Opinion
F075827
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. NOEL AMBRIZ, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF205565C)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2010, defendant Noel Ambriz was convicted of shooting at an inhabited dwelling (Pen. Code, § 246); shooting from a motor vehicle at another person (former § 12034, subd. (c)); eight counts of assault with a firearm (§ 245, subd. (a)(2)); and receiving stolen property (§ 496, subd. (a)). The jury determined these offenses were committed for the benefit of, at the direction of, or in association with the Sureños, a criminal street gang (§ 186.22, subd. (b)). Defendant was sentenced to a term of 15 years to life. On April 6, 2012, our court affirmed the judgment. On June 27, 2012, the California Supreme Court denied defendant's petition for review.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
On November 4, 2016, defendant filed a petition for writ of habeas corpus in the Tulare County Superior Court. He argued the evidence did not sufficiently support the gang enhancements in light of People v. Prunty (2015) 62 Cal.4th 59 (Prunty). On April 6, 2017, the court denied defendant's petition. Thereafter, on April 10, 2017, defendant filed a motion to vacate that judgment, reiterating his Prunty argument. On May 9, 2017, the court denied defendant's motion.
Defendant appeals from the superior court's May 9, 2017 order denying his motion to vacate and once again invokes Prunty. The Attorney General argues this order is nonappealable and Prunty does not apply retroactively to the instant case. We conclude substantial evidence supported the gang enhancements and affirm the superior court's order denying defendant's motion to vacate the judgment.
STATEMENT OF FACTS
By separate order we granted defendant's September 27, 2017 request for judicial notice of the prosecution's gang expert's transcribed trial testimony. In addition, on our own motion, we take judicial notice of our prior nonpublished opinion (People v. Ambriz (Apr. 6, 2012, F061401, F061579, F061676) [nonpub. opn.]). The first paragraph of this section is drawn from that opinion. Citation thereto "is permitted by California Rules of Court, rule 8.1115(b)(1) 'to explain the factual background of the case and not as legal authority.' [Citations.]" (In re W.R. (2018) 22 Cal.App.5th 284, 286-287, fn. 2.)
On June 23, 2008, around 4:00 p.m., the Valdovinos family was startled by six gunshots fired at their home. One of the shots hit the garage door and another shot hit near a cooler in the garage. The latter shot struck near a woman, who had been standing in the garage. Peace officers with the Tulare County Sheriff's Department happened to be in the area at the time. One of them observed a red four-door Honda Accord with "three Hispanic males, all with shaved heads" inside. Another deputy saw a vehicle matching the description and activated his sirens. A high-speed chase ensued. A .357 revolver with six dispensed casings was thrown out of the front passenger window. Eventually, the vehicle stopped. Defendant was the rear passenger. Gunshot residue was found on the exterior of the front passenger door and the headliner of the rear seat.
Sheriff's deputy Michael Yandell was the prosecution's gang expert at trial. He testified the Sureños are a criminal street gang whose territory has "push[ed] northbound" from southern California to Tulare County, the "last so-called stronghold" for the rival Norteños. Over 500 Sureños reside in Tulare County. The gang's primary activities include murder and attempted murder; assault with a deadly weapon; vehicle theft; possession of stolen property; vandalism; and drug sales. Members identify with the words "South" and "Sur," the number 13, and the color blue.
Yandell presented four cases involving the commission of predicate offenses by Sureños. On September 26, 2006, Eric Pineda committed carjacking, robbery, assault with a firearm, and vehicle theft. He wore blue clothing and sported "Loco" and "LP" tattoos, inter alia. According to Yandell, "LP" stands for Loco Park, a Sureño subset in or around Tulare and/or Visalia. On September 30, 2006, Jose Valencia, inter alios, was involved in a physical altercation between Sureños and Norteños in Terra Bella, during which the victim was shot in the back. Valencia was a self-admitted Sureño. On October 25, 2006, Alfonso Mercado attacked a Norteño inmate with a chair inside a Tulare County jail facility. Mercado was a self-admitted Sureño from Bakersfield. On June 4, 2008, Mark San Juan brandished a firearm. Yandell—via personal contact—knew San Juan was a member of Big Time Locos, a Sureño subset in or around Cutler and/or Orosi.
Based on the totality of the circumstances, Yandell opined defendant was a Sureño at the time of the shooting. Three days before the incident, Yandell contacted defendant at his home. Defendant admitted he had "kick[ed] it with Southerners for several years" and showed the deputy various gang-related apparel in his bedroom. When defendant was arrested after the shooting, he was wearing a blue belt. Finally, a review of juvenile detention records showed defendant admitted he belonged to the "southern gang" and his mother "indicated she was aware her son hangs out with gang members."
DISCUSSION
I. Appealability of order
The Attorney General contends the May 9, 2017 order denying defendant's motion to vacate is nonappealable. Defendant asserts the contrary is true because said order affected his substantial rights.
A defendant has no right to appeal from a superior court denial of habeas corpus relief. Instead, review is obtained by filing a new habeas corpus petition in a higher court. (Briggs v. Brown (2017) 3 Cal.5th 808, 836; In re Crow (1971) 4 Cal.3d 613, 621, fn. 8.) Generally, this rule cannot be circumvented by moving to set aside the denial of the habeas petition, and then appealing the second denial. (Cf. People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981 (Gallardo).) " '[A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.]' [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from 'a final judgment of conviction' [citations] or from 'any order made after judgment, affecting the substantial rights' of the party [citations]." (Id. at p. 980; see § 1237.) "A ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.] 'In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limited [sic] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.' [Citation.]" (Gallardo, supra, at pp. 980-981, fn. omitted.) This general prohibition, however, has exceptions. (Id. at p. 981.) "[T]he California Supreme Court has acknowledged that both the general rule and its exceptions are court created and has concluded that appellate courts may, when circumstance warrant, entertain appeals from rulings denying motions to vacate judgments." (Ibid.)
We elect to entertain defendant's appeal for two reasons. First, defendant was convicted in 2010. Our court affirmed the judgment and the Supreme Court denied the petition for review in 2012. On August 27, 2015, the Supreme Court filed Prunty. Because defendant could not have raised Prunty at the time he appealed from the judgment, allowing this appeal from the May 9, 2017 order would not " ' "virtually give [him] two appeals from the same ruling . . . ." ' " (Gallardo, supra, 77 Cal.App.4th at p. 981; see People v. Totari (2002) 28 Cal.4th 876, 882.) Second, the record provides sufficient information to allow us to address defendant's issue. (See generally In re Gutierrez (1934) 1 Cal.App.2d 281, 285 [it is incumbent upon a petitioner to present a record complete enough for sufficiency of evidence review], disapproved on other grounds by In re McInturff (1951) 37 Cal.2d 876, 881-882.)
Defendant filed a "Motion to Treat Appellant's Opening Brief as a Petition for a Writ of Habeas Corpus." (Boldface & some capitalization omitted.) A ruling on this motion was deferred pending consideration of the appeal on its merits. Because we choose to address defendant's issue on appeal, we deny this motion as moot.
II. Prunty
Next, the Attorney General contends Prunty does not apply retroactively to defendant's conviction, which was finalized three years before Prunty was decided. We need not decide whether Prunty applies retroactively to defendant's conviction as we find there was no Prunty violation here.
In his brief, the Attorney General relies on state (but not federal) law governing the retroactive application of new judicial opinions. --------
To determine the sufficiency of the evidence to support a conviction or an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60; People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances, plus all the logical inferences the trier of fact might have drawn from them, reasonably justify a finding, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Albillar, supra, at p. 60; People v. Tripp, supra, at p. 955.) " 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.)
Defendant contends the evidence "does not show that either the predicate offenses or the crimes charged in this case were committed to benefit the same gang and so the evidence is insufficient to support the gang enhancements." (Capitalization omitted.) "[W]hen the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang's alleged subsets, it must prove a connection between the gang and the subsets." (Prunty, supra, 62 Cal.4th at pp. 67-68.)
The record—viewed in the light most favorable to the judgment—shows defendant was a Sureño on June 23, 2008, the day of the shooting. To satisfy section 186.22, subdivision (e)'s predicate offense requirement, Deputy Yandell presented four cases involving (1) Pineda, a member of Loco Park; (2) Valencia, a self-admitted Sureño; (3) Mercado, another self-admitted Sureño; and (4) San Juan, a member of Big Time Locos. Defendant stresses "nothing link[ed]" either the Loco Park or Big Time Locos subsets with the Sureños. Even assuming this is true, only the crimes committed by Pineda and San Juan cannot qualify as predicate offenses. The remaining two cases involving Valencia and Mercado, respectively, "did not run afoul of Prunty" because the evidence demonstrated these men "identified with the larger [Sureño] criminal street gang . . . rather than a specific [Sureño] subset." (People v. Vasquez (2016) 247 Cal.App.4th 909, 927.) Substantial evidence established the perpetrators of two separate predicate offenses belonged to the same gang that benefited from defendant's charged crimes. Pursuant to section 186.22, subdivision (e), a minimum of two separate predicate offenses need only be proven. We uphold the gang enhancements under section 186.22, subdivision (b).
DISPOSITION
The May 9, 2017 order of the Tulare County Superior Court denying defendant's motion to vacate the judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.