Opinion
B159705.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. PRUDENCIO DOMINGUEZ, Defendant and Appellant.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
Prudencio "Looney" Dominguez was convicted of one count of murder and two counts of premeditated attempted murder, and an armed principal allegation was found true. He was sentenced to state prison for 26 years to life plus two consecutive life terms. Dominguez appeals, claiming he was denied the effective assistance of counsel. We affirm.
FACTS
In 1995, Alonzo Ramirez (one of the attempted murder victims) moved with his wife and three children to a house on Tremont Street within the territory claimed by "Big Hazard" (a mostly Hispanic street gang) and marked by its graffiti. Ramirez saw gang members on the street almost everyday, including Dominguez (a tattooed member of Big Hazard). Ramirezs eldest son joined a rival gang, "Krazy Ass Mexicans," and moved out of the house — but visited his parents at their home, conduct which was viewed by Big Hazards members as a sign of disrespect to their gang.
On August 20, 2000, someone broke the alley-side windows of Ramirezs house. Ramirez ran to the alley, saw "Malo" and "Dreamer" (both Big Hazard members) laughing and heading toward the Ramona Gardens Housing Project (the center of Big Hazards territory). Ramirez asked them why they had broken his windows. Dreamer said they "felt like it," and asked, "So whats up with you, you old man?" Dreamer then punched Ramirez and the three men fought. Neighbors, including other Big Hazard members, came out and watched. Ultimately, Malo and Dreamer ran off, with Dreamer telling Ramirez, "Were going to fuck you up." Other Big Hazard members made similar comments.
The police responded to a call about the fight. Ramirez, afraid that Big Hazard members walking by when the police arrived might consider him a "rat," told the officers there was "nothing . . . going on." After the police left, Ramirez left with his wife and younger children. When he returned that night, a nervous neighbor told Ramirez that men with covered faces had shot at the house, and Ramirez saw bullet holes all over the house. One of the neighbors collected the bullets and later gave a bag of expended .22- and .45-caliber casings to the police. Ramirez moved his family out of the house but he returned. Three to five times over the course of the next few days, Ramirez saw Dominguez drive by in a burgundy Chevrolet Astro van, stopping each time at Ramirezs driveway. Dominguez looked angry.
On August 31, Ramirez was working in his driveway on Roberto Bedollas car, talking to Bedolla and another man (Miguel Pantoja) as he worked. That afternoon, Ramirez twice saw Dominguez drive slowly by the house. Immediately after Dominguezs second pass by the house, two armed men with handkerchiefs over their faces came toward Ramirez, who yelled to his friends to "watch out" because "these guys are coming . . . to kill me." Pantoja ran for cover as one gunman approached Bedolla and the other chased Ramirez, shooting all the while. Three bullets struck Ramirez, and the gunman then went after Pantoja and shot at him several times. One gunman said, "Lets go. Its over." Pantoja was grazed by a bullet that damaged his hearing. Ramirez was shot in the left side, left thigh, and right buttocks, and was hospitalized for almost three weeks. Bedolla died as a result of the shooting.
At the hospital, Ramirez identified Malo and Dreamer from a photographic array as the men he had fought with a few days before the shooting, told the police that one of the masked shooters was built like Dreamer, and identified Dominguez as the person who drove the van on the day of the shooting. At the scene, the police found and photographed expended casings (seven .45-caliber from the same gun, and five .25-caliber casings from the same rifle), metal fragments, bloody clothing, Big Hazard graffiti in the alley, and the damage done to the house on August 20.
Later, Alicia Vargas (who lived one block from Ramona Gardens) told Detective Rodrigo Amador during a telephone interview that, just before the shooting, she was standing on her porch when she saw a dark van pull up. Three Hispanic men got out, and it was shortly thereafter that she heard gunfire. While he was talking to Vargas, the detective could hear a male voice telling her to say that she hadnt seen anything and that she didnt want any problems. Vargas would not meet with Detective Amador and recanted her statements at trial.
About six weeks after the shooting, the police searched Dominguezs home (which was one block from Ramirezs house) pursuant to a warrant. The police found: a large "H" painted near the front door; a gun case with live rounds; a bullet-proof vest; a backpack with boxes of live ammunition and magazines; an AK-47 assault rifle with bayonet; a .22-caliber long rifle; a gun cleaning kit; boxes of various types of ammunition, including . 45-caliber, .25-caliber, and .22-caliber; papers showing that the Astro van belonged to Dominguez and his father; photographs of Dominguez and other gang members making gang signs in a show of gang allegiance; a card addressed to "Looney" and stating there would be a rosary for Malo (who had died on August 26) at Santa Teresita Church at 7:00 p.m. on August 31 (the day of the shooting). The church is adjacent to Ramona Gardens and six or seven blocks from Ramirezs house.
Dominguez was arrested and charged as noted at the outset, and he entered a plea of not guilty. Two trials ended in mistrials. At the third trial, the People presented evidence of the facts summarized above, plus testimony by three gang experts to explain gang culture generally, and Big Hazard specifically, and a detective testified that Dominguez had initially told the police he had worked until about 3:30 p.m. on August 31, then later told them he had been at church all day.
Dominguez testified on his own behalf, claiming misidentification. He said he had earlier disassociated himself from Big Hazard. On August 31, he said, he and his brother participated in a car wash to raise money for Malos family, then (about 4:00 or 4:30) went to the rosary for Malo. He said the body arrived at about 5:00, that people went inside and viewed the body, that the rosary began about 7:00 p.m., and that it ended at about 8:30 p.m. After that, some of the mourners, including Big Hazard members, went to his mothers house for drinks.
Dominguez was convicted as charged.
DISCUSSION
Dominguez contends trial counsel was ineffective for failing to object to the admission of various items of evidence. We disagree (and therefore do not reach his contention that cumulative error mandates reversal).
A.
Dominguez contends trial counsel should have objected to the admission of the firearms, ammunition, and gun paraphernalia found during the search of his home. He says these items were irrelevant because they were not connected to the crimes, and he claims they were introduced solely to suggest he was a dangerous or violent person (which he says makes it inadmissible character evidence). We disagree with Dominguezs premise, explain that the evidence was properly admitted, reject his claim that counsel should have objected, and thus reject the contention that counsel was ineffective for failing to object. (People v. Hart (1999) 20 Cal.4th 546, 626-627; People v. Price (1991) 1 Cal.4th 324, 386.)
The prosecutors theory was that Dominguez and other Big Hazard members drove by Ramirezs house and shot him (and his friends) as "payback" for Ramirezs earlier fight with Malo and Dreamer. In defense, Dominguez claimed that, by the time of the shooting, he was no longer associated with Big Hazard and (as he puts it on this appeal) had "moved on to a more conventional lifestyle, providing for and being primarily devoted to his family." At trial, he claimed he was merely holding the firearms, ammunition, and paraphernalia for "a friend" (whom he refused to identify).
Dominguezs claims made the Peoples evidence relevant and admissible to show that he had not disassociated himself from Big Hazard. As the experts explained, Dominguezs conduct — including the large cache of firearms, his continuing association with other gang members, the fact that he remained in a neighborhood controlled by the gang and in a house with gang graffiti, and photographs of himself throwing gang signs — was entirely inconsistent with his claim that he was no longer associated with the gang. In short, the firearms and related items were relevant to show that he was an active gang member at the time of the shooting, and an objection to the admission of that evidence would have been properly overruled.
B.
Dominguez contends trial counsel was ineffective because he did not object to "cumulative and inflammatory gang expert evidence," which he claims had a "devastating effect on his defense — rising to the level of a denial of due process." We disagree.
Three law enforcement officers — Adrian Parga, who arrested Dominguez; Daniel Jaramillo, one of the first officers to respond to the scene of the shooting; and Christopher Biggs, a former CRASH officer who had multiple contacts with Dominguez and was familiar with his tattoos — gave some overlapping testimony about Dominguezs Big Hazard membership, his tattoos, his moniker, his association with other gang members, his display of gang photographs, and information about the gang itself (including its territory and rivals, its signs, tattoos, graffiti, the importance of "respect" to a gang, and the consequences of disrespect), but each also gave very distinct testimony about their personal experiences with Dominguez and their special expertise.
As Dominguez concedes, gang evidence is admissible where, as here, it is relevant to a disputed issue, such as identity or motive, and it is clear that the evidence was relevant in this case to explain Dominguezs motive. (Evid. Code, § 801; People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) As Dominguez also concedes, each of the officers testified concerning his distinct experience and observations. Accordingly, the fact that there was some overlap or cumulative testimony does not mean the admission of the evidence was error, and it is clear that an objection to any of this evidence would have been overruled, and properly so. (People v. Williams (1997) 16 Cal.4th 635, 673; see also Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 663; People v. Johnson (1993) 6 Cal.4th 1, 35.)
C.
Dominguez contends trial counsel was ineffective because he did not object to expert testimony by the officers explaining that members who want to disassociate themselves from a gang would not attend a car wash or a rosary, and would not keep guns, ammunition or gang photos in their homes; that a person driving the van under hypothetical circumstances similar to the August 31 shooting would have an "active" role in the shooting; that it is in a gang members "best interest" to shoot all witnesses in such a hypothetical situation; that Vargas (the woman who spoke by telephone with one of the investigating officers, then recanted) was nervous, afraid, and reluctant to testify; and that one would not arrive three hours early to a Catholic rosary service. Dominguez contends these matters were within the realm of the jurors common experience and that, with regard to the rosary, the officer who testified that he is Catholic and had attended at least 10 rosary services lacked sufficient training or experience to render an opinion on that subject. We disagree.
That testimony about the protocol for parting company with a gang and the manner in which gangs carry out their "missions" is plainly outside the scope of matters within the jurors common knowledge, and it would not be reasonable to assume the jurors understood these things. This evidence was clearly admissible. (People v. Valdez, supra, 58 Cal.App.4th at p. 506; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.)
The testimony about Vargass nervousness and her unwillingness to meet with Detective Amador was relevant and properly admitted to explain the reason for her change in testimony at trial. An objection would have been overruled. With regard to the Catholic officers testimony about the rosary, his qualifications were sufficiently established for the limited nature of his opinion on this subject — he testified that he is Catholic and that he had attended at least 10 such services, which common sense suggests is sufficient to give him personal experience with regard to the time at which one usually arrives for a rosary. Objections to any of this evidence would have been overruled.
In short, Dominguez was not deprived of his right to the effective assistance of counsel at trial. (Strickland v. Washington (1984) 466 U.S. 668, 686-694; People v. Mayfield (1997) 14 Cal.4th 668, 783-784; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J., ORTEGA, J.