Opinion
G043918 Super. Ct. No. 07SF0318
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MENDOZA PORTILLO and HARVEY JOSHUA ULLOA, Defendants and Appellants.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Mendoza Portillo. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Harvey Joshua Ulloa. Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgments of the Superior Court of Orange County, Richard M. King, Judge. Affirmed as modified.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Mendoza Portillo.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Harvey Joshua Ulloa.
Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Antonio Portillo and Harvey Ulloa were convicted of attempted murder, assault with a deadly weapon and street terrorism for participating in a group attack on Joshua Lowe. The jury also found true allegations the attack was carried out for the benefit of a criminal street gang. On appeal, we reject appellants' claims that their convictions should be reversed due to insufficient evidence, evidentiary error and prosecutorial misconduct. However, we do agree with them that the trial court should have stayed their sentences for street terrorism. Accordingly, we will modify their judgments to stay those sentences. In all other respects, we affirm.
FACTS
On the night of March 18, 2007, Isidro Hernandez was working at Los Patios restaurant in San Clemente. At around 9:45, shortly after the restaurant closed, he took the trash out to a dumpster near the front of the restaurant. As he was walking back to the restaurant, a white Honda pulled up near him and four Hispanic men exited the vehicle. The men approached Hernandez and blocked his way back to the restaurant. They were making hand signs and yelling out "San Juan Capistrano" and "Varrio Viejo" (a gang from that city). They asked Hernandez where he was from, and when he replied "Mexico," they called him a "faggot" and knocked his cigarette out of his mouth.
Los Patios workers Juan Frutos and Vicente Barragan saw what was going on from inside the restaurant. Barragan thought there were four or five men harassing Hernandez, and Frutos put the number at five. Venturing outside, Frutos told the men to leave and threatened to call the police. The men told him to "shut the fuck up," and one of them threw a scooter toward Frutos. The men then began walking toward a nearby 7-Eleven store, but not before one of them grabbed a tiki torch from a planter and threw it at the restaurant. Neither the scooter nor the torch hit anyone, but the torch did crack the restaurant's front window.
As the men continued to make their way over to the 7-Eleven, Hernandez and Frutos returned to the restaurant. However, about a minute later, Hernandez went back outside to take a look around. He noticed the white Honda was now parked over by the 7-Eleven, where a fight was going on. Hernandez saw the same group of men who had accosted him attacking someone. They were throwing punches and kicking the victim, and it did not appear as though the victim was offering much in the way of resistance. After a couple of minutes, the men departed in the white Honda and a second, dark-colored vehicle. Hernandez and Frutos called 911 and walked over to the victim, Joshua Lowe, who was beaten and bloody. When they asked him what happened, he said, "They poked me four times."
Lowe testified he was walking to the 7-Eleven when he heard a commotion coming from the area around Los Patios. He then noticed a group of men running toward him from that area, yelling "San Juan" and making hand signs. The men stopped Lowe and asked him where he was from and if he "banged." Lowe, not a gang member, said he was from San Clemente. The men did not do anything to Lowe at that point; instead, they walked toward an alley behind the 7-Eleven, and Lowe continued on toward the store.
Moments later, however, Lowe heard footsteps coming toward him from behind and someone call him a "bitch." Lowe turned around and saw a group of men coming toward him. The group included the same men who had confronted him before. Lowe backed up toward the front of the 7-Eleven, hoping someone would see the men. But they surrounded him and began hitting and kicking him.
Lowe fought back in self-defense; he landed several blows and kicked one of his assailants in the head. However, as the fight wore on, he was thrown to the ground and noticed he was outnumbered seven to one. When he got back up, he felt a sharp pain on his right side and realized he had been stabbed. He then saw someone coming at him with a knife. He evaded that person, but another came at him with a knife while the others held his arms and continued to punch and kick him. Unable to move, he was stabbed two more times, on the left side of his body. He saw a third man with a knife and tried to grab the knife from him, but he failed, and the man stabbed him in the arm. He then tried to grab the knife again, and this time he succeeded in seizing the weapon. At that point, the men fled toward an alley behind the 7-Eleven.
Lowe saw four of the men get into the white Honda and the other three get into a green car. As the cars were leaving the area, they stopped for a traffic light near the 7-Eleven. One of the men then got out of the green car and ran up to Lowe, who was kneeling on the ground in agony. The man kicked Lowe in the neck and told him he "should have died." He then ran back to the green car and yelled out, "That's for San Juan." Lowe was taken to the hospital, where he received numerous stitches and treatment for a punctured lung. He spent two nights in the hospital recovering from his wounds.
Shortly after midnight on the night of the stabbing, the police contacted appellants and four other suspects at a residence in San Juan Capistrano. When the police arrived at the residence, the suspects were gathered around a pickup truck parked outside the residence. One of the men attempted to run away, and appellant Ulloa and another man tried to hide in the garage of the residence, but all six men were eventually detained. Ulloa had multiple scrapes and cuts on his face and head, as did Jose Castillo, one of the other men in the group. Castillo also had a shoe print impression on the top of his head.
Inside the garage, there was a white Ford Mustang and a white Honda Civic. When the police searched the Civic, they found screwdrivers, a white powder, and a marijuana-encrusted smoking pipe. They also found a crumpled up beer can under the driver's seat that had appellant Portillo's DNA on it. Upon searching the garage, they discovered a silver butterfly knife tucked away in a cabinet and various graffiti associated with the Varrio Viejo gang.
While the six men were being detained in the garage, Hernandez and Frutos were taken there to see if they could identify them. Hernandez identified appellants as being in the group of men who confronted him at the restaurant. He also recognized the white Honda as the vehicle appellants arrived in and he later saw by the 7-Eleven. Frutos could not identify any of the men, but he did identify the white Honda as the car he had seen earlier that evening.
Three days later, the police showed Lowe and Barragan photographic lineups containing photos of the six suspects who had been detained. The only person they could identify from the photos was appellant Ulloa. At trial, Lowe, Barragan, Hernandez and Frutos were all unable to identify appellants.
Following his arrest, Ulloa waived his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436) and agreed to speak with investigators. He said he and his friend Hector drove around San Clemente that evening and ate at a Denny's restaurant. He denied being in any kind of fight and denied knowing anything about what happened to Lowe. Explaining he had been drinking, he also said he did not know how he got the scrapes and cuts that were on his face and head.
At trial, Ulloa explained the wounds by saying he had been jumped on the street by three men on the day Lowe was attacked. He said the attack occurred while he was walking home from the beach after spending time there with his friend Henry. Following the attack, he hooked up with some other friends and they went out to eat. Although they were in San Clemente that night, Ulloa denied any wrongdoing. He also claimed he was not a gang member.
Sherriff's Investigator and gang expert Patrick Rich testified to the contrary. Based on his review of appellants' police records and other information available to him, he opined appellants were both active members of Varrio Viejo at the time Lowe was attacked. As explained more fully below, Rich also believed the attack benefited Varrio Viejo because it was carried out in rival territory and would have enhanced the gang's reputation for violence.
Appellants were charged with attempting to murder Lowe and assaulting him with a deadly weapon, assaulting Frutos with a deadly weapon (i.e., the scooter) and street terrorism. It was also alleged that all of the offenses (except street terrorism) were committed for the benefit of, at the direction of, or in association with, a criminal street gang. In addition, appellant Portillo was charged with having suffered a prior strike conviction, and Ulloa faced one count of misdemeanor vandalism for the cracked window at the restaurant.
At trial, the prosecution proceeded on the theory appellants willfully participated as gang members in the initial confrontation of Hernandez and Frutos at Los Patios and the subsequent attack on Lowe. Although the evidence did not reveal exactly what role appellants played in the events, the prosecution argued there was sufficient evidence to find them guilty for either directly perpetrating or aiding and abetting the charged offenses. Alternatively, the prosecution theorized that, as to the charge of attempted murder, appellants were guilty on the basis that offense was a natural and probable consequence of the group's actions in assaulting Lowe and challenging him to fight.
Save for the alleged assault against Frutos, the jury convicted appellants as charged and found the gang allegations to be true. Thereupon, the court found the prior strike allegation against Portillo true and sentenced him to 33 years in prison. It sentenced Ulloa to a total term of 19 years in prison. This appeal followed.
Although appellants filed separate appeals and raise separate arguments, they have joined each other's arguments to the extent they are applicable to each other.
I
In challenging his convictions, Portillo contends there is insufficient evidence to prove he was either present at the scene when Lowe was attacked or assisted in the stabbing. He also claims his convictions should be reversed because it was not reasonably foreseeable that what started out as a fistfight would turn into a potentially deadly knife attack. We find ample evidence to support Portillo's convictions.
In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record "'in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Stuedemann (2007) 156 Cal.App.4th 1, 5.) We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"'" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Portillo contends there is "no evidence [he] was present when Lowe was stabbed." That is simply not the case. Within hours of the stabbing, Hernandez was able to positively identify both appellants as being among the group of men that confronted him outside Los Patios. Hernandez testified that following the confrontation, he saw the group of men walk over to the nearby 7-Eleven store. And then about a minute later, he saw the men fighting near the store. Asked if the men he saw fighting were the same ones that confronted him, Hernandez testified, "Yes." He also stated that following the fight, he saw the men leave in the very same car (i.e., the white Honda) he had seen them arrive in.
Frutos testified likewise. And while he could not identify appellants, he did recognize the white Honda that was in the garage where appellants were arrested. The DNA evidence also tied Portillo to the car, albeit circumstantially. To be sure, there were some inconsistencies in and between the witnesses' statements, and identification evidence is not always foolproof. But as noted above, our task is not to reweigh the evidence or second-guess the jury's credibility findings. Viewing the record as a whole, and in favor of the judgment below, there is substantial evidence Portillo was at the scene of the stabbing.
Portillo also insists that, assuming he was at the scene, there is no evidence he did anything to aid or abet the attack on Lowe. Again, he is wrong. While none of the witnesses were able to pinpoint Portillo's role in the beating, Hernandez testified all of the men he saw over by the 7-Eleven were fighting; he did not see anyone standing around watching what was going on. Lowe also testified the attack was a group effort. At least three of his assailants had knives, and while those men were doing their best to stab him, the others were beating him and holding him down. Taken together, this evidence belies Portillo's claim he was simply present during the stabbing.
So does the evidence indicating this was an orchestrated attack by Varrio Viejo members. From all appearances, the perpetrators were out to brutalize anyone they came upon in order to enhance the reputation of their gang. From the get-go at Los Patios, they were making gang signs and shouting out references to their gang. And that menacing behavior only grew worse when they confronted Lowe.
Given the totality of the circumstances surrounding the attack and the circumstantial evidence implicating Portillo as a willing participant in it, we find substantial evidence to support his convictions for attempting to murder Lowe and assaulting him with a deadly weapon. Whether based on the theory of direct culpability or aiding and abetting, there is sufficient evidence to support his convictions.
There is also sufficient evidence to support the conclusion that attempted murder and aggravated assault were a natural and probable consequence of the group's preliminary actions in assaulting Lowe. At least three of the men in the group had knives, and as explained above, the group was clearly bent on inflicting maximum damage on the victim to benefit the Varrio Viejo gang. (See People v. Medina (2009) 46 Cal.4th 913, 920 [in the context of gang activity, violent crimes may naturally and probably result from fisticuffs or simple assault].) We're inclined to agree with the gang member who kicked Lowe and told him his survival was an unlikely development ("you should be dead"). Therefore, we have no occasion to disturb Portillo's convictions for attempted murder and aggravated assault.
II
Appellants raise a number of claims related to the gang evidence. On the one hand, they claim the court admitted too much gang evidence. On the other, they claim there was not enough evidence to support the jury's findings on the street terrorism count and the gang allegations. They also maintain the court erred in allowing gang expert Rich to give his opinion on certain issues pertaining to the gang charges. None of their claims is persuasive.
A person is guilty of the crime of street terrorism if he: 1) Actively participates in a criminal street gang; 2) knows of the gang's criminal activities; and 3) willfully promotes, furthers, or assists in any felonious criminal conduct by its members. (Pen. Code, § 186.22, subd. (a).) In addition, "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," shall receive enhanced punishment "in addition and consecutive to the punishment prescribed for the felony . . . ." (§ 186.22, subd. (b).)
Unless noted otherwise, all further statutory references are to the Penal Code.
Since appellants were charged with both street terrorism and the gang enhancement, it is hardly surprising the prosecution attempted to introduce evidence of appellants' gang associations and activities. Nor was it inappropriate. Gang expert Rich provided the bulk of the evidence in this regard. He testified about the history and primary activities of Varrio Viejo, as well as the fact one of the gang's chief's rivals is an outfit out of San Clemente called Varrio Chico. He also testified about the customs and habits of criminal street gangs in general, noting that gang members generally back each other up when committing crimes and are generally aware when another member in their gang has a weapon. In addition, Rich explained that gang members earn respect by committing crimes, and the more violent the crime, the more respect the gang member, and his gang, will accrue.
In testifying about appellants' gang activities, Rich relied on information contained in their police files. That information included Field Interview (F.I.) cards, Street Enforcement Prevention Act (S.T.E.P.) notices, police reports, and photographic evidence. Based on all the information he reviewed, and in light of the circumstances of the charged offenses, Rich opined appellants were active members of Varrio Viejo at the time Lowe was attacked.
Based on a hypothetical fashioned from the facts of this case, Rich was also of the opinion the criminal acts described to him were committed for the benefit of, and in association with, Varrio Viejo. Rich said the association element was satisfied by virtue of the fact the crimes were carried out by two or more members of the gang. And as for the benefit to Varrio Viejo, Rich explained, "That gang is going into rival gang territory. They're committing a violent crime, a violent act which in turn promotes and enhances the reputation of the gang. It makes that gang seem more violent, more vicious. In return, they will be more respected by their rivals, by their fellow gang members, by members of their community, by future victims of their crimes."
Rich also opined the conduct "was done to promote, further or assist criminal conduct by Varrio Viejo gang members." "It's promoting the gang," Rich explained, "by promoting their reputation, making people less apt to cooperate with law enforcement in future criminal acts, instill fear in their rivals, people both in their rival community and their community who will learn and hear about this crime."
As noted above, appellants challenge both the admissibility and the sufficiency of the gang evidence. For the reasons we now explain, we find their arguments unpersuasive.
Ulloa contends the trial court erred in allowing Rich to opine he was an active member of Varrio Viejo and the attack on Lowe was carried out for the benefit of that gang. He claims these opinions usurped the jury's fact-finding function and amounted to improper opinion testimony that he was guilty of the charged offenses. We disagree.
"The use of expert testimony in the area of gang sociology and psychology is well established. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) Although a gang expert may not render an opinion as to what the defendant knew or was thinking on a particular occasion (In re Frank S. (2006) 141 Cal.App.4th 1192, 1999; People v. Killebrew (2002) 103 Cal.App.4th 644, 658-659), he may testify about the customary habits and general expectations of gang members when they are confronted with a specific situation. (People v. Ward (2005) 36 Cal.4th 186, 209-210; People v. Killebrew, supra, 103 Cal.App.4th at p. 658.) He may also offer his opinion on the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805; People v. Killebrew, supra, 103 Cal.App.4th at p. 651; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.)
Here, gang expert Rich did not presume to know what appellants were thinking at the time of the alleged offenses. He simply offered his opinion as to what their behavior suggested in terms of their participation in Varrio Viejo and how the attack on Lowe could be expected to benefit that gang. While Ulloa argues the jury could have decided these issues without Rich's expertise, Rich's testimony helped explained the workings of gangs in a way that was likely to assist the jury in rendering its decision. The trial court did not abuse its discretion in admitting the challenged testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620 [gang expert properly allowed to give his opinion as to whether attack on victim was gang related].)
Portillo also takes aim at the gang evidence, claiming it was "inherently prejudicial and inflammatory, as well as cumulative, and should have been excluded under Evidence Code section 352." Additionally, he argues the evidence constituted improper character evidence. His claims are not well taken.
Following a pretrial hearing on the issue, the trial court determined the prosecution could introduce statements Portillo made in connection with a change of plea he entered in 2005. After extensive discussion of the issue, the trial court ended up taking judicial notice that "on September 19th of 2005, in open court, Mr. Portillo admitted . . . he was an active participant in the Varrio Viejo gang. He also admitted on that date that he had knowledge that three or more members of that gang engaged in an ongoing pattern of criminal activity."
Portillo does not dispute the admission of this evidence, which we will refer to as his judicial admissions. However, he maintains that in light of this evidence, the court should not have admitted certain other gang evidence in the case. In particular, Portillo objects to the admission of evidence showing that, during contacts with law enforcement between 2004-2006, he admitted: 1) He has associated with Varrio Viejo since elementary school; 2) his brothers were both Varrio Viejo members; 3) he was in good standing with the gang; 4) his moniker is "Suspect"; and 5) he has been doing three or four hit-ups in the neighborhood per week, i.e, confronting people and asking them about their gang affiliation as a means of intimidation. (We will refer to this evidence as Portillo's police admissions.)
As Portillo readily admits, gang evidence "is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation — including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent . . . or other issues pertinent to guilt of the charged crime. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050.) Gang evidence is subject to exclusion under Evidence Code section 352 if its prejudicial impact substantially outweighs its probative value. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) However, for purposes of this section, "prejudicial" is not synonymous with "damaging." (People v. Karis (1988) 46 Cal.3d 612, 638.) In this context, "prejudice" refers to evidence that has an unfair or inflammatory impact on the jury. (People v. Branch (2001) 91 Cal.App.4th 274, 286.) The trial court has broad discretion determining whether the evidence in question rises to this level. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Portillo's judicial admissions may have established his active participation in Varrio Viejo and knowledge of that gang's criminal activities, but they did not prove he willfully promoted, furthered, or assisted felonious criminal conduct by gang members in this case, as was required for the charge of street terrorism. Nor did they prove the attack on Lowe was committed for the benefit of, at the direction of, or in association with Varrio Viejo members, as was required for the gang allegations. Thus, his judicial admissions did not foreclose additional gang evidence to prove these aspects of the charges.
That brings us to his police admissions. These explained more fully Portillo's deep connection to Varrio Viejo and his particular activities within the gang, e.g., doing hit-ups. Gang expert Rich testified the most common outcome of a hit-up, whereby one person challenges another about his gang status, is assault. He also said that assault is one of the primary activities of Varrio Viejo and that gang members earn respect by committing assault and other violent crimes.
This evidence was relevant to help explain Portillo's motive and intent for participating in the attack on Lowe. It was also relevant in terms of establishing how the present offenses benefited and promoted Portillo's gang. In that regard, the evidence was not cumulative of Portillo's judicial admissions. Nor was it unduly prejudicial. It might well have been damaging to Portillo's case, but it was not unfair or inflammatory, especially compared to the evidence pertaining to the charged offenses.
As for Portillo's claim that his police admissions constituted improper character evidence, the record shows the court instructed the jury 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 crimes and enhancement charged; [¶] or . . . the defendant had a motive to commit the crimes charged; [¶] or . . . the defendant acted in the heat of passion. [¶] 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." (Italics added.)
Since there is nothing in the record to suggest the jury disregarded this admonishment, we may presume it did as told and considered the gang evidence for the limited purpose for which it was offered. (People v. Garcia (1995) 41 Cal.App.4th 1832, 1849-1850.) All said, we do not believe the gang evidence amounted to improper character evidence or violated Portillo's right to a fair trial in any respect.
Turning to the final gang issue, Ulloa argues his conviction for street terrorism must be reversed for lack of substantial evidence that he: 1) Actively participated in Varrio Viejo; and 2) had knowledge of the gang's criminal activities. This claim also fails.
To establish the active participation requirement for the crime of street terrorism, the prosecution must show the defendant's "involvement with a criminal street gang . . . is more than nominal or passive." (People v. Castaneda (2000) 23 Cal.4th 743, 747.) However, it does not require proof the defendant devotes all or even a substantial part of his time and efforts to the gang. (Ibid.)In deciding whether the active participation requirement has been established in a particular case, the trier of fact may consider such factors as the defendant's prior statements and contacts with the gang, as well as his conduct in carrying out the offenses for which he is currently on trial. (Id. at p. 753.)
Regarding Ulloa's gang involvement, Rich testified Ulloa has the letter "O" tattooed on his right forearm, and the letter "C" tattooed on his left forearm. Rich said that particular letter combination represents "a common tattoo worn by Hispanic criminal street gang members in Orange County," although it is not specific to any particular gang. However, Rich testified he reviewed several F.I. cards, S.T.E.P. notices and police reports showing that on three different occasions in 2006-2007, Ulloa was contacted by the police and observed to be in the company of various Varrio Viejo members.
Based on this evidence, as well as Ulloa's participation in the charged offenses, it was Rich's expert opinion that Ulloa was an active member of Varrio Viejo. Indeed, Ulloa's conduct in assisting the brutal gang attack on Lowe shows, apart from anything else, his involvement with Varrio Viejo was more than "nominal or passive." Moreover, since Ulloa was acting in concert with Varrio Viejo members in this case, and he has kept company with them on various occasions in the past, the jury could reasonably infer he knew of the gang's criminal activities. All things considered, there is substantial evidence to support the jury's findings on the gang charges. We therefore reject Ulloa's challenge to the sufficiency of the evidence.
III
Appellants contend the prosecutor committed misconduct in closing argument by vouching for the veracity of her witnesses. We do not find that to be the case.
In speaking to the issue of witness credibility in closing argument, the prosecutor argued as follows:
"[Prosecutor]: "You ask yourself, Mr. Hernandez, Mr. Barragan, Mr. Frutos, Mr. Lowe, did you believe those people? Did they appear to you to be honest, credible people who are honestly telling you about
"[Defense Counsel]: Objection, vouching.
"[The Court]: The objection at this time is overruled. You may continue.
"[Prosecutor]: -- about events that they witnessed? Three years ago? Remember when we talked about how people see and think — see and hear things and perceive things differently? This is real life, ladies and gentlemen. If they came in here, paraded in one by one and they all had the same canned testimony, you know, at that point you should doubt, 'hmm, I wonder if they all talked and got their stories together.' But no, these people came in here honestly, honestly trying to give you three years later a recapture of what happened that night, having to refresh their memories with police reports to testify to you honestly. You make that decision. Were those people credible? And the things that they might have forgotten, were they things of importance, or were they things [that don't] really matter[?] If Mr. Hernandez had a cigarette in his mouth and it was knocked out, do you think he lied to you about that? Do you think he embellished and made that up? That's nonsense. It's probably something he remembered after the facts sitting here. What motivation does Mr. Hernandez have to come in here and lie to you?" (Italics added.)
Relying on the italicized text, Ulloa argues "the prosecutor went beyond the range of permissible argument and actually assured the jurors that her witnesses were testifying honestly and to the best of their abilities." We do not see it that way.
A prosecutor may not "vouch" for a witness's credibility by referring to evidence outside the record or putting the prestige of her office behind their testimony. (United States v. Rudberg (9th Cir. 1997) 122 F.3d 1199, 1200.) "However, so long as the prosecutor's assurances regarding the apparent honesty or reliability of the prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971.)
Here, the prosecutor did not attempt to assure the jurors of anything. Rather than vouching for her witnesses, she invited the jury to assess their credibility based on all of the relevant considerations, including the fact that three years had passed from the time of the charged offenses to the time of trial. Urging the jury not to discredit her witnesses simply because they were unable to remember certain aspects of the attack or gave conflicting testimony is not the same as vouching for their credibility. Because the prosecutor did not interject her personal opinion into the matter, we do not believe she engaged in improper vouching.
IV
Ulloa also contends the prosecutor committed prejudicial misconduct by questioning him about his postarrest silence. Again, we disagree.
While cross-examining Ulloa, the prosecutor asked the following series of questions:
"[Prosecutor]: [After being identified you] got arrested and you got taken to the police department and you talked to investigator Rich here; right?
"[Ulloa]: Yes.
"[Prosecutor]: Okay. And then when you got interviewed by him . . . you sat there and never said [anything] about going to the beach; right?
"[Defense Counsel]: Objection, compound, argumentative, 352.
"[The Court]: As phrased, sustained.
"[Prosecutor]: You never told investigator Rich about going with Henry to the beach that night?
"[Defense Counsel]: Objection, asked and answered.
"[The Court]: The objection is overruled.
"[Ulloa]: I just told him that I went in San Clemente but I was being — I was being harassed.
"[Defense Counsel]: Objection, nonresponsive.
"[Ulloa]: So I can't explain?
"[The Court]: The objection is sustained. The answer will go out. Ask your next question, please.
"[Prosecutor]: They told you that there had been a white kid that had been stabbed down in San Clemente and they wanted to talk to you about it; right?
"[Defense Counsel]: Objection, hearsay, facts not in evidence.
"[The Court]: The objection is overruled. You may answer.
"[Ulloa]: No, they were accusing me.
"[Prosecutor]: Okay. And you didn't tell them about any of this until today; right?
"[Defense Counsel]: Objection, vague."
At that point, the judge called a sidebar and told the prosecutor, "This last question is inappropriate. This last question has caused cases to be reversed on appeal. The last question is, 'you hadn't said anything until the first time today.' Everybody knows the defendant has been in custody. Everybody knows that charges have been filed. Everybody knows he has been represented by counsel. This question asks the defendant to comment [on his failure to provide certain information to the police] and it violates the Massiah rule, the Doyle rule. It is inappropriate to ask a defendant on the witness stand, 'This is the first time you've told your story?' knowing that the witness, the defendant has been in custody, knowing that charges have been filed. He has a constitutional right to keep his mouth shut between the time he's in custody. [¶] So the court is sustaining the objection. I'm ordering the prosecution not to go into that area."
When the trial resumed, the judge told the jurors, "Ladies and gentlemen, the court sustained the last question. I am also going to advise you of the following: The defendant has a right to remain silent during the time he is in custody awaiting his trial. You shall not under any circumstances consider that silence for anything."
Later, on recross-examination, the prosecutor engaged in the following exchange with Ulloa:
"[Prosecutor]: And when the police interviewed you, deputy Rich, do you recall him, asking you, 'We want to know, Mr. Ulloa, your side of the story?' Don't you remember him asking or telling you that? It was your opportunity to tell your side of the story. Do you remember that?
"[Ulloa]: He started questioning me about where I was, where I was at.
"[Prosecutor]: And you didn't tell him — the only thing you told him was that you were at Denny's at San Juan Capistrano with Hector; right?
"[Ulloa]: Yes. I told him that, but I — I can't sit and talk to someone when I'm being — you know, when I'm being harassed.
"[Prosecutor]: They weren't yelling at you?
"[Ulloa]: Yes, they were.
"[Prosecutor]: Isn't it true they were saying, 'Hey, you've been identified by a witness?' Do you remember them telling you that?
"[Ulloa]: No.
"[Prosecutor]: Okay, Well, don't you recall they said, 'We know what happened. We know you've been identified by a witness. We want to hear your side of the story?' They let you have your opportunity; right?
"[Ulloa]: Not really.
"[Prosecutor]: Okay. And the only thing you told them — you didn't tell them about being assaulted by these people. You never told them any of that; right? All you said was you were in San Clemente with Hector and you had been to the Denny's. That was about an hour's worth; right?
"[Ulloa]: Yes.
"[Prosecutor]: That's all you were able to tell them that night; right?
"[Ulloa]: Yeah, but - I had the two officers. You know, I had one, you know, like telling me, asking me, and then I had the other officer asking, 'You know you did it,' you know - I didn't - I didn't know what it is.
"[Prosecutor]: You didn't respond to that. You didn't say, 'Hey, I was a victim of an assault,' and tell your story; right?
"[Ulloa]: No, I didn't tell them.
"[Prosecutor]: And you had contact with [investigator Rich before] right? You know who he is?
"[Ulloa]: Yes, I know who he is.
"[Prosecutor]: Okay. He didn't make any threats to you, did he, Mr. Ulloa?
"[Ulloa]: No.
"[Prosecutor]: They wanted to hear what you had to say; right?
"[Ulloa]: No, I don't think so."
The law is well established. When a defendant invokes his right to remain silent in the face of custodial interrogation, the prosecution is prohibited from using the defendant's silence to impeach his testimony at trial. (Doyle v. Ohio (1976) 426 U.S. 610 (Doyle). However, if the defendant elects to speak with the police after being informed of his right against self-incrimination, then any inconsistencies between his pretrial statements and his trial testimony are appropriate grounds for impeachment. As the United States Supreme Court has explained, "Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntary speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson v. Charles (1980) 447 U.S. 404, 408.)
Here, Ulloa did not invoke his right to remain silent when informed of his right to do so. Instead, he voluntarily responded to the investigators' questions. At various points in his interview, he did say that he "did not know" what happened to Lowe and he could "not remember" what he did on the night in question, but he never invoked his right to remain silent altogether. This is a crucial point, and one that was actually brought home to Ulloa during the course of his interrogation. After Ulloa answered, "I don't know" to a series of questions about the attack on Lowe, one of the investigators told him there was a big difference between "I don't know" what happened and "I don't want to tell you" what happened.
The investigator was right. Ulloa's claims that he didn't know what happened to Lowe and could not remember how he received his head wounds were not the equivalent of his invoking his right against self-incrimination. Therefore, the prosecutor was within her rights to point out Ulloa's trial testimony was inconsistent with his statements to the police.
The problem is, the prosecutor did not make it clear in her questioning of Ulloa that she was actually trying to impeach him by virtue of this inconsistency. If she had asked Ulloa something like, "You told the investigators you couldn't remember what you did on the night in question, and now all of a sudden you do?" that would have been acceptable; it would have drawn the jury's attention to the inconsistency between Ulloa's pretrial statements and his trial testimony. However, as the trial court noted, in questioning Ulloa, the prosecutor referred more generally to his failure to tell the investigators his side of the story. Phrased in this fashion, the prosecutor's questions left it unclear whether she was trying to highlight Ulloa's failure to speak with the police, which is prohibited by Doyle, or simply trying to remind the jury that Ulloa's trial testimony was inconsistent with his pretrial statements.
However, the trial court quite clearly rectified the problem by admonishing the jurors that Ulloa had the right to remain silent during his interrogation, and they could not consider his refusal to answer questions for any purpose. "[A] Doyle violation does not occur unless the prosecutor is permitted to use a defendant's post-arrest silence against him at trial, and an objection and appropriate instruction to the jury ordinarily ensures that the defendant's silence will not be used for an impermissible purpose. [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 959.) Given the directness of the court's admonishment and the turbidity of the prosecutor's questioning on this point, we do not believe it is reasonably likely the jury considered Ulloa's postarrest silence against him. Therefore, the prosecutor's questioning is not grounds for reversal.
V
Ulloa also claims the court erred in denying his request for a continuance prior to sentencing in order to allow him to obtain substitute counsel. We cannot agree.
Ulloa was originally represented by a public defender. However, a year and a half into the case, he retained Attorney Frederick Fascenelli to take over his case. Trial did not commence for another 18 months, until mid-April 2010, and it took another three weeks after that to complete. At no time during this period, or in the first six weeks following the jury's verdict, did Ulloa ever voice any complaints with Fascenelli. However, on June 21, 2010, just four days before his sentencing hearing was scheduled to take place, Ulloa filed a letter with the court assailing Fascenelli's work.
In the letter, Ulloa stated that Fascenelli was hired by his sister and that contrary to Fascenelli's stated intentions, he failed to: 1) File a motion to suppress; 2) obtain pertinent discovery; and 3) keep Ulloa informed of what was going on in the case. Ulloa asked the court to treat his letter as a "Marsden motion" (see People v. Marsden (1970) 2 Cal.3d 118) and concluded the letter by asserting that if he had been afforded "proper representation," his "innocence would have been evident" and he would not have been convicted.
The court took up the letter with counsel at the start of the sentencing hearing on June 25, 2010. Fascenelli informed the court he had spoken to Ulloa, and Ulloa no longer wanted him to be his attorney. However, when the court asked Ulloa if he had retained another attorney, he said no. Speaking on behalf of Ulloa, Fascenelli inquired if Ulloa could have a new attorney appointed to him by the court, "or if not, if he could have an opportunity to seek out retained counsel for a few days." Fascenelli added that he thought a "short continuance to allow Mr. Ulloa to seek out [new] counsel" would be appropriate under the circumstances presented.
The court disagreed. Sensing that Ulloa's dissatisfaction with counsel was simply a case of "sour grapes," the court denied his request for new counsel on the basis a continuance would disrupt the orderly administration of justice. In so ruling, the court explained, "The court is . . . ready for sentencing. All parties have been ready. The court has expended judicial resources to get ready. The attorneys are here. And the court just has no information before it that leads the court to draw the conclusion that, one, the defendant has acted with any degree of diligence in terms of getting an attorney. And, number 2, that there are any facts to justify at this point in time a continuance to obtain new counsel."
As Ulloa correctly argues, a criminal defendant's right to discharge retained counsel lasts beyond trial and extends into the sentencing phase of his case. (People v. Munoz (2006) 138 Cal.App.4th 860.) "However, . . . a 'defendant's right to discharge his retained counsel . . . is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice" [citations].' [Citation.]" (Id. at p. 866, quoting People v. Ortiz (1990) 51 Cal.3d 975, 983.)
In Munoz, the defendant sought to discharge his retained attorney and have counsel appointed for him nine days before he was scheduled to be sentenced. Without making any findings as to whether a substitution of attorney would disrupt the orderly processes of justice, the trial court denied the request for lack of good cause. (People v. Munoz, supra, 138 Cal.App.4th at p. 865.) On appeal, we held that a showing of good cause is not required to discharge retained counsel, even during the sentencing phase of trial. (Id. at pp. 866-869.) We also determined that because the defendant's trial lasted only two days and was fairly straightforward, a new attorney would have had little trouble getting acquainted with the case and thus substitution of counsel would not have resulted in undue delay. (Id. at pp. 869-870.) Therefore, the trial court abused its discretion in denying the defendant's motion for a new attorney. (Id. at p. 870.)
However, in so finding, we cautioned, "Most trials will not be as easily reviewed as this one, so delay and public expense will often be the primary reasons for denying motions to replace counsel post trial. The defendant must always be required to justify this additional expense to the satisfaction of the trial court, and such calls will always be within its broad discretion. Delay and public expense will militate for denial and we do not envision either a spate of such motions or a plethora of successful ones." (People v. Munoz, supra, 138 Cal.App.4th at p. 868.)
In the present case, Ulloa waited over six weeks after he was convicted, and just four days before he was scheduled to be sentenced, before voicing his dissatisfaction with his attorney. Although he requested a continuance to obtain new counsel, there is nothing in the record to suggest he had taken any steps toward retaining another attorney. While he also said he would be content having a new attorney appointed to him, it would have taken considerable time for any attorney to become familiar with the case and determine whether any of the complaints Ulloa voiced with Fascenelli were legitimate. That's because, unlike the proceedings in Munoz, this case was not short and simple; it involved multiple perpetrators, defendants and witnesses and has generated a record that spans thousands of pages. Under these circumstances, it would not have been an easy task for substitute counsel to get up to speed on the case.
Considering the record as a whole, there is ample evidence to support the trial court's express finding that continuing the case to accommodate Ulloa's request to obtain substitute counsel would disrupt the orderly processes of justice. Therefore, the trial court did not abuse its discretion in denying his request.
VI
Lastly, we consider whether appellants were properly punished for both street terrorism and the felonious conduct underlying that offense, i.e., the aggravated assault on, and attempted murder of, Lowe. Appellants contend the multiple punishment prohibition in section 654 mandates that their sentences for street terrorism be stayed, and we agree.
Section 654 provides, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "Although section 654 speaks in terms of an 'act or omission,' it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.]" (People v. Meeks (2004) 123 Cal.App.4th 695, 704.) "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
Our Supreme Court is currently considering how section 654 applies in the context of the crime of street terrorism. (See People v. Mesa (2010) 186 Cal.App.4th 773, review granted Oct. 27, 2010, S185688; People v. Duarte (2010) 190 Cal.App.4th 82, review granted Feb. 24, 2011, S189174.) Because the crime requires as an elemental component "felonious criminal conduct," some intermediary courts have determined section 654 precludes punishment for both street terrorism and the underlying felony. (See, e.g., People v. Sanchez (2009) 179 Cal.App.4th 1297, 1315.) However, some courts have found section 654 inapt on the basis the mens rea for street terrorism — the intent to participate in a criminal street gang — is not inherent in the underlying felony. (See, e.g., People v. Herrera (1999) 70 Cal.App.4th 1456, 1466-1468; People v. Ferraez (2003) 112 Cal.App.4th 925, 935.) The Attorney General urges us to follow the latter decisions, but doing so does not lead to the conclusion that separate punishment was justified in this case.
According to the Attorney General, appellants harbored four separate intents and objectives: 1) To hit-up Lowe; 2) to assault him; 3) to kill him; and 4) "to demonstrate to the community at large the power and ferocity of their gang." However, the first and fourth intents and objectives were inextricably linked to the overarching objective of the attack, which was to promote/benefit appellant's gang. And in finding the gang allegations true, the jury specifically determined the assault and attempted murder were committed to benefit appellants' gang. Therefore, we find unpersuasive respondent's attempt to parse out separate intents and objectives in this case. Because the street terrorism offense and the underlying felonies were carried out against a single victim during a single criminal episode, and because the crimes were part and parcel of a core objective to promote appellants' gang, section 654 applies here to prohibit punishment on the street terrorism counts. Nevertheless, because the court imposed concurrent sentences on the street terrorism count as to both appellants, there is no need to modify the length of appellants' prison terms and no need for resentencing.
DISPOSITION
The judgments are modified to stay appellants' sentences for street terrorism in count 5. In all other respects, the judgments are affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.