
On June 2, 2006, appellant filed a timely notice of appeal.
FACTS
Richard Lopez lived in Modesto and owned a cement company known as "Pipco Cement and Pipe." He drove a large black Ford F-150 pickup truck with an extended cab, and installed an expensive custom stereo and speaker system. Around 5:00 a.m. on Friday, May 16, 2003, Lopezs body was found on the ground in the parking lot of an apartment complex on Algen in Modesto, in the middle of Norteno territory, and his truck was parked nearby. He had been shot twice in the head, there were blood splatters inside his truck, and the trucks stereo system had been stolen. Lopez did not have any known connection to the neighborhood.
Appellant, a validated member of a Norteno gang in Modesto, was charged and convicted of count I, murder, with special circumstances for committing the murder during a robbery and in furtherance of a criminal street gang, and count II, robbery with a gang enhancement, and sentenced to life in prison without possibility of parole. On appeal, he contends there is insufficient evidence he committed the murder for the benefit of a criminal street gang, and the gang special circumstance and enhancement must be reversed. We will affirm.
The trial record sets forth the following history of the case and Lopezs fateful meeting with appellant.
Thursday, May 15, 2003
On the afternoon of Thursday, May 15, 2003, Lopez met with Susan Bockoven to discuss installing a patio at her house. Lopez told Bockoven he was very short of a work crew, and he had been hiring day laborers off the street to work on his projects. Lopez said he planned to hire some day laborers the next morning so he could begin work on her patio. Bockoven expressed concerns about Lopezs safety in hiring people off the street. Lopez assured her that he would only talk to a prospective laborer through his truck window; if he felt comfortable, he would invite the person into his truck, take him to a restaurant, and buy breakfast so the person would trust that Lopez would pay him for his work. However, Lopez also said he was afraid that workers from a rival company might harm him, and a former employee threatened him and was trying to steal his concrete equipment. Bockoven noticed the custom stereo system inside Lopezs truck. She also noticed the inside of his truck was not messy, but fairly tidy and organized. Lopez left her house around 4:30 p.m., and said he would be back in the morning to start her patio.
Joyce Davis and her husband lived on Dezzani Lane in Modesto with their daughter, Shannon, and their son, Trevor. Joyce testified she had met Lopez through a mutual friend, Ali Moore. Around 6:00 p.m. on May 15, 2003, Lopez arrived at the Davis house and visited with Joyce. They ate ice cream in the kitchen, and Lopez indicated he was interested in dating her daughter. Lopez left the Davis house around 7:00 p.m.
Lopez was dating Cristy Benavidez at that time, and he told Benavidez that he was concerned a former employee might steal his work tools. Lopez and Benavidez spent part of the evening of May 15, 2003, together at Lopezs house, with Lopezs daughter and mother. Benavidez left Lopezs house just as it was getting dark outside, around 9:30 p.m. She drove to her home in her own car while Lopez followed in his black truck. They talked on their cell phones during the drive, and she heard his stereo in the background. When they arrived at Benavidezs house, Lopez asked if he could spend the night. Benavidez said no because they both had to work the next day. Benavidez reminded Lopez that his daughter was at his house, told him to go home, and promised to spend the weekend with him. Lopez agreed and said he was going home to his daughter. Benavidez later called Lopezs house and spoke to his mother, who said that he had arrived home. Benavidez briefly spoke to Lopez and he said he was going to bed.
Thursday Night at the Davis house
Around 10:00 p.m. Joyce Davis left her house and went to Wal-Mart with her sons friend, Daniel Davis. Around 11:00 p.m., Lopez arrived at the Davis house, parked his truck in front of the house, and was met by Trevor, who said the others were not home. Lopez said he would wait for Joyce and Shannon. Trevor and Lopez talked in the kitchen while Lopez waited. Lopez told Trevor he owned a concrete company and offered Trevor a job laying concrete. Trevor declined because he was working in a cabinet shop.
Daniel Davis is not related to Joyce, Shannon, and/or Trevor Davis. We will refer to these individuals by their first names to avoid confusion.
Joyce and Daniel returned to the Davis house around midnight, and they were met at the front door by Trevor and Lopez. Joyce noticed Lopezs truck was parked in front of the house. Lopez told Joyce that he had just met Trevor and offered him a job. Joyce believed Lopez had returned to her house because he was interested in her daughter. Joyce admonished Lopez that Shannon was only 19 years old and too young for him.
Joyce testified that while Lopez was at her house, appellant arrived in a car with two girls and two boys. Joyce testified that appellant and his associates had been to a party, and appellant appeared drunk. Appellant walked around Lopezs truck and looked at it, and then went into the backyard to join Trevor and the others. Joyce testified Lopez became nervous when appellant checked out his truck, but Trevor assured him everything was okay and appellant was "`cool." Joyce and Lopez talked for a couple of minutes, and then Lopez went into the backyard with the others. Joyce later joined them in the garage and backyard. Joyce testified they were smoking and she was not aware of anyone using drugs. Joyce denied that anyone furnished Lopez with methamphetamine, or that her residence was known as a drug house. Joyce testified the two girls and two boys left in their car, but appellant stayed at her house.
Shannon Davis testified that she arrived at her house between midnight and 1:00 a.m., and found Lopez and her mother talking in the kitchen. Shannon had noticed Lopezs black truck parked in front of her house. Shannons brother, Trevor, was in the garage with Daniel and appellant, along with two girls and another boy. Shannon testified she had seen Lopez earlier that day, around 3:00 p.m., at the home of their mutual friend, Ali, and she had declined his offer of a ride home because she did not know him very well.
Shannon testified that as soon as she arrived home at 1:00 a.m., she used the cordless telephone and had a lengthy and heated conversation with her ex-boyfriend. She eventually moved outside to the front porch as she continued the call. She had no idea what was going on in the garage or backyard.
Trevor testified he had known appellant since they were in high school together in 1998, they were pretty good friends, and he referred to appellant as "a homeboy of mine." Trevor testified appellant arrived at his house with some girls and boys he did not know. Trevor testified appellant did not appear drunk. Trevor testified Lopez was "paranoid" when appellant and his friends arrived because Lopez thought they were going to steal his truck. Trevor assured Lopez that appellant and the others were there to visit, and they were not going to steal his truck. Trevor testified they went into the garage and "were just kicking back." Trevor was not aware if drugs were being used that night, but "[t]hey could have been."
Trevor later told a police officer that as the evening continued, appellant showed a "high interest" in Lopez and asked the others if he had family, what he did for a living, if he had money, and did he own the truck. Trevor also told the police that appellant displayed a .380-caliber handgun to the others while they were in the garage. Appellant asked Trevor if he had any bullets for that gun, but Trevor did not have any ammunition.
At trial, however, Trevor testified Daniel Davis showed off a small black and silver .380 or .25-caliber handgun and asked Trevor for some bullets. Trevor denied that appellant displayed the gun, and insisted he never saw appellant holding the gun. Trevor believed Lopez did not see Daniel with the gun.
At the time of trial, Trevor was in custody after being convicted of possession of a deadly weapon in December 2005, and testified under a grant of immunity. Trevor had prior convictions for possession of ammunition in 2005, felony receiving stolen property, and felony possession of methamphetamine in 2004. Trevor testified he associated with the Norteno gang, he knew members of the Nortenos, he did not know any Surenos, and he was housed with the Nortenos while he was in prison. Trevor admitted his girlfriend was now living with Daniel Davis, but he was not "tripping off of that. I got my other lady. I have a different babys mom."
Daniel Davis testified he was friends with Trevor and appellant. Daniel lived down the street from Trevor, and he often hung out at Trevors house to kick back and use methamphetamine. Daniel testified everyone bought and used drugs at the Davis house, including Trevor, Joyce, and Shannon, and he frequently saw appellant use drugs there. The police later received information that Joyces house was a drug house.
Daniel testified he used to buy and sell guns for a profit. A couple of weeks before the homicide, he bought a .380-caliber handgun for $200, and sold it to appellant for $250. Daniel used to claim association with the Deep South Side Northern. As of May 2003, however, he was a "dropout Northerner" and no longer associated with them. At the time of trial, Daniel was in prison for attempted statutory rape, and testified under a grant of immunity.
Daniel testified that he was at Trevors house on the evening of May 15, 2003. Appellant and Lopez were also there, and he saw Lopezs truck. Daniel testified Lopez offered jobs to Daniel and appellant, but he was not sure what kind of work was involved. Daniel thought Lopez was a cool guy, and he was sure Lopez was using drugs that night.
Daniel testified that appellant did not display a gun that night. However, appellant told Daniel he was going to "jack" Lopez, meaning that he was going to rob him. Lopez was around when appellant made this statement, but Daniel did not think Lopez heard it.
Joyce testified that around 3:00 a.m., she went into the backyard and told everyone to leave. Daniel left and walked home. Appellant and Lopez remained at the house. Joyce asked appellant how he was going to get home since his friends had left in the car. Appellant said he would walk. Joyce testified appellant asked Lopez for a ride, and Lopez seemed a little bit concerned because he did not know appellant. Joyce told appellant that she knew appellant and not to worry. Joyce testified appellant and Lopez left the backyard together, but Joyce did not know whether appellant got into Lopezs truck. Joyce believed everyone left around 3:30 a.m. Trevor remained at the house and Joyce went to bed.
Shannon testified she was still on the front porch, talking to her ex-boyfriend on the telephone, when she saw appellant and Lopez leave together. Shannon testified Lopez entered the drivers side of his black truck, appellant entered the passenger side, and the truck drove away. Shannon only saw appellant and Lopez get in the truck.
Trevor testified he went to bed when his mother told everyone to leave, and he did not see the others leave. Daniel testified appellant and Lopez left the Davis house together.
Detective Bunch testified that during the course of trial, he overheard a conversation between appellant and Daniel Davis, and appellant told Daniel "to take the Fifth and dont let him down." Trevor was within earshot of that conversation. Daniel denied appellant made that statement to him.
Appellant and His Neighborhood
Appellant lived on Mt. McKinley Court in Modesto, just around the corner from the apartment complex on Algen, where Lopezs body was found. Emanuel Perez also lived on Mt. McKinley Court, next to his cousin, David Anguiano, and across the street from appellant. Perez testified everyone in the neighborhood hung out at appellants house. Perez testified appellant and Anguiano associated with the Deep South Side Modesto gang, also known as DSSM. Perez did not claim an association with DSSM but had friends in that gang.
In exchange for his trial testimony, Perez accepted a plea to have a burglary charge reduced to receiving stolen property, possibly to a misdemeanor, and that he would serve 60 days in jail and two years on probation.
David Anguiano testified he was friends with appellant and they hung out together. He knew appellant as "Chava." Anguiano saw guns at appellants house, including a .380-caliber handgun. Anguiano testified he started to associate with the Norteno gang when he was 15 years old, and appellant also started his association with the Nortenos when he was the same age. Anguiano had prior juvenile petitions for attempted grand theft, robbery, and being a gang member. Anguiano testified "DSSM" meant "Deep South Side Modesto," and "G-14" meant the Norteno gang.
Angela Crum lived next to appellant on Mt. McKinley Court, which was a neighborhood just off Crows Landing Road. The Algen apartments were behind the joint back fences of appellant and Crum. She knew appellant as "Chava." Crum had lived there for 15 years, and appellant lived next to her for five years.
Crum testified the area used to be "a lovely neighborhood" but then appellant moved in and she became fearful of her neighbors. Crum testified that "DSSM" graffiti was all over the neighborhood, on sidewalks, in the streets, on walls and street signs. Appellant told her it meant "Deep South Side Modesto." Crum was also familiar with "G-14" graffiti and testified it was "everywhere." Appellant told Crum that "G" meant gangster, and "14" meant "N," the 14th letter of the alphabet. Crum saw appellant and David Anguiano carve "DSSM" in the tree in front of appellants house, and testified "[t]hey wrote it all the time."
Crum testified that she had seen appellant with a gun on 10 or more occasions. On one occasion, she was throwing out the garbage at her house when appellant, David Anguiano, and two other men drove by. They were all holding guns, they told her to get down, and the car drove on, but they did not fire at her.
Joshua Allan lived near appellant, on the corner of Algen and Mt. McKinley Court. He moved into the neighborhood about two months before the homicide. Allen testified he figured out appellant was associated with a gang because appellants brothers and friends wore red shirts, and someone performed a drive-by shooting and fired a .22-caliber slug into Allans new truck. Allan never saw appellant wearing a red shirt.
The Homicide
Francisco Castro lived in the apartment complex at 201 Algen. Sometime between 4:30 a.m. and 5:00 a.m. on Friday, May 16, 2003, he awoke to the sound of two gunshots. Castro stayed in bed for a few minutes, then got up to get ready for his day. While he was in the kitchen, he heard the police and other personnel arrive.
Toribio Sanchez also lived in the apartment complex. He was in the bathroom when he heard a single gunshot, possibly around 3:30 a.m. He looked outside and did not see anything. About five minutes later, he looked out again and saw a large blue or black Ford truck driving away from the apartment complex, but it was too dark to see who was driving it.
Angela Crum, who lived next door to appellant on Mt. McKinley Avenue, was in bed when she heard two gunshots sometime between 3:00 a.m. and 4:00 a.m. The two shots were fired four to five seconds apart, and sounded like they came from the Algen apartment complex. About three minutes after the shots, Crum looked out her window, where she could see appellants back fence which bordered the apartment complex. There was a light in Crums backyard, and Crum saw appellant and another young man jump over appellants backyard fence. Appellant jumped first, followed by the other man. She could not see the other mans face, and she could not see if either man was carrying anything in his hands.
Vicente Duarte Rivas lived in the Algen apartment complex. Sometime between 4:40 a.m. and 4:45 a.m., he was walking to his car to go to work. Rivas saw a body on the ground, partially underneath a parked car. Rivas walked up to the body and noticed blood, and thought the man was dead. Rivas contacted a neighbor who called the police.
Around 5:00 a.m., Modesto Police Sergeant David Chamberlain responded to a dispatch of an unresponsive man lying on the ground at the apartment complex. Sergeant Chamberlin saw a man lying on his stomach in a pool of blood, and discovered Lopezs body. He had been shot twice in the head and did not have a pulse. The police had to confirm Lopezs identity through fingerprints because his face was too bloody at the scene to match his drivers license photograph. Lopezs black truck was in the apartments parking lot. Vicente Rivas advised the police that the black truck did not belong in the apartment complex. The trucks engine was warm to the touch, the keys were in the ignition, and the stereo was missing. The police immediately taped-off the area as a crime scene.
The Forensic Investigation
Detective Rudy Skultety, the crime scene manager, found a large pool of blood about 10 to 15 feet from Lopezs body, with drag marks leading from the blood pool to Lopezs body. There was a small metal fragment under the body, possibly the metal jacket from one of the bullets. There was a bloody shoe impression on the drivers side step-rail of Lopezs truck. There were footprints in the blood, as if someone had stepped in and out of the vehicle. There were blood splatters inside the truck, the majority of which was on the drivers door, specifically on the drivers side left rear window, on the front dash, and the drivers door side post. There was blood in the area exposed by an open drivers door, and only could have been there if that door was open. There were tire tracks leading from the pool of blood, along with blood splatters under the trucks right rear side and panel, and on the tail pipe, which indicated the truck had been driven out of the parking lot after the homicide.
Lopezs wallet was on the trucks front seat, but the trucks interior cab was in disarray and appeared to have been ransacked. Lopezs business cards and papers were scattered inside the cab. The stereo/CD player had been pulled out of the dashboard and the wires were dangling. The drivers side outside mirror was broken.
The investigators found two Winchester .380 shell casings inside the truck: one was next to the weather stripping on the floorboard, and the other was between the back seats. A criminalist determined the two casings were fired from the same firearm. A yellow-jacketed bullet was found directly under the drivers seat. A criminalist determined that bullet was most likely a .380-auto projectile.
Based on the crime scene evidence, Detective Skultety believed Lopez had been shot inside the truck while he was in the drivers seat, by someone sitting in the passenger seat. Lopezs body was removed from the truck through the drivers door, dragged out, and left in the parking lot. Detective Skultety believed Lopezs body was dragged from that initial location to the spot where the police found it. He also believed Lopezs truck was driven out of the apartment complexs parking lot, then returned to the parking lot and parked where the police found it.
The autopsy revealed that Lopez died from two gunshot wounds to the face. One bullet entered the right side of Lopezs cheek and traveled to his brain, slightly upward and toward the left; that bullet was recovered from his head. The other bullet entered the right check, traveled across his face, and exited the left side of his face, slightly downward and toward the rear; that bullet was likely the one found under the drivers seat of the truck. Both shots were almost contact wounds, fired at close range, and both were fatal. There were bruises on Lopezs forehead and cheek, and small abrasions and a minor cut on his body, all of which were consistent with falling and being dragged on concrete, or resulting from a minor scuffle. Lopez suffered the abrasions after he was shot, as he was in the process of dying.
The autopsy further revealed that Lopez was under the influence of methamphetamine when he died, and had used the drug a few hours before his death. The toxicology results determined the amount of methamphetamine was .31 milligrams per liter, considered a very high level.
Detective Buehler testified that based on the casings recovered from the homicide scene, he believed the fatal bullets were Wincester .380-caliber ammunition. Buehler had never seen that particular type of ammunition and determined it was usually used in indoor ranges.
Appellants Statements after the Homicide
Around 5:30 a.m. on May 16, 2003, Angela Crums husband arrived home from work and told her about the crime scene at the Algen apartments. Crum walked to the corner and saw the police investigation at the apartments. Crum then walked to appellants house because "[t]hey know everything," and "[w]hatever happens in the `hood, they knew what happened." Crum knocked and appellant answered the door. Crum was surprised because he usually slept in, but his hair was wet and he appeared to have gotten out of the shower. He was wearing a T-shirt, jeans, and socks but no shoes. Crum thought the absence of shoes was unusual because appellant always wore white shoes. Crum asked appellant what was going on. Appellant said he would talk to her later, and Crum went home.
Emanuel Perez testified that on the morning of May 16, 2003, his mother told him about the crime scene around the corner at the apartments. Perez walked to the apartment complex with appellants brother, Josue. They stayed for about 10 minutes and watched the police activity. They then walked to appellants house and talked to him. Appellant asked Perez to join him in the garage, and appellant showed him a stereo/CD player. Perez testified that appellant said "he had got it from this guy that he just killed, he jacked," meaning he had taken it. Appellant said he met the man at a party, the man gave him a ride, drove him to the apartments, and they parked there. Appellant said "he jacked him for his stuff and then shot and killed" the man inside his truck. Perez did not ask and appellant did not say why he shot and killed the man, but Perez "just kind of figured it was for the stereo." Perez testified he was shocked by what he heard.
Perez testified that a few days later, appellant gave him that same stereo/CD player. Perez kept it in his car for awhile, but he got rid of it because he knew it was stolen and did not want it at his house. Perez gave it to someone he did not even know.
Perez called David Anguiano and said that he felt appellant was involved in the murder. Anguiano later told the police that he knew appellant had purchased a .380-caliber handgun from Daniel Davis. Anguiano also told the police that he went to appellants house and asked him about the rumors that he was involved. Appellant admitted to Anguiano that he was involved in the murder and he was in the truck with the victim. Appellant said he had been having dreams about "the dead guy." Appellant said he was going to get rid of the handgun. Two weeks after the murder, Anguiano asked appellant about the gun, and appellant said the gun was gone.
Angela Crum continued to talk to appellant about the homicide. The day after the homicide, Crum saw appellant and David Anguiano talking in appellants driveway. As she walked by, she heard appellant say, "`I dont know what Im going to do now." Two or three days after the homicide, Crum saw appellant and his girlfriend, and asked him what happened. Appellant said, "`Dont worry about it."
In the days after the homicide, Crum saw appellants girlfriend a few times, asked her about the incident, and the girlfriend "told me everything." A few more days later, Crum again saw appellant and his girlfriend, this time in Crums front yard. Crum asked appellant, "`Did you shoot the gentlemen, man?" Crum testified appellant said, "`Mother fucker deserved it." At some point, appellant told Crum "to keep your mouth shut." Crum testified she was present when appellant bragged to his girlfriend and her sister, who lived in the neighborhood, "`Im a murderer and they aint got nothing on me."
At the time of trial, Angela Crum had moved to another state because she was frightened to stay in the area after the murder.
Trevor told the police that after he heard about the homicide, he talked about it with Daniel Davis, and Daniel said he sold the handgun to appellant. Daniel also told Trevor that just before appellant and Lopez left the Davis house that night, appellant said "he was going to jack" Lopez.
Luis Barrera told the police that he lived with appellants family for two years and moved out in 2002. Barrera said appellant was a Norteno who associated with Deep South Side Modesto. Barrera said he used to associate with that same set, and he actually brought appellant into the gang. Barrera said that about the time of the homicide, Barrera went to appellants house for a barbecue but he was not there. Appellant arrived with two unknown Hispanic males, Daniel Davis showed up shortly thereafter, appellant took a shower, and then he left. A few days later, appellant called Barrera and asked "guess what had happened." Barrera asked what happened. Appellant said, "I did some shit." Barrera said appellant was crying and said he was having nightmares with a guy pointing at him holding his head. Appellant said he would not be able to see his family anymore.
Barrera testified at trial that he never had any conversation with appellant and could not remember what he said to the police, and he was impeached with his prior statements.
The Search of Appellants House
Detective Jon Buehler, the lead detective, did not have any leads in the Lopez homicide. There was no fingerprint or DNA evidence in Lopezs truck (aside from Lopezs own prints), on his body, or the bullet casings found in the truck, to lead the police to any suspects. Buehler contacted the Modesto Bee, and asked the paper to run a newspaper article to ask people with information about the homicide to contact the police. A person came forward who did not want to be identified, but who directed the police to Joyce Davis. Buehler interviewed Joyce, who connected Lopez with appellant, and also led Buehler to Daniel Davis.
Based on the investigation, the police executed a search warrant on June 12, 2003, for appellants residence on Mt. McKinley Court. Angela Crum was present when the police searched the house, and testified appellant said to her, "`They have nothing on me."
During the search, the police found appellants wallet and personal property in the southeast bedroom. They also found 12 nine-millimeter handgun cartridges, and a bloody shirt in a trashcan in that bedroom. The shirt had appellants blood on it. In that same southeast bedroom, the police found a notebook containing gang writings with appellants name, "Chava," written on it.
The officers found the personal property of appellants brother, Isaac, in another bedroom. In that bedroom, the police found a hole had been punched in the drywall which looked unusual. The police investigated the space in the wall and found five Winchester brand .380-caliber live cartridges with bullets, which had been concealed inside the wall. These were consistent with the .380-caliber cartridges and bullet found inside Lopezs truck, and the bullet retrieved from his body. The officers found a loaded Smith & Wesson nine-millimeter handgun in a garage cabinet. The officers never found the murder weapon.
A tree trunk in front of appellants house had "RIP," "DSSM," and "209" carved in the bark. "DSSM" was also on the lid of a city trash container at appellants house. Detective Buehler testified "DSSM" meant "Deep South Side Modesto." There was graffiti all around the sidewalks and area of the apartment complex, including "DSSM," "XIV," "X" and "4."
Appellants Interview
At some point during the search of appellants house, Detectives Buehler and McGill decided to tell appellant that someone had accused him of committing a crime, without specifying the crime was murder, to determine if appellant was going to cooperate. Detective McGill made contact with appellant, said that someone had accused him of a crime, and asked if he would be willing to speak with a detective about it. Appellant said yes. As Detective McGill walked away from appellant, Sergeant Key heard appellant say, "Yeah, Id like to go and clear this up and find out who accused me of murder."
Appellant was taken to the police department and interviewed by Detective Buehler. The interview was videotaped and a transcript introduced at trial. Buehler advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to talk to him. Buehler advised appellant that he had been accused of being involved in a crime. Appellant said he knew someone accused him of murder. Appellant claimed Detective McGill accused him of murder, but Buehler knew McGill never said the crime was murder. Appellant denied any knowledge or involvement in the murder. Buehler disclosed the victims name and appellant said he never heard of Rick Lopez. Buehler asked if there was any reason for appellants fingerprints to be in Lopezs truck. Appellant said no and asked what kind of truck. Buehler said it was green or gray Ford truck. Appellant was pretty positive his prints were not in the truck and he never got in that truck. Buehler said that someone said appellant was in the truck and the victim gave him a ride home, the body was found in his backyard, and another guy said he had bought a gun and used it to rip off the victim. Appellant again said he did not know the guy.
As the interview continued, appellant said he had to look at a photograph to tell if he met the guy. Buehler described Lopez and said he had a green or gray truck. Appellant said he was not sure but "some lady introduced me to him I think" and he might have had a truck like that. Appellant said about four weeks ago, he was at Luis Barreras house and "the lady introduced me to that guy." "Im not sure if its the same guy, but I know this lady introduced me to a man that had a truck like too." Appellant saw that guy once and denied he got a ride from him.
Buehler presented appellant with Lopezs photograph, and appellant said he was "pretty sure" he met him one time. Buehler asked why so many people said appellant left the womans house with the victim, and appellant said he was telling the truth and he did not trust the lady who introduced them. Buehler said he did not have the fingerprint results yet and appellants prints could be found in the truck. Buehler asked about the bloody T-shirt in appellants bedroom, and appellant said he cut himself with a knife while trying to cut wires.
During a break in the interview, Detective McGill brought appellant some lunch. Appellant told McGill that "he had been thinking while we were gone because he was essentially alone in the room, and he said that he believed in things like fingerprints, and if we had such a thing, that we could arrest him."
Expert Testimony about Gangs
Froilan Mariscal, an investigator with the district attorneys office, testified as an expert on Modesto area gangs. He had been raised in the area claimed by the Deep South Side Modesto (DSSM) street gang, and received formal training in gang investigations. He was a member of the county-wide Gang Intelligence Task Force, participated in daily briefings on gang activity with Stanislaus County law enforcement agencies, and with state and federal gang investigators. He was the district attorneys contact person for gang investigations and information, and investigated about 50 gang-related cases. Based on his experience and contacts, Mariscal had knowledge about the life style of gang members, their attire, colors and tattoos, street boundaries, how they made their money, and their structure. He had testified on nine different occasions as an expert on Hispanic street gangs, and the Norteno gang, in Stanislaus County.
Mariscal testified there were at least 1,000 Norteno gang members in Stanislaus County. The Nortenos identified with several symbols, including "Norte," the number 14 which represented "N," the Roman numeral "X" and "4" together, and one dot next to four dots to mean 14. The Nortenos also identified with the color red and the "huelga bird" used on the "strike flag" displayed by the farmworker labor movement. Mariscal explained that anywhere north of Bakersfield was considered Norteno territory, and south of Bakersfield was rival Sureno territory. There was no specific Sureno turf in Modesto, but most of the Surenos lived on the west side.
Mariscal testified the Modesto Norteno gangs had divided the southern portion of the city into certain areas controlled by DSSM, Barrio Modesto, and Original Gangsters. DSSM was a Norteno gang with territory south of Hatch Road, to Whitmore Avenue, and west of Crows Landing to Carpenter Road. DSSMs primary activities included murder, drive-by shootings, drug sales, witness intimidation, assaults, attempted murders, vehicle thefts, burglaries, robberies and car jackings. DSSM members brag about their criminal activities because they believe the more they are feared, then the more they are respected. They also believe the more they are respected, the higher their status is within the gang, which gained the respect of their own gang members and rivals. They often bragged about their crimes to instill fear and respect in others. They also enjoyed the notoriety when their crimes were reported in the newspaper.
Mariscal testified appellant was an active member of DSSM because he met six of the 10 criteria used to evaluate an individuals status in a gang: appellant was affiliated with other Norteno gang members; he was previously arrested with another Norteno; he had a Norteno tattoo of a dragon with "G14," and the "G" meant gangster; he wore gang attire; he possessed Norteno gang symbols; and he was identified as a Norteno by a reliable source. In July 2002, appellant was arrested on a warrant and for possession of drugs. Appellant was wearing gang attire, a red hat with "LK" on it, and a white and red shirt. "LK" was associated with "Latin Kings," a northern gang which began in Chicago, moved to Southern California, and now had some members in nearby Ceres. Appellant was in a car with Candelario "Gondi" Valdovinos, a validated Norteno member, who was arrested for driving on a suspended license. Appellant was also an associate of DSSM members Manuel Perez and Arturo Iniguez. Manuel Perez and David Anguiano were documented Northern members. Trevor Davis was housed with Northerners while he was in prison.
Mariscal testified that on April 28, 2002, a drive-by shooting occurred between two carloads from rival gangs DSSMs and Surenos. Arturo Lopez, a certified Norteno, was convicted of shooting at an occupied vehicle and being a gang member with a gun. Based on the same incident, a juvenile petition was found true for Federico Parra, a DSSM member, for auto theft for the benefit of a gang. Parra and appellant shared Eric Gomez, a documented Norteno, as a common associate.
Investigator Mariscal testified about the notebook found in the bedroom at appellants house, which was the same bedroom with appellants personal belongings and the ammunition. The binder had his name and nickname, "Chava," written on the back, and contained numerous gang symbols and writings, including "DSSM, "X" and "4." "S" was written and crossed out, which meant a sign of disrespect to the rival Sureno gang. "Chilo," the nickname of appellants brother, was also written on one page, along with the names of other family members. "Chilo" was written on more of the pages than appellants nickname. "Mt. McKinley block" was written, with "14" underneath it. There was also the phrase "187 on a scrap," which meant murder on a rival southern gang member, using the derogative name for a Sureno. On another page, appellants full name was written on the top of a page, with a drawing in red ink of a person wearing a hat backwards, pointing a handgun in a threatening manner. The letters "DSSM" and "TNS" were written on the same page, the latter meaning "tagging nonstop."
Investigator Mariscal testified there were photographs at appellants house which showed appellant wearing a red T-shirt with a known gang member, with the letters "RIP," meaning "rest in peace," and "G14." Mariscal testified "G" was for "Gondi" Valdovinos, who was killed in a shooting. On the wall of appellants bedroom, there was a poster for the movie "Scarface," an iconic character for gang members because he sold drugs, killed, and intimidated people. Mariscal testified he had been to the homes of numerous gang members "where they have some sort of picture or something having to do with Scarface and that movie." There was also a red "strike flag" with the huelga bird, a symbol previously used by the farmworker labor movement, which was very popular with the gang members.
Mariscal testified "DSSM" and "209," the local area code, were written on a tree at appellants house, and "DSSM" was on a trash can at his house. There was also "DSSN" and "X4" graffiti around the Algen apartments. "DSSN" meant Deep South Side Noretnos, which was synonymous with DSSM.
Mariscal testified the firearm and ammunition found inside appellants house was indicative of appellants gang association, because gang members commonly use firearms to commit crimes, share their guns, and store various types of ammunition depending on what guns they get.
Mariscal conceded there were no gang signs or symbols at the exact scene of the homicide, but testified to his opinion that the robbery and homicide of Lopez was a murder committed for the promotion and benefit of the DSSM gang. Mariscal testified the crimes benefited appellant because they helped him "by gaining him respect within his own gang and also respect in the eyes of fellow gang members. It also gains the gang respect by the further intimidation and fear that they instill upon the community by committing this type of crime." One of the primary activities of the Norteno gang was to intimidate witnesses. As a result of these crimes, "witnesses are reluctant to come forward and testify on this case or any other case involving gang members because of the fear of retaliation. So, in turn, [appellant] would be more likely to—well, it would be harder for us to convict [appellant] without witnesses coming forward." Appellants crimes would show the rival gangs "that the Nor Tenos are a gang to be reckoned with. It shows them they are capable of—of killing and they gain respect in the eyes of rival gang members."
Mariscal explained Lopezs body was left in the apartments parking lot, which was an area claimed by DSSM. "So what theyre saying is—its a bold statement saying: We can commit this type of crime in this area because this is ours, we control it, and theres nothing anybody can do about it." Appellants crimes also promoted further crimes committed by DSSM "by the intimidation that the crime inflicts on the community ... or crimes in the future would. Also, probably people would be reluctant to come forward and speak with the police." Mariscal spoke to three other people at the apartment building, and they were all afraid to give statements or testify. Mariscal conceded that several neighbors testified against appellant, but that witnesses are usually reluctant to come forward in these type of cases.
The prosecutor presented the following hypothetical to Mariscal:
"[Q.] We have—heres a hypothetical. You have an admitted Deep South Side Modesto gang member, sells a gun to a friend of his, and that hes at a house of another person whos now in prison who admits hes a northerner; and the person whos the killer admits to his Deep South Side Modesto buddy before he leaves the house that hes going to jack the guy; and then the victim receives two close range gunshot wounds to the head and his body is dumped in an apartment complex that is right in his territory, not only in Deep South Side Modesto, but really close to Mt. McKinley block; and then items are strung through, and a stereos stolen and the truck is dropped off four stalls from where the bodys left. [¶]...[¶]
"A. I believe it was for the benefit of the northern Nor Tenos criminal street gang."
Defense Evidence
Appellant did not testify.
Appellants brother, Josue Alvarez, testified his mother gave him the nickname of "Chilo" when he was a child. Josue testified he owned the notebook with the gang drawings found in the house, and it was found in a room he shared with appellant. Josue testified "G14 classified" was a term he borrowed from his late friend, "Gondi" Valdovinos, who adopted the phrase from the movie "Rush Hour." After Gondi died, appellant and other friends got "G14 classified" tattoos in his memory. Josue admitted "X14" was the number of the Nortenos, DSSM meant Deep South Side Modesto, and he wrote those things in the notebook, but he was young and foolish then, and just wrote the things he saw in his neighborhood.
Appellants mother testified she gave him the nickname "Chava" when he was a child, and also gave nicknames to his siblings when they were children.
Louis Galindez, a private investigator, testified he examined the back fences at the adjoining homes of Angela Crum and appellant, and determined it was not possible for Crum to see the top of the fence bordering the Algen apartments. He conducted this examination in January 2006. Galindez admitted the fence had been rebuilt after the homicide and had new supporting posts. The prosecution introduced rebuttal evidence that appellants entire fence had been redone since the homicide occurred.
Galindez interviewed Luis Barrera in February 2006, and showed him a copy of the police report with his statements about appellant. Barrera slapped the papers and said, "`[b]ullshit." Barrera said he was high on drugs when he made those statements to the police. However, Barrera did not say the contents of the statements were wrong.
Issues on Appeal
Appellant was convicted of murder and robbery, with firearm enhancements found true as to both offenses. As to count I, murder, the jury found two special circumstances true: that the murder was committed during a robbery, and the murder was committed for the benefit of a gang. As to count II, robbery, the jury found the gang enhancement true.
On appeal, appellant challenges the sufficiency of the evidence to support the gang special circumstance as to count I, and the gang enhancement as to count II, and argues there is no evidence that he committed any of the offenses for the benefit of the gang. Appellant also challenges the courts pretrial denial of his motion to bifurcate the gang evidence, and argues the gang evidence was so prejudicial that the substantive offenses must be reversed because of the impact on the jury.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE OF GANG ALLEGATIONS
Appellant contends there is insufficient evidence as a matter of law as to both the gang special circumstance as to count I, murder, and the gang enhancement as to count II, robbery.
The substantial evidence standard of review applies to both the section 190.2 special circumstance allegation and the section 186.22 gang enhancement. (People v. Maury (2003) 30 Cal.4th 342, 396; People v. Augborne (2002) 104 Cal.App.4th 362, 371.) "Our review of the sufficiency of the evidence is deferential. We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We focus on the whole record, not isolated bits of evidence. [Citation.] We presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the verdict. [Citation.] If the verdict is supported by substantial evidence, we accord due deference to the verdict and will not substitute our evaluations of the witnesses credibility for that of the trier of fact. [Citation.]" (People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew); In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Thus, substantial evidence includes circumstantial evidence and the reasonable inferences this evidence allows. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 190.2, subdivision (a)(22) sets forth the special circumstance which, as applicable to this case, mandates a sentence of life without possibility of parole for a defendant guilty of first degree murder as follows:
"The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
Section 186.22, subdivision (b)(1) imposes 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 ...." (Italics added.) As to the second prong of the enhancement, "specific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members ...." (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales); People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Gang membership alone cannot prove the requisite specific intent. (People v. Gardeley (1996) 14 Cal.4th 605, 623.)
"It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] California law permits a person with `"special knowledge, skill experience, training, or education" in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. [Citation.] However, Evidence Code section 801 limits this testimony to that related to a subject `"sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.]" (Frank S., supra, 141 Cal.App.4th at p. 1196.)
The subject matter of the culture and habits of street gangs meets the criteria for the admissibility of expert opinion because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Gardeley, supra, 14 Cal.4th at p. 617; Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.) Such areas include "testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendants membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations]." (Killebrew, supra, 103 Cal.App.4th at p. 657, fns. omitted.)
"A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a `classic example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) This is true even if the gang experts opinion in effect embraces an ultimate issue in the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 & fn. 3.) "Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.]" (Killebrew, supra, 103 Cal.App.4th at p. 651.)
Appellant argues the gang special circumstance and gang enhancement are not supported by substantial evidence because those allegations were only based upon Mariscals testimony as the gang expert, and such testimony was insufficient as a matter of law to prove either gang allegation. Appellant presumes, for the sake of argument, "that the factual theory asserted by the prosecution was true," presumably as to the substantive offenses of murder and robbery, and that he was a member of the DSSM gang at the time of the Lopez robbery/murder. However, he asserts there is insufficient evidence he committed the crimes to further the DSSM gangs activities or had the specific intent to promote, further, or assist in any criminal conduct by the DSSM gang. Appellant complains Mariscal provided the prosecutions only evidence on the gang issues and his testimony "amounted to no more than a simply syllogism: DSSM members commit robberies and murders in their territory in order to increase the criminal reputation of DSSM and their personal status within the gang. Lopez was killed by an alleged member of DSSM. Therefore, it follows that the crime was committed to benefit and further the interests of DSSM. There was nothing more."
As a preliminary matter, we note appellant has not challenged the sufficiency of the evidence as to his convictions for murder and robbery. Indeed, there is overwhelming evidence to support counts I and II. When appellant arrived at the Davis house, he was very interested in Lopezs truck, he asked Trevor whether Lopez had money, he displayed a .380-caliber gun to Trevor, he told Daniel that he was going to "jack" Lopez, he asked Lopez for a ride, he was seen getting into Lopezs truck, and he was the last person seen with Lopez. Lopezs body and the truck were found very near to appellants home, appellant admitted to several associates that he had killed Lopez and taken the stereo, the fatal ammunition was determined to be Wincester .380-caliber, and that same type of unique ammunition was secreted in the wall of appellants residence.
The evidence about appellants affiliation with the DSSM Norteno gang was separately relevant to prove the elements of the gang special circumstance and enhancement—that DSSM was a criminal street gang, appellant was an active member, Lopez was surrounded by Nortenos just before he died, appellant admitted to other Nortenos that he killed Lopez, and the body was dumped in an area claimed by DSSM. The entirety of the record contains overwhelming evidence to support the convictions for murder and robbery, that DSSM was a criminal street gang, appellant was an active member of the DSSM, and DSSM claimed the Algen apartments as its territory.
In any event, appellants attack upon the sufficiency of the evidence concerns whether the murder was carried out to further the activities of a criminal street gang, as required by the special circumstance (§ 190.2, subd. (a)(22)), and whether appellant committed the robbery "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" as to the gang enhancement. (§ 186.22, subd. (b)(1).)
In support of substantial evidence arguments, appellant cites to a series of cases which held the testimony of gang experts failed to provide substantial evidence to support the gang allegations. In Killebrew, an 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." (Killebrew, supra, 103 Cal.App.4th at p. 652, fn. omitted.) This testimony provided the only evidence to establish the elements of the gang enhancement. (Id. at p. 658.) Killebrew found the experts testimony regarding the minors specific intent exceeded "the type of culture and habit testimony found in the reported cases." (Id. at p. 654.) Instead, the expert "testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action." (Id. at p. 658.) The experts testimony "did nothing more than inform the jury how [the expert] believed the case should be decided." (Ibid.)
In People v. Martinez (2004) 116 Cal.App.4th 753 (Martinez), the court imposed a gang registration requirement on the defendant pursuant to section 186.30, as part of his sentencing following revocation of probation and pleading no contest to auto burglary. Martinez found the evidence did not support the finding that the crime was gang related. (Martinez, supra, at pp. 756-757, 761.)
"Here, nothing in the record connected defendants conviction to gang activity. First, defendants commission of a probation violation through his association with a known gang member, while certainly gang related, was not a crime at all, and hence cannot serve as the basis for the registration order, as the Attorney General has acknowledged. Auto burglary is a crime, but not one necessarily gang related, and the circumstances of the offense as described in the record before us fail to connect the offense with defendants gang activities. While the probation report indicates that the auto burglary was committed by defendant and a companion, the accomplice is not identified as a gang member. Nor does the probation report give us any indication that this particular auto burglary, even if committed by someone identified as a `certified Sureno gang member, was directed by, associated with, or benefited his criminal street gang. Neither the investigating officer nor the probation officer even suggested that the auto burglary was other than a crime intended to benefit defendant personally. We agree with defendant that there is no evidentiary basis in the record to impose upon him the burden of gang offender registration pursuant to section 186.30. [Citations.]" (Martinez, supra, 116 Cal.App.4th at p. 762, fn. omitted.)
In Frank S., the police arrested a minor who possessed a concealed fixed-blade knife, a bindle of methamphetamine, and a red bandana. The minor explained that he carried the knife to protect himself from a southern gang because they thought he supported the northern street gangs. The minor also stated he had several friends in the northern gangs. The minor was charged with possessing a concealed dirk or dagger, with an enhancement for committing the crime for the benefit of a gang under section 186.22, subdivision (b)(1). To prove this allegation, the prosecution relied almost exclusively on the testimony of a gang expert who, among other things, opined that minor possessed the knife with the specific intent to benefit the gang. (Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
"When asked her opinion of the minors purpose for the knife, the expert stated the minor possessed the knife to protect himself. She also stated a gang member would use the knife for protection from rival gang members and to assault rival gangs. When asked how the minors possession of the knife benefited the Nortenos, she responded it helps provide them protection should they be assaulted." (Frank S., supra, 141 Cal.App.4th at pp. 1195-1196.)
Frank S. reversed the juvenile adjudication because the offense was "found to be gang-related based solely upon [the minors] criminal history and gang affiliations." (Frank S., supra, 141 Cal.App.4th at p. 1195.) The gang expert improperly testified as to her belief "of the minors intent with possession of the knife, an issue reserved to the trier of fact." (Id. at p. 1199.)
"In the present case, the expert simply informed the judge of her belief of the minors intent with possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits the Nortenos since `it helps provide them protection should they be assaulted by rival gang members. However, unlike in other cases, the prosecution presented no evidence other than the experts opinion regarding gangs in general and the experts improper opinion on the ultimate issue to establish that possession of the weapon was `committed for the benefit of, at the direction of, or in association with any criminal street gang .... [Citation.] 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 [he was charged with concealing] in a gang-related offense. In fact, the only other evidence was the minors statement to the arresting officer that he had been jumped two days prior and needed the knife for protection. To allow the expert to state the minors specific intent for the knife without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended." (Frank S., supra, 141 Cal.App.4th at p. 1199, italics added.)
Under those circumstances, the court determined there was insufficient evidence to support the gang enhancement. (Ibid.)
The instant case is distinguishable from Frank S., Martinez, and Killebrew, because there was an evidentiary basis for the experts opinion testimony. Rick Lopez had the great misfortune to spend his final hours surrounded by Nortenos at the Davis house—Trevor, Daniel, and appellant. Appellant displayed an immediate interest in Lopez and asked Trevor about Lopezs truck and whether he had money. Appellant had earlier purchased a .380-caliber handgun from Daniel, his DSSM associate, and appellant displayed the weapon that night to Trevor. Appellant told Daniel that he was going to "jack" Lopez that night, that he was going to rob him, and appellant asked Lopez for a ride home. Neither Daniel nor Trevor tried to warn Lopez about appellants possession of a gun and his intentions; indeed, Trevor had vouched for appellant earlier in the evening. Shannon saw Lopez and appellant leave together in Lopezs truck, with Lopez in the drivers side and appellant in the passenger side.
The forensic and circumstantial evidence strongly implies that appellant directed Lopez to drive him to the Algen apartment complex, an area within DSSMs turf. Appellant shot Lopez twice in the head while they were still in the truck and dragged his body into the parking lot, without any apparent attempt to conceal the body or the evidence of the crime. The trucks interior was ransacked and the ashtray and some cigars were thrown in the apartments parking lot, inferring that appellant ransacked the vehicle while he was still in the parking lot. At some point, he cut the wires and removed the stereo from Lopezs truck, drove away with Lopezs truck, drove back to that same parking lot, and dragged Lopezs body to another spot in the same parking lot—all at a location which had been tagged as DSSM turf and adjoining appellants street, where he had personally tagged the neighborhood. Appellant escaped on foot by jumping over fences and picked up an accomplice at some point, but the record is silent as to that persons identity or what that accomplice might have done, aside from jumping over fences with appellant just after the murder.
Just hours after the murder, appellant confided his involvement to other DSSM associates, Perez and Anguiano, and tried to get rid of Lopezs stereo by giving it to Perez. Angela Crum had learned to fear appellant and her other neighbors because of their DSSM activities but kept asking appellant about the homicide. Appellant finally told her "`Mother fucker deserved it," but also told her to keep her mouth shut. Crum was present when he bragged to his girlfriend and her sister, who lived in the same neighborhood, that he was a murderer and there was nothing on him.
In light of this evidence, Mariscal testified that a DSSM members commission of violent crimes, and leaving a dead body in the midst of DSSM territory, would help that person gain respect within his own gang and among rival gang members, instill fear and intimidation on neighbors and potential witnesses, and expedite the commission of later crimes because of the fear and intimidation. Mariscal presented these opinions through an extensive hypothetical based upon the trial evidence.
"[Q.] We have—heres a hypothetical. You have an admitted Deep South Side Modesto gang member, sells a gun to a friend of his, and that hes at a house of another person whos now in prison who admits hes a northerner; and the person whos the killer admits to his Deep South Side Modesto buddy before he leaves the house that hes going to jack the guy; and then the victim receives two close range gunshot wounds to the head and his body is dumped in an apartment complex that is right in his territory, not only in Deep South Side Modesto, but really close to Mt. McKinley block; and then items are strung through, and a stereos stolen and the truck is dropped off four stalls from where the bodys left. [¶]...[¶]
"A. I believe it was for the benefit of the northern Nor Tenos criminal street gang."
There is substantial evidence from which a rational trier of fact could find the gang allegations true in this case, and we see no basis on this record to second guess the jurys findings on these issues. While the gang experts testimony was circumstantial evidence, "it was still evidence supporting [appellants] conviction. The hypothetical facts presented to the gang expert were properly rooted in the evidence presented at trial. [Citation.]" (People v. Ferraez, supra, 112 Cal.App.4th at p. 930.) Even if we could reasonably envision a different result on review, we cannot say the jury acted unreasonably in finding true the murder special circumstance, that appellant intentionally killed Lopez while an active member of the DSSM Nortenos and the murder was carried out to further the activities of the criminal street gang, and the gang enhancement, that the robbery was committed for the benefit of, at the direction of, or in association with the DSSM Nortenos, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (See, e.g., People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [if substantial evidence supports the verdict, the fact the record could reasonably be interpreted to support a contrary finding will not warrant reversal]; People v. Ferraez, supra, 112 Cal.App.4th at p. 930 ["[i]t is well settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation"].)
Appellant also cites to several cases which involved factual situations involving multiple gang members or gang claims of responsibility, and complains the absence of such evidence requires reversal of the gang allegations in this case. In Morales, supra, 112 Cal.App.4th 1176, the defendant and two fellow gang members robbed two victims while visiting a house. There was no evidence the victims were associated with any gang. The prosecutions expert testified the robberies were committed for the benefit of the gang, the gang provided a "`ready-made manpower pool," and one member could count on the loyalty of the others to "`watch his back." Also, "the very presence of multiple gang members would be intimidating" and would benefit the gang "with notoriety among rival gang members and the general public." (Id. at p. 1197.) The jury found the gang enhancement true, and the defendant argued on appeal there was insufficient evidence he had the requisite specific intent, because the evidence only showed the three men belonged to the same gang.
Morales held the defendants intentional acts, "when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent." (Morales, supra, 112 Cal.App.4th at pp. 1198-1199.) "[S]pecific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members .... Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, ... there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members." (Id. at p. 1198.)
"[T]he typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members." (Morales, supra, 112 Cal.App.4th at p. 1198.)
In People v. Zepeda (2001) 87 Cal.App.4th 1183, the court rejected the defendants claim that the gang expert improperly testified to the ultimate issue of his mental state as to the truth of a gang enhancement, where a gunman who displayed no gang signs during a shooting acted to bolster the gang and his own reputation in general. The prosecutor posed a hypothetical question based on the facts of the case, "`why somebody would go to [an area] and ask a person where they were from and then shoot them ...." The expert testified such behavior by a known gang member was likely done for certain gang-related purposes. (Id. at pp. 1208-1209.)
Appellant argues the gang findings are not supported by substantial evidence because the record does not contain the type of supportive evidence as in Zepeda and Morales. Appellant makes much of the fact that he was not displaying gang colors, the victim was not involved in any gang, appellant could have committed the offenses for his own personal benefit rather than for the gang, he just gave away the stolen stereo instead of selling it to benefit the gang, and the gang allegations were found true simply because of the prejudicial impact of the evidence that appellant was an active member of the DSSM gang. But such facts do not dispel the equally strong inference that appellant murdered and robbed Lopez for the benefit of the DSSM gang and the Nortenos, and with the specific intent to promote any criminal conduct by his gang.
Finally, when appellant moved to bifurcate the gang evidence, he relied on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099 (Garcia), and again relies on that case in support of his argument that there was no evidence he possessed the requisite specific intent to promote or benefit the gang by committing the offenses in this case. In Garcia, the defendant and two other people robbed the victim of a bicycle and $14.85. A police officer testified as the gang expert that the defendant and his associates were gang members, the defendants gang was "`turf oriented" and its turf included the area where the robbery occurred; he also testified about three other robberies committed by gang members; and stated that robberies, often involving small sums of money, were one of the primary activities of the gang. The defendant was convicted of robbery and the jury found the gang enhancement allegation true. (Id. at pp. 1101-1102.)
As framed by the majority in Garcia, the issue on appeal was whether the evidence was sufficient "to support the jurys finding of the required specific intent: that is, the intent to `promote, further, or assist in other criminal activity of the gang apart from the robbery of conviction." (Garcia, supra, 395 F.3d at pp. 1100-1101, italics added.) In concluding the evidence was insufficient, the majority found nothing in the record "that would support an inference that Garcia robbed Bojorquez with the specific intent to facilitate other criminal conduct by the E.M.F. The evidence indicates that Garcia was a gang member and that he robbed Bojorquez in an area known to be in the heart of the gangs `turf. Detective Hernandez, the gang expert, testified that the gang was `turf oriented, and he described three other robberies committed by E.M.F. members in El Monte during the few months prior to Garcias offense. But there is no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime. There is nothing on the record that connects the `turf-oriented nature of the gang with the commission of robberies generally, or, more importantly, with the commission of this robbery in particular. There is no testimony that protection of turf enables any other kind of criminal activity of the gang. The experts testimony is singularly silent on what criminal activity of the gang was furthered or intended to be furthered by the robbery of Bojorquez." (Id. at p. 1103, italics added, fn. omitted.) The majority agreed with the magistrate, who had found nothing in the record "`which would support an inference that [Garcia] robbed Bojorquez in order to facilitate other gang related criminal operations within El Monte." (Id. at p. 1103.)
The dissenting judge in Garcia took issue with the majoritys interpretation of section 186.22, subdivision (b), and concluded the statute did "not require proof that the crime of conviction was committed with the intent to further some other specifically identified crime or category of crimes ...." (Garcia, supra, 395 F.3d at p. 1105 (dis. opn. of Wallace, J.).) He also concluded that the evidence gave rise to a reasonable inference that, when Garcia asked Bojorquez where he was from and identified himself as an E.M.F. member, Garcia intended to intimidate Bojorquez and the owner of the store in which the incident occurred, so that Bojorquez would know not to intrude on E.M.F. turf in the future and so that the store owner would submit to the gangs dominance. The dissenting judge further opined that it could probably be concluded that this type of intimidation would facilitate the gangs control of the area and make it easier to commit crimes there in the future. (Id. at pp. 1106-1107.)
As a lower federal court decision, Garcia is not binding on this court. (See People v. Hoag (2000) 83 Cal.App.4th 1198, 1205.) It has also been criticized by other appellate courts. (People v. Romero (2006) 140 Cal.App.4th 15, 19 (Romero); People v. Hill (2006) 142 Cal.App.4th 770, 774 (Hill).) We agree with Romero and Hill, that the majority opinion in Garcia is not persuasive and misinterprets the California statute, which, by its language, requires a showing of specific intent to promote, further, or assist in "any criminal conduct by gang members" (§ 186.22, subd. (b)(1), italics added), rather than "other" criminal conduct. (Romero, supra, 140 Cal.App.4th at p. 19; Hill, supra, 142 Cal.App.4th at p. 774.) Accordingly, we decline to follow Garcia, and conclude that the evidence presented in the instant case was sufficient to sustain the gang allegations in this case.
II.
DENIAL OF BIFURCATION MOTION
Appellant next contends the court abused its discretion when it denied his pretrial motion to bifurcate the gang allegations from the substantive counts of murder and robbery. Appellant asserts there was no legitimate prosecution theory that the substantive offenses were gang-related, the gang evidence possessed little or no legitimate evidentiary value, and was thus irrelevant. Appellant further asserts that compared "with its nonexistent or marginal relevance," the admission of the irrelevant gang evidence was so prejudicial that his due process rights were violated and this court must reverse his convictions in counts I and II for murder and robbery.
A. Background
Appellant filed a motion in limine to limit the admission of gang evidence and argued such evidence was irrelevant and prejudicial to the substantive charges of murder and robbery. Appellant requested the court bifurcate all gang issues from the substantive charges to avoid the introduction of prejudicial evidence before the jury.
On the first day of trial, appellant argued all gang evidence should be bifurcated because it was irrelevant and prejudicial. Appellant admitted the area was "thick" with Nortenos, but argued there was no evidence the murder and robbery were committed to benefit the Nortenos. The prosecutor pointed out that appellant faced two special circumstances, for committing the murder for the gang and for robbery/murder, and that either special circumstance would result in an LWOP sentence. The prosecutor also noted the evidence would show that while appellant was still at the Davis house, he showed off his gun and revealed his plan to rob the victim to Daniel Davis, which showed his bid to gain respect among his peers, and that he dumped the body and the truck in the middle of his own DSSM territory, to make a statement that he controlled the area.
The court noted the gang allegations "go both ways" and were not necessarily prejudicial toward appellant, but were difficult to prove by the prosecution.
"... Sounds like theyre piling or—or really reaching for something and arent all that strong. So I dont know that it necessarily plays against [appellant] by any means.
"But having heard the preliminary hearing, I certainly think theres sufficient ties to the allegations to include them in the case in chief and not to bifurcate. So Ill deny the defenses motion to bifurcate those special allegations and enhancements."
B. Analysis
A trial court has broad discretion to control the conduct of a criminal trial. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The courts power to bifurcate the trial of a gang enhancement from the trial of the substantive offense is implied in section 1044. (Hernandez, supra, at p. 1048.) Hernandez explained that the need to bifurcate gang allegations is often not as compelling as the bifurcation of prior conviction evidence. (Id. at pp. 1048-1049.) "A prior conviction allegation relates to the defendants status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Id. at p. 1048.)
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation—including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
We review the trial courts denial of his motion to bifurcate for abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.) The trial courts discretion to deny a motion to bifurcate the trial of a charged gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at p. 1050.) When the evidence sought to be severed is related to a charged offense, the burden is on the defendant to clearly establish a substantial danger of prejudice requiring bifurcation. (Ibid.)
The trial court herein did not abuse its discretion in denying appellants motion to bifurcate the gang allegations. While the court noted the matter presented a close question, there was clearly sufficient evidence to link the murder and robbery to appellants membership in the DSSM Norteno gang. As explained in section I, ante, nearly every fact about the robbery and murder had a strong connection to the DSSM and Norteno gang. Lopez was last seen alive surrounded by Norteno members Trevor, Daniel, and appellant, who displayed his gun to Trevor and confided his robbery intentions to Daniel. Lopez was murdered and his body dumped in an area claimed by DSSM. While the murder weapon was never found, the forensic evidence revealed the fatal bullets were Winchester .380 ammunition, which was usually seen in indoor ranges; the same type of ammunition was found secreted in the wall of appellants house, and Daniel had just sold appellant a .380-caliber handgun. The gang aspect of this case was clearly intertwined with the underlying facts of the robbery and murder.
In addition, the court gave the jury CALCRIM No. 1403, on the limited purpose of the gang evidence as follows:
"You may consider evidence of gang activity only for the limited purpose of deciding whether:
"— The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements, and special circumstances allegations charged:
"OR
"— The defendant had a motive to commit the crime charged.
"You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion.
"You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime."
We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Appellant argues the gang evidence was so attenuated and prejudicial, that the denial of the bifurcation motion and introduction of the gang evidence violated his due process rights, such that his convictions for murder and robbery must also be reversed. Appellant relies on People v. Maestas (1993) 20 Cal.App.4th 1482 (Maestas), a case which reversed the substantive convictions because of the prejudicial effect of the gang evidence. In Maestas, the victim had been inside a Venice bar all evening drinking alcoholic beverages and was stabbed by two men outside after he agreed to give a female patron a ride home. His assailants indicated in their conversation with the victim that one of them was the womans boyfriend. The victim was hospitalized. After relating his story to a friend at the hospital and describing his assailants, the friend suggested to the victim that defendants Young and Maestas were the assailants. The victim subsequently identified defendants Young and Maestas as his assailants to the police. (Id. at pp. 1486-1488.) The trial evidence established that the defendants were at the bar earlier in the evening; Maestas produced strong alibi evidence that he was with his girlfriend in a motel when the assault occurred, while Young testified that he was inside the bar during the stabbing and Maestas left before the assault. Youngs testimony was corroborated by other patrons of the bar and the bouncer. (Id. at pp. 1488-1494.) Since Youngs testimony exonerated Maestas, the trial court permitted the prosecutor to show that the defendants had a common gang affiliation and they were both members of the Venice 13 gang. Although the court initially admitted evidence of gang membership only to show Youngs bias, the prosecutor had a gang expert testify about gangs in general, they were violent, and Venice 13 gang members were violent. She questioned the victim and the bars bouncer about their fear of retribution since they testified at the trial. She did not, however, tie the witnesses fear to the defendants. She also had the bouncer testify that he had trouble when he worked in the bar with Venice 13 gang members, and the bouncer cited an example of a disruptive gang member, again without tying any of this evidence to the defendants or the incident. (Id. at pp. 1499-1501.)
Maestas found the trial court abused its discretion because the evidence that defendants were members of the Venice 13 gang was cumulative of other persuasive evidence that Young and Maestas were close friends, a relationship that was "far more compelling[]" than their purported common gang affiliation. (Maestas, supra, 20 Cal.App.4th at p. 1495.) Further, a number of trial witnesses testified that Maestas left the bar well before the assault, making defendant Youngs testimony on that issue immaterial. The officer testifying to the defendants common gang affiliation did so only on the basis of the defendants tattoos, and there was no other evidence showing that the defendants were active gang members. Maestas reversed the judgments after concluding that the gang membership evidence was cumulative, and the prosecutor had used irrelevant and inflammatory gang evidence to secure the verdicts of guilt. (Id. at pp. 1494-1501.) The erroneous admission of gang evidence "was prejudicial because guilt evidence was weak while gang-violence-fear-retribution testimony and argument was pervasive." (Id. at p. 1498.)
Appellant also relies on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), in support of prejudice argument. In Albarran, the defendant and others fired shots at the victims house during a party. The defendant and his accomplices were members of the 13 Kings Street gang. There did not seem to be any apparent connection between the defendant and his associates and the victim and his guests. The defendant was charged with attempted murder, shooting at an inhabited dwelling, and attempted kidnapping for carjacking, with gang enhancements for each count. The defendant filed a pretrial motion to exclude the gang evidence as irrelevant and prejudicial, but the court found the evidence relevant on motive and intent for the underlying offenses. (Id. at pp. 217-220.) The defendant was convicted as charged and the gang enhancements found true. Thereafter, the defendant moved for a new trial, argued the gang enhancements were not supported by the evidence, and the admission of prejudicial gang evidence required reversal of the substantive offenses. The trial court granted the new trial motion, found the gang allegations were not supported by the evidence, but found the gang evidence was still admissible to prove motive and intent for the substantive offenses. (Id. at p. 217.)
On appeal, Albarran held the trial court should have excluded the gang evidence as irrelevant and prejudicial because of the absence of any connection between the shooting and gang activities, and the new trial motion should have been granted as to the substantive offenses because of the inflammatory nature of the gang evidence:
"At trial the prosecutor argued the motive for the shooting was to gain respect and enhance the shooters reputation—essentially to `earn ones bones within the gang (i.e., the `respect motive). In our view, however, there was insufficient evidence to support the contention that this shooting was done with the intent to gain respect. On the contrary, the motive for the underlying crimes, in particular the shooting at Baceliss house, was not apparent from the circumstances of the crime. The shooting occurred at a private birthday party for Baceliss cousin. Although according to Deputy Gillis, Bacelis was a member of the Pierce Boys Gang, Baceliss gang did not have any known or relevant gang rivalries. Deputy Gillis testified that gang members commit crimes to gain respect and enhance their status within the gang. He noted a gang member gains such respect if his identity (or the identity of his gang) becomes known to the victim(s), within the gang community and/or the neighborhood. Yet this shooting presented no signs of gang members efforts in that regard—there was no evidence the shooters announced their presence or purpose—before, during or after the shooting. There was no evidence presented that any gang members had `bragged about their involvement or created graffiti and took credit for it. In fact, at the Evidence Code section 402 hearing Deputy Gillis conceded he did not know the reason for the shooting, though he had `heard that gang members were present at the party. There is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final analysis, the only evidence to support the `respect motive is the fact of Albarrans gang affiliation.
"Even if we were to conclude that evidence of Albarrans gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted which had no connection to these crimes. The prosecution presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges. Deputy Gillis testified at length about the identities of other 13 Kings members, the wide variety of crimes they had committed and the numerous contacts between the various gang members (other than Albarran) and the police. He described a specific threat 13 Kings had made in their graffiti to kill police officers. The jury heard references to the Mexican Mafia both during the prosecutors opening argument and Deputy Gilliss testimony. All of this evidence was irrelevant to the underlying charges and obviously prejudicial. Evidence of Albarrans gang involvement, standing alone, was sufficient proof of gang motive. Evidence of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarrans guilt on the charged crimes and approached being classified as overkill. While the court did admonish the jury concerning the proper use of the gang evidence, certain gang evidence admitted was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarrans actual guilt." (Albarran, supra, 149 Cal.App.4th at pp. 227-228, italics added, fns. omitted.)
Albarran held that at the new trial hearing, the trial court should have carefully reviewed the impact of the gang evidence in light of its conclusion that the gang allegations were not supported by the evidence:
"We are troubled by the lack of scrutiny given to the gang evidence (and its potential for prejudice) when the court denied the new trial motion on the underlying charges. When viewed in the full context of the arguments of counsel and discussion at hearing on the new trial motion, the trial court effectively endorsed the conclusions it had reached pretrial about the relevance of the gang evidence to the issues of motive and intent. The court impliedly found that `some of the gang evidence was in fact relevant before proceeding to quasi-Evidence Code-section-352/prejudice analysis in which it concluded the gang evidence presented did not affect the verdict in view of the strength of the other non-gang evidence. As previously addressed, however, certain of the gang evidence, i.e., threats against police, reference to the Mexican Mafia, and descriptions of other crimes committed by other gang members, was irrelevant, cumulative and presented a substantial risk of undue prejudice. The paramount function of this evidence was to show Albarrans criminal disposition—a fact emphasized in the prosecutors closing argument when he argued: `[Albarran] is all about being a gang member day in and day out, every day, every night, despite efforts of the deputies .... Hes all about it." (Albarran, supra, 149 Cal.App.4th at p. 228, fn. omitted.)
Albarran held the erroneous admission of the gang evidence was so serious that the defendants due process rights to a fair trial were violated. (Albarran, supra, 149 Cal.App.4th at pp. 228-229.) "To prove a deprivation of federal due process rights, Albarran must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. `Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose. [Citation.] `The dispositive issue is ... whether the trial court committed an error which rendered the trial "so `arbitrary and fundamentally unfair that it violated federal due process." [Citation.] [Citation.]" (Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn. omitted.)
Albarran concluded the case presented "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendants trial fundamentally unfair." (Albarran, supra, 149 Cal.App.4th at p. 232.)
"Certain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. The trial courts ruling on the new trial motion in which it broadly concluded the gang evidence was admissible to prove motive and intent for the underlying charges was arbitrary and fundamentally unfair. As we have concluded elsewhere, the prosecution did not prove that this gang evidence had a bearing on the issues of intent and motive. We thus discern `no permissible inferences that could be drawn by the jury from this evidence. [Citation.] From this evidence there was a real danger that the jury would improperly infer that whether or not Albarran was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, this gang evidence was extremely and uniquely inflammatory, such that the prejudice arising from the jurys exposure to it could only have served to cloud their resolution of the issues. In our view, looking at the effect of this evidence on the trial as a whole, we believe that this prejudicial gang evidence was `"of such quality as necessarily prevents a fair trial." [Citation.]" (Albarran, supra, 149 Cal.App.4th at pp. 230-231, fns. omitted.)
"... Given the nature and amount of this gang evidence at issue, the number of witnesses who testified to Albarrans gang affiliations and the role the gang evidence played in the prosecutors argument, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Consequently, the court erred in failing to grant Albarran a new trial on all of the charges." (Albarran, supra, 149 Cal.App.4th at p. 232.)
Appellant relies on Maestas and Albarran and argues the trial court herein similarly permitted the prosecution to introduce inflammatory gang evidence of "no relevance or of marginal value," such that his federal constitutional rights were violated. Appellant asserts that aside from the gang evidence, there was only indirect circumstantial evidence as to his guilt of the robbery and murder, and the prosecution witnesses suffered from various credibility and bias problems: Perez, Daniel, and Trevor testified pursuant to plea agreements and/or grants of immunity, and Angela Crum "was a biased witness because she harbored a grudge against appellant for attracting gang activity to her neighborhood and forcing Crum and her family to move."
Maestas and Albarran are not analogous to the instant case and appellants convictions for murder and robbery were not the result of the alleged prejudicial impact of the gang evidence. While the gang aspects were intertwined in the facts of the homicide, there was extremely strong direct and circumstantial evidence that appellant murdered Lopez, completely separate and apart from the evidence of his gang affiliation. Appellant was very interested in Lopezs truck and whether he had money, he displayed a .380-caliber gun to Trevor, he told Daniel that he was going to "jack" Lopez, he asked Lopez for a ride, he was seen getting into Lopezs truck, and he was the last person seen with Lopez. While appellant attacks the credibility of Trevor and Daniel, we note that Shannon also saw appellant get into Lopezs truck as they left the Davis house. Lopezs body and the truck were found very near to appellants home, appellant admitted to several associates that he had killed Lopez and taken the stereo, the fatal ammunition was determined to be Winchester .380-caliber, and that same type of unique ammunition was secreted in the wall of appellants residence.
The evidence about appellants affiliation with the DSSM Norteno gang was separately relevant to prove the elements of the gang special circumstance and enhancement—that DSSM was a criminal street gang, appellant was an active member, Lopez was surrounded by Nortenos just before he died, appellant admitted he killed Lopez to other Nortenos, and the body was dumped in an area claimed by DSSM. The entirety of the record contains overwhelming evidence to support the convictions for murder and robbery, appellants due process rights were not violated, and the introduction of the gang evidence did not have the same type of prejudicial impact as in Maestas and Albarran.
III.
THE RESTITUTION FINE
Appellant contends, and respondent concedes, the trial court erroneously imposed a restitution fine pursuant to section 1202.45 since appellant was sentenced to an indeterminate life term. Accordingly, the abstract of judgment must be amended to reflect that fine is stricken. (See, e.g., People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.)
DISPOSITION
The fine imposed and stayed pursuant to Penal Code section 1202.45 is stricken. In all other respects the judgment is affirmed. The trial court shall prepare and serve as appropriate an amended abstract of judgment.
We concur:
WISEMAN, J.
GOMES, J.