Opinion
D056634 Super. Ct. No. JCF22849
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO TORIBIO GAMA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. (Retired judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Alejandro Gama appeals from a judgment convicting him of six counts of gross vehicular manslaughter arising from the deaths of six undocumented persons who were being transported by him during an illegal alien smuggling operation. He argues the judgment must be reversed because of the erroneous admission of (1) expert testimony about illegal alien smuggling organizations, and (2) uncharged misconduct evidence about his prior participation in alien smuggling. He also argues his jury trial rights were violated by the trial court's selection of an upper term sentence. We reject these contentions of reversible error and affirm the judgment.
Overview
The offenses in this case arose from the deaths of six undocumented Mexican nationals who were killed in an automobile accident when defendant crashed the vehicle transporting the victims into a canal in Imperial County. Defendant had refused to stop the vehicle during a pursuit by the police, and he continued to drive the car in an unsafe manner even after the police abandoned the pursuit because of the danger to human life. Defendant was charged with six counts of second degree murder based on an implied malice theory. The jury acquitted him of the murder charges and found him guilty of six counts of the lesser offense of gross vehicular manslaughter.
At trial, a Border Patrol agent testified as an expert witness about his observations of the operations of alien smugglers, and an undocumented Mexican national testified about a prior incident when defendant participated in alien smuggling. Defendant argues the Border Patrol agent was not qualified to testify as an expert witness; the expert was improperly permitted to testify about the knowledge and intent of alien smugglers; and the testimony about defendant's prior uncharged misconduct should not have been admitted. We find no reversible error in the trial court's rulings.
Defendant also argues his federal constitutional jury trial rights were violated because the trial court, not the jury, made the findings to support the trial court's selection of an upper term sentence. Because of amendments to California's determinate sentencing scheme made prior to defendant's sentencing, there was no jury trial violation.
FACTUAL AND PROCEDURAL BACKGROUND
The events surrounding the charged incident were described by several undocumented persons who survived the accident, and by the officer who spotted the vehicle being driven by defendant before the accident. On the night of July 18, 2008, defendant was driving on a gravel road in Imperial County with about 19 undocumented persons in a black Suburban vehicle. Defendant stopped at an agricultural field to pick up more people. At about 11:00 p.m. (apparently just after defendant had picked up the additional people), Officer Luis Aguilar saw the Suburban while it was parked on the dirt road with its headlights off.
When the Suburban started moving (still with its headlights off), Officer Aguilar shone the patrol car's spotlight into it and was able to see the driver's face. Aguilar (who was traveling in the opposite direction) made a U-turn and activated the patrol vehicle's overhead emergency lights to conduct a stop. Defendant continued driving, turned on the Suburban's headlights, and drove onto a paved road. Aguilar activated the patrol car's siren, but defendant did not stop. Defendant made a turn onto an unpaved road, and Aguilar (using the patrol car's spotlight) was able to see that there were several people in the back of the Suburban. Defendant accelerated his speed and reached about 70 miles per hour. Aguilar followed the Suburban for about four to five minutes, but then for safety reasons terminated the chase. Aguilar was having trouble controlling the patrol car because it was hard to get traction on the loose-gravel road, and he could see people begin to "flail around" in the cargo area of the Suburban.
Survivors of the crash testified they were afraid for their lives when defendant was fleeing from the police. The passengers were yelling at defendant to reduce his speed and to stop. They told him that he was "crazy"; that there were women and children in the car; and that they would not tell the police who was driving. Defendant ignored their pleas, told them to "shut up," and continued to accelerate.
After the police stopped the chase, the passengers continued yelling at defendant to slow down or stop. Defendant never decreased his speed as he continued to drive on the unpaved roads. About one and three-quarter miles from where the police stopped the pursuit, defendant crashed the Suburban. The vehicle rolled over several times and landed upside down in a canal filled with water. Six of the passengers died. A prosecution witness who investigated the scene opined that the accident happened when the driver rapidly applied the brakes while driving at a high speed and attempting to maneuver through a curve in the dirt road.
A young girl who survived the crash testified that she asked the driver to help get her family out of the car. The driver refused. He covered the girl's mouth and slapped the back of her head, telling her to be quiet or they would be found.
At trial, the girl did not identify defendant as the driver.
After the crash, survivor Jorge Govea accompanied defendant and another man as they ran away and hid from the authorities for several days. During their time together, defendant talked about being the driver and described how he injured his foot on one of the vehicle's pedals when the vehicle rolled over. With the assistance of people who were contacted by defendant and the other man, Govea and defendant were eventually taken to a hotel. The authorities received information leading them to the hotel, and defendant was arrested.
At trial, Officer Aguilar identified defendant as the person he saw driving the Suburban, and Govea identified defendant as the man who had admitted he was the driver.
To support its theory that defendant acted with implied malice (i.e., awareness and conscious disregard of the risk to human life), the prosecution presented expert testimony about the operations of alien smuggling organizations in general, and about defendant's past participation in alien smuggling. Testifying as an expert, Border Patrol Agent Oscar Joanicot stated that an alien smuggling organization typically includes one or two people at the top in Los Angeles, and various organizers and workers at the local level, including "load" drivers who transport groups of aliens in vehicles. Load drivers are paid for each person smuggled, with the payment typically provided once the undocumented person has reached the place of his or her final destination (usually Los Angeles).
Joanicot explained that in addition to the small number of persons at the top in another city, the organization includes one or two people who are in charge of the day-today operations at the local level; organizers who find houses and vehicles; caretakers in charge of the load houses where the aliens wait for transportation further north; scouts who drive around checking for law enforcement; drivers of the load vehicles; scouts or guides who accompany load drivers to direct them to load houses or " 'lay-up spot[s]' "; foot guides who lead the aliens across the border; and persons who make arrangements for the aliens before they cross the border.
Agent Joanicot testified that drivers try to avoid detection by taking "out of the way" routes. If detected, drivers "do anything they can to get away," including driving erratically and at high speeds. Some drivers know from past experience that if they drive very erratically, including not obeying traffic laws, law enforcement may terminate the pursuit. Further, drivers take "weird" routes and make erratic turns to make it more difficult for law enforcement to anticipate their routes and put "spikes" in the road to deflate the tires of their vehicles. Joanicot had personally seen about four or five incidents where the load drivers crashed the load vehicle, and he had investigated about 20 or 30 cases involving these kinds of crashes.
Agent Joanicot also addressed the situation when a driver flees and leaves his "human cargo" behind. He explained that drivers of aliens may "take off" to avoid arrest and abandon the human cargo. For example, one technique used by drivers is to slow the vehicle enough to jump out, but leave the car rolling so as to delay a chase while the authorities try to stop the car to protect the passengers. Joanicot stated that drivers abandon human cargo more frequently than narcotics cargo, because aliens are typically sent back to Mexico and are available for later smuggling, whereas narcotics are seized and no longer available for smuggling. He opined that drivers do not have "much concern for the human cargo" once they have been detected, and they try to protect narcotics cargo more than human cargo.
Alejandro Alejo Perez, a Mexican national who was smuggled into the United States several days before the charged incident, testified about defendant's participation in his smuggling operation. Perez testified he and several others were led across the border in the desert by two guides, and they stayed overnight at a place with trees and a canal. While at this location, defendant arrived in a white Suburban and joined the smuggling operation. Defendant used a walkie-talkie and helped load Perez and 22 others into the Suburban to go to another location. Defendant rode in the Suburban with Perez's group, and when the group was dropped off to continue their journey on foot, defendant remained with the Suburban.
Defendant was not driving the white Suburban; the vehicle was driven by a woman when it arrived, and it was driven by a different man when it left with Perez and his group.
The defense theory of the case was that the prosecution did not prove defendant was the driver of the vehicle, or, alternatively, did not prove he drove in a manner showing the state of mind required for second degree murder.
Jury Verdict and Sentence
The jury acquitted defendant of the charged six counts of second degree murder, and found him guilty of six counts of the lesser offense of gross vehicular manslaughter.He was sentenced to 12 years eight months in prison, consisting of an upper six-year term for count 1, and five consecutive sentences of one year four months (one-third the middle term) for the remaining counts.
Implied malice murder requires a subjective awareness of the risk to life and conscious disregard for life, whereas gross vehicular manslaughter is established upon a showing of gross negligence (i.e., a reasonable person in defendant's position would have realized the risk to life). (People v. Watson (1981) 30 Cal.3d 290, 296-297; People v. Hovda (2009) 176 Cal.App.4th 1355, 1357-1358.)
DISCUSSION
I. Expert and Uncharged Misconduct Evidence Concerning Alien Smuggling
Defendant challenges the admission of two items of evidence concerning alien smuggling apart from the charged incident: i.e., Agent Joanicot's expert testimony about alien smuggling organizations, and Perez's testimony about defendant's prior participation in alien smuggling. He argues (1) Joanicot did not have the qualifications to testify as an expert, and (2) Joanicot improperly testified about the subjective knowledge and intent of alien smugglers. Further, defendant asserts the evidence of his prior participation in alien smuggling was not relevant and should have been excluded under Evidence Code section 352.
A. Expert Testimony About Alien Smuggling Operations
1. Qualifications
A person may testify as an expert "if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Expertise is relative to the subject matter of the testimony, and is not subject to rigid classification according to formal education or certification. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37.) The issue is whether the witness's "peculiar skill, training, or experience enable[s] him to form an opinion that will be useful to the jury." (People v. Davis (1965) 62 Cal.2d 791, 800.) "If the witness exhibits an unusual skill and knowledge gained from study and experience not possessed by the man on the street he is competent to give an opinion." (People v. Horowitz (1945) 70 Cal.App.2d 675, 689.) Once the trial court determines a witness has sufficient knowledge of the subject matter to entitle the opinion to go to the jury, the question of the degree of the expert's knowledge goes to the weight of the evidence, not its admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 321-322.) A trial court's determination of whether a witness qualifies as an expert will not be disturbed on appeal absent a manifest abuse of discretion. (Ibid.)
Agent Joanicot testified about his qualifications at a pretrial hearing under Evidence Code section 402 and at trial. In both instances, over defense objection, the trial court found he had sufficient training and expertise to assist the jury with understanding alien smuggling organizations.
Joanicot testified that he has been employed by the El Centro Border Patrol for six years. For about three years, he worked as a line agent at the border, at checkpoints, and in the mountain areas, which involved looking for and pursuing illegal aliens on foot and alien loads in vehicles. For about 10 months he worked as a certified field training officer, during which he provided in-the-field training to new agents, including apprehension of alien loads. He worked as a field intelligence agent for about five months, during which he gathered intelligence to identify smuggling organizations.
Joanicot has also worked on teams that specialize in alien smuggling operations, including the Combined Operational Border Response Asset Team (COBRA), the Border Enforcement Security Task Force (BEST), and the El Centro Sector Smuggler Targeting Action Team (STAT). He worked for 10 months for COBRA, which dealt with human smuggling loads on the highways. He testified that for the past 10 months he has been a member of a task force consisting of the BEST and STAT teams, which target narcotics and human smuggling. Members of these teams are "handpicked" and must demonstrate knowledge of alien smuggling operations and surveillance and interviewing skills. To develop cases against alien smuggling organizations, COBRA and STAT members work in plain clothes and unmarked vehicles. In 2009 his BEST team received a national award for a two- to three-year operation that resulted in the identification and dismantling of an alien smuggling organization.
In his work as a line agent, intelligence agent, and member of the special units, Joanicot, a native Spanish speaker, has conducted "hundreds" of interviews with undocumented persons and smugglers, including load drivers. When the case is being prosecuted, he is involved in the processing of the case, including conducting interviews and testifying at trial. He has been involved in the investigation of alien smuggling organizations in at least 60 cases, and in about 40 of these cases the smugglers (including load drivers) have agreed to speak to him about their activities. Some of the cases involved pursuit because the driver did not pull over in response to the law enforcement vehicle's emergency lights and sirens.
Joanicot testified that from his training, investigations, and consultations with other task force members, he has acquired information about how an alien smuggling organization works and the roles of its members. He has testified in court about three or four times to describe how the organizations work; however, he was not designated an expert in those cases.
The record supports the trial court's finding that Agent Joanicot was qualified to testify as an expert on alien smuggling organizations. He has been involved in law enforcement activities directed at these organizations for essentially his entire six-year career with the Border Patrol, and in more recent years he has been working on teams that specifically target the dismantling of these organizations. He has personally seen the operations of load drivers involved in smuggling organizations, and has investigated numerous alien smuggling cases and interviewed persons associated with the smuggling operations, including load drivers. The trial court reasonably concluded that Joanicot had adequate training, knowledge, and experience that enabled him to provide information and form opinions useful to the jury about the operations of alien smuggling organizations.
Defendant asserts that Agent Joanicot was not qualified because this was the first time he had testified as an expert on alien smuggling, and he had never provided training or written materials about this topic. The record shows that Joanicot did provide some training about alien smuggling when he worked as a field training officer. The fact that he had not previously been designated as an expert and had not published on the subject did not require a conclusion that he lacked the requisite background. As stated, formal indicia of expertise is not essential; a witness may qualify as an expert based on a showing of experience and skill, and once this showing is made the degree of the expert's knowledge goes to weight not admissibility. (People v. Brown, supra, 96 Cal.App.4th Supp. at pp. 36-37; People v. Bolin, supra, 18 Cal.4th at pp. 321-322.) The court did not abuse its discretion in finding Joanicot qualified as an expert.
2. Knowledge and Intent
Defendant contends that Agent Joanicot improperly testified about the subjective knowledge and intent of drivers engaged in alien smuggling operations. Defense counsel failed to raise this objection at trial; accordingly, the issue is forfeited on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) In any event, the contention fails on its merits.
To be admissible, expert opinion testimony must be related to a subject that is sufficiently beyond common experience so that the expert's opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).) If the expert opinion addresses a matter beyond common experience, it is admissible even if it encompasses an ultimate issue in the case. (Evid. Code, § 805; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission; the test is whether the evidence would add something to the jury's common fund of information so that it would assist the jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) However, the courts exercise caution to ensure the expert's testimony is "not tantamount to expressing an opinion as to [the] defendant's guilt." (People v. Ward (2005) 36 Cal.4th 186, 210.)
Consistent with this latter principle, the courts have concluded that although an expert may provide information from which the jury may infer the defendant's state of mind, the expert generally may not give an opinion about the particular defendant's subjective knowledge or intent. (See People v. Vang (2011) 52 Cal.4th 1038, 1047-1049; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) However, this limitation does not preclude an expert from testifying about the culture and habits of a group engaging in illegal activity, including the typical states of mind entertained by persons in these groups. (See People v. Vang, supra, at pp. 1045, 1047-1049; People v. Olguin, supra, 31 Cal.App.4th at p. 1371.)
Here, Agent Joanicot did not opine about defendant's subjective knowledge and intent. Rather, he testified about the actions he has observed by load drivers, including engaging in high-speed, risky driving in attempting to avoid arrest. He stated that some load drivers know from past experience that if they drive in an erratic manner the authorities will abandon a chase, and he opined that load drivers do not have concern for their "human cargo" in the sense that they would rather abandon the people than stay and risk arrest. His testimony stayed within the permissible bounds of testimony describing the expert's view of the habits and culture, including typical states of mind, of persons in a group engaging in illegal activities. Although this evidence was relevant to support inferences concerning this defendant's particular state of mind, it did not intrude upon the jury's function of deciding that issue.
Moreover, even assuming arguendo the expert's testimony about the state of mind of typical load drivers should not have been admitted, there is no reasonable probability the jury would have reached a different outcome absent this testimony. (People v. Prieto (2003) 30 Cal.4th 226, 247.) The circumstances surrounding the crash itself provide overwhelming evidence in support of the jury's gross vehicular manslaughter verdict based on a finding that a reasonable person in defendant's position would have realized the risk to life. (See fn. 5, ante.) Defendant was driving a vehicle hugely overloaded with passengers; he reached speeds up to 70 miles per hour on a loose-gravel road; the pursuing officer stopped the chase because of traction difficulties; frightened passengers were yelling at defendant that he was crazy and he should slow down or stop; defendant ignored their pleas and did not decrease his speed; and he crashed the vehicle as he tried to maneuver through a curve. Given the high risk to life apparent from defendant's conduct, it is not reasonably probable the jury would have rejected a finding of gross vehicular manslaughter if it had not heard the expert's views on the intent of typical load drivers.
B. Defendant's Prior Participation in Smuggling
Prior to trial, the prosecutor moved to admit Perez's testimony about defendant's prior participation in alien smuggling. The prosecutor argued that, when considered in conjunction with the expert testimony about the risks arising from drivers' attempts to evade law enforcement, evidence of defendant's prior participation in a smuggling organization supported that he knew about and consciously disregarded these risks. Further, the prosecutor contended that defendant's prior involvement in alien smuggling was relevant to show his motive during the charged offense. Defense counsel objected, arguing that implied malice could be shown from defendant's conduct during the charged incident, and evidence of his prior alien smuggling had minimal relevance and was unduly prejudicial. The trial court concluded the evidence was relevant to defendant's state of mind and its relevance was not outweighed by possible prejudice. The court reasoned that evidence showing defendant's regular involvement in alien smuggling would support that he was inclined to subject others to risk if he was trying to "get away" to protect himself from prosecution.
The trial court excluded a portion of the proffered uncharged misconduct evidence which concerned the death of an undocumented person (apparently due to poor health) during defendant's prior smuggling activity. The trial court ruled evidence of this death was unduly prejudicial.
--------
Defendant argues the evidence was not relevant and should have been excluded under Evidence Code section 352 as unduly prejudicial.
Evidence of offenses committed by the defendant that are not charged in the current case is generally inadmissible for purposes of showing the defendant's bad character or propensity to commit crimes. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) However, uncharged misconduct evidence is admissible when relevant to prove some fact other than criminal propensity, such as the defendant's state of mind or motive. (Ibid.) Uncharged misconduct evidence may be relevant to prove an ultimate fact in the case, or an intermediate fact that inferentially supports an ultimate fact. (People v. Catlin (2001) 26 Cal.4th 81, 146.)
Because of the prejudice inherent in uncharged misconduct evidence, the evidence must have substantial probative value, and the trial court must evaluate under Evidence Code section 352 whether the probative value is outweighed by the probability of undue prejudice, confusing the issues, or misleading the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) We review the trial court's rulings on uncharged misconduct evidence for abuse of discretion. (People v. Whisenhunt, supra, 44 Cal.4th at pp. 203, 205.)
Here, the trial court could reasonably conclude that defendant's prior participation in alien smuggling — considered in conjunction with the expert testimony on alien smuggling organizations — was relevant to show that he knew the risks to life associated with being a driver in a smuggling operation and that he had a motive to take those risks during the charged incident. Agent Joanicot testified that once they are detected by law enforcement, load drivers may drive erratically and at high speeds to avoid arrest, and that there have been numerous incidents where crashes have resulted. Evidence showing that defendant had previously participated in a smuggling organization could support inferences that he knew that load drivers had previously caused crashes during attempts to evade law enforcement, and that he was willing to take extreme measures to avoid arrest so that he could continue working for the smuggling organization. These inferences could in turn support findings that defendant acted with awareness of the risk to life when he drove at an unsafe speed following detection, and that he had a motive to act in this fashion.
Further, the trial court was not required to find that the evidence of defendant's prior participation in alien smuggling was more prejudicial than probative. Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or cause prejudgment of the issues based on extraneous factors. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) The uncharged misconduct evidence presented to the jury did not involve any deaths, and was far less egregious than the charged incident; thus, it did not create a risk of an emotional impact that might bias the jury. We are also unpersuaded by defendant's contention that the evidence should have been excluded because the jury might have wanted to punish him for the uncharged misconduct. Although the prior misconduct evidence did not include a conviction, it did not involve any extreme facts that compel a finding of undue prejudice.
Defendant also argues his trial was unfair because the jury was not given a limiting instruction stating the uncharged misconduct could not be considered unless it was proven by a preponderance of the evidence, and it could not be used to infer he is disposed to commit crime. (See CALCRIM No. 375.) Generally, a trial court has no duty to give a limiting instruction absent a request by defense counsel. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) Moreover, defense counsel could reasonably elect to refrain from requesting a limiting instruction for the misconduct evidence based on a strategic decision not to draw additional attention to the evidence. (Id. at p. 1053.) If a limiting instruction had been given, it would have pointed out to the jury that it could consider the uncharged misconduct evidence when determining certain issues (i.e., defendant's intent or motive). (See CALCRIM No. 375.) The absence of the limiting instruction did not deprive defendant of a fair trial.
II. Upper Term Sentence
The trial court selected a six-year upper term sentence for count 1 gross vehicular manslaughter, based on findings that defendant must have known there would be serious injuries if there was an accident in a vehicle overloaded with people and with only a few seat belts, and defendant acted with callousness by refusing the young girl's pleas to help after the accident. Defendant asserts the trial court violated his federal constitutional jury trial right because the upper term sentence was based on aggravating findings made by the court rather than the jury. The contention is unavailing.
The federal constitutional jury trial right requires that a jury must find any fact, other than a prior conviction, that increases a sentence beyond the prescribed statutory maximum. (Cunningham v. California (2007) 549 U.S. 270, 288-289.) In Cunningham, the United States Supreme Court held that the middle term was the prescribed statutory maximum under California's determinate sentencing provision, section 1170, subdivision (b). (Cunningham, supra, at p. 293.) However, effective March 2007, the Legislature amended section 1170, subdivision (b) so that the upper term, rather than the middle term, is the prescribed statutory maximum. (See People v. Jones (2009) 178 Cal.App.4th 853, 866-867.) When defendant was sentenced in 2009, this amendment was operative. Accordingly, the trial court was authorized to select upper terms based on its own factual findings because an upper term is not beyond the prescribed statutory maximum. (Ibid.) There was no sentencing error.
DISPOSITION
The judgment is affirmed.
_______________
HALLER, J.
WE CONCUR:
_______________
NARES, Acting P. J.
_______________
IRION, J.