Opinion
G043768 Super. Ct. No. 07CF2123
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. MOISES CABRERA, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, William F. Froeberg, Judge. Affirmed.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Moises Cabrera of all three counts with which he was charged: murder (Pen. Code, § 187, subd. (a)); attempted premeditated and deliberate murder (§§ 187, subd. (a), 664, subd. (a)); and street terrorism (§ 187.22, subd. (a).) As to the murder conviction (count 1), the jury found true the street gang special circumstance (§ 190.2, subd. (a)(22)). The jury also found several charged enhancements to be true. The court sentenced defendant to state prison for life without the possibility of parole for murder (count 1). The court also sentenced defendant to a consecutive sentence of 50 years to life based on the attempted murder conviction (count 2) and various enhancements. As to the street terrorism conviction (count 3), the court imposed the middle term of two years but stayed execution of sentence pursuant to section 654.
All statutory references are to the Penal Code.
Defendant asserts there is insufficient evidence to support his conviction of street terrorism (count 3) and the jury's finding of the street gang special circumstance with regard to his murder conviction (count 1). We affirm the judgment.
FACTS
The Incident
Because of the limited scope of this appeal, we set forth only a brief summary of the incident that is the basis for defendant's convictions.
Just before midnight on March 3, 2006, two vehicles stopped outside of 1918 South Broadway in Santa Ana, California. A group of males, including defendant, got out of the cars. Defendant's group, addressing another group of males gathered nearby, demanded to know where the others were from. Someone yelled "Myrtle," and defendant's group replied "Delhi." Defendant began firing a gun. More than 10 shots were fired.
One victim was shot twice in the left arm. Jose Guzman, who was trying to drive away, was shot in the leg and the head. According to the coroner, Guzman died from the gunshot wound to the head.
After his arrest, defendant admitted to being a member of "Delhi," an alleged criminal street gang. Defendant also admitted the neighborhood in which the shooting occurred was Delhi territory. Defendant was aware of the shooting at issue in this case and another separate shooting that occurred in the same neighborhood. With regard to this incident, defendant heard a murder occurred and that Delhi did it. But defendant denied taking part in the shooting at issue. Defendant's ex-girlfriend (who was driving one of the cars used in the attack) testified that defendant and his companions decided to confront the group at 1918 South Broadway because the victims were "posting up" (i.e., standing watch, acting as a lookout) in Delhi territory.
Expert Testimony Regarding Gang Issues
Matthew McLeod, a gang homicide detective and the lead investigator on defendant's case, was called by the People to testify as an expert witness. McLeod has worked in the gang unit for more than four years out of the 14 years he has worked as a police officer in Santa Ana and Los Angeles. McLeod has received hundreds of hours of formal training pertaining to the investigation of criminal street gangs. Throughout his career, McLeod has talked to gang members and colleagues alike to gain knowledge about gangs. McLeod has talked to "in excess of 800" gang members throughout his career. He has been the lead investigator in at least 50 gang related investigations and has assisted in hundreds of other cases. McLeod has qualified as an expert witness in Orange County and Los Angeles County on many occasions.
McLeod began his substantive testimony by covering well-worn ground in gang cases. He emphasized the importance of "respect" to gangs, and the concomitant importance of using violence to ensure an appropriate level of "respect" is given to the gang in question. "The more violent the act or the more brazen the act, then that individual will garner respect not only for him or herself, but also for the gang as a whole." Thus, guns are particularly important to gangs and gang members. McLeod knows this from his experiences talking with gang members both in and out of custody.
Most Santa Ana gangs are turf oriented, and have rival and ally gangs. It "would be seen as a sign of disrespect for one [gang] to post up in a rival gang's territory. That would mean that [the] individual is openly proclaiming his defiance of the . . . acknowledged gang rules." Violence is called for as a response to such disrespect.
McLeod was very familiar with Delhi from speaking with members of Delhi and working as a police officer in areas affected by Delhi's activities. Delhi had approximately 20 to 25 members out of custody in March of 2006 (and more than 100 members in custody).
When asked what Delhi's primary activities were in March of 2006, McLeod replied: "I would say assaults with firearms, inclusive of murder, as well as weapons possessions, specifically firearms possession."
McLeod was also familiar with a group called "West Myrtle." McLeod opined Delhi and West Myrtle were not allies, and "that a rivalry situation" could take place if members of the two gangs came together.
McLeod described the gang significance of defendant's tattoos. McLeod also detailed several occasions on which defendant admitted to membership in Delhi. Defendant had been provided with Street Terrorism Enforcement and Prevention Act (STEP) "notices or gang notices in the past." McLeod described these as "notices of determination or . . . 186 forms." "It is a notice given to individuals who are contacted either in custodial or noncustodial settings, identifying their activities or circumstances of contact as being associated with a criminal street gang. It also advises them that further association in that criminal street gang could lead to added penalties or enhancements of gang crimes." McLeod opined defendant was an active member of Delhi on March 3, 2006.
Based on the circumstances of the offense (and his training and experience), McLeod opined defendant's shooting of the victims "would be a primarily gang-motivated offense."
McLeod Testimony Regarding Predicate Act
McLeod was familiar with a murder case against Juan Avelar (nicknamed "Flaco"). The murder occurred on December 25, 2005 (just over two months before the murder of Guzman in the instant case). Avelar was ultimately tried and convicted of the murder of an Alley Boys gang member. McLeod opined Avelar was an active Delhi gang member at the time of the killing, based on discussions with Avelar and a review of police records. Avelar was one of the individuals with defendant on March 3, 2006, when defendant killed Guzman. McLeod also opined that the other two males with defendant and Avelar on March 3, 2006 were also members of Delhi.
DISCUSSION
Defendant challenges the sufficiency of the evidence supporting his conviction of street terrorism (count 3) and the jury's true finding as to the gang special circumstance (count 1).
Section 186.22, subdivision (a), sets forth the substantive criminal offense known as street terrorism: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (Italics added.)
If a defendant is convicted of first degree murder, he or she must be sentenced to death or life in prison without parole if one or more of the circumstances in section 190.2, subdivision (a), are found to be true. One of the special circumstances is: "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." (§ 190.2, subd. (a)(22).)
For purposes of this appeal, defendant does not dispute his "active participation" in Delhi, or that he willfully promoted, furthered, or assisted in felonious criminal conduct with Delhi members by participating in the attack on Guzman and the other victims. Instead, defendant claims: (1) there is insufficient evidence Delhi was a "criminal street gang," in that there is not enough evidence to conclude Delhi had as one of its "primary activities" the commission of certain offenses listed in section 186.22, subdivision (e) (§ 186.22, subd. (f)); and (2) there is insufficient evidence defendant had knowledge Delhi engaged in a "pattern of criminal gang activity" (id., subds. (a), (e)).
We must review the entire record in the light most favorable to the judgment in determining whether it contains substantial evidence from which a rational trier of fact could have found defendant guilty of street terrorism and found true the special circumstance allegation. (People v. Alexander (2010) 49 Cal.4th 846, 917; People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
Delhi's Primary Activities
"[F]or a group to fall within the statutory definition of a 'criminal street gang,' these requirements must be met: (1) the group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) one of the group's primary activities must be the commission of one of the specified predicate offenses; and (3) the group's members must 'engage in or have engaged in a pattern of criminal gang activity.'" (People v. Loeun (1997) 17 Cal.4th 1, 8 (Loeun).)Defendant challenges the sufficiency of the evidence with regard to the "primary activities" element.
"'[CJriminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain] criminal acts enumerated [in] subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.'" (§ 186.22, subd. (f), italics added.) Eligible criminal acts for purposes of establishing both "primary activities" and "pattern of criminal gang activity" include assault with a deadly weapon, robbery, homicide, sale of certain controlled substances, witness intimidation, and a variety of other offenses. (See Id., subds. (e), (f).)
"Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Id. at p. 324.)
Gang expert testimony can also be used to establish that one of a gang's primary activities is the commission of qualifying crimes listed in section 186.22, subdivision (e). For instance, an expert witness's opinion (based on conversations with gang members, personal investigation of hundreds of crimes committed by gang members, and information from colleagues) that a gang's primary activity was sale of narcotics, with some witness intimidation, was sufficient evidence of the "primary activity" element of proving an association is a "criminal street gang." (People v. Gardeley (1996) 14 Cal.4th 605, 620; see also People v. Martinez, supra, 158 Cal.App.4th at p. 1330 [expert testimony that primary activities "include robbery, assault . . . , theft, and vandalism" was sufficient].)
The evidence in this case supporting the jury's primary activities finding is: (1) the instant offense involving defendant and three other Delhi members; (2) a prior murder committed by Avelas, one of the gang members who accompanied defendant in this case; (3) gang expert testimony (by an expert familiar with Delhi) as to Delhi's primary activities — "I would say assaults with firearms, inclusive of murder, as well as weapons possessions, specifically firearms possession"; (4) gang expert testimony detailing the general importance of guns and violence to gangs; and (5) McLeod's testimony that more than one hundred Delhi gang members were in custody as of March 2006. There is substantial evidence that one of Delhi's primary activities as of March 2006 was the commission of qualifying acts listed in section 186.22, subdivision (e).
Defendant's Knowledge of Delhi's Pattern of Criminal Activity
To establish street terrorism under section 186.22, subdivision (a), "the prosecution must prove that defendant (1) is more than a nominal member of a criminal street gang, that (2) he had 'knowledge that its members engage in or have engaged in a pattern of criminal gang activity,' and that (3) he 'willfully promot[ed], further[ed], or assist[ed] in . . . felonious criminal conduct by members of that gang' . . . ." (People v. Lamas (2007) 42 Cal.4th 516, 524.)
For purposes of this appeal, defendant concedes he was more than a nominal member of Delhi, a pattern of criminal gang activity existed for Delhi (i.e., the instant offense and the prior Avelas murder), and he assisted in felonious criminal conduct by members of Delhi. Defendant claims there is insufficient evidence to prove one part of the second element — that he had knowledge Delhi engages or engaged in a pattern of criminal gang activity. Defendant points to the dearth of evidence showing he was aware of the December 2005 Avelas murder at the time defendant committed the Guzman murder in March 2006.
"'[P]attern of criminal gang activity' means the commission of, attempted commission of, . . . sustained juvenile petitions for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons: [¶] (1) Assault with a deadly weapon . . . . [¶] (2) Robbery . . . . [¶] (3) Unlawful homicide or manslaughter . . . ." (§ 186.22, subd. (e).) "A pattern of gang activity may be shown by the commission of one or more of [certain] offenses enumerated in . . . subdivision (e)." (Id., subd. (j).)
Defendant posits that his argument applies equally to the street terrorism conviction and the jury's special circumstance finding. Indeed, the CALCRIM jury instructions utilized by the court utilize the same "knowledge" element for street terrorism and the gang special circumstance. (Compare the instruction on the gang special circumstance, CALCRIM No. 736 ["The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity"], with the instruction on street terrorism, CALCRIM No. 1400 ["When the defendant participated in the gang, [he] knew that members of the gang engage in or have engaged in a pattern of criminal gang activity"].)
But "[b]ased purely on the statutory language, . . . the People need not separately prove a defendant's subjective knowledge of the criminal activities of his or her fellow gang members to establish the section 190.2, subdivision (a)(22), special circumstance." (People v. Carr (2010) 190 Cal.App.4th 475, 487 (Carr))Constitutional due process mandates that a knowledge element be incorporated into section 190.2, subdivision (a)(22). (Carr at p. 487.) This constitutionally-required knowledge element is satisfied by evidence that defendant was aware of the "gang's illegal purposes." (Id., at p. 488.) This element is implicitly included in the language of section 190.2, subdivision (a)(22), which requires that "'the murder was carried out to further the activities of the criminal street gang.'" (Carr, at p. 488.) The special circumstance finding "does not require a defendant's subjective knowledge of particular crimes committed by gang members . . . ." (Id. at p. 488, fn. 13.)
"[J]ust as a jury may rely on evidence about a defendant's personal conduct, as well as expert testimony about gang culture and habits, to make findings concerning a defendant's active participation in a gang or a pattern of gang activity, it may also rely on the same evidence to infer a defendant's knowledge of those activities." (Carr, supra, 190 Cal.App.4th at p. 489, fn. omitted.) Obviously, the jury could infer defendant was aware of his own actions with regard to the instant case, along with the actions of Avelas and the other two Delhi gang members who participated in the murder of Guzman and the attempted murder of the other victim who was shot twice in the arm. Defendant admitted his membership in Delhi. Furthermore, defendant received STEP notices from the police prior to March 2006. And the gang expert provided evidence allowing the jury to conclude Delhi was a criminal street gang. This is substantial evidence supporting a finding that defendant had knowledge of Delhi's criminal purpose and intended to further the activities of Delhi by committing the murder at issue. (See Id., at pp. 488-489.) We therefore affirm the jury's special circumstance finding.
There is also substantial evidence supporting defendant's street terrorism conviction. Unlike the special circumstance statute, Section 186.22, subdivision (a), explicitly requires defendant to have "had 'knowledge that [Delhi's] members engage in or have engaged in a pattern of criminal gang activity' . . . ." (People v. Lamas, supra, 42 Cal.4th at p. 524.) "'[P]attern of criminal gang activity' means the commission of, attempted commission of, . . . or conviction of two or more of the following offenses . . . and the offenses were committed on separate occasions, or by two or more persons: [¶] . . . [¶] (3) Unlawful homicide or manslaughter . . . ." (§ 186.22, subd. (e), italics added.)
Because there were multiple victims and multiple gang member perpetrators, the single incident at issue in this case is enough to establish a pattern of criminal gang activity. (See § 186.22, subd. (e); Loeun, supra, 17 Cal.4th at pp. 9-10 [evidence of multiple gang members committing crimes on same occasion can establish pattern of criminal gang activity].) But the People do not advance an argument that the knowledge element can be satisfied by the same evidence showing defendant participated in the underlying offenses with fellow gang members on a single occasion. Perhaps the People refrained from making this argument because the Loeun court construed only the criminal street gang sentencing enhancement set forth in section 186.22, subdivision (b), which, unlike the street terrorism substantive crime defined in subdivision (a), does not contain a requirement that defendant have knowledge of the gang's participation in a pattern of criminal gang activity.
Nevertheless, a careful parsing of subdivision (a) reveals that Loeun's analysis is helpful. Section 186.22, subdivision (a), requires the People to show that defendant participated in a criminal street gang "with knowledge that its members engage in or have engaged in a pattern of criminal gang activity . . . ." (§ 186.22, subd. (a), italics added.) A "pattern of criminal gang activity," in turn, includes a "conspiracy to commit" one of the crimes specified in the statute, including assault with a deadly weapon and unlawful homicide. (§ 186.22, subd. (e).) Here, the testimony of defendant's ex-girlfriend that defendant and his companions decided to confront the group at 1918 South Broadway because the victims were "posting up," along with McLeod's testimony that gang culture requires a violent response where a gang posts up in a rival gang's claimed territory, constitutes substantial evidence of an uncharged conspiracy to commit a violent crime. Under Loeun, evidence, as here, that multiple gang members were members of the conspiracy would be sufficient evidence of a pattern of criminal gang activity. And because defendant was a member of that group, he necessarily would have knowledge of that pattern. Unfortunately, the jury was not instructed on this theory. Neither is it clear that the commission of multiple crimes by multiple participants on the same occasion, in which defendant participated, could not constitute knowledge of a pattern. After all, in committing his crimes, defendant obviously knew at that very moment that his cohorts were engaged in committing the same crimes. But, because neither the People nor defendant based their arguments on this theory, either at trial or on appeal, we need not decide these issues.
As noted, the People did not rely on any analysis based on the Loeun decision. Instead, the parties implicitly agree knowledge of an unrelated "predicate" crime was necessary, but disagree about whether there is substantial evidence defendant was aware of Avelas's December 2005 murder (the only other "predicate" offense for which there is evidence in the record). Defendant's participation with Avelas in the instant offense suggests the two had a close relationship. Defendant's ex-girlfriend told police that defendant talked about Avelas being arrested for the December 2005 murder shortly after the March 3, 2006 murder of Guzman. Moreover, circumstantial evidence suggests defendant, while awaiting trial in this case, drafted a written message (a "kite") to a fellow Delhi prisoner demonstrating defendant's awareness of yet another Delhi gang member being charged with murder, as well as a Delhi gang member who was robbing drug dealers of money and guns but not sharing proceeds with the gang. And defendant's active participation in the gang and the expert's testimony concerning the culture of gangs (the importance of violence, respect, and the primary activities of Delhi in March 2006) are circumstantial evidence of defendant's knowledge of criminal gang activity by Avelas (one of only about 20 to 25 Delhi members out of custody in March 2006) a mere two months earlier. This is substantial evidence defendant was aware of Delhi's pattern of gang activity.
DISPOSITION The judgment is affirmed.
IKOLA, J.
WE CONCUR:
O'LEARY, ACTING P. J.
FYBEL, J.