Opinion
D070533
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. HENRY LOUIS GONZALES, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263877) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Reversed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged defendant and appellant Henry Louis Gonzales with one count of robbery (Pen. Code, § 211). The jury found Gonzales guilty as charged, and the court sentenced him to five years in state prison.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends his trial was rendered fundamentally unfair when the court denied his motion in limine to exclude evidence that he was a documented gang member, despite the fact that he was neither charged with a gang crime nor gang enhancement nor was there any evidence of gang activity or involvement in connection with the robbery. We agree and reverse his conviction.
FACTUAL OVERVIEW
About 10:30 p.m. on September 17, 2015, the victim, A.L., stopped at a liquor store located on Imperial Drive in San Diego to get something to drink before he started his school homework. Before going into the store, A.L. gave an elderly man some change. After leaving the store, two other men approached A.L., and one of them also asked for some change. A.L. looked down to separate the change from the bills he had just taken out of his pocket. When he looked up, A.L. saw the other man—who had been standing closer to the wall of the store—pointing a gun at him. A.L. estimated the man holding the gun stood less than six feet away.
A.L. testified the other man—who had asked for change—pushed A.L. against the wall and then reached into A.L.'s pocket and pulled out the remaining money. Scared, A.L. decided not to resist and risk being shot, or even killed. A.L. estimated he had more than $460 in his pocket because he had cashed his paycheck earlier that evening before going to class. After taking the money, one man took off running, and the other man, who had been pointing the gun at A.L., left on a "black and blue" "BMX-style" bicycle.
During the robbery, A.L. paid more attention to the gunman than the other man. At trial, A.L. described the gunman as "stocky," of "Hispanic descent," and with a "bunch of tattoos on his face." A.L. also described this same man as having large "white earrings" or "ear plugs or gauges" in his earlobes and a piercing by his lip.
Immediately after the robbery, A.L. called 911. A recording of this conversation was played for the jury. A.L. gave the dispatcher a description of the robbers and waited for police, who arrived on scene shortly thereafter. A.L. next gave officers a statement that again included a description of the two robbers. One of the officers who contacted A.L. activated his body camera, and that video was also played for the jury.
Later that night, and as discussed extensively post, A.L. identified defendant as the gunman, after being shown a photobook of documented gang members by San Diego Police Detective Nestor Hernandez, who, at the time, was assigned to the street gang unit. At trial, A.L. identified defendant as the gunman who, along with the other man, robbed him on the night of September 17. Before that night, A.L. had never seen defendant.
San Diego Police Officer Ryan Cameron testified that, before he went on patrol on September 22, 2015, he was briefed about the September 17 robbery of A.L.; that, as part of the briefing, he was provided with a "wanted flyer" showing defendant as the suspect in that robbery; and that he knew defendant as a result of his making about five to 10 contacts with defendant in the Encanto area, including in the area where the robbery took place.
Officer Cameron also knew defendant frequented an apartment in the area. When Officer Cameron went to that apartment later that day, he saw a black and blue bicycle outside and found defendant inside. Officer Cameron recovered a "black replica of a firearm" inside the apartment that looked similar to the gun used in the robbery of A.L. At the time of his arrest, defendant had a lip ring in his bottom lip and earring plugs in each ear with the notation "69" in the center of the plugs.
DISCUSSION
A. Additional Background
Before trial, the defense moved in limine to exclude the introduction of evidence that defendant was a current or past gang member. Specifically, the defense argued such evidence was not relevant under Evidence Code section 350 because defendant was "not charged with being a member of a criminal street gang, nor [did] the People allege the charged offense was committed for the benefit of such." In addition, the defense argued such evidence, even if minimally relevant, was not admissible under Evidence Code section 352, citing People v. Hernandez (2004) 33 Cal.4th 1040, 1049 for the proposition that " 'evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.' "
We conclude the defense's pretrial motion in limine to exclude the introduction of gang evidence adequately preserved this claim of error on appeal. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171 [noting a properly directed motion in limine that satisfies the requirements of Evid. Code, § 353 preserves objections for appeal].)
At the in limine hearing, the court noted that "there's probably going to be some reference to the fact that Mr. Gonzales was -- the identity of Mr. Gonzales was discovered in a book, a photo book of -- for gang members or -- current or former gang members for a gang in Encanto. [¶] A certain amount of that is not going to be able to be shielded from -- I think it's just going to be expected. But there will be no evidence and there -- that -- that this crime was a gang crime. It's not charged as a gang crime. It wasn't performed for the benefit of the gang. We're not going to have a gang expert come in and testify about criminal street gangs or anything of the sort. [¶] And I think that -- and, in fact, I'm going to let you, [defense counsel], express what your concerns are so that those are addressed specifically on the record and I get it right."
The record shows defense counsel next argued as follows: "You've fairly summarized our discussions [in chambers], and just to highlight -- you know, my concern was any officers -- because Mr. Gonzales is not charged with gang allegations -- that this was gang related or somehow that -- injecting the word 'gang,' 'gang member' unnecessarily into the trial. [¶] I understand that there was a book of photographs and the detective, perhaps, comes from the gang unit. I think that's going to come out in his credentials or training. [¶] But how they -- how they actually came up with Mr. Gonzales and they knew of him, where he lives and -- but I don't think that it's necessary to go into any sort of gang affiliation or active or retired or whatever it is. [¶] But we can -- I think -- and I don't think the People are intending on delving into it, but sometimes the officers may accidently or sometimes not -- But I think we've covered it, your honor."
In response, the prosecution stated it would limit the gang evidence as follows: "And as I said before, the only evidence that the People seek to elicit regarding any sort of gang relation pertains to how this photo book of various photographs came into existence in the first place and why Detective Hernandez had a book with the defendant's photograph and various other males in this -- in this binder that he presented to the victim rather than going and creating a photo array. So that will -- testimony will come out related to that. [¶] There will be testimony that at least one of the officers, Officer Cameron, has contacted the defendant around this particular liquor store and in this neighborhood, but I don't intend on eliciting any information regarding his knowledge that the defendant is or is not a gang member because, as your honor stated, the allegation is not charged. So we intend to control that information and keep it relevant to the facts in this case."
At trial, Detective Hernandez testified he was informed by an officer about 11:00 p.m. on September 17 that there had been a robbery at a liquor store on Imperial Avenue. After speaking with officers at the crime scene, Detective Hernandez and another detective went to A.L.'s house and spoke with the victim. Before interviewing A.L., Detective Hernandez was told by the responding officers that one of the suspects possibly involved in the robbery was "Solo from Encanto." When asked what he did in response to this information, Detective Hernandez testified: "Based on that information -- I normally carry a photo lineup book of the gang sets that I work. I presented -- or asked [A.L.] if he would be willing to look at this photo book with all the Encanto gang members that I had."
Detective Hernandez further testified that he had the photo book as a result of his being assigned to the "street gang unit"; that he identified defendant in court as "Solo"; that defendant's photograph was in the "binder" he showed A.L.; that, before showing A.L. the binder, he admonished A.L. with the standard "photo lineup admonishment form"; that, after reading A.L. the form, he told A.L. that he was going to provide him with a "photo book" that has about nine pictures per page; and that, while A.L. was not able to make a positive identification regarding the one suspect who asked him for money and then forcibly took the money from him, A.L. was able to identify defendant as the gunman. In fact, Detective Hernandez said A.L. did not "hesitate whatsoever" in identifying defendant as the person who pointed a gun at him during the robbery.
In connection with the gang book, Detective Hernandez testified that it contained more than 60 photographs; that, of the more than 60 photographs, only three individuals in the book had tattoos on their faces; and that, unlike a "photo six-pack," which he described as six photographs that are not "suggestive in any way," the photo book shown to A.L. included "multiple people," most of whom were "documented gang members with a particular gang set with which [he] work[ed]." Detective Hernandez went on to testify, "This [book] . . . depict[ed] photographs of all of the members at this particular time. They vary in age group, hair length, mustaches, goatees, tattoos, you now, all of those things. So it varies. [¶] And then at times, they are also gender -- there may be some females in the book as well. I think in this one, there may only be one." On cross-examination, Detective Hernandez admitted that, of the more than 60-plus photographs in the book, only one person—defendant—had "full facial tattoos."
When asked why he showed A.L. the photobook as opposed to a traditional six-pack photo lineup, Detective Hernandez testified: "At this particular time, I had no information -- I had no contact with [A.L.] before reading him this admonishment. Based on the information that we [had] gotten from the patrol officers, we believed that Encanto gang members may be involved. [¶] There were multiple suspects in this particular incident. So, in effect, as I traditionally do when there are multiple suspects involved in a crime and they are specifically from a gang itself, I will take the photo book and show it to my victims." On further questioning, Detective Hernandez confirmed he had used his photobook "in previous crimes and cases."
In closing, the prosecutor in rebuttal addressed the defense's argument that law enforcement did not do a thorough investigation of the case. In so doing, the prosecutor argued the robbery "was serious enough and important enough [for] law enforcement to call Detective Hernandez out that night to take a statement of the victim, to present him the photo book. And it's a photo book in which potential suspects are presented because all that was known to him, as he told you, was that potentially an Encanto gang member was involved. [¶] So he took all of the photographs and presented it, just as he did in other similar cases. He didn't do anything different or unusual because someone by the name of Solo, who[m] we now know is the defendant, was identified as the possible suspect."
B. Guiding Principles and Analysis
Our "courts have long recognized the potentially prejudicial effect of gang membership. As one California Court of Appeal observed: 'It is fair to say that when the word "gang" is used . . . , one does not have visions of the characters from the "Our Little Gang" series. The word gang . . . connotes opprobrious implications. . . . [T]he word "gang" takes on a sinister meaning when it is associated with activities.' (People v. Perez (1981) 114 Cal.App.3d 470, 479.) Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. (People v. Cox (1991) 53 Cal.3d 618, 660.) In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. (People v. Hernandez[, supra,] 33 Cal.4th [at p.] 1047.) 'Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.' (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
"Thus, as general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; see generally Evid. Code, § 352.) 'Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]' (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193; People v. Carter (2003) 30 Cal.4th 1166, 1194 [evidence of defendant's gang membership although relevant to motive or identity creates a risk the jury will improperly infer defendant has a criminal disposition and is therefore guilty of the charged offense and thus must be carefully scrutinized].)" (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224, italics added.)
The decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and, thus, admissible, rests within the discretion of the trial court. (People v. Albarran, supra, 149 Cal.App.4th at pp. 224-225; People v. Avitia, supra, 127 Cal.App.4th at p. 192.) We review the trial court's ruling for abuse of discretion. (People v. Albarran, at p. 225.)
Here, we conclude the court abused its discretion when it ruled to admit—even for a limited purpose—any evidence that defendant was in a gang, including his gang moniker, because such evidence was not relevant to any material issue in this case. (See People v. Albarran, supra, 149 Cal.App.4th at pp. 223-224; see also Evid. Code, §§ 350 & 352.) Indeed, defendant was not charged with a gang crime or enhancement. Nor is there any evidence of gang activity or involvement in connection with the robbery, including, by way of example only, gang signs and/or names. Rather, the only reason the issue of gangs arose in this case was as a result of Detective Hernandez's decision to show A.L. a gang book that Detective Hernandez complied while working in a gang unit, as opposed to a traditional six-pack photo display, in attempting to identify the suspects in the robbery.
Moreover, we conclude it would have been fairly simple for the prosecution to explain how A.L. came to identify defendant as a suspect in the robbery without the need to mention that this identification came from a book of 60-plus documented gang members compiled by Detective Hernandez. To make matters worse, as summarized ante, the record shows on questioning Detective Hernandez did not limit his testimony merely to the fact that defendant was identified through a gang book, but instead made multiple references to the fact defendant was a documented gang member who went by the moniker "Solo," even going so far as to make a courtroom identification of defendant using defendant's moniker.
What's more, we also conclude this error rendered defendant's trial fundamentally unfair. (See People v. Albarran, supra, 149 Cal.App.4th at pp. 228-229; People v. Partida (2005) 37 Cal.4th 428, 439 [noting the "admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair"].) "To determine whether an evidentiary ruling denied defendant due process of law, 'the presence or absence of a state law violation is largely beside the point' because 'failure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis' for granting relief on federal due process grounds." (People v. Albarran, at p. 229.) If a defendant demonstrates the admission of evidence violated his or her federal due process rights, he or she need not demonstrate the "reasonably probable" standard under People v. Watson (1956) 46 Cal.2d 818. (See People v. Albarran, at p. 229.)
"Under Chapman v. California (1967) 386 U.S. 18, 24, in the case of a deprivation of federal due process, reversal is required unless the State can prove beyond a reasonable doubt that the error did not contribute to the verdict. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [Watson standard applies to prejudicial-error analysis for errors of state law, while beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. 18 applies to similar analysis for federal constitutional errors].)
"To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citations.]' [Citation.]" (People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn. omitted.)
Here, as noted, the record shows the gang evidence had absolutely no bearing on the material issues in this case. As such, we discern "no permissible inferences" that a jury could draw from this evidence. (See People v. Albarran, supra, 149 Cal.App.4th at p. 229.) Given the number of references during the trial to defendant being a documented gang member, including by the prosecutor during rebuttal, and given the "highly inflammatory" (see People v. Williams, supra, 16 Cal.4th at p. 250) nature of such, we further conclude the prejudice of this "evidence" prevented defendant from receiving a fair trial. (See People v. Albarran, at p. 230.)
In light of our decision, we deem it unnecessary to reach defendant's contention that the prosecutor committed "misconduct" by using the gang evidence to prejudice defendant "in the eyes of the jurors" or that the photobook itself was unduly suggestive because there were only three gang members with facial tattoos like defendant. --------
DISPOSITION
Defendant's judgment of conviction is reversed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. DATO, J.