Opinion
G044395
01-30-2012
THE PEOPLE, Plaintiff and Respondent, v. OIRAM ROMAN AYALA, Defendant and Appellant.
David M. McKinney, 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, William M. Wood and Gary W. Brozio, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09CF2225)
OPINION
Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.
David M. McKinney, 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, William M. Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
Alleging insufficient evidence, prosecutorial misconduct and evidentiary error, appellant Oiram Ayala challenges his convictions for murder and other crimes arising from a gang-related shooting in Santa Ana. We reject his claims and affirm the judgment.
FACTS
Appellant is a member of the Walnut Street gang in Santa Ana. Among the gang's rivals is an outfit called the Lopers. There had been several instances of violence between the two gangs before this case arose on December 17, 2006.
That afternoon, Lopers Fernando Garica, Angel Secundino, Gabriel Perez and Vanessa Diaz were walking in an alley located in Lopers territory. As they came out of the alley, a car with five or six people inside pulled up to them. The people in the car yelled out, "Fucking Lops," and Garcia's group responded by making L-shaped hand signs. Then the front passenger and at least one of the rear passengers got out of the car and walked toward Garcia's group. Garcia asked them where they were from, and they said "Walnut." Garcia responded, "This is Lopers," thinking there was going to be a fight. But then someone in the car hollered, "Shoot them already," and several shots rang out in rapid succession.
Secundino and Perez were shot in the head and died at the scene, but Garcia survived a gunshot to the stomach. While he was lying wounded on the ground after the shooting, police officers asked him if he knew who shot him. Although Garcia was bleeding badly and having trouble breathing, he responded, "Juan Roldan." When asked if he knew where Roldan was from, he made a "W" with his fingers and said "Walnut."
The police investigation revealed a semiautomatic pistol and a .38 caliber revolver were both fired at the scene. The revolver was found during a search of Roldan's house, and the pistol was found on Walnut Street member Norberto Hernandez when he was arrested.
Garcia was hospitalized for two months following the shooting. After his release, investigators interviewed him at his home on March 1, 2007. They showed him a series of photographic lineups at that time. In reviewing the lineups, Garcia identified appellant as the person who shot him and Roldan as someone who was in or near the car at the time of the shooting. He also accurately described appellant and Roldan as being approximately five feet and six feet tall, respectively. Garcia said that in addition to appellant and Roldan, Walnut Street members Norberto Hernandez and Angel Garcia were also present during in the shooting.
Witness Isais Salas also told the police that one of the people who got out of the car was only about five feet tall. However, Salas was unable to identify any of the assailants.
During the interview, the investigators noticed Garcia seemed scared and was reluctant to provide them with information. Garcia's mother, who was also present, said she feared for her son's safety. Both at the time of the interview and in the weeks that followed, she expressed concern about Garcia being identified as someone who was cooperating with the police.
Gang expert Matthew McLeod testified Roldan is a "shot caller" in Walnut Street, and higher up in the gang than appellant. McLeod said that could explain why Garcia changed his story and implicated appellant as the shooter after initially identifying Roldan at the scene. McLeod said that in his experience, it is not uncommon for witnesses to gang crimes to change their stories out of fear of retaliation.
Speaking to the culture of criminal street gangs, McLeod testified "respect is the be all and end all of their existence." He said gangs and their individual members earn respect by committing violent acts and instilling fear in others. Gang members are also expected to back each other up when committing crimes. In the case of Walnut Street, its crimes range from vandalism and car theft all the way up to murder. In fact, from 2005 to 2010, the gang was involved in no fewer than four murders that McLeod was aware of. McLeod said guns are often passed around freely in gangs, and as high-ranking members of Walnut Street, Roldan and Hernandez would be expected to be armed on most occasions.
As for the particular shooting in this case, McLeod opined it would benefit appellant's gang in two ways. First, it would instill fear in the Lopers by letting them know Walnut Street members were brazen enough to attack them in their own territory during daylight hours. And second, as a simple mathematical proposition, it would reduce the number of Lopers available to fight against Walnut Street.
In his defense, appellant presented testimony from Loper member Vanessa Diaz, who was with the victims at the time of shooting. According to Diaz, two bandana-wearing gunmen got out of the car when it approached her group. She recognized Angel Garcia as one of the men. No words were exchanged, but Secundino did lift up his shirt, revealing a Lopers tattoo to the gunmen. Then Angel shot Secundino and Perez.
Appellant and Roldan were charged with murdering Secundino and Perez in the first degree and attempting to murder Garcia. They were also charged with street terrorism and various gang and gun-related allegations. In their first trial, the jury deadlocked on these charges and the court declared a mistrial. Appellant and Roldan were then retried on the same charges. The jury in the second trial found them guilty as charged, and the court sentenced them to life in prison without the possibility of parole. This appeal followed.
I
The prosecution theorized appellant was guilty as either the perpetrator of the crimes or as an aider and abettor. Its aiding and abetting theory was predicated on the notion appellant either assisted the shooter with the intent to kill, or murder and attempted murder were a natural and probable consequence of the target crimes of challenging someone to fight and disturbing the peace. Appellant argues there is insufficient evidentiary support for the natural and probable consequences theory, but we disagree.
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.)
"[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261.) "For a criminal act to be a . . . 'natural and probable' consequence of another criminal design it is not necessary that the . . . act be specifically planned or agreed upon, nor even that it be substantially certain to result from the commission of the" target crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530-531.) Rather, the criminal act need only be a reasonably foreseeable consequence of the targeted offense. (Ibid.)
As our Supreme Court explained in People v. Medina (2009) 46 Cal.4th 913 (Medina), "'[T]o be reasonably foreseeable, "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . ." [Citation.]' [Citation.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury. [Citations.]" (Id. at p. 920.)
Relying on Medina, appellant agues murder and attempted murder were not reasonably foreseeable consequences of his actions in challenging the Lopers to fight and disturbing the peace. The Medina case arose from a chance meeting between the three defendants and the victim at the home of mutual friend Manuel Ordenes. The defendants had been partying with Ordenes when the victim arrived at the house to pick up a CD. The defendants asked the victim where he was from, and when he answered with the name of a gang to which defendants did not belong, they attacked him and tried to beat him up. However, the victim held his own during the fight, and it was soon broken up by Ordenes. After the victim and his girlfriend got in their car to leave, someone yelled out "get the heat." Moments later, one of the defendants walked into the street with a gun and fired several shots at the victim's car. One of the shots struck the victim in the head, killing him. (Medina, supra, 46 Cal.4th at pp. 916-917.)
Convicted of murder and attempted murder under the natural and probable consequences doctrine, the two nonshooting defendants argued there was insufficient evidence those crimes were a reasonably foreseeable consequence of the simple assault which preceded the shooting. However, our Supreme Court disagreed. Writing for the majority, Justice Chin stated it was not dispositive that the initial fight was unplanned, the defendants' and the victim's gangs were not known rivals, or the defendants may not have known about the gun. Given the violent nature of defendants' gang, their challenge to the victim (by asking him where he was from), and the victim's resistance during the initial fistfight, a rational jury could find "escalation of the confrontation to a deadly level was reasonably foreseeable as [the victim] was retreating from the scene." (Medina, supra, 46 Cal.4th at pp. 927-928.)
Appellant argues the crucial fact which made the shooting reasonably foreseeable in Medina was that the victim successfully defended the defendants' initial assault. However, as explained, the court relied on several factors in upholding the defendants' convictions. The court also emphasized that the lack of any one particular factual circumstance is not dispositive of the forseeability issue. (Medina, supra, 46 Cal.4th at pp. 921-922.) Rather than relying on isolated bits of evidence or particular evidentiary gaps, a reviewing court must examine the "whole record in the light most favorable to the prosecution" in determining whether there is sufficient evidence to uphold the jury's findings. (Id. at p. 922, italics added.)
Based on the entire record in this case, there is substantial evidence murder and attempted murder were a natural and probable consequence of appellant's actions in challenging the victims to fight and disturbing the peace. Walnut Street and the Lopers are rival gangs, and there had been several instances of violence between them before the instant case arose. Walnut Street was also known for committing violent crimes, such as murder. As the gang expert explained, that is how gangs achieve respect, which is the "be all and end all of their existence." By traveling into Loper territory and calling the victims "fucking Lops," appellant and his fellow Walnut Street members created a situation extremely dangerous to human life. Moreover, like the victim in Medina, Garcia and his friends refused to back down when they were initially confronted. Instead, they challenged appellant's gang by asking them where they were from and defiantly proclaiming, "This is Lopers."
Under these circumstances "the jury could reasonably have found [appellant] would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable[.]" (Medina, supra, 46 Cal.4th at pp. 927-928.) In fact, as the two sides were exchanging challenges, someone in appellant's gang hollered out, "Shoot them already." Garcia may have been hoping appellant's gang was just out to fight, but this statement shows just how quickly things can escalate in a gang setting. It also shows that gang members will only take so much in the way of resistance before they will resort to extreme violence to assert themselves over a rival gang. All things considered, there is substantial evidence murder and attempted murder were a natural and probable consequence of appellant's actions in disturbing the peace and challenging the Lopers to fight.
Relying on the same arguments, appellant also contends there was insufficient evidence for the court to instruct the jury on the natural and probable consequences theory. However, because we conclude substantial evidence supports appellant's convictions under that theory, we necessarily reject this claim. (People v. D'Arcy (2010) 48 Cal.4th 257, 294.)
Lastly, we note that even if there were insufficient evidence to support appellant's convictions under the natural and probable consequences theory, reversal would not be required because that was only one of three factual theories of guilt submitted to the jury. Appellant does not dispute there is substantial evidence to support his convictions under the theories he perpetrated the charged offenses or aided and abetted in their commission. And although the prosecutor downplayed the perpetrator theory in closing argument, there is nothing in the record to suggest the jury relied on the natural and probable consequences theory in reaching its verdict. Therefore, we would affirm appellant's convictions despite the evidentiary strength of that theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [absent an affirmative indication to the contrary, reviewing court must assume the jury based its verdict on the factual theory or theories that are supported by substantial evidence].)
II
Appellant also contends the prosecutor committed prejudicial misconduct in her closing argument. Again, we disagree.
During appellant's first trial, Walnut Street member Miguel Olivo testified that following the shooting, appellant called him up and said his group had taken out some Lopers. The prosecutor intended to call Olivo at appellant's second trial, as well. In fact, during her opening statement, the prosecutor told the jury she would be calling Olivo to testify about appellant's incriminating post-shooting statements. However, during the trial, the court ruled Olivo's testimony was inadmissible.
At the outset of her closing argument, the prosecutor attempted to deal with the fact she had promised to introduce evidence that was never admitted during the trial. She said, "I'm also mindful that when I spoke to you in opening statement that I talked to you about things like phone records and a witness named Miguel Olivo who would come in and talk about . . . things that you did not see. I need to just let you know that this is the judge's courtroom, it's not my courtroom, he makes those decisions about what comes in before you, and I just didn't want you to think that I represented something to you that isn't true, because this is the judge's courtroom and he decides what you hear."
Defense counsel did not object to these remarks. However, afterwards, during a bench conference with counsel, the court expressed concern they may have been improper inasmuch as they suggested the prosecutor had additional evidence of appellant's guilt that the judge did not allow her to present. The judge instructed the prosecutor to remedy the implication in her rebuttal argument, and to that end, the prosecutor made the following remarks in her final closing argument to the jury:
"[E]verything that you're to consider, you heard in this courtroom, from the witness box or from the exhibits. Don't be speculating about things you didn't hear about, that you don't know about, that didn't come before you. You heard an awful lot about prior testimony, for example, but you haven't heard everything about that. So you take what you've been given here in this courtroom, and don't speculate, don't use anything else. That's what you're to decide the case on."
When the prosecutor finished her rebuttal, appellant's attorney argued to the court that she did not go far enough in terms of remedying the implication of her initial closing remarks concerning Olivo. In contemplating the claim, the court suggested it might be best to just leave the issue alone, rather than draw further attention to it. And in the end, that's what appellant's attorney decided to do; he did not request any special jury instructions regarding the issue.
On appeal, appellant renews his claim the prosecutor committed misconduct by implying she had additional evidence of his guilt. The Attorney General argues appellant waived his right to complain about the prosecutor's remarks, because he did not object to them when made. However, the waiver rule is intended for situations where the failure to object results in an inadequate record or the opposing party is denied the opportunity to respond to the alleged error. (People v. Scott (1994) 9 Cal.4th 331, 355; People v. Garcia (2010) 185 Cal.App.4th 1203, 1214.) In this case, the court brought the issue of possible misconduct to the parties' attention and gave them ample opportunity to address it. Thus, those concerns do not exist. And although defense counsel did not request any special curative jury instructions to address the alleged misconduct, that was, as the trial court suggested, a reasonable tactical decision under the circumstances presented. As such, we will proceed to the merits.
For his part, the Attorney General claims the prosecutor was within her rights in telling the jury that the court prevented her from admitting Olivo's testimony. We agree there was nothing wrong with that. Indeed, had the prosecutor done only that, it would have been sufficient to explain why she was unable to deliver certain evidence she promised the jury in opening argument. The problem is, the prosecutor went beyond that and told the jury that just because the evidence was not presented, that does not mean it was not true. This suggested that the evidence was true and that appellant did in fact make incriminating statements to Olivo following the shooting. By referring to incriminating evidence the court had deemed inadmissible and suggesting it was true, we believe the prosecutor went too far in terms of explaining why the evidence was not presented in the first place. (People v. Crew (2003) 31 Cal.4th 822, 839.) And while there is no indication the prosecutor acted in bad faith, that has no bearing on the ultimate question of whether prejudicial misconduct occurred. (Ibid.)
Still, not every improper implication in closing argument constitutes prejudicial misconduct. In order to prevail on a claim of prosecutorial misconduct, "the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
Here, there is good reason to believe that, despite the prosecutor's misstep, the jury did not consider any evidence that was not actually adduced at trial. In her final closing argument, the prosecutor told the jurors in no uncertain terms they were only allowed to consider the evidence that was presented at trial, and they could not speculate about matters that were not presented. Even though the prosecutor did not specifically reference the statements appellant made to Olivo following the shooting, the court and the parties agreed this was preferable to drawing any additional attention to those statements.
Also, at the outset of closing arguments, the court cautioned the jury that what the attorneys say in their arguments "is not evidence. In other words, if the item that is referred to is something that was not testified to or not stipulated [to] or not part of a document, then that evidence does not exist." (Italics added.) The court reiterated this point in its final instructions to the jurors. It also told them that if, at any stage of the trial, the attorneys said anything that conflicts with the court's instructions, the instructions control and must be followed.
There is nothing in the record to suggest the jurors ignored the court's instructions. Therefore, we may rightly presume they did as told and disregarded the prosecutor's reference to appellant's statements to Olivo, since they were never admitted into evidence. (People v. Osband (1996) 13 Cal.4th 622, 718-719; People v. Pinholster (1992) 1 Cal.4th 865, 919, overruled on another point in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.) Considering everything the jurors were told, it is not reasonably likely they construed or applied the complained of statements in an improper manner. Accordingly, appellant cannot prevail on his claim of prosecutorial misconduct.
III
Lastly, appellant contends the court erred in admitting a photograph of him holding a gun. We find no abuse of discretion in the court's decision to admit the photo.
The prosecution's gang expert testified the photo was seized pursuant to a search warrant executed at appellant's house the day after the shooting. Judging from an April 2006 date that appears on the back of the photo, the expert surmised it was likely taken about eight months before the shooting. The photo depicts appellant in the center of a group of men, including Marco Perez, whose father was the registered owner of the car used in the shooting. Appellant is shown making a gang sign with one hand and holding what appears to be a pistol in the other.
At trial, appellant's attorney sought to have the photo excluded under Evidence Code section 352. He argued there is "no purpose to [the photo] other than to inflame the jury. It becomes character evidence, look at these guys showing gang signs. They admitted by stipulation they are gang members. There is no relevance. It's cumulative to show them flashing gang signs or posing in a picture with what could be a replica or real handgun." However, the court allowed the prosecution to admit the photo into evidence. Appellant contends this was error, but we disagree.
Evidence Code section 352 allows for the exclusion of evidence if its probative value is substantially outweighed by the probability its admission would cause undue prejudice, confusion or delay. This section gives the trial court broad discretion to admit or exclude evidence, and its decision to do so will not be disturbed unless it is arbitrary, capricious or patently absurd. (People v. Kelly (2007) 42 Cal.4th 763, 783.)
Although appellant stipulated he was a member of Walnut Street, the relevancy of the photo was not limited to that issue. The photo also connected appellant to the alleged crimes by showing his close relationship to Perez, whose father was the registered owner of the car used in the shooting. And although gang and gun evidence always has the potential to prejudice the accused, the facts of this case were steeped in gang and gun violence. We do not believe a photo of appellant holding a gun was likely to invoke a unique emotional bias against him. Therefore, the court's decision to admit the photo was not an abuse of discretion.
Appellant also assails the court for not explaining its reasons for admitting the photo. However, an express, on-the-record assessment of the pertinent factors is not required. (People v. Catlin (2001) 26 Cal.4th 81, 122.) Rather, it is sufficient if the record shows the trial court understood and fulfilled its responsibility under Evidence Code section 352, which is simply to weigh the probative value of the proffered evidence against its potential prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 214.)
Such is the case here. Appellant's attorney made a lengthy and detailed objection to the photograph under Evidence Code section 352, and it was quite clear from his remarks that he felt the prejudicial impact of the photo outweighed it probative value. Under these circumstances, we may infer the court engaged in the requisite weighing process and made an informed decision to admit the photo. (People v. Padilla (1995) 11 Cal.4th 891, 924.) There is no basis to disturb that decision on appeal.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.