Opinion
F072499
03-20-2017
In re Angel M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGEL M., Defendant and Appellant.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. JJD068760)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
The juvenile court found that appellant/defendant Angel M. (Angel) assaulted Jose P. (Jose) and his mother with a firearm during a drive-by shooting. After the incident, Jose identified Angel as the shooter to law enforcement. However, at trial, Jose claimed he did not remember whether Angel was the shooter. In fact, Jose responded that he did not remember the vast majority of questions posed to him at trial. However, his prior identification of Angel was brought into evidence by the testimony of law enforcement officers recalling their prior conversations with Jose. After all the evidence had been presented, the juvenile court found true the allegations that Angel had committed two counts of assault with a firearm.
Angel contends that Jose's recalcitrance prevented Angel from being able to meaningfully cross-examine him. As a result, he argues the evidence of Jose's prior statements should have been stricken to protect his Confrontation Clause rights. Without Jose's prior statements, Angel submits there is insufficient evidence to support the true findings.
He also contends that there was insufficient evidence to support the juvenile court's finding that the assaults were gang-related under Penal Code section 186.22, subdivision (b)(1).
All further statutory references are to the Penal Code unless otherwise stated.
We disagree with these contentions and affirm.
BACKGROUND
On March 27, 2015, the Tulare County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that on March 18, 2015, appellant/defendant Angel, had committed two counts of attempted murder (§§ 664/187, subd. (a) - counts 1 & 2); two counts of assault with a firearm (§ 245, subd. (a)(2) - counts 3 & 4); and two counts of shooting at an inhabited dwelling (§ 246 - counts 5 & 6). The petition further alleged that each offense was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent of promoting, furthering and assisting in criminal conduct by gang members (§ 186.22, subd. (b)(1)); and that in the commission of each offense, Angel personally used a firearm (§ 12022.5, subd. (a)).
The court found counts 3 and 4 true beyond a reasonable doubt, along with their respective gang enhancement allegations (§ 186.22, subd. (b)(1)) and firearm use enhancement allegations (§ 12022.5, subd. (a).) The court found counts 1, 2, 5, and 6, and their respective enhancement allegations to be not true.
The court ordered Angel's maximum time of confinement to be 15 years, less 177 days credit for time served. Angel appealed.
FACTS
Prior Incident
On March 2, 2015, at around 3:45 p.m., Sheriff's Deputy Justin Pipkin was dispatched to a residence where Jose resides. Pipkin believed Jose was 15 or 16 years old.
According to Deputy Pipkin, Jose said he had been riding his bicycle through an alleyway behind his residence when he was chased by defendant Angel and someone named "Art." Jose tried to escape but was hit by a vehicle. Jose saw two Hispanic males inside the vehicle, and the driver was wearing a red shirt. After he was struck by the car, Jose saw defendant Angel and Art approach him, then run away.
Drive-By Shooting
On March 18, 2015, Jose called 911. Sheriff's Deputy Brandee Robinson was dispatched to Jose's residence on reports of shots being fired. According to Robinson, Jose said that while he was washing a car with his mother nearby, a vehicle drove past his driveway and then reversed into a nearby alleyway. The passenger of the car then "opened fire" on him, firing five shots. Jose identified the shooter as defendant Angel.
Jose's mother was called as a witness at trial. Except for identifying herself and her address, and saying she had not been threatened, she answered all other questions by saying she did not remember, did not know, and did not want to answer any questions.
Jose testified he did not remember what he had told Deputy Robinson. Jose responded that he did not remember too many of the questions posed to him at trial.
Jose's Interview With Detective De La Cruz
Detective David De La Cruz interviewed Jose on March 25, 2015. Jose said he had been outside with his mother, washing his brother's car when he saw a vehicle in the alley behind his yard. The vehicle went past a rear driveway and then reversed. Angel "stuck his head out and started shooting" a black revolver at Jose and his mother. Jose said he recognized Angel from elementary and high school. Jose said he knew Angel was a Northern gang member.
Detective De La Cruz testified he "believed" the interview occurred on March 25.
Jose said that one time, Angel had come to his home and "pretty much tried to call him out on a fight but due to [Jose's] father coming out [Angel] walked away."
After the interview, Jose observed Angel through a one-way mirror and identified him as the shooter.
Angel's Interrogation
Angel denied involvement in the drive-by shooting, but admitted knowing Jose from middle school. Angel said Jose was a Southern gang member. Angel had seen Jose show his affiliation with Southern gang members in a social media account.
Detective De La Cruz did not find any comments, art, photos, poses, or gang signs "with regards to Southside or Southern gangs" on Jose's Facebook account.
Angel admitted to Detective De La Cruz that he was a Northern gang member. Angel said he had become a gang member on his 13th birthday. When he was arrested, Angel had a tattoo with the Roman numeral "X" on his right hand, and the number "4" on his left hand. De La Cruz explained that the "X" and the "4" referred to the number 14, which is a common symbol for Northern gang members. Angel said the tattoos reflected his gang membership. Angel also had the letters "B" and "S" tattooed on adjacent fingers of his left hand. Angel said the letters stood for "Barrio" and "Strathmore." Angel also had the letters "BSN" tattooed on his right arm. Angel said the letters stood for "Barrio Strathmore Norte." On one of his fingers, Angel had a tattoo reading "187," which refers to the California Penal Code section that describes murder.
Detective De La Cruz's Gang Testimony
Detective De La Cruz testified that Southern and Northern gang members are rivals. If a Northern gang member sees a Southern gang member (or vice-versa), they are "supposed to go ahead and assault that rival gang member whether it's shooting, fighting, assault with a deadly weapon, it doesn't matter. Not doing so, it's not showing your loyalty, allegiance to that gang cause."
Detective De La Cruz also offered expert testimony concerning gang-relatedness. The prosecutor asked, "Hypothetically speaking, Detective, say that a gang member doesn't like somebody, drives up to that person's house and shoots at that person and whoever happens to be nearby, would a driveby shooting like that, would that help promote a criminal street gang?" De La Cruz testified that such a crime would promote a criminal street gang because it "shows the victims, the witnesses, people in the neighborhood that person is someone to be feared []. It benefits the gang. Just showing that this gang means business and, you know, it's willing to commit these types of crimes if necessary if people don't go by what they say or, you know, what they want them to do."
Detective De La Cruz also testified as to the colors, numbers, letters, gestures, and predicate offenses of the Norteño gang.
The prosecutor began a follow-up question to which Angel's counsel objected as not fitting the facts of the case. The court sustained the objection. Later, the prosecutor resumed questioning based on the hypothetical without objection.
The prosecutor later asked, "Now, this hypothetical drive-by shooting, the person who pulls the trigger, is it fair to say the person who pulls the trigger, that that person intended to promote[,] further or assist his gang, is that a reasonable inference?" Detective De La Cruz testified that such an inference is reasonable "[b]ecause someone who pulls a trigger, as part of his own gang, they look at him as someone to look up to or someone that's going to move up in the ranks, someone they know that will actually go out there and put in work for the gang cause."
Facebook Evidence
Defendant's counsel showed Detective De La Cruz a set of "photographs", exhibits A through G. De La Cruz testified the photographs "appear" to depict "southern gang members posing, throwing some gang signs, along with friends listed on Facebook." The individuals depicted appeared to be members of the Porterville "SLS" (a.k.a. Sureño Lifestyle) gang. An individual named Tony Bravo appeared on the "friends list" of the account from which the pictures were taken.
The exhibits actually appear to be printouts of Facebook pages.
Defendant's counsel then showed Detective De La Cruz a second set of exhibits, exhibits H through N. The exhibits contained pictures of Jose associated with a particular Facebook account. The account was titled "Loco [P.] ([Jose])." Photographs posted on the account's page showed some items indicating southern gang association. There was a blue marijuana leaf and a woman in a blue bikini. There was also a photograph of two people, who appeared to be southern gang members, "flashing" signs related to Porterville SLS. Jose commented on the photo: "U all ready kno dogg."
Defendant's counsel then showed Detective De La Cruz a third set of documents, exhibits O through U. Exhibit O identified a Facebook account titled "Tony Bravo." The Tony Bravo account had the same pictures from the "Loco [P.]" account.
Defense Case
Samuel Ruiz (Ruiz) testified for the defense. At the time of trial, Ruiz was engaged to Angel's sister, and they had a child together. Ruiz knew Angel affiliated with "The Northerners."
Ruiz lived in Strathmore with his mother. On the afternoon of March 18, 2015, Ruiz and Angel were "hanging out" on Ruiz's front porch when they heard gunshots. Ruiz testified the sound of the gunshots came from the direction of Jose's house. Ruiz's mother, Renay Frias, was nervous and told them to come inside.
Ruiz saw Jose do things that lead him to believe he's a "Southerner." Jose would walk around the mall with "blue rags" and would be "[d]oing three's at people."
Detective De La Cruz testified that hand signs showing the number "three" are indicative of the Sureño street gang.
Renay Frias echoed Ruiz's account. She also testified that Norteños would often "hang out" at her house. Ruiz recalled that one day, Jose walked by her house and made gang signs, prompting the Norteño "boys" at her house to yell.
Marcia Segura testified as a social worker with the Tulare County Public Defender's Office. The court accepted her as an expert in the general field of psychosocial evaluations. Segura testified that how someone acts in an interrogation setting depends on certain factors including how they were raised, their age, and their environment. Segura would not "necessarily read anything into" the body language of someone being interviewed.
DISCUSSION
I. The Confrontation Clause Did not Require the Court to Strike Evidence of Jose's Prior Statements
Angel argues on appeal that Jose's prior statements should have been "stricken" because he had no "meaningful opportunity to cross-examine Jose." Angel further contends that without the evidence of Jose's prior statements, there is insufficient evidence to support the convictions.
Background
At trial, Jose frequently responded to questions from the prosecution and defense by claiming he did not remember. His purported forgetfulness extended to crucial questions such as, "And isn't it true that this person you identified as Angel was actually holding a black revolver?" and "Didn't you tell the female police officer that Angel fired six times?"
Jose's identification of Angel as the shooter in the weeks following the incident were brought into evidence through the testimony of law enforcement officers who recounted their conversations with Jose.
Jose did offer substantive responses to some questions. Jose testified that he told Deputy Robinson he was washing his brother's vehicle in his driveway. Jose also answered questions concerning whether he was concerned something would happen to his family if he testified; whether law enforcement had responded to the 911 call; whether he had spoken with a detective about a week later at his home; whether he was a Northern gang member; whether he had been previously struck by a car in the alley; and whether he knew Angel from Strathmore High School.
Jose claimed he was not concerned something would happen if he testified. --------
During cross-examination by defendant's counsel, Jose testified that he does not associate with gangs and does not ever "hang out" with gang members. He also testified that he was being honest in saying he did not remember the "day in question."
Eventually, defendant's counsel asked, "Would you be able to answer any of my questions about that day in question? About the shooting?" Jose responded, "I'm telling you, I don't remember."
Analysis
A. Confrontation Clause
"The Sixth Amendment guarantees the right of an accused in a criminal prosecution ' "to be confronted with the witnesses against him." ' [Citation.] 'The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, [citation], "means more than being allowed to confront the witness physically." [Citation.] Indeed, " '[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.' " [Citation.]' [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 263-264, original italics.)
"Although the confrontation clause ' "guarantees ... 'an opportunity for effective cross-examination,' " ' it does not entitle defendants to ' " 'cross-examination that is effective in whatever way, and to whatever extent, [they] might wish.' " ' [Citation.] In particular, it ' "includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." ' [Citations.]" (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 965, italics added.)
Here, defendant had a full opportunity to cross-examine Jose. Defendant's counsel was permitted to ask questions and availed himself of the opportunity. While Jose's responses were "marred by forgetfulness ... or evasion" (United States v. Owens (1988) 484 U.S. 554, 558), he was still "subject to cross-examination, providing [the finder of fact] with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement's credibility." (People v. Gunder (2007) 151 Cal.App.4th 412, 420 (Gunder).) In sum, "[t]he circumstances of feigned memory loss is not parallel to an entire refusal to testify." (Ibid.) The fact that a witness has provided evasive or forgetful testimony does not establish a Confrontation Clause violation. (See United States v. Owens, supra, 484 U.S. at p. 558-560; Gunder, supra, 151 Cal.App.4th at pp. 419-420.)
1. Jose's Later Invocation of the Fifth Amendment Does Not Alter This Conclusion
After his initial testimony, Jose was later recalled to the stand because defense counsel intended to question him about the Facebook exhibits discussed by Detective De La Cruz on cross-examination.
When recalled, Jose invoked his Fifth Amendment right not to testify.
Defense counsel informed the court that he met with Jose before he was recalled to the stand. During that conversation, Jose admitted to defense counsel that the Loco Prado and Tony Bravo Facebook pages were his.
Defendant filed a motion to strike Jose's testimony "or in the alternative allow the inconsistent statements made by him into evidence." The prosecution offered to stipulate that defense counsel's account of Jose's statements could be admitted into evidence. The court admitted defense counsel's account of Jose's statements into evidence. Defense counsel then "release[d]" Jose from his subpoena saying, "We no longer need him as a witness."
On appeal, Angel argues that he "never really had a meaningful opportunity to cross-examine Jose ... especially after he invoked his Fifth amendment right not to testify ...." (Italics added.) But, again, the Confrontation Clause only guarantees an opportunity for cross-examination. Angel does not explain how Jose's invocation of the Fifth Amendment upon recall could render the prior opportunity for cross-examination inadequate. When Jose was first called to the stand, defense counsel had the opportunity to cross-examine him as to his pretrial identifications of Angel. That such questioning did not yield the desired results does not establish a Confrontation Clause violation.
B. Substantial Evidence
Because the court did not violate the Confrontation Clause by not striking evidence of Jose's prior statements to law enforcement, we will consider them in determining whether substantial evidence supported the true findings.
"When assessing a challenge to the sufficiency of the evidence supporting a true finding, we apply the substantial evidence standard of review, under which we view the evidence 'in the light most favorable to the judgment below 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.] We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citation.]" (In re M.H. (2016) 1 Cal.App.5th 699, 706.)
Jose identified Angel as the shooter to law enforcement by name and by visual identification through a one-way mirror. The fact that Jose's trial testimony undermined his own prior identifications does not mean the prior identifications cannot constitute substantial evidence. "[A] testifying witness's out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 480; see, e.g., People v. Cuevas (1995) 12 Cal.4th 252, 276-277.) "Indeed, 'an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification: "[T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. [Citations.] ..." [Citations.]' [Citation.]" (Boyer, supra, 38 Cal.4th at p. 480.)
Consequently, we conclude that Jose's out-of-court identifications constitute sufficient evidence to support the juvenile court's findings.
II. Sufficient Evidence Supported the Court's True Finding on the Gang Enhancements
Section 186.22, subdivision (b)(1) imposes a sentence enhancement when a felony is found to have been "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 ...." (§ 186.22, subd. (b)(1).)
Angel contends there was "no evidence" that he had the specific intent to promote or engage in criminal conduct for the benefit of a gang. Angel offers little substantive argument on this issue other than to note that he did not make "gang slurs" during the crime, and neither the shooter nor the driver were wearing gang clothing.
It is true that there was no evidence of gang slurs or clothing. But there was other evidence the crime was gang related. Renay Frias testified that her sons and defendant Angel were at her house on the day of the shooting. She also testified that "[t]he boys that hang out at my house are Nortenos, gang-related Northerner boys." She recounted a prior incident where "the boys were on the side of the house because they usually just hang out outside, on the side of my house. [Jose] ... was walking by the house and he was in the corner, and I heard the boys yelling. And I, at that time, looked out the window to see what was going on and they were yelling at him. And I started yelling at them to cut it out because I told them I didn't want that stuff around my house. [¶] And he - I kind of glanced over to see who they were looking at, and it was - [Jose] was standing in the corner doing gang signs." Jose was "throwing up a 13," which is associated with the Sureño gang, a rival of defendant's Norteño gang.
Consequently, not only was there gang expert testimony that Norteños generally dislike Sureños, there was evidence that the specific Norteños in defendant's circle of associates had at least one prior run-in with the victim of defendant's subsequent crimes, who himself engaged in behavior indicating he was a member of a rival gang. Sometime afterwards, Angel (an admitted Norteño) opened fire on Jose, whom he believed to be a Sureño. It is a reasonable inference that the drive-by was committed as a result of the gang rivalry. This inference is strengthened by the gang expert's testimony that if a northern gang member sees a southern gang member (or vice-versa), they are "supposed to go ahead and assault that rival gang member whether it's shooting, fighting, assault with a deadly weapon, it doesn't matter. Not doing so, it's not showing your loyalty, allegiance to that gang cause."
While it remains conceivable - if unlikely - that Angel's assault was unrelated to the gang rivalry issue, when finders of fact are presented with competing inferences on gang-relatedness, they are entitled to conclude the crimes were gang related. (People v. Albillar (2010) 51 Cal.4th 47, 62.) In other words, since the conclusion drawn by the finder of fact was supported by substantial evidence, the fact that " ' "circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Reilly (1970) 3 Cal.3d 421, 425.)
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
KANE, Acting P.J. /s/_________
FRANSON, J.