Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA314663, Michael M. Johnson, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Alberto Casillas appeals from a judgment of conviction entered after a jury trial. Defendant was convicted of the first degree murder (Pen. Code, § 187, subd. (a); count 1) of Annette Elvira (Elvira), in the commission of which he personally used and personally and intentionally discharged a firearm, causing death (§ 12022.53, subds. (b)-(d)), and the attempted premeditated murder of Artur Grigoryan (Grigoryan) (§§ 187, subd. (a), 664; count 2), in the commission of which he personally used and personally and intentionally discharged a firearm, causing death (§ 12022.53, subds. (b)-(d)). He was also convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)) in count 3. As to all three counts, the jury found the criminal street gang allegations true under section 186.22, subdivision (b)(1).
All further statutory references are to the Penal Code, unless otherwise indicated.
The jury found defendant not guilty of the attempted murders of Artur Grigoryan, Jr., and Daniel Elvira (§§ 187, subd. (a), 664; counts 4 and 5).
The trial court sentenced defendant to state prison for the term of 90 years to life as follows: count 1—25 years to life, plus a consecutive 25 years to life for the firearm use; count 2—life in prison for the attempted murder, with a minimum of 15 years before parole eligibility due to the jury’s gang enhancement finding under section 186.22, subdivision (b), plus a consecutive 25 years to life for the firearm use; count 2 was ordered to run consecutively to count 1. On count 3, the trial court imposed a two-year midterm sentence, plus a midterm of three years on the gang enhancement, with the term to run concurrently with counts 1 and 2.
On appeal, defendant contends the trial court erroneously allowed admission of gang evidence, the evidence is insufficient to support the gang enhancement, and the imposition of a sentence of 25 years to life for the section 12022.53, subdivision (d), firearm enhancement was unconstitutional. We find no grounds for reversal and affirm the judgment.
FACTS
A. Prosecution Evidence
On December 26, 2006, at approximately 4:00 p.m., Grigoryan drove his car with his son in it to his girlfriend Elvira’s home located on Merced Street in the Cypress Park area of Los Angeles. Grigoryan wore a T-shirt that had human skulls printed on it. His car had tinted windows in the back, but not on the driver’s window. He picked up Elvira and her son. Elvira sat in the front passenger seat, and the two children sat in the backseat. Grigoryan drove up Merced Street and then proceeded to Thorpe Street. While on Thorpe Street, a lone male, later identified as defendant, walked out into the middle of the street, pointed a gun at the vehicle and shouted, “Stop.” Grigoryan continued driving, and defendant fired his gun. The bullet grazed Grigoryan on the arm, then struck Elvira in the femoral artery of her right leg, resulting in her death.
Grigoryan was interviewed by Los Angeles Police Detectives James Yamada and Jose Carrillo. The interview was videotaped and played for the jury at trial. Grigoryan described the shooter as Hispanic, approximately five feet, seven inches tall and weighing 140 pounds. Grigoryan noted that often when he went to pick up Elvira at her house, gang members in the neighborhood would “throw [gang] signs” at him in front of Elvira’s home. He indicated he was not a gang member. Grigoryan reviewed a “mug book” which contained approximately 174 photographs. He identified three photographs as looking like the shooter. They were photos of defendant, all taken in 2006. Grigoryan identified defendant at the preliminary hearing and was “almost sure, a hundred percent” that defendant was the shooter. He also identified defendant as the shooter at trial.
The day following the shooting, Officer Greg Shortle and Officer Amundson were conducting a surveillance in front of defendant’s home. Defendant exited his residence. When officers identified themselves as law enforcement, defendant ran. While running, defendant tossed a gun to the ground. Defendant was apprehended, and the weapon was retrieved.
The gun discarded by defendant was a 9 millimeter semi-automatic Smith and Wesson. The handgun was test fired. It was determined that a shell casing recovered on December 26, 2007 at the crime scene was fired from the same gun that defendant had in his possession on December 27, 2007. At trial, Grigoryan identified the gun as looking similar to the one defendant used on the day of the shooting.
The bullet retrieved from Elvira’s body was too badly damaged for a comparison to be made.
B. Gang Evidence
Officer Fernando Salcedo had spoken with defendant on July 18, 2002. Defendant identified himself as a member of the Cypress Park gang, with a moniker of “Dopey.”
Detective Luis Rivera testified concerning predicate offenses for purposes of proving the gang enhancement allegations. On February 2 and 3, 2006, a search of a residence in Cypress Park was conducted. As a result of his investigation, Isaac Martinez and Juan Solis were convicted of two first degree murders. Both individuals were members of the Cypress Park criminal street gang.
Alfredo Melendez, Jr., a member of the Cypress Park gang was convicted of assault with a firearm on a peace officer and possession of a firearm by a felon on September 11, 2005.
Officers Richard Aguirre, Oscar Castellanos, and Juan Aguilar all had contact with gang members. Specifically, they all had contact with defendant, and defendant admitted being a member of the Cypress Park gang and that his moniker was “Dopey.”
Los Angeles Police Officer Thomas Deluccia testified as an expert in criminal street gangs. He had twice met defendant and knew defendant went by the nickname “Dopey.” The officer described the primary activities of the Cypress Park gang as murders, robberies, burglaries, carjackings, narcotics, extortion and assaults with handguns and knives. There were approximately 75 to 100 members, approximately 40 of whom were active. Defendant lived in, the shooting took place in, and Elvira resided in Cypress Park gang territory.
The Cypress Park gang’s main rival is the Avenues gang. The Avenues is a larger gang, with 500 to 750 members and its territory borders Cypress Park’s claimed territory. A typical Avenues gang emblem would be a human skull with a Fedora, sometimes depicting a bullet wound to the head. In a photograph taken from defendant’s residence, he was holding a gun and making a hand sign indicating “kill” “Avenues.”
Once a person becomes a gang member, he must “put in work,” meaning commit crimes. Officer Deluccia explained that committing crimes benefitted the gang by instilling within the community its reputation for violence, which causes fear and intimidation.
Officer Deluccia recalled several incidents in which vehicles driving in Cypress Park territory were fired upon indiscriminately. Generally a “code of conduct” precluded killing women and children. A woman who lived within the Cypress Park gang’s territory could be targeted if she dated a member of a rival gang such as the Avenues. Officer Deluccia opined that if Elvira was believed to be dating a member of the Avenues gang, she might have been vulnerable to an attack from the Cypress Park gang. She would be disrespecting her neighborhood.
Officer Deluccia testified that the T-shirt worn by Grigoryan on the day of the shooting had several pictures of skulls on it, and it might have been mistaken by a member of the Cypress Park gang as a symbol representing an Avenues gang member. Officer Deluccia opined that if someone who looked like Grigoryan and who wore a T-shirt with skulls printed on it entered the Cypress Park gang’s territory, he would be viewed as an Avenues gang member. Members of the Cypress Park gang would see it as an intrusion into their territory and would make some type of a reprisal, such as ambushing the person with a gun. The gunshot hole in Grigoryan’s car was consistent with someone shooting at the driver of the car.
Based on a hypothetical similar to the shooting incident, Officer Deluccia opined that the crime may have either been an intended carjacking or an attack on someone believed to be a rival gang member. Officer Deluccia opined that such a crime would be of benefit to the Cypress Park gang because it was committed in the gang’s territory. Additionally, if it was perceived that the intended victim was a rival gang member, and a Cypress Park gang member killed that person, the shooter’s status would increase within his gang. Officer Deluccia’s opinion that the crime was committed for the benefit of the gang was reinforced by the fact that the shooting occurred in, defendant lived in, and Elvira resided in the territory claimed by the Cypress Park gang.
Gang members do not generally attempt carjackings when the occupants of the vehicle are known to be children.
C. Defense Evidence
Defendant presented no evidence.
DISCUSSION
A. Admission of Gang Evidence
Defendant claims that his right to due process was denied when the trial court admitted the gang evidence. Prior to trial, defendant moved to exclude all gang-related evidence. The trial court found the evidence relevant for several reasons. Defendant was a member of the Cypress Park criminal street gang and had admitted it to law enforcement. The police had previous contact with defendant on the street where the shooting occurred and near where the murder victim resided. The gang evidence was also relevant to motive. The trial court reviewed the preliminary hearing transcript and found that the prosecution’s gang expert had offered “an ostensible prima facie explanation of why in his opinion the defendant is a gang member and this was a gang-related crime.”
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id., §§ 400, 402.) We review the trial court’s determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
Evidence Code section 352 provides that a trial court has discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” The requisite prejudicial effect is not simply any “‘“‘damaging’”’” effect. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Rather, it is an effect which “‘“uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.”’” (People v. Smithey (1999) 20 Cal.4th 936, 974.)
As with any other evidence, we review the trial court’s decision to admit evidence pertaining to gangs and gang membership for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Waidla, supra, 22 Cal.4th at p. 717.) Gang evidence clearly has a potential for prejudice. (Carter, supra, at p. 1194; People v. Albarran (2007) 149 Cal.App.4th 214, 223.) When it meets the test of relevancy, however, it is admissible unless its prejudicial effect clearly outweighs its probative value. (Carter, supra, at p. 1194; People v. Cardenas (1982) 31 Cal.3d 897, 904-905.)
The trial court properly admits gang evidence when it is relevant to a material issue at trial. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Martinez (2003) 113 Cal.App.4th 400, 413.) It is not admissible when its only purpose is to prove defendant’s criminal disposition or bad character in order to create an inference defendant committed the charged offenses. (People v. Albarran, supra, 149 Cal.App.4th at p. 223; accord, Evid. Code, § 1101, subd. (a).)
Defendant’s reliance on People v. Albarran, supra, 149 Cal.App.4th 214 is misplaced. In Albarran, this Division found that the admission of certain gang evidence was extremely prejudicial and rendered defendant’s trial fundamentally unfair. There was not sufficient evidence that the crimes were committed with the intent to gain respect, in that there was no evidence that a gang rivalry might have been involved or that the gang had claimed credit for the crimes. (Id. at p. 227.) Additionally, even if evidence of gang membership was relevant, the evidence concerning a threat to police officers, references to Mexican Mafia involvement, and evidence identifying other gang members and unrelated crimes was extremely prejudicial. (Id. at pp. 227-228.)
However, in the instant case, not only did the crime take place in the Cypress Park gang territory, there was evidence from Officer Deluccia that the T-shirt worn by Grigoryan on the day of the shooting depicting skulls may have been mistaken by defendant as indicating that Grigoryan was an Avenues gang member. If members of the Cypress Park gang were to believe that Grigoryan was a member of a rival gang, they would view it as an intrusion into their territory and would take some form of reprisal, such as ambushing him with a gun. The evidence allowed by the trial court was relevant and admissible.
While defendant in his reply brief does not dispute Grigoryan’s identification of defendant as the shooter, defendant contends that the introduction of the gang evidence affected the jury’s finding of premeditation and deliberation as to Elvira and the intent to kill as to Grigoryan. We disagree.
As stated above, there was no evidentiary error. Even if we were to find evidentiary error, “the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439.) “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]” (Partida, supra, at p. 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant has not persuaded us that the trial was fundamentally unfair. It is not reasonably probable the verdict would have been more favorable to the defendant absent any alleged error.
Even under the more stringent Chapman standard, we find no error. The evidence against defendant was overwhelming. Grigoryan identified three of defendant’s recent photographs out of 174 photos on the same day as the shooting. The next day, when defendant was apprehended, he was carrying the gun that was used. The gang evidence presented during the trial was certainly not as prejudicial as defendant’s unprovoked shooting at a car carrying two children and their mother, who was killed.
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] [constitutional error must be found harmless beyond a reasonable doubt to avoid reversal].
B. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence, the question on appeal is whether there is evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Rayford (1994) 9 Cal.4th 1, 23; accord, People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) We also examine the entire record, not merely “‘“isolated bits of evidence.”’” (Cuevas, supra, at p. 261.)
Substantial evidence is that which is reasonable, credible and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Although all reasonable inferences must be drawn in support of the judgment, the court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed.’” (People v. Memro (1985) 38 Cal.3d 658, 695; accord, People v. Waidla, supra, 22 Cal.4th at p. 735.)
Section 186.22, subdivision (b)(1), provides that “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” shall be punished pursuant to that section. The question here is whether there is substantial evidence that defendant committed felonies “for the benefit of, at the direction of, or in association with any criminal street gang,” and whether there is substantial evidence that defendant had “the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Defendant suggests that the crimes were simply the “tragic culmination of an inexplicable street confrontation.” However, expert evidence concerning the commission of the crimes suggests that they were “‘gang-related’” within the meaning of section 186.22, subdivision (b)(1) (People v. Gardeley (1996) 14 Cal.4th 605, 622), and that they were committed “for the benefit of, at the direction of, or in association with any criminal street gang” (§ 186.22, subd. (b)(1)). Expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a finding on a gang enhancement. (Gardeley, supra, at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
In the opinion of Officer Deluccia, Grigoryan had unwittingly dressed in attire associated with the Avenues gang and was viewed as a member of the rival Avenues gang. The fact that Grigoryan was in rival gang territory and was perceived to be a rival gang member would provoke a reprisal from a member of the Cypress Park gang. The members of the Cypress Park gang would look upon the shooting as a benefit because it reinforced their claim over their territory, and defendant would gain stature within the gang by “putting in work.” Defendant resided in the “territory” of the Cypress Park gang and he was an admitted member of the Cypress Park gang. Based upon the circumstances, it was highly likely that the shooting was to benefit defendant’s gang and not just a random act of violence as suggested by defendant.
Defendant further contends that pursuant to Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103, section 186.22 requires a showing that the criminal offense was intended to facilitate criminal conduct by gang members, that is, other criminal conduct beyond the charged crime. Garcia is not binding on this court. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882 [decisions of the United States Court of Appeals are not precedent in California and are merely persuasive authority].) Moreover, a decision from Division Four of our district disagrees with the holding of Garcia, and we find it to be a better reasoned decision.
In People v. Romero (2006) 140 Cal.App.4th 15, review denied September 20, 2006, Division Four noted that the plain language of section 186.22, subdivision (b)(1), requires a specific intent to promote “‘any criminal conduct by gang members,’ rather than other criminal conduct.” (Id. at p. 19.) Romero concluded that section 186.22, subdivision (b)(1), does not require proof of a specific intent to promote criminal conduct other than the charged offense.
In summary, it was reasonable for the jury to have credited Officer Deluccia’s expert opinion testimony and found that defendant committed the instant crimes “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).) We therefore reject defendant’s sufficiency of the evidence contention.
C. Sentence
Defendant contends that the trial court’s imposition of a 25 years to life sentence for the enhancement of discharging a firearm while committing a felony (§ 12022.53, subd. (d)), violates double jeopardy and the “multiple conviction rule.” Defendant submits that the factual element required to establish the particular enhancement in order to increase the maximum punishment on the underlying murder by an additional 25 years to life is encompassed by the necessary components of the murder—the proximately caused death of the victim. We disagree.
Recent California Supreme Court opinions do not support defendant’s position. People v. Sloan (2007) 42 Cal.4th 110 addressed whether enhancement allegations may be considered for purposes of the rule prohibiting multiple convictions based on a necessarily included offense. (Id. at p. 113.) The Sloan court held that, because the statutory or legal elements test applies in determining whether the proscription against multiple convictions applies, “enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses.” (Id. at p. 114.)
In People v. Izaguirre (2007) 42 Cal.4th 126, the court rejected the defendant’s position that the firearm enhancement pursuant to section 12022.53, subdivision (d), should have been stricken based on the prohibition against multiple convictions for the same conduct. “By definition, an enhancement is ‘an additional term of imprisonment added to the base term.’ [Citations.] For that reason alone, an enhancement cannot be equated with an offense. [Citation.]” (Id. at p. 134.) The court also rejected the federal double jeopardy argument. (Id. at pp. 128-129.)
We disagree with defendant that pronouncements by the United States Supreme Court preceding Sloan and Izaguirre should be applied to defendant’s multiple punishment argument. This court is bound to follow the California Supreme Court’s holdings. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We find no United States Supreme Court decision contrary to the decisions reached by the California Supreme Court in Sloan and Izaguirre.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.