Opinion
E043359
2-24-2009
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO MARTINEZ BERRERA, Defendant and Appellant.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant was convicted by a jury of robbery (Pen. Code, § 211), committed for the benefit of a gang (Pen. Code, § 186.22, subd. (b)), as well as the substantive offense of being an active participant in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) He appeals his convictions arguing: (1) the trial court erred in admitting evidence of defendants admissions of gang affiliation, made during the booking interview; (2) the trial court erred in allowing the prosecutions gang expert to give an opinion that the robbery was committed for the benefit of the gang; and (3) there is insufficient evidence to support the convictions. We affirm.
BACKGROUND
On September 7, 2006, a 16-year-old male (the victim) walked home from school with some friends, taking a route through a public park. While walking through the park, the victim heard a voice behind him say, "I want to talk to you," and "Come over here." The victim turned and saw two men, one of whom, the defendant, the victim recognized and knew as "El Negro." The victim had seen El Negro on prior occasions because he had dated El Negros niece. The victim identified the defendant as El Negro.
When the victim told the men he did not want to talk to them, he was struck. The victim was not sure which man struck him first, but after one of the men struck the victim in the back of the head, the defendant struck the victim several times in the face, causing the victim to fall to the ground. After the victim fell to the ground, defendant continued to hit and kick him. As he was being struck, the victim grabbed defendants hand in an effort to stop defendant from striking him. The second man also socked the victim in the face and eye. With his free hand, defendant grabbed the victims gold necklace chain and ripped it off. Then defendant and his associate ran.
When the victim arrived at his home, his mother called the police; the victim told Officer Lopez his gold chain had been taken and that El Negro was one of the assailants. The officer recognized the nickname El Negro, and knew it to be defendants moniker based on several prior contacts with defendant. The officer had contacted defendant more than once in the same public park where the victim was attacked. On both occasions, defendant claimed to be a member of the Eastside Riva (ESR) street gang. The officer then located defendant, who has ESR tattoos on his body, detained and patted down the defendant, finding a broken gold necklace in the defendants pants pocket.
While being booked into custody following his arrest, the correctional deputy, Deputy Valdivia, conducted a classification interview of defendant to determine where defendant should be housed, to determine any health problems, medication needs, risk of suicide, and to avoid housing rival gang members together. The deputy asked defendant what gang he ran with and defendant indicated he ran with Eastside Riva. Defendant also displayed his tattoos to the deputy. The deputy asked defendant if he had a moniker, and defendant said his moniker was "Negro."
Defendant was charged with robbery (Pen. Code, § 211, count 1), committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and with active participation in a criminal street gang. (Pen. Code, § 186.22, subd.(a), count 2.) At trial, Detective Miera, a gang expert, testified that Eastside Riva is a criminal street gang, and defendant is an active participant in that gang. His opinion was based on (1) his own personal contacts with defendant where defendant admitted being a member of ESR on at least one occasion, (2) the reports of Officer Lopezs contacts with defendant, (3) the statements made by defendant during the booking interview, and (4) the ESR tattoo on defendants stomach that was not present in 2000.
In Detective Mieras opinion, if an admitted ESR member punched and kicked a 16-year-old boy and stole the boys necklace as the boy walked through a park in the presence of bystanders, the robbery was committed for the benefit of ESR. Specifically, the gang would benefit because the presence of witnesses to the brazen attack would reverberate in the community, instilling fear, and thus assist the gang in future crimes. It would benefit the individual gang member both financially, and by bolstering his reputation within the gang.
The jury convicted defendant of both counts and found the gang enhancement allegation to be true. The court sentenced defendant to an aggregate term of 14 years in prison, and defendant appealed.
DISCUSSION
1. There was no error in admitting statements by defendant regarding his gang affiliation during a booking interview, where the interview was reasonably contemporaneous with defendants earlier waiver of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Defendant made a motion in limine to exclude statements made about his gang membership during his booking (or jail classification) interview. There was initially a question about the timing of defendants arrest and custodial interview, and the subsequent booking interview. However, no evidentiary hearing was held (Evid. Code, § 402, subd. (b)) because defendant later indicated he did not dispute the facts he had been arrested at 6:30 p.m., transported to the station, Mirandized, and by 11:00 p.m., his responses to the booking interview were inputted into the computer. The trial court ruled that the passage of time was not long enough to make the statements made during the booking interview non-contemporaneous with his earlier waiver of the rights to remain silent. The court also ruled the defendant was permitted to cross-examine the officer as to what was actually said, which was agreeable to the defense.
Defendant claims the court erroneously overruled his objection to the introduction of statements he made during the booking interview relating to his gang membership. We disagree.
It is well established that a suspect may not be subjected to interrogation while in custody unless he has been advised of, and has knowingly and intelligently waived, his rights to remain silent, to the presence of an attorney, and to appointed counsel if he cannot afford an attorney. (Miranda v. Arizona, supra, 384 U.S. at p. 444.) Assuming that the booking interview constituted a subsequent interrogation, readvisement is unnecessary where the subsequent interrogation is reasonably contemporaneous with the prior knowing and intelligent waiver. (People v. Lewis (2001) 26 Cal.4th 334, 386, quoting from People v. Mickle (1991) 54 Cal.3d 140, 170.)
Several factors are reviewed to determine whether readvisement is necessary prior to a subsequent interrogation held after an earlier valid Miranda waiver: (1) the amount of time that has passed since the initial waiver; (2) any change in the identity of the interrogator or location of the interrogation; (3) an official reminder of the prior advisement; (4) the suspects sophistication or past experience with law enforcement; and (5) further indicia that the defendant subjectively understands and waives his rights. (People v. Smith (2007) 40 Cal.4th 483, 504.)
In People v. Mickle, supra, 54 Cal.3d at page 171, the California Supreme Court held that a readvisement was not required after a lapse of 36 hours between interrogations. The court considered the totality of the circumstances, including the fact that defendant was still in custody, he was interviewed by the same interrogators, was reminded of his prior waiver, and was familiar with the justice system. Here, reviewing the totality of the circumstances, the defendant was still in custody after a lapse of no more than four and a half hours, and he was familiar with the justice system as evidenced by his prior conviction and other law enforcement contacts. Additionally, we conclude defendant subjectively understood his right to remain silent based on the fact he was fully admonished of his rights less than five hours earlier and had voluntarily waived them.
Defendant argues the burden was on the People to prove defendants booking statements were voluntary and that his Fifth Amendment rights were knowingly and intelligently waived. This issue is not properly before us. In the trial court, the defendants sole objection to the proffered evidence was on the ground that Miranda warnings were required prior to the booking interview.
Defendant also argues that the booking interview should have been preceded by a Miranda advisal because the information elicited went beyond normal booking information. We disagree. First, this issue was not preserved in the trial court. Second, to the extent the booking interview may be viewed as "interrogation" for self-incrimination purposes, defendant had been fully admonished of his rights only hours before he was booked, and he had voluntarily waived his rights. Defendant argues the lapse of time from the initial advisement of rights was significant, requiring readvisement. We disagree. If a waiver made 36 hours prior to a subsequent interrogation is considered contemporaneous (People v. Mickle, supra, 54 Cal.3d 171), a lapse of four and half hours is certainly contemporaneous.
Readvisement was not necessary where the booking interview was reasonably contemporaneous with the prior knowing and intelligent waiver. (People v. Smith, supra, 40 Cal.4th at p. 504.)
2. The gang experts did not testify about defendants specific intent so his opinion was properly admitted.
Defendant made an in limine motion to exclude or limit the gang experts testimony so as to preclude the expert from giving an opinion about the defendants specific intent. He agreed that an expert is permitted to testify about the culture and habits of a street gang, its size, composition, or territory, and individuals membership in or association with a gang, whether a crime was committed to benefit or promote a gang, rivalries between gangs, gang-related tattoos, graffiti and hand signs, and gang colors and attire.
On the stand, the gang expert testified, without objection, that (1) the primary activities of ESR are violent assaults, sales of narcotics and auto thefts; (2) that ESR is a criminal street gang; (3) that defendant is an active member of ESR, and (4) that the beating and robbery of a teenaged boy in a public park in front of witnesses would benefit a street gang by instilling fear in the community and bolstering defendants reputation. Defendant contends the trial court erroneously allowed the expert to testify to inappropriate conclusions and to opine that appellants intent was to benefit the gang. We disagree.
The gang expert did not render an opinion about the defendants specific intent; in fact, the expert was never asked his opinion about defendants intent to benefit the gang. The experts opinion as to defendants active membership in ESR was proper because it was based on his own contacts—and contacts by other officers—with defendant, defendants admissions during prior contacts that he was a member of ESR, his association with other gang members, and his gang tattoos. Although defendant objected to certain questions that would have elicited speculation on the part of the expert, and objected to one hypothetical question on the ground it was incomplete, he did not object to the above matters.
Gang experts may offer an opinion about gang culture and the methods by which a criminal street gang promotes its reputation. (People v. Gonzalez (2006) 38 Cal.4th 932, 945-946.) The testimony of the gang expert in this case fell within the boundaries of what is permitted, since he did not attempt to render an opinion on the defendants subjective knowledge and intent. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 651-652.) Defendant agreed these were proper subjects for the gang experts opinion.
Defendants contention that the expert was permitted to render an opinion regarding defendants specific intent is not borne out by the record. The expert did not render an opinion about defendants specific intent, so there was no error.
3. Substantial evidence supports the verdicts and finding.
Defendant argues there is insufficient evidence to support the convictions for robbery, as well as the finding on the gang enhancement to the robbery count, and the substantive charge of active participation in a street gang. We disagree.
In reviewing the sufficiency of the evidence, our role on appeal is limited. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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. (People v. Prieto (2003) 30 Cal.4th 226, 245; Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
In making our determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of the witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) Resolution of conflicting evidence and credibility issues was for the jury to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
Regarding the robbery count, defendant points to the victims inconsistent testimony regarding whether it was the defendant or his associate who struck the first blow during the incident, and whether it was the defendant or his associate who took the necklace. However, these inconsistencies do not undermine the jurys verdict. The victim knew the defendant, and his identification of the defendant was corroborated by the fact the victims necklace was found in defendants pocket. Whether defendant struck the first blow or not, the evidence was not refuted that defendant personally participated in the physical violence that immediately preceded the defendants grabbing of the chain. The jury was justified in concluding defendant robbed the victim.
Regarding the gang enhancement (Pen. Code, § 186.22, subd. (b)), the jury heard testimony that defendant and his associate approached the victim in a public park "claimed" by ESR, attacked the victim in broad daylight in the presence of several witnesses, and that defendant had a gang moniker and gang tattoos. The jury also heard testimony from an undisputed gang expert that crimes committed under such circumstances benefit the gang by instilling fear in the community, bolstering the reputation of the specific members involved in the crime, discouraging the public from resisting the actions of the gang or seeking return of their property, or reporting the activity to law enforcement.
The fact defendant did not flash gang signs during the incident, or make gang related statements, does not demonstrate the crime was not gang related. (People v. Martinez, supra, 158 Cal.App.4th at p. 1333.) There was substantial evidence to support the gang enhancement. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.)
Regarding count 2, there was substantial evidence to support the conviction for active participation in a street gang. The gravamen of a substantive charge of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)) is the participation in the gang itself. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467.) It requires involvement with a criminal street gang that is more than nominal or passive. (People v. Castaneda (2000) 23 Cal.4th 743, 747.) Defendant must have the intent and objective to participate in the gang, but does not need to have the intent to personally commit the particular felony. (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
Defendants active participation was established by evidence that he claimed current membership in ESR when he was booked, had gang tattoos, and had been contacted by police on gang turf in the company of other gang members. Additionally, ESR members had been convicted of crimes in 2003 and 2006, that were primary activities of ESR, and defendant was personally involved in the current offense. There is substantial evidence to support the conviction on count 2.
DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P. J.
Richli, J.