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People v. Gallegos

California Court of Appeals, Sixth District
Apr 27, 2009
No. H032758 (Cal. Ct. App. Apr. 27, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS GALLEGOS, Defendant and Appellant. H032758 California Court of Appeal, Sixth District April 27, 2009

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. Nos. CC648484, CC755259.

ELIA, J.

A jury found appellant guilty of one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The jury found him not guilty of one count of robbery. (Pen. Code, § 211.) The jury found true enhancing allegations as to the use of a deadly weapon, infliction of great bodily injury, and gang participation. The trial court sentenced appellant to a state prison term of seven years eight months. Appellant contends that there was insufficient evidence to support the gang enhancement and that uncharged bad act evidence should not have been admitted. Appellant further contends that the trial court erred in giving a mutual combat instruction and in failing to instruct the jury as to a lesser included offense. We affirm.

Background

On November 14, 2006, shortly before 7 p.m., 40-year-old Cesar Arguelles Gallegos (Arguelles) was walking with his 10-year-old son to a store on the corner of Virginia and Delmas in San Jose. Arguelles testified that when he passed appellant, who was standing on a corner, appellant started following him. The son ran ahead to the store. Appellant crossed the street and talked to two other people who were standing there. Appellant spoke to them briefly and then "came running with the pipe to assault me." Arguelles gestured with his hands out at his sides and palms up and asked appellant, in Spanish, "Que paso," meaning "What's up" and "What happened." Arguelles testified that appellant "confronted" him, and "asked me something about that, like, if I was from a gang or something like that." Arguelles testified that he turned toward appellant and said, "No. I am nobody. I am none of that." Appellant called him a "pinche Sureno," which means "fucking Sureno." At this point, Arguelles was right outside of the store. Appellant pulled out a pipe from "inside his clothes" and hit Arguelles with it three times. By the fourth hit, Arguelles was able to grab the pipe. Arguelles testified that he and appellant fell down and Arguelles bit appellant.

Arguelles acknowledged testifying at the preliminary examination that appellant asked him if he was a "cholo" which Arguelles took to mean that appellant wanted to fight. An expert testified that a "cholo" is "an old gang member."

Arguelles was wearing a red, grey, and black plaid jacket from work. He testified that he took the jacket off after he fell to the ground because it was "getting kind of tight." Appellant "grabbed it from the ground." Arguelles's son ran home and got his older brother who came and took the jacket from appellant. The police arrived and Arguelles was taken by ambulance to the hospital. He had blood around his nostrils, knee abrasions, and a three centimeter laceration on the back of his head that required five staples to close. Arguelles was hospitalized for two days and suffered a broken orbital bone of his eye socket.

Patricia Palomares Mason, a long time volunteer at the Gardner Community Center, testified that she was walking from the center with her son when she reached the corner of Virginia and Delmas. There she saw an "older man" yelling "give me back." He said this "first in English a couple of times, then one time in Spanish." At the moment that she heard him yelling, another man, whom she identified as appellant, "turned around so [she] figured it was between them two." Appellant turned around and "pulled out a crowbar." Mason testified that appellant went toward the older man and she heard "the man yelling, 'no'. And then a kid yelling 'Dad' in Spanish." Mason ran into the store and called 911.

Mason testified that she had seen appellant before in the area and at the nearby Gardner Community Center. She testified that appellant had been asked to leave the community center "on several occasions" for wearing the color red. She said that he had been asked to leave the community center "at least more than twice" for carrying a crowbar in the sleeve of his jacket.

San Jose Police Officer Mike Braxton testified that he was dispatched to a "possible assault" on the corner of Virginia and Delmas. He testified, "When I got to the intersection I saw two males standing in the middle of the intersection. They were squared off like they were about to fight." Both appeared to be injured. When Braxton got out of his patrol car, Arguelles walked up to the officer and appellant walked away. Braxton called to appellant, who turned around and came back. Braxton testified that Arguelles told him that "the other guy hit him in the head... [w]ith a pole." Braxton handcuffed Arguelles and appellant because he "didn't know who was the victim and suspect." Appellant was bleeding from a laceration above his left eye but declined medical treatment.

Officer Martin Corona testified as an expert in "Hispanic criminal street gangs." He said that in his opinion, appellant was a member of a Norteno criminal street gang called West Side San Jose and that he had assaulted Arguelles to benefit that gang. Corona interviewed appellant in custody and a tape of that interview was played for the jury and a transcript introduced into evidence. Corona believed that appellant targeted Arguelles because appellant profiled Arguelles as a Sureno and considered Arguelles wearing a jacket with the color red to be a form of disrespect to the Nortenos.

Officer Corona's testimony is described in detail in our discussion of the sufficiency of the evidence to support the criminal street gang enhancement.

Appellant testified that on November14, 2006, he had been at the community center where he was doing homework and then went to a friend's house to do some more. As appellant walked through the park on the way to the light rail station to go home, he picked up a pole that was by a tree. He picked up the pole and put it in his pants leg because the area was "not a very safe area to be walking around at night." He had been assaulted in the area once by people wearing red. On another occasion, as he walked down the stairs to the light rail station, people wearing blue asked him if he was a gang member. He said that he was not and they started hitting him. Appellant "just took an ass whoopin' and stayed there." Appellant did not report either incident to the police.

Appellant testified that he first noticed Arguelles when he saw Arguelles "yelling in the middle of the street running towards me." Arguelles was saying "What's up?" and something in Spanish. Arguelles was "talking to [appellant] in a loud-pitched voice." Appellant, who does not speak Spanish, did not understand what Arguelles was saying. Arguelles hit appellant. Arguelles pulled appellant's hooded sweatshirt over appellant's head "like a hockey move." Appellant had his wallet and his iPod in his sweatshirt pocket. Appellant started to "fight back." He took the metal bar and hit Arguelles "[s]omewhere on the head and on the side of his arm" with it. Appellant testified that he and Arguelles then fell to the ground. Arguelles was holding on to appellant's shirt and appellant hit him with his elbows and knees. Arguelles bit appellant on the stomach. When the fight stopped, appellant picked up Arguelles's jacket. Appellant testified, "I took it as he had my sweatshirt, and I didn't know where mine was at the time." Arguelles picked up the pole and chased appellant around a car. Then, "[a] gentleman ran in the mix and took the pole from him." Appellant testified that he had "no idea" why Arguelles attacked him.

Officer Corona saw the bite mark on appellant's stomach when he interviewed him.

Appellant testified that he was "sort of scared" when Officer Corona interviewed him. He had never been arrested or placed in custody before then. He acknowledged that he lied to Corona, telling him that Arguelles was the one who had the pole first, because he "was trying not to get in trouble." He said that he "was being a smart ass with him the whole time.... [He] was just going along with what [Corona] was saying." He said that the fight did not have anything to do with Nortenos and was not in furtherance of any gang activity. Appellant said that he did not call Arguelles a "scrap" while they were fighting but that he "might have" called him one afterwards. Appellant testified that he fought with Arguelles because, "I was defending myself."

Appellant testified that he went to the community center about three days a week, and had participated in flag football and boxing there. When asked about Mason's testimony that appellant had been "kicked out of the community center for hiding crowbars up [his] sleeve," appellant said, "That is not true."

Appellant admitted that when he was stopped by the police in October 2004, he stated that he was a Norteno. He said that he "just was answering [the officer's] questions fast" and that he "was actually being a smart ass with the guy. And I just wanted to hurry up and leave as soon as possible." In January 2006, appellant was stopped by an officer who asked him, "Who do you kick it with?" Appellant answered, "Myself." After further questioning, appellant said that he was "W.S.S.J." meaning that he lived on the west side of San Jose.

In closing, the prosecutor said that appellant had targeted Arguelles because he was a Mexican national wearing red in Norteno territory and thus being disrespectful of the Nortenos. He argued that appellant assaulted Arguelles and stole his jacket for the benefit of his gang. Defense counsel argued that the first issue that the jury had to decide was whether appellant acted in self defense.

The jury found appellant guilty of one count of assault with a deadly weapon and found true allegations that appellant personally used a deadly weapon, inflicted great bodily injury, and committed the crime for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1), 12022, subd. (b)(1),12022.7, subd. (a), 1203, subd. (e)(3), 186.22, subd. (b)(1)(B).) The jury found appellant not guilty of the robbery charge.

The trial court sentenced appellant to a state prison term of seven years eight months. This was the aggravated term of four years for the assault and a three-year term for the great bodily injury enhancement. The trial court struck the deadly weapon enhancement and stayed the 10-year gang enhancement. The trial court imposed the consecutive eight month term pursuant to a plea agreement in an unrelated case in which appellant had pleaded no contest to one count of dissuading a witness. (Pen. Code, § 136.1, subd. (a)(1).)

Gang Enhancement

Appellant contends, "The gang enhancement should be vacated because there was constitutionally insufficient evidence to establish that West Side San Jose is a criminal street gang."

Background

Testifying as an expert on criminal street gangs, Officer Corona said that the Norteno gang is affiliated with the Nuestra Familia prison gang. He said that Nortenos come from northern California, wear red, and have as symbols the letter N, the number 14, and "the farm workers' eagle" or huelga bird. He said that the Sureno gang, the main rival of the Norteno gang, is affiliated with the Mexican Mafia prison gang. He said that Surenos are from "Fresno, south to the border." They wear blue, and have as symbols the letter M and the number 13. Corona testified that Nortenos were divided into "subsets or cliques" depending "on where you live and what area of the city you're at." He said that the Norteno gang "starts from the top and filters down." He testified that some gangs may be "specific to a particular gang in a particular neighborhood" but still be part of "West Side San Jose," a Norteno "umbrella." Corona confirmed that the "hierarchy" was "Nuestra Familia, Norteno, West Side San Jose and then the subsets: Varrio Horseshoe, San Carlos Boys and West Side Mob." It was "not uncommon" for there to be conflicts among these groups.

Appellant admitted that when he was stopped by the police in October 2004, he stated that he was a Norteno. During another police contact, appellant had school binders with the number 14 written on them and the huelga bird. The binders also had the initials W.S.S.J. on them, with the S's crossed out. Corona testified that appellant "crossed out the S's. The reason they do that, 'S' is for Sureno, they cross it out." School officials had taken appellant's camera when he was seen photographing gang graffiti and the camera held several photographs of graffiti including the Roman numeral for 14, "West Side Mob," "scrap killer," and "Norte." When Corona interviewed appellant, appellant said that "he associates with Nortenos from West Side San Jose, Varrio Horseshoe and San Carlos Boys; and he has been a Norteno all his life."

Officer Corona testified that in his opinion, appellant was "an active participant in a criminal street gang... that would be a Norteno, a West Sider, associated with Varrio Horseshoe and San Carlos Boys." Corona testified that in his opinion, appellant committed the assault on Arguelles for the benefit of, and at the direction of, and in association with "West Side San Jose." He observed that Arguelles spoke limited English and that "Nortenos automatically profile Mexican nationals as Surenos." Arguelles was wearing the jacket with some red in it and appellant, "seeing him wear his colors that belong to his gang, that was a form of disrespect to him."

Corona described five offenses to support his opinion concerning the primary activities of West Side San Jose. In December 2004, members of the West Side Mob Nortenos asked a man at the Berryessa flea market if he was a Sureno. When he said that he was, they stabbed him, yelling "puro Norte," which meant pure North. In August 2004, members of the West Side Mob Nortenos robbed, beat, and stabbed a man, taking his blue belt. In March 2005, Varrio Horseshoe members shot and killed a man while calling him a "fucking scrap." In July 2005, a man who described himself as "a Norteno from the west side" and who had admitted to being a "West Side gang member," asked his victim if he was a Sureno while stabbing him. In January 2005, a man who had been identified as a West Side Mob member, acting with others carrying sticks, went through an apartment complex yelling "puro Norte." They asked one man if he was a "scrap" and assaulted him and a woman who attempted to come to his assistance.

Discussion

Appellant contends, "The gang enhancement should be vacated because there was constitutionally insufficient evidence to establish that West Side San Jose is a criminal street gang." He argues that "there was insufficient evidence of the 'common name or symbol,' 'primary activities' and 'predicate offenses' elements because the gang expert's testimony described multiple rival groups as though they were a unified gang that he called 'West Side San Jose.' "

The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as for a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.) "We examine the record to determine 'whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, 'the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 139.)

"[T]he 'criminal street gang' component of a gang enhancement requires proof of three essential elements: (1) that there be an 'ongoing' association involving three or more participants, having a 'common name or common identifying sign or symbol'; (2) that the group has as one of its 'primary activities' the commission of one or more specified crimes; and (3) the group's members either separately or as a group 'have engaged in a pattern of criminal gang activity.' " (People v. Vy, supra, 122 Cal.App.4th at p. 1222.)

Appellant criticizes Corona's opinion that appellant's crime was committed for the benefit of West Side San Jose by stating that Corona "gave ambiguous testimony describing that gang as an 'umbrella group' which includes more that two hundred members from three or more rival gangs and also as a small gang of only 20 members." Appellant argues, "The gang subsets in this case could not constitute a single criminal street gang because they... only unite with each other for protection when they are in custody. There was no evidence that members of the West Side Mob, Varrio Horseshoe or San Carlos Boys considered themselves to be members of or performed any acts for the benefit of the 'umbrella group' Officer Corona called 'West Side San Jose.' " However, the evidence was sufficient to establish that appellant was a Norteno associate, that West Side San Jose operates as an association of gangs under the umbrella of the Norteno gang, and that West Side Mob, Varrio Horseshoe or San Carlos Boys were included in that association. Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to a larger organization. (See, e.g., People v. Ortega (2006) 145 Cal.App.4th 1344, 1355-1357; In re Jose P. (2003) 106 Cal.App.4th 458, 467-468 .)

To qualify as a criminal street gang under Penal Code section 186.22, subdivision (f), the group must have a "common name or common identifying sign or symbol." Appellant contends, "The evidence was insufficient to establish that West Side San Jose is an organization with a common name and symbol." He argues that Corona's testimony "did not establish that West Side San Jose met that definition because Officer Corona gave conflicting descriptions of the group's composition and most clearly described it as a group of rival gangs who live in the same area of San Jose." Corona testified that West Side San Jose and the "individual cliques" of San Carlos Boys, Varrio Horseshoe and West Side Mob was both a "formal and informal organization." Although they might have various symbols to represent each clique, all considered themselves Nortenos and used the common Norteno symbols of the color red and the number 14. This satisfied the statutory criteria for a common name, sign and symbol.

Appellant contends, "The evidence was insufficient to prove that the 'primary activities' of 'West Side San Jose' include the statutory offenses because Officer Corona's testimony on that point was vague and lacked foundation." He argues, "Officer Corona's testimony regarding the 'primary activities' of West Side San Jose did not include a sufficient description of the material that he relied on to form his opinion." Appellant relies on In re Alexander L. (2007) 149 Cal.App.4th 605. In Alexander L., the court held the gang expert's testimony lacked foundation and was insufficient to support the primary activities element. The officer testified only to general offenses committed by the gang, and to a predicate offense in which the alleged gang member was actually acquitted of the gang allegation. (Id. at pp. 611-612.) A second predicate offense involved a gang member involved in an assault, but no direct link was made as to how the offense was connected to the gang. (Id. at pp. 612-613.) More importantly, the officer's testimony concerning the predicate offenses did not have an adequate foundation. The officer did not explain how he knew about the offenses. (Id. at p. 612.) On cross-examination, the officer conceded that the vast majority of cases relating to the gang involved graffiti, but failed to specify whether the incidents involved misdemeanor or felony vandalism. (Ibid.) Here, Officer Corona testified that he relied on departmental reports about the predicate crimes when describing the gang's primary activities. He specified names, dates and gang-related statements made during the commission of these crimes. This was sufficient.

Appellant contends, "The evidence was insufficient to establish that West Side San Jose is a criminal street gang because Officer Corona did not testify that members of that... group engaged in the necessary predicate offenses." The California Supreme Court has acknowledged that the Nortenos are a large criminal street gang, with numerous subgroups. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1121.) The evidence established that appellant was part of the larger Norteno gang, regardless of whether he also claimed affiliation to one particular Norteno subgroup. (In re Jose P., supra, 106 Cal.App.4th at pp. 467-468.) As set forth in Jose P., the evidence of gang activity satisfying the requirements of section 186.22 need not be specific to a particular subgroup of a criminal street gang, but may be established by evidence of gang-related criminal activity by members of any of the affiliated subgroups. (Ibid.) Moreover, Officer Corona testified to specific information about particular crimes committed by gang members within the West Side San Jose association. The prosecution presented certified minute orders of the convictions in the predicate offenses. And unlike the expert in In re Alexander L., Officer Corona did "directly testify that criminal activities constituted [the gang's] primary activities." (Alexander L., supra, 149 Cal.App.4th at p. 612.)

Appellant relies on People v. Williams (2008) 167 Cal.App.4th 983. In Williams, the defendant was convicted of murder and active participation in a criminal street gang. On appeal, he challenged the sufficiency of the evidence to support the jury's finding on the gang activity special circumstance and the active participation charge. Appellant argued that the group relevant to this determination was the Small Town Peckerwoods and not other groups calling themselves Peckerwoods or some overall Peckerwood gang. The court addressed the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang. The expert had testified "that the Peckerwoods are a criminal street gang, as defined by the Penal Code, and that smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization." (Id. at p. 987.) The court observed that the expert's conclusion "appears to have been based on commonality of name and ideology, rather than concerted activity or organizational structure. He testified that Peckerwood groups share a White pride or White supremacist ideology, and there is a hierarchy, with 'shot callers' who answer to a higher authority inside the prison system. It was [the expert's] further testimony that Peckerwoods are not typically organized like other criminal street gangs, however: for the most part, they have no constitution, and are a looser organization with a less well-defined rank structure. Peckerwood groups get together more for bragging than for strategizing, and one group of Peckerwoods will not necessarily know what another group is doing." (Id. at pp. 987-988.) The Williams court said that "something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization." (Id. at p. 988.) Appellant argues, "As in Williams, there was no evidence in this case that the rival subgroups collaborated in any way, answered to common leaders, or shared anything more than common symbols and ideology." He argues, "The gang expert in this case did not describe a single incident of unified activity on the part of those gangs, a constitution to which they all subscribed or any evidence that they are loyal to each other outside of the prison system."

The court in Williams contrasted the Peckerwood organization with that of the Norteno gangs and subgroups, citing People v. Ortega, supra, and this court's case of Jose P. In Jose P., supra, 106 Cal.App.4th 458, appellant, who was a Norteno gang member, argued the evidence of gang activity must be specific to a particular local street gang, not to the larger criminal organization This court said that evidence of gang activity satisfying the requirements of section 186.22 need not be specific to a particular subgroup of a criminal street gang, but may be established by evidence of gang-related criminal activity by members of any of the affiliated subgroups. (Id. at pp. 467-468.) Here, the evidence established that appellant was part of the larger Norteno gang, regardless of whether he also claimed affiliation to any particular Norteno subgroup.

Corona explained that, within the Norteno gang, subgroups "will spurt up" in different areas of a city. He said, however, that "They're still part of the Norteno movement under the umbrella of the N.F." He explained, "it starts from the top and filters down.... So the gangs that are staying in the West Side San Jose will claim West Side San Jose under an umbrella. There could be four, five gangs that will say I'm West Side San Jose, but they may be specific to a particular gang in a particular neighborhood. But they're still saying they're West Side San Jose.... [I]t's an organization, basically." He said that although each subgroup may come up with certain identifying symbols, all shared the Norteno symbols of the color red and the number 14.

Corona testified that, "West Side Mob and Varrio Horseshoe, although they're both Norteno gang members, they have been in conflict. That's not uncommon." He also said that "West Side Mob and Varrio Horseshoe sometimes don't get along." He said, "there's tension, but there has been incidents where they've gotten along. Because what happens is once they get incarcerated, the street-level gang stuff, they put aside and they all become Nortenos in jail. A West Side Mob gang member who doesn't like a Varrio Horseshoe gang member out on the street, once they're incarcerated, they get along because now they're under the umbrella of the Norteno movement and their enemies are Surenos."

Corona's testimony permitted the inference that the various subgroups of West Side San Jose could reasonably be viewed as parts of the same overall organization under the umbrella of the Norteno gang. The evidence that appellant associated with Norteno members of the West Side Mob, the Varrio Horseshoe, and the San Carlos Mob, as well as his personal items emblazoned with V.H.S. and W.S.S.J., supported Corona's testimony that these groups were all part of West Side San Jose. Sufficient evidence supported the gang enhancement.

Although the trial court stayed punishment for this enhancement, the court did use it as a factor in imposing the aggravated term for the assault charge.

Prior Bad Act Evidence/Ineffective Assistance

Over defense counsel's objection on relevance grounds, Patricia Palomares Mason was permitted to testify that appellant had been asked to leave the Gardner Community Center "on several occasions" for wearing the color red. She also testified that he had been asked to leave the community center "at least more than twice" for carrying a crowbar in the sleeve of his jacket. The prosecutor referred to this testimony in closing argument to argue that appellant was lying and that appellant was a gang member. The defense argued that Mason seemed to dislike appellant.

The prosecutor argued, "[Appellant] lied on the stand about a few more things. He was kicked out of the Gardner Community Center. He doesn't seem to remember these occasions. No, I'm sorry. He did remember at least one that was for wearing red. [¶] And Patricia Mason testified he was kicked out for wearing red on more occasions she could count. She stated – and he doesn't remember – we'll say at least three occasions he was kicked out of the Gardner Community Center for carrying a crowbar up his sleeve. [¶] Who carries bars and sticks up their sleeves? Is that a normal way to walk, with something up your sleeve, down your pant leg? He is doing that to carry a concealed weapon. People carry weapons in their clothing because they don't want anyone to see this. [¶] How else do we know he is a gang member?"

Defense counsel argued, "[Mason] sees Mr. Gallegos has been kicked out, one, under attitude; two, for colors; three, for weapons.... Maybe it was bias. She didn't seem to like Mr. Gallegos because it just seemed he – she thought he was kind of a pain, a disruptive force at the community center."

Appellant contends, "Appellant's convictions must be reversed because the prosecution improperly maligned appellant's character with irrelevant and prejudicial character evidence that he had been expelled from a community center."

He argues, "The uncharged bad act evidence was inadmissible under state and federal law because it was inflammatory and had little probative value." In a related contention, appellant argues, "Appellant's trial counsel was prejudicially ineffective for failing to cite Evidence Code 352 and 1101 when he objected to Patricia Mason's testimony that appellant had been expelled from a community center."

Evidence Code section 210 provides, " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." All relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (People v. Carter (2005) 36 Cal.4th 1114, 1166 .) The test of relevance is whether the evidence tends " ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' " (Ibid.) The trial court has broad discretion in determining the relevance of evidence. (Ibid.)

Evidence of a defendant's criminal disposition is inadmissible to prove he committed a specific criminal act. (Evid. Code, § 1101; People v. Williams (1997) 16 Cal.4th 153, 193.) Admission of evidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the charged offense. (Id. at p. 193.) However, "in a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect." (Ibid.) "[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it. [Citation.]" (Ibid.)

Evidence of gang membership, and the conduct associated with that membership, is relevant if such evidence tends logically, naturally, and by reasonable inference to establish a motive in a gang-related crime or to fortify the testimony of witnesses who have identified the defendant as a participant in the crime. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Tuilaepa (1992) 4 Cal.4th 569, 588.)

Here, the evidence appellant classifies as uncharged misconduct was relevant to prove the truth of the gang enhancement. Even appellant acknowledges that "the testimony may have been marginally relevant to the gang allegation" but argues that "the primary issue at trial was whether appellant fought with Arguelles in self defense or attacked him with a gang motivation. Mason's conclusory testimony that appellant had been asked to leave the community center, had carried a crowbar and wore red had little probative value as to that issue and tended to show appellant in a bad light."

This evidence was highly probative on the issue of the gang motive for the attack on Arguelles. Although theoretically it would have been within the trial court's discretion to exclude this evidence under Evidence Code section 352, the evidence that appellant had been ejected from the community center for wearing red – a Norteno gang color – was indisputably relevant to, and highly probative of, the gang enhancement allegations, particularly in light of appellant's attempts during his testimony to downplay his previous admissions of gang membership by saying that he was "just answering [the officer's] questions fast" and that he "was actually being a smart ass with the guy." The evidence that appellant had been asked to leave the center for carrying a crowbar is relevant in that it helped to connect Corona's testimony about the intimidation tactics of Nortenos against Surenos in the area to appellant. It was also relevant to rebut appellant's testimony that he only happened upon the metal pipe when he saw it up against a tree shortly before he used it on Arguelles.

Furthermore, in an instruction that applied to all of the evidence, and not just the testimony of Corona, the jury was specifically told, "In terms of gang activity, you may consider evidence of gang activity only for the limited purpose of whether, one, the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime and enhancement allegations charged; or, the defendant had a motive to commit the crime charged; or, the defendant actually believed the need to defend himself. [¶] You may also consider this evidence when you evaluate the credibility or believability and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the person is a person of bad character or – or disposition to commit a crime."

Appellant suggests that, because Mason testified that the conflicts that she described were not with other gang members, the jury would have ignored this limiting instruction and, instead, "the jury must have simply inferred that appellant is a violent person who violates rules and carries weapons." However, this mischaracterizes Mason's testimony. When asked if appellant was a problem at the center, she answered, "Well, problem with the color he wore or if he had something, it was a problem. But not him. If he didn't have none of that, he was not a problem." Accordingly, Mason's testimony was relevant and its probative value outweighed any prejudice. Defense counsel was not ineffective for failing to object on the additional grounds of Evidence Code sections 352 and 1101. Because the evidence challenged was not erroneously admitted, appellant was not denied a fair trial and was not denied due process.

Mutual Combat Instruction

Appellant contends, "The trial court erred prejudicially when it gave a mutual combat instruction because there was no evidence of a pre-arranged agreement to fight." The trial court instructed the jury as to self defense and also instructed with CALCRIM No. 3471 as follows, "A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: one, he actually and in good faith tries to stop fighting; and two, he indicates, by word or conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and, three, he gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight." This instruction was in the packet submitted by the prosecutor and there was no objection to it from defense counsel at the instructional conference. There was no mention of this instruction during argument.

Appellant argues that "the jury could have wrongly inferred that appellant and Arguelles were mutual combatants because the instruction does not explain that there must be a pre-arranged agreement to fight to trigger the rule." Appellant relies on this court's case of People v. Ross (2007) 155 Cal.App.4th 1033. In Ross, this court found reversible error in a self defense jury instruction which barred self defense if the parties engaged in "mutual combat" in a case where there was no evidence of mutual combat. We said, " '[M]utual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight.... [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (People v. Ross, supra, 155 Cal.App.4th at pp. 1046-1047 , italics omitted.) "The mutuality triggering the doctrine inheres not in the combat but in the preexisting intent to engage in it. Old but intact case law confirms that as used in this state's law of self-defense, 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Id. at p. 1045, italics omitted.)

The trial court in Ross had also failed to define the term mutual combat when asked for a definition by the jury. This court said, "This left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense. In fact the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. Since the evidence here was insufficient to establish any such arrangement or agreement, and there was a substantial basis for the jury to find that defendant may have acted in self-defense when he struck the blow on which the verdict was based, we find it reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. We therefore reverse the judgment." (Ross, supra, 155 Cal.App.4th at p. 1036.)

Comparing his case to Ross, appellant argues, "Here, the instruction was also improper because there was no evidence that this was a pre-arranged mutual combat. Rather, there was evidence in support of the opposing theories that appellant ambushed Arguelles or Arguelles charged and assaulted appellant. Appellant and Arguelles testified that they were strangers and that they first met when the other initiated the altercation. Accordingly, the mutual combat instruction should not have been given." Appellant's argument unduly limits the jury's function to a binary choice between "opposing theories," that is, wholly accepting either appellant's version of the incident or that of Arguelles. Yet neither version corresponds to the testimony of Mason, who saw Arguelles yelling at appellant and appellant crossing the street toward Arguelles, apparently in response. Mason "figured it was between them two." The jury was at liberty to develop an interpretation of the evidence, based on an amalgamation of the testimony of all three, in which appellant and Arguelles exchanged words and insults and then began fighting through mutual intention. The evidence here was sufficient to establish an implied agreement to fight, and the trial court did not err in instructing the jury with CALCRIM No. 3471.

Lesser Included Offense of Simple Assault

The jury found appellant guilty of assault with a deadly weapon and also found true the enhancement that appellant "personally used a deadly and a dangerous weapon, a metal pipe, within the meaning of Penal Code section 12022(b)(1)." Appellant contends, "The trial court erroneously failed to instruct the jury as to the lesser included offense of simple assault."

" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154.)

"To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial-that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 745 .) In other words, " '[s]ubstantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude[ ]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (Breverman, supra, 19 Cal.4th at p. 162.)

At the instructional conference, the court asked defense counsel, "looking at the charged counts and how the evidence has come in on count 1, since the defendant did testify and he did admit hitting... Mr. Arguelles with the bar, are you asking for a lesser included [Penal Code section] 240 [simple assault]?" Defense counsel answered, "I am not, Your Honor." Nevertheless, " 'The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.' [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 195.)

Appellant argues, "The trial court had a sua sponte duty to instruct the jury as to the elements of the lesser included offense of simple assault because the jury could have reasonably concluded that appellant's blows with the metal bar were in self defense or that he did not use the bar as a deadly weapon." Appellant argues that "the jury could have convicted appellant of simple assault even though he admitted using an iron bar during the altercation because an iron bar is not a deadly weapon per se. (See, People v. Lee [(1937)] 23 Cal.App.2d [168] at 170.)" Appellant argues that "a reasonable jury could have concluded that appellant's first and most forceful blows were in self defense and that he was guilty of only simple assault based on his actions at the end of the fight." Appellant's argument depends in part on his contention that the jury was not properly instructed as to count 1 because of the mutual combat instruction and that thus "they may have convicted appellant of only simple assault if they had been properly instructed." However, as discussed above, we find no error in the giving of the mutual combat instruction.

In a noncapital case, the court's failure to sua sponte instruct on all lesser included offenses which are supported by the evidence must be evaluated for prejudice solely under People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, supra, 19 Cal.4th at p. 178.) Under that standard, "[a] conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836)." (Id. at p. 178, fn. omitted.)

Noting the true finding on one of the enhancements, respondent argues that "since the jury specifically found that appellant used a deadly weapon during the attack, any conceivable error in failing to instruct on simple assault was necessarily harmless." Appellant points to the language of section 12022, subdivision (b)(1), with which the jury was instructed, that the enhancement may be proved by evidence that the defendant "display[ed] the weapon in a menacing manner" or "hits someone with the weapon." Appellant argues "the verdict on the enhancement could have been based on evidence that appellant wrongfully displayed the metal bar just prior to the fight, which was insufficient to support the deadly weapon element of the assault count."

Appellant admitted that he hit Arguelles with the metal bar and the properly instructed jury implicitly found that he did not act in self defense. Arguelles's injuries, including his broken eye socket, showed that the metal bar fit the definition of a deadly weapon here even if a bar may theoretically not be a deadly weapon as a matter of law. The verdict forms required the jury to find not only whether appellant committed an assault with a deadly weapon, but also to make findings on whether, in committing the offense, he used a deadly weapon and whether he inflicted great bodily injury on Arguelles. The jury made affirmative findings on those allegations, thus negating the possibility that it would have found appellant guilty of simple assault if the court had instructed it on simple assault as a lesser included offense. For this reason, any error in not instructing the jury on a lesser included offense was harmless. (E.g., People v. Beames (2007) 40 Cal.4th 907, 929.)

Disposition

The judgment is affirmed.

WE CONCUR: PREMO, Acting P. J., MIHARA, J.


Summaries of

People v. Gallegos

California Court of Appeals, Sixth District
Apr 27, 2009
No. H032758 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Gallegos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS GALLEGOS, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Apr 27, 2009

Citations

No. H032758 (Cal. Ct. App. Apr. 27, 2009)