Opinion
G043988
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO NORIEGA, Defendant and Appellant.
Renee Rich, 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, Lilia Garcia and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08CF2420)
OPINION
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed in part, reversed in part.
Renee Rich, 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, Lilia Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Antonio Noriega, who was born in 1987, guilty of attempted murder of Federico Sandoval and found it to be true defendant acted with willful premeditation and deliberation when he committed the crime, that he intentionally and personally discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d) when he committed it, and that he committed the crime for the benefit of, at the direction or, or in association with a criminal street gang. (All further statutory references are to the Penal Code.) Defendant was also found guilty of assault with a firearm and that he committed the crime for the benefit of, at the direction of, or in association with a criminal street gang. He was also found guilty of being a gang member carrying a loaded firearm in public, and guilty of the crime of street terrorism. The court sentenced defendant to life in prison with a minimum of 30 years plus 25 years to life; the sentences are to be served consecutively.
Defendant contends the gang expert invaded the province of the jury in rendering his opinions, that the gang enhancement lacks substantial evidence to support it, that there was prosecutorial misconduct and that he was improperly convicted of street terrorism. Because he was convicted of both street terrorism, which is a lesser included offense of being a gang member in possession of a firearm, as well as the greater offense, we reverse his conviction for street terrorism. In all other respects, we affirm.
I
FACTS
The Incident
Federico Sandoval testified he wasn't sure of the date but during an evening in July 2008, he was going into a 7-Eleven store located on Harbor Boulevard to buy a package of cigarettes. When the prosecutor asked him whether he was ever part of a gang, Sandoval responded: "What does this have to do with the case, sir? This, you know — I don't like this question." The prosecutor changed the subject. Sandoval did admit he had been to prison and was trying to clean up his life. He answered that he did not remember when the prosecutor asked him for many details about the incident. But he did testify he never made it inside the store because he was shot in the back of his leg; he said his "femur bone shattered" and he has a metal rod in his leg. Sandoval said the shooter was "short, chubby. Younger, way younger." As Sandoval was stepping down from the witness stand, he whispered to defendant: "Good luck Homey."
A customer, Ricardo Martinez, remembers that on July 23, 2008 at around 9:00 p.m., he exited the 7-Eleven on Harbor Boulevard and First Street in Santa Ana and saw two people pushing each other. One ran and "the one who stayed there, pulled a weapon and shot him." The shooter pulled the trigger twice. The first time, Martinez heard nothing; the second time the shooter held up his arm and the gun went off. The person who was shot fell to the ground in the parking lot. The shooter wore a jersey with the number 81 written on it. Martinez did not see the front of the shooter's face, but said "he was a short person with [a] shaved head."
Amabu Kabia, a police officer with the Santa Ana Police Department, was dispatched to the 7-Eleven a little after 9:00 p.m. When he asked Sandoval whether the shooter said anything, Sandoval said "the suspect asked him 'what's up?' and he replied 'what's up?' and then asked him 'who do you claim?' or 'what gang are you from?'" Sandoval told Kabia the shooter pulled out a gun and Sandoval started running. Sandoval told an officer he belonged to the Southside gang. Sandoval described the shooter as being in his 20's and approximately five feet four inches tall.
Defendant's Arrest
Two photographs of the shooter taken from a surveillance video were placed in a crime bulletin and distributed to every sworn police officer at the Santa Ana Police Department. About one month after the shooting, an officer matched defendant with the photographs in the bulletin. Defendant is five feet four inches tall and has a shaved head.
During his police interview, defendant said he had been jumped into the gang when he was 17. He has two gang monikers, Shorty and Gremlin.
Defendant denied any knowledge of the shooting outside the 7-Eleven. Yet when he was shown a photograph taken from the surveillance video, he identified himself. Soon afterwards, he changed his mind and said, "No that's not me." Ultimately he admitted the photograph depicted him. He said he had gone to the 7-Eleven with a friend, and he "was hanging around near the front of the store by the magazines while his friend was purchasing the beer."
A search of defendant's home revealed some of the articles worn by defendant in the July 23, 7-Eleven video. In his backyard the words Santa Nita and Gremlin were spelled out and the initials SN and SNR were written on wood.
Gang Expert
Eric Paulson, who was with the gang homicide detail at the Santa Ana Police Department at the time of the shooting, interviewed Sandoval on July 24 at the hospital. He recorded the conversation on a digital recorder, but did not inform Sandoval he was recording. During that interview, Sandoval described how the shooter first stared at him as he pulled into the parking lot, and made the following statement: "I just remember getting off the floor and him hitting me up um . . . I didn't tell him where I was from or nothing like that. I don't play that . . . . You know what I mean? But I guess and then like, he goes do you bang homie? You know and I was like do you? And he's like simon, ey (inaudible) and then like he started pulling out a gun you know and I punched him and I took off." Sandoval said that "when I took off running, he shot me." Sandoval told Paulson he used to "kick back" with Southside and was known as Puppet. He said he was two months from discharge of his parole, and worked for a cable company.
Paulson explained the concepts of mad-dogging, a hit up, being jumped into a gang, the importance of territory or turf to a gang, the significance of respect in gangs, the meaning of guns within a gang and being labeled a rat in gang culture to the jury. He said he had investigated various crimes that began with a gang hit-up scenario. Paulson also explained what consensual contacts with the police, field identification contacts and field identification cards are. Paulson said a STEP notice is "an F.I. card on steroids" containing detailed information.
With regard to the Santa Nita gang, Paulson said it started in the 1950's and that as of July 23, 2008, it was an ongoing organization with over 400 documented gang members. The area of First Street and Harbor Boulevard are within Santa Nita's claimed territory.
As of July 23, 2008, the primary activities of Santa Nita were "felony firearm violations, and felony assaults, including attempted murder, and murder." On December 14, 2006, Santa Nita gang member Anthony Medina pled guilty to committing a robbery "for the benefit of Santa Nita, a criminal street gang per PC 186.22, with 3 or more persons which has primary activities listed within PC 186.22 (e) and whose members engage in a pattern of criminal gang activity." On January 4, 2007, gang member Ines Rosas, whose moniker is Felon, pled guilty to possessing "a concealable firearm on my person in public, that was loaded, while under 18 yrs of age. [¶] On 12/18/06, in Orange County, I knowingly and actively participated in a criminal street gang . . . that has, in the last three years, engaged in a pattern of criminal gang activity and which commits, as some of its primary activities, crimes such as theft, vandalism, and assault." On February 26, 2007, Leo Gonzalez, a Santa Nita gang member whose moniker is Sleepy, was arrested for being a felon in possession of a firearm. On April 5, 2007, Santa Nita gang member Louie Castro, whose moniker is Little L or Little Louie, was arrested for attempted murder. On June 5, 2007, Marcos Cardenas, whose moniker is Little Demon, was arrested for attempted murder. On June 17, 2007, Joseph Oceguera, another gang member, was arrested for murder. On July 14, 2007, another Santa Nita gang member, Gerardo Gonzalez, was arrested for the same crime. On September 24, 2007, gang member Luis Leon, whose moniker is Risky, was arrested for possession of a loaded concealed weapon.
Regarding defendant, Paulson conducted a gang background investigation. In May 2002, a STEP notice was given to defendant at a time when defendant was wearing Santa Nita colors, was in Santa Nita territory and was in the company of a Santa Nita gang member. In November 2003, defendant was arrested while he was a passenger in a stolen vehicle driven by Rene Funes. Paulson testified this information was significant "because based off of my training and experience gang members don't allow nongang members to crime with them. Unless they're a trusted member of the gang. . . . I see two gang members in a stolen car." In February 2004, defendant admitted he was an active Santa Nita gang member and that the gang engages in a pattern of criminal activity "in open court."
In March 2005, defendant was given a STEP notice to register as a gang member in accordance with the terms and conditions of his probation. In response to that notice, defendant went to the police station and identified himself as a Santa Nita gang member. Defendant said: "I start[ed] when I was 15 and a half."
In April 2005, defendant was given another STEP notice while he was a passenger in a car stopped for a traffic violation. In the car with defendant were two documented Santa Nita gang members, one of whom was arrested for possession of narcotics during the stop. During the same month, defendant was arrested while in the company of two other Santa Nita members, all of whom were in a stolen vehicle.
During the execution of a search warrant at defendant's home, issued as part of a carjacking investigation in February 2007, the police found a cap bearing the gang color, the name Gremlin and the initials SN. Also found was a photograph of defendant and another gang member, who was killed in a gang-related shooting in 2008, showing defendant flashing a gang sign and the two of them spelling the initials SN with their hands. Another photograph showing defendant holding a gun in front of the initials SN was also confiscated. Later the same year, in December 2007, defendant was given a STEP notice after running from police officers.
Paulson testified it was his opinion that defendant was an active participant of the Santa Nita criminal street gang on July 23, 2008. The prosecutor posed a hypothetical question which mirrored the facts in this case to Paulson and asked whether the expert had an opinion "as to whether or not the particular crimes I've described in that hypothetical, in particular attempted murder, assault with a firearm, and active gang member carrying a loaded firearm in public, were committed for the benefit of, or in association with, or at the direction of Santa Nita criminal street gang?" Paulson responded: "My opinion is that the hypothetical as you laid out would definitely benefit the Santa Nita criminal street gang."
The prosecutor later asked: "Assuming that same hypothetical, do you have an opinion whether or not those same offenses . . . were done to promote, further or assist in criminal conduct by Santa Nita gang members?" Paulson responded: "It would promote and further criminal activity by Santa Nita criminal street gang. And it's essentially, based off of what I just previously said, citizens, workers, people that live in the neighborhood, rival gang members, gang members from that particular gang, here, here, see these types of crimes all the time. Especially the hypothetical you just laid out. That's going to promote the gang. That's going to allow them to further their criminal activity, because they realize these guys mean business. [¶] If criminal activity is committed by the gang, people are going to be a little reluctant to come forward and assist the police, knowing that these guys are capable of shooting somebody in front of the 7-Eleven where there's lots of witnesses. So, it definitely promotes the gang, and it furthers their criminal activity."
II
DISCUSSION
Gang Enhancement, Scope of Expert Testimony
Defendant argues the prosecutor improperly solicited the expert's opinion regarding defendant's intent in committing the offenses when he asked hypothetical questions. He cites responses of the expert: "Well, I talked about it earlier, about respect. How does one or a gang earn that respect. It's all about violence and fear. This is textbook. A shooting, shooting a perceived enemy or another gang member is the pinnacle of gang violence. It's the pinnacle of respect, fear, violence in the gang subculture. This crime is talked about. Gang members love to talk. They brag. Victims talk about being shot. They talk about where they were shot at. Who they were shot by. That gets out. I mean it's common knowledge. [¶] Employees at stores see shootings. They know where they work. They know what gang is affected by them. So, again, you can just see how violence like this perpetuates just more crime and more violence. It never stops. It just evolves. [¶] And so that just benefits the gang by instilling fear and intimidation in the community, rival gang members, citizens, et cetera, et cetera," and "That's going to promote the gang. That's going to allow them to further their criminal activity, because they realize these guys mean business. [¶] If criminal activity is committed by the gang people are going to be a little reluctant to come forward and assist the police, knowing that these guys are capable of shooting somebody in front of the 7-Eleven where there's lots of witnesses. So, it definitely promotes the gang, and it furthers their criminal activity."
The Attorney General argues: "An objective review of that colloquy shows Paulson did not opine that the underlying crimes were committed with the intent to benefit the street gang. Rather, Paulson opined that the street gang would have benefited from the commission of the underlying crime. That distinction shows Paulson's expert opinion did not invade the jury's role of determining appellant's state of mind."
A gang expert may give an opinion on the basis of facts given in a hypothetical question that asks the expert to assume the truth of hypothetical facts which mirror those shown in the evidence. (People v. Ward (2005) 36 Cal.4th 186, 209.) A gang expert's opinion, alone, is an insufficient basis for a jury to find a crime was gang related. (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) The expert is prohibited from giving an opinion about the state of knowledge or intent of a defendant. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.)
"A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. [Citations.]" (People v. Killebrew (2002) 103 Cal.App.4th 644, 652-653.) In Killebrew, the gang expert testified the defendant was aware of the presence of guns and had the specific intent to possess them, an improper opinion on the ultimate facts in the case. (Id. at p. 658.)
Here the expert's responses did not make either an implied or direct reference to defendant's state of mind when the instant crimes were committed. Instead he testified the crimes were violent and that violent crimes benefit the Santa Nita gang by increasing its reputation. Under these circumstances, we cannot conclude the expert invaded the province of the jury.
Gang Enhancement, Substantial Evidence
Defendant contends the gang enhancements are not supported by substantial evidence. He argues: "The record is devoid of credible, reliable evidence which would support the inference that appellant shot Sandoval with the specific intent to promote criminal activity by gang members of Santa Nita." He devotes the majority of his argument to the same points he made in his previous argument about the "improper testimony" of Paulson.
"The section 186.22(b)(1) enhancement requires the jury to find that the crime was committed for the benefit of a criminal street gang and with the specific intent to promote the criminal street gang." (People v. Ramon (2009) 175 Cal.App.4th 843, 849.) "[W]henever the evidentiary support for a conviction faces a challenge on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) "Generally, an expert may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth.' [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) "It 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. [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Aside from Paulson's expert opinion, which defendant much maligns, substantial nonexpert evidence supports the jury's true findings on the gang enhancements. There was evidence defendant mad-dogged Sandoval by staring at him as he entered the parking lot. After Sandoval exited his car, defendant hit him up by asking him whether he banged and whether he claimed any gang. Immediately after the hit up, with no apparent motive, defendant pulled out his gun. Under these circumstances, we must reject defendant's argument.
Alleged Prosecutorial Misconduct
Defendant argues there was prosecutorial misconduct because "[t]he prosecutor improperly told the jurors that they could not even consider the lesser included offense of attempted voluntary manslaughter in their deliberations unless and until they first unanimously acquitted appellant of attempted murder. In doing such, the prosecutor not only misstated the law, but effectively told the jurors they were prohibited from considering appellant's defenses that he was acting under the heat of passion or unreasonably believed he needed to use deadly force to defend himself at the time of the incident."
The prosecutor argued: "What I want to do first is when we talk about the charges, there's four charges in this case. And certain charges have what's known as a lesser included offense. And an easy way, an example is say a certain count requires four elements. But say a particular count you've only found three elements to be guilty beyond a reasonable doubt. There may still be a lesser charge to that greater offense that you can still find him guilty of. [¶] But what his Honor will instruct you is, you are not allowed to look at the lesser included offenses unless you all have unanimously acquitted him of the greater offense that's charged. [¶] So, I am confident in this case you will find him guilty of — and I'll give you one of the examples: attempted murder. That has a lesser included offense of what's known as attempted voluntary manslaughter. And attempted voluntary manslaughter, one of the theories behind it is something known as heat of passion. And the classic example of that in law school is a husband comes home, he walks into his bedroom and he sees his wife having an affair. Right there in the middle of the bedroom. And there is a pair of scissors on the dresser table. Grabs them in the heat of passion and kills the man. Now, that is the law school type example of what a heat of passion is. That someone — and I'll show you what the instruction details, but that someone acted without that premeditated and deliberate intent to kill. That he acted out of a heat of passion. [¶] And it is up to you to determine whether there is such a heat of passion in this case. But that's an example of what a lesser included offense is to the offense of attempted murder." Then, while discussing the various verdict forms, the prosecutor stated: "Once again, if you all believe that he is not guilty of attempted murder, when you go to the not guilty, there's that lesser included offense which is known as attempted voluntary manslaughter. And with that count of the lesser included offense it has an option for guilty or not guilty." Later in the argument, the prosecutor stated: "And once again, you don't look at the attempted voluntary manslaughter instruction until and only unless you have all acquitted him of the attempted murder. [¶] And if you do look at that, the gang enhancement can still apply to that." Still later, the prosecutor said: "And once again, you do not look at the lessers unless you all believe he didn't commit the greater offense of attempted murder or gang member with a gun."
"[O]n claims of prosecutorial misconduct our state law standards differ from those under the federal Constitution. With respect to the latter, conduct by the prosecutor constitutes prosecutorial misconduct only if it '"'"so infect [s] the trial with unfairness as to make the resulting conviction a denial of due process."'"' [Citations.] By contrast, our state law considers it misconduct when a prosecutor uses '"'"deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' [Citations.] . . . 'A defendant's conviction will not be reversed for prosecutorial misconduct' that violates state law, however, 'unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.) "When, as here, the point focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] On this record, the answer is no. . . . [W]hen we consider each of the challenged comments in its context, we simply cannot conclude that the prosecutor used a method to persuade the jury that was 'deceptive' or 'reprehensible.'" (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 822-823, & fn. 1.)
Defendant forfeited his claim of prosecutorial misconduct when he failed to object at trial. (People v. Hayes (2006) 137 Cal.App.4th 34, 52.) Had the argument been preserved, however, it lacks merit nonetheless. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelley v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Hill, supra, 17 Cal.4th at p. 819.) Here the prosecutor talked at length about the presumption of innocence, and the prosecutor's comments did not preclude the jury from considering defendant's defenses, and did not render the trial fundamentally unfair. We find no prosecutorial misconduct.
But even if there had been prosecutorial misconduct because the prosecutor misstated the jury's authority to consider the charged crimes and lesser crimes in any order it preferred, the error was harmless because the evidence against defendant here was overwhelming. Under these circumstances, defendant would not have received a more favorable verdict without the claimed error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Street Terrorism
Defendant next contends his conviction "for active gang participation must be reversed because it is a lesser included offense of carrying a loaded firearm in public while being an active gang member." The Attorney General agrees.
We also agree that being a gang member in possession of a firearm includes the lesser crime of being a criminal street gang participant, and that defendant cannot be convicted of both. (People v. Flores (2005) 129 Cal.App.4th 174, 184.)
III
DISPOSITION
We reverse defendant's conviction of violating section 186.22, subdivision (a). In all other respects, we affirm.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. O'LEARY, J.