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People v. Beteta

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A121059 (Cal. Ct. App. Apr. 29, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSE NAPOLEON BETETA, Defendant and Appellant. A121059 California Court of Appeal, First District, First Division April 29, 2009

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. H43032-A

Graham, J.

Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant José Napoleon Beteta appeals from his conviction by a jury on one count of murder with a special circumstances finding that the killing was committed in the course of a robbery. Defendant claims that the trial court erred in admitting evidence that he is a gang member. He also claims the court erred in imposing a fine pursuant to Penal Code section 1202.45, and that the abstract of judgment must be corrected to reflect his pre-sentence credit. We affirm the conviction and order that the abstract of judgment be corrected.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. The Flea Market

Mohammed Sharif sold electronic goods and video games every Saturday and Sunday at a San José flea market. He had a white cargo van that he used to transport his goods to the market.

José Leyva was the assistant manager of the San José flea market in 2004. Part of his job was to assign space at the flea market to vendors. Sharif was a monthly vendor, meaning he was always given the same spot to set up his booth. Defendant was a “casual vendor,” meaning that he was given space depending on availability. Like Sharif, defendant also sold video games. He would sometimes request a space next to Sharif’s booth.

Sharif’s son, Z., worked for his father during the summer of 2004. One day while he was helping to set up his father’s booth at the flea market, Z. accidentally scratched a red Lexus that belonged to defendant. That day, defendant had been given a booth next to Sharif’s booth. Defendant and Sharif agreed that Sharif would pay about $50 to $70 to fix the scratch, and that he would buy about $1,000 worth of defendant’s merchandise. After they signed a paper documenting their agreement, Sharif paid him the money in cash. Sharif operated as a cash-only business.

Tom Hakimi is a vendor who also sells video games at the San José flea market. He testified that Sharif had the largest booth in the flea market for his type of merchandise, estimating the value of Sharif’s inventory to be between $150,000 and $200,000. Hakimi knew defendant because he had purchased games from defendant in the past. He saw defendant at the flea market on the day of the murder. Defendant appeared to be in a hurry. He told Hakimi that he did not have a booth that day.

II. Sharif’s Murder

On Sunday, December 5, 2004, around 5:00 p.m. or 5:30 p.m., Sharif’s wife called him on his cell phone and he told her that he was preparing to return home after a day working at the flea market.

Around 5:30 p.m. or 5:45 p.m., Kerry Verlinden and her children were leaving a Burger King restaurant that is connected to a Shell gas station in Union City. As they were crossing the street, a white van stopped to let them pass. Before they had finished crossing the street, a dark SUV drove up behind the van and hit it from behind. The driver of the van got out of the car and walked to the corner where Ms. Verlinden was standing. She asked him if he was okay and he said he was. The driver of the SUV was standing next to his vehicle, and when she asked if he wanted her to stay to act as a witness, he waved her off. She saw the van’s driver walk over towards the SUV. As she walked home, she heard two or three popping sounds. When she got home, her husband asked her if she had heard the gunshots.

Anthony Henderson was near the Burger King when he noticed a white van in the middle of the street. He observed three people arguing as they stood on the passenger side of the van. As one of the three men backed away towards the front of the van, one of the other two men reached out and grabbed at the retreating man’s pants pockets and demanded his keys. As the first man approached the door on the driver’s side, the man who had demanded the keys punched him in the face. The third man moved to the front of the van and started banging on the hood. As the first man attempted to open the door and get into the driver’s seat, the man who had punched him kept pushing and kicking the door to close it.

The first man was eventually able to get into the van. At that point, the man who had been banging on the hood walked around to the passenger side and told the second man to “get back.” He pulled a gun from the front of his pants, reached through the partially open passenger side window and fired into the van. Henderson recalled that when he pulled the gun back out, it hit the glass and cracked the window. He reached through the window and pulled out a box, causing the window to shatter. He then tried to throw the box, which appeared to be a PlayStation game console, back into the van but it fell on the ground. Both of the men got into a waiting SUV and drove away. At the preliminary hearing, Henderson identified the shooter as Sanders Rivera, who was defendant’s codefendant at that stage in the proceedings.

Henderson believed the taller of the two men had used the gun. Rivera is five feet, eleven inches tall. Defendant is five feet, six inches tall.

Officer Janice Turbyfill was conducting a traffic stop in Union City when she heard gunshots. She went back to her vehicle and drove to where she thought the shots had come from. As she arrived at the scene, several people rushed toward her yelling that a person had been shot. She saw a white van stopped in the street and when she looked inside she saw a man bleeding from his abdomen. He told her that he had been shot. When she asked who had shot him, the man said “José.” He also said that he knew José from work.

Sergeant Gloria Lopez-Vaughan and Detective Michael Rucker arrived at the scene after the paramedics had begun attending to Sharif. Rucker had a tape recorder with him to record their conversation with Sharif. Lopez-Vaughan asked Sharif who had done this to him and he said “José.” When she asked Sharif if José was the one who shot him, Sharif answered “his friend.” Rucker rode in the ambulance with Sharif and continued questioning him as he was being transported to the hospital. The tape was played in court.

Defendant’s fingerprints were found on the passenger side of Sharif’s van. Rivera’s fingerprints were found on both the driver’s side and the passenger’s side. $5,000 in cash was found inside the van.

III. Defendant Objects to Gang Evidence

On June 26, 2007, an information was filed accusing defendant and Rivera of the murder of Sharif. (Pen. Code § 187, subd. (a).) The information alleges as a special circumstance that the murder was committed while the two defendants were engaged in the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The information also alleges that Rivera has a prior felony conviction and has served a prior prison term.

All further statutory references are to the Penal Code except as otherwise indicated.

Prior to jury selection, the prosecution disclosed its intention to introduce evidence that Rivera and defendant are members of the same Los Angeles gang. The evidence was offered, in part, to explain the connection between Rivera and defendant. Defendant’s counsel objected on the grounds that such evidence would be unduly prejudicial and that it was unnecessary to the prosecution’s case. The court ruled it would not allow evidence of gang membership, with the condition that the prosecution could renew its request if circumstances changed as the trial progressed.

After the jury was selected, Rivera agreed to testify as a witness against defendant. At that point, the prosecution again proposed introducing evidence regarding Rivera’s and defendant’s gang affiliation. The evidence was offered to explain why Rivera would have agreed to commit a crime with defendant in spite of the fact that they had only known each other for a short time. Defendant’s counsel objected again that the evidence would be overly prejudicial. The court agreed to allow the evidence in, stating: “I don’t know how the jury can get a true and accurate view of the testimony and of the situation if we sterilize it and pull away the truth.” The court also agreed to instruct the jury that the evidence was being offered for the limited purpose of evaluating Rivera’s credibility.

IV. Rivera’s Testimony

Rivera testified against defendant. Rivera was asked if he was familiar with a gang based in Los Angeles known as “18th Street.” Defendant’s counsel immediately made a motion to strike under Evidence Code section 352. The court overruled the objection, and gave the following limiting instruction: “Ladies and gentlemen, the gang evidence is presented for the limited purpose of evaluating the credibility of Mr. Rivera. It should be viewed with caution. Jurors are not to conclude that a certain crime was committed or was intended to be committed because there was a gang membership that may have been involved. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit a crime. So this is coming in subject to a limiting instruction and would need to be used for that purpose only.”

A similar instruction was given again after the close of evidence.

Rivera testified that he is a member of the 18th Street gang. He stated that he first met defendant in October 2004 at the bar where Rivera worked. He was introduced to defendant by his “homeboys.” Rivera stated that defendant has tattoos identifying him as a member of the 18th Street gang. After their initial meeting, Rivera and defendant began to “hang out” together.

Several days before the murder, defendant called Rivera and said he was planning to do a “job” in Northern California. By “job,” Rivera understood that defendant meant a robbery. On December 4, 2004, defendant called Rivera and said that he was coming to get him. That night, defendant and another man known as “Sad Boy” drove to the bar in a black Lexus SUV and picked up Rivera. They then drove to Northern California. When they arrived, they went first to a flea market. After they bought some food, defendant left to check on the person he was intending to rob. The three men stayed in the area until the flea market closed. At that point, defendant went to check on the intended victim again. When he returned, he told Rivera that the victim was leaving in a white van, which the three men began following. Sad Boy was driving the SUV.

The three men followed the white van onto the freeway, and continued following it until it exited. Sad Boy noticed that they were in a residential area and commented that they needed to take action before the man made it to his house. When the van stopped, Sad Boy ran the SUV into the back of the van and pulled over. The man got out of the van and the three men got out of the SUV. The man was speaking with a woman, telling her that she did not need to stay. Rivera approached the passenger side of the van to see if anyone else was inside. Shortly thereafter, he saw defendant searching the man and asking for the keys to the van, and he heard the man say: “José, why are you doing this?” Rivera was surprised because he did not know defendant and the man were acquainted. Defendant lifted up his shirt to show the man his gun, and the man ran back toward the van.

Rivera chased after the man and tried to keep him from getting back inside the van. Defendant entered the van on the passenger side and then came around to the front of the van and began hitting it. When the man made it back inside his van, defendant told Rivera to get out of the way. As Rivera went back toward the SUV, he heard a sound and turned around to see that the van’s window had been broken and defendant had a gun in his hand. Defendant shot three times into the van. The three men got back into the SUV and drove off. They stopped after about half an hour and changed the license plates on the SUV. Later, they got a room at a hotel. Rivera took the bullets from the gun and flushed them down the toilet. The next day they drove back to Los Angeles, with a friend following immediately behind them so that they could not be tailed by law enforcement.

Rivera testified to his fear that he will be identified as a “snitch” when he serves his prison term and that his life will be in danger as a result. In agreeing to testify, Rivera received an 11-year sentence for manslaughter. He also avoided prosecution on federal charges relating to his status as an illegal immigrant. He stated that he agreed to cooperate with prosecutors after it became apparent to him that defendant was trying to blame him for the shooting.

V. The Verdict And Sentencing

On February 27, 2008, the jury found defendant guilty of first degree murder and found true the robbery-murder special circumstance.

On March 21, 2008, defendant was sentenced to a term of life in prison without possibility of parole. The court awarded presentence credit for 798 days actually served, with no conduct credit. The court imposed restitution fines of $1,000 each pursuant to sections 1202.4 and 1202.45 (with the latter suspended), set the victim restitution amount at $4,034.86, and imposed a $20 court security fee. This appeal followed.

DISCUSSION

Defendant contends the trial court abused its discretion in admitting the gang membership evidence, claiming its probative value was far outweighed by its potential for prejudice and that it should have been excluded under Evidence Code section 352.

Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

I. Standard of Review

When a defendant raises an Evidence Code section 352 objection, the trial court “ ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’ [Citation.] If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence. ‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’ [Citation.]” (People v. Cardenas (1982) 31 Cal.3d 897, 904.)

It is settled that “A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice.” (People v. Avitia (2005) 127 Cal.App.4th 185, 193 (Avitia).) “The admission of gang evidence over [a] section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin).)

Even when an abuse of discretion is found, the erroneous admission of gang evidence requires reversal “only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded.” (Avitia, supra, 127 Cal.App.4th 185, 194.) It is defendant’s burden on appeal to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

II. The Trial Court Did Not Abuse Its Discretion In Admitting The Gang Evidence

Gang evidence, including evidence about a defendant’s gang membership, is generally admissible if it is relevant to a material issue in the case other than criminal disposition, is not more prejudicial than probative, and is not cumulative. (People v. Albarran (2007) 149 Cal.App.4th 214, 223 (Albarran); Avitia, supra, 127 Cal.App.4th 185, 192.) As explained in People v. Hernandez (2004) 33 Cal.4th 1040, 1049, “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, means of applying force or fear, or other issues pertinent to guilt of the charged crime.”

Gang evidence is not admissible, however, if introduced “only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’ [Citations.] In cases not involving a section 186.22 gang enhancement, it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’ [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it. [Citation.]’ [Citations.]” (Avitia, supra, 127 Cal.App.4th 185, 192–193.)

Defendant claims evidence that he was a gang member “had minimal probative value in the context of this case.” He claims the prosecution’s goal of establishing the association between defendant and Rivera could have been achieved just as well if Rivera had testified that he and defendant had met through mutual acquaintances, rather than testifying that they were both members of the same gang. As noted above, the trial court initially agreed to exclude all gang-related evidence, but altered its ruling after Rivera agreed to testify against defendant, explaining: “In the past we’ve kept [the gang evidence] out, but with Mr. Rivera testifying, I don’t know how the jury can get a view of his credibility one way or another without it.” The court carefully analyzed the proffered evidence and set forth its reasons on the record as to why the probative value of the evidence outweighed the prejudicial effect. Its decision was well within the bounds of reason.

While the relevance of this evidence to Rivera’s fear of retaliation was not discussed in any detail by the attorneys or the judge, we observe “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility.” (Olguin, supra, 31 Cal.App.4th 1355, 1368–1369.)

Defendant’s reliance on Albarran, supra, is misplaced. In Albarran, the trial court allowed extensive evidence relating to the defendant’s gang, including the criminal activities of its members, death threats made to police officers by its members, and references to the Mexican Mafia. The court held that the extremely inflammatory evidence “was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.” (Albarran, supra, 149 Cal.App.4th 214, 228.) In the present case, no evidence beyond Rivera’s and defendant’s common membership in the gang and their gang tattoos was admitted. This evidence was relevant and admissible for the purpose of evaluating the credibility of Rivera’s testimony. The jury did not hear any evidence about gang violence, gang culture, or the specific acts of any other gang members. The fact that Rivera and defendant were both members of the same gang was clearly relevant to establishing a basis for their relationship.

III. Even If The Trial Court Erred, Defendant Was Not Prejudiced

Even if we were to conclude that the gang evidence was admitted in error, defendant cannot establish prejudice. He asserts that the admission of this evidence violated his right to due process and constituted federal constitutional error. We have discussed the limited nature of the gang testimony that was admitted. Assuming for discussion its admission was error, it did not result in a violation of defendant’s right to due process.

To prove a deprivation of federal due process rights, a defendant “must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is... whether the trial court committed an error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” [Citation.]’ [Citation.]” (Albarran, supra, 149 Cal.App.4th 214, 229–230.)

The admission of evidence may violate due process if there is no permissible inference a jury may draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; Albarran, supra, 149 Cal.App.4th 214, 229.) Here, the permissible inference for the jurors to draw from the gang evidence was that defendant and Rivera had a relationship that went beyond that of casual acquaintances. The gang evidence introduced was limited in scope and purpose. Further, the jury was properly instructed on permissible and impermissible uses of this evidence. While defendant contends that recent cases have raised questions “as to the level of prophylactic safeguard provided by such an instruction in the context of gang evidence,” we presume the jury followed the court’s admonishment. (People v. Welch (1999) 20 Cal.4th 701, 773.)

In any event, even under the stringent Chapman standard we would not find any error to be prejudicial. The evidence against defendant was extensive. Rivera testified to defendant’s involvement in commission of the crime. Defendant’s fingerprints were found on Sharif’s van. Hakimi testified that he saw defendant at the flea market on the day of the murder, adding support to Rivera’s account. Rivera’s testimony was also corroborated by eyewitness testimony as well as by Sharif’s dying declaration. Additionally, the testimony of Sharif’s son, Leyva, and Hakimi provided evidence as to why defendant would have targeted Sharif for a robbery. In light of this compelling evidence, it cannot be said that the limited gang testimony contributed substantially to the verdict.

“Under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], in the case of a deprivation of federal due process, reversal is required unless the state can prove beyond a reasonable doubt that the error did not contribute to the verdict.” (Albarran, supra, 149 Cal.App.4th 214, 229.)

Defendant also complains that the prosecutor, in his closing argument, did not limit his use of the gang evidence to the purpose for which it had been admitted. In his closing argument, the prosecutor made reference to defendant and “his gang buddies” and “gang friends,” and also stated that Sharif had been “executed.” Defendant claims these references were prejudicial because they undercut the defense theory that the case did not involve a robbery. We note the jury was already aware that defendant and Rivera were members of the same gang. In light of the evidence recounted above, including defendant’s familiarity with Sharif’s business activities, his presence at the flea market on the day of the murder, eyewitness testimony as to the events that occurred just prior to and immediately following the shooting, and Rivera’s testimony, we are not persuaded that the prosecution’s brief references influenced the jury’s verdict with respect to the robbery allegation. In short, the gang evidence did not render the trial fundamentally unfair.

IV. The Section 1202.45 Fine And Correction To Abstract Of Judgment

The Attorney General concedes that the trial court erred in imposing a fine under section 1202.45 because this fine is not applicable in a case in which the defendant has been sentenced to a term of life without possibility of parole. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185–1186.) The Attorney General also concedes that the abstract of judgment must be corrected to account for the trial court’s award of 798 days in presentence credit.

We observe that while the abstract of judgment states that the fine imposed under section 1202.45 was $400, the record reflects the trial court imposed a $1,000 fine. Similarly, the abstract states that the fine imposed pursuant to section 1202.4, subdivision (b), was $400, when the court actually imposed a $1,000 fine. Additionally, the document does not reflect the $4,034.86 amount imposed as victim restitution.

DISPOSITION

The trial court is directed to amend the abstract of judgment as follows: (1) to strike the fine imposed pursuant to section 1202.45; (2) to correct the fine amount imposed under section 1202.4, subdivision (b); (3) to include the amount imposed for victim restitution; and (4) to reflect 798 days of presentence custody credit. The trial court shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

WE CONCUR: MARCHIANO, P. J., MARGULIES, J.


Summaries of

People v. Beteta

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A121059 (Cal. Ct. App. Apr. 29, 2009)
Case details for

People v. Beteta

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE NAPOLEON BETETA, Defendant…

Court:California Court of Appeals, First District, First Division

Date published: Apr 29, 2009

Citations

No. A121059 (Cal. Ct. App. Apr. 29, 2009)

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