Opinion
B228213
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDREW GONZALEZ, Defendant and Appellant.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA357969)
APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed as modified.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jaime L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Andrew Gonzalez appeals from the judgment entered following his conviction by jury of willful, deliberate, and premeditated attempted murder with the finding that he personally used and intentionally discharged a firearm causing great bodily injury and committed the crime for the benefit of a criminal street gang. (Pen. Code, §§ 664/187, 664, subd. (a), 12022.53, subds. (b), (c), and (d), 186.22, subd. (b)(1)(C).) He contends the gang expert proffered improper opinion testimony and he is entitled to additional credits. We will modify the judgment to award additional credits and affirm.
STATEMENT OF FACTS
I. The Prosecution Case
On November 3, 2008, Yareli Farias was working as a cashier at a 99 Cent store located at 4912 Hooper Street. Because two schools are near the store, students would stop to purchase items after classes ended. That afternoon, Farias left the store and returned after picking up her daughter from school. Upon her return, she saw two males outside of the store. They were stopping people and asking them where they were from. Farias assumed the males were from a gang. About 10 or 20 minutes later, she heard a single gunshot. After a short time, Farias walked outside of the store and saw a young Hispanic male (later identified as John Ruiz) lying on the ground. Ruiz was bleeding from the upper torso. Farias went inside and called for an ambulance. One of the two males she had seen earlier came into the store and said they shot the homie. Farias believed the BMS (an acronym for Barrio Mojados) and 38th Street gangs were active in the neighborhood based on graffiti she had seen.
None of the civilian witnesses knew the victim's name. For clarity, we will refer to the victim by name when setting forth the witnesses' testimony.
Shortly before the shooting, Luis Macias was parked across the street from the 99 Cent store. He saw Ruiz walking around the area of the store talking to people. Macias noticed a group of kids coming from the direction of Jefferson High School. As he was listening to music in the car, Macias heard loud noises. He looked up and saw Ruiz and another male fighting on the sidewalk in front of the store. Neither combatant had a weapon. Ruiz was knocked to the ground. As he started to get up, a male came from the back of the crowd that had gathered, pulled out a gun, and shot him. Macias heard about "three or four rounds go off." The shooter ran through an alley near the store and Macias observed that he was wearing an orange sweater and carrying a black backpack.
Rudy Gonzalez knew Brian Martinez and defendant, having met them while they attended the same middle school. Gonzalez knew Martinez was a member of the Hoodlum Family (HF) gang. Gonzalez was acquainted with people who attended Jefferson High School and were members of HF and 38th Street. Gonzalez was aware that defendant was a member of a tagging crew called OTLS, which stood for Outlaws.
Martinez was charged jointly with defendant. He entered a no contest plea to attempted murder shortly before trial.
On the day of the shooting, Gonzalez saw Martinez and defendant at Jefferson High School. Gonzalez told police that he overheard Martinez say to defendant, "If you shoot somebody, you can be from H.F." He also remembered saying to police that Martinez was carrying a gun in a black backpack at the time.
After school, Gonzalez walked down Hooper Street with a group of about 12 people. Martinez and defendant were walking behind Gonzalez's group. Martinez gave defendant his backpack and walked quickly past Gonzalez just as Gonzalez approached the 99 Cent store. Martinez went up to two males who were sitting on some steps adjacent to the store. According to Gonzalez, Martinez knew the two males. One of the males, Ruiz, asked Martinez where he was from. In a written statement given to police three weeks after the shooting, Gonzalez informed officers that Martinez knew the males were members of BMS. Ruiz said to Martinez, "Fuck you, Homie," and struck him. A fight ensued between them. In court, Gonzalez stated that defendant took a gun out of the backpack Martinez had given him and shot Ruiz. After Ruiz fell, Martinez said to him, "My Barrio, Homes," and ran away through the alley with defendant.
After the shooting, an officer went to a nearby business and retrieved footage from one of the business's surveillance cameras that was operating. The footage captured Martinez and Gonzalez walking past the camera toward the 99 Cent store.
Days after the shooting, Martinez approached Gonzalez at school and told him not to say anything. Gonzalez assured him that he would not. Gonzalez did not tell school authorities about the incident because he was afraid Martinez and defendant would "do something" to him.
On November 17, 2008, Officer Oscar Gutierrez interviewed Rudy Gonzalez at Gonzalez's home. Gonzalez said he was with a group that approached two male Hispanics seated on steps adjacent to the store. Prior to the group's arrival, Martinez gave a black backpack that contained a gun to the eventual shooter. (At the time of this interview, Gonzalez had not yet identified defendant as the shooter.) Martinez started fighting with the male Hispanics. During the fight, Martinez yelled, "Get the gun and shoot." The shooter took a black revolver from the backpack and fired three times. According to Gonzalez, earlier that day, Martinez told the shooter, "If you shoot somebody you can be from H.F." In an interview a week later, Gonzalez identified defendant as the shooter and told officers defendant's first name was Andrew and that he lived somewhere in the Fifties on McKinley Avenue.
Officer Gutierrez viewed a number of photographs of the crime scene and the surrounding neighborhood. He noted that the shoes Ruiz was wearing at the time of the shooting had letters on them associated with BMS. Gutierrez pointed out areas in the neighborhood where BMS graffiti was present.
Officer Steven Torres is a gang detective. From October 2007 to July 2010, he worked as a gang officer in an area in which BMS, 38th Street, and HF claimed territory. Tagging crews consist of individuals whose main focus is the writing of graffiti on walls. Tagging crews are often affiliated with gangs and gangs will recruit members of their affiliated tagging crews. The Outlaws tagging crew is affiliated with HF. At the time of the shooting, BMS, which had approximately 130 to 140 members, and 38th Street were bitter rivals. HF, a small gang with 15 to 20 members, was aligned with 38th Street. The location of the shooting was on the border of BMS and 38th Street territory.
There are several ways for an individual to become a member of a gang. He or she can be jumped in, an initiation where members beat the candidate, allowed in because a relative is a respected member of the gang, or invited in by committing a crime for the benefit of the gang.
Torres stated that HF is a criminal street gang. Its primary activities include felony vandalism, possession of firearms, robbery, narcotics sales, attempted murders, and murders. Torres was familiar with Brian Martinez, a self-admitted member of HF. Martinez had the letters "H" and "F," the initials of the gang, tattooed on his chest. Torres had not had contact with defendant or the victim, John Ruiz. He believed Ruiz was a member of BMS, based on information he received from other officers and the fact that Ruiz had the letters "W" and "T" on his sneakers. "W" and "T" stand for Wet Town, a name associated with BMS.
The prosecutor asked Torres a hypothetical question that mirrored the facts presented at trial and asked, "Based on those assumed facts, do you have an opinion whether or not that crime was committed for the benefit of the Hoodlum Family gang?" Torres answered that it was. Torres said the facts in the hypothetical set forth a common scenario where a gang member takes a prospect under his wing, shows him the gang lifestyle, and tells him that if he commits a crime for the gang, he can become a member. The prospect, wanting to show that he is willing to put in work for the gang, commits the crime. The new member potentially decreases the membership of the rival gang and enhances the reputation of his gang. The fear and respect instilled by the shooting sends a message to the community that the shooter's gang is violent and controls the neighborhood.
II. The Defense Case
Carlos Rodriguez is defendant's friend. At the time of the shooting, he lived across the street from the 99 Cent store. He believed the predominant gang in the neighborhood was BMS. Initially, Rodriguez denied being a member of a gang or a tagging crew; however, he later admitted to being a member of a tagging crew named Menace to Society.
On November 3, 2008, Rodriguez was walking with friends toward the store. Brian Martinez and his girlfriend were ahead of Rodriguez. As Martinez walked past the store, a BMS member punched Martinez and caused him to fall. A second BMS member joined the first and the two began to punch and kick Martinez as he lay on the ground. One of the BMS members, Ruiz, stepped back and moved his hand toward his waist or pocket. At that point, defendant pulled a gun from a backpack and shot him three times. Martinez got up and he and defendant ran down the alley. Rodriguez spoke to police officers later that afternoon and said he saw someone get jumped. The victim's friend then shot someone. Rodriguez did not tell police that defendant was the shooter. About a week later, after viewing photographs, he identified defendant as the person who shot Ruiz.
Rodriguez knew that "Big Macs" was a derogatory term for BMS. He claimed he did not hear Martinez and defendant say they were going to get some Big Macs prior to the shooting. Rodriguez acknowledged, however, that when he identified Martinez in a six pack, he wrote: "On page 4, that guy is Snoopy. He is the guy that got jumped on the day of the shooting. I heard them say that they are looking for the Big Macs."
Jose Guzman was acquainted with defendant. On the day of the shooting, Guzman was walking with a group of friends toward the 99 Cent store. As the group approached, he saw two BMS members punch Brian Martinez, causing him to fall to the ground. The men began to stomp and beat him. One of the men, Ruiz, stepped back and made a "little move" and Guzman heard some shots. Guzman saw Ruiz fall. Martinez got up and ran away with defendant. Ruiz's companion started to run, but he stopped, saw Ruiz on the ground, and returned. The friend leaned down and touched Ruiz. At that point, Guzman walked away.
DISCUSSION
I. The Expert's Opinion With Respect to the Gang Allegation Was Proper
As noted above, in response to the prosecutor's hypothetical question, the gang expert opined that the shooting was committed for the benefit of HF. Citing People v. Killebrew (2002) 103 Cal.App.4th 644, defendant contends "a gang expert is prohibited from testifying to his or her opinion on an ultimate issue in the case." He argues the expert's opinion did nothing more than inform the jury how he believed the case should be decided. Pointing out that the prosecutor's hypothetical to the expert included all of the underlying facts in the case, defendant argues the question "was nothing more than a very thinly veiled attempt to circumvent the prohibition against a witness rendering an opinion on whether the case against the defendant has been proven. Detective Torres did not answer a hypothetical question about a hypothetical gang, a hypothetical defendant, or some hypothetical shooting. Detective Torres specifically opined that the instant offense had been committed for the benefit of the Hoodlum Family Gang. Such testimony amounts to nothing more than the witness' personal belief that the special gang allegation is true."
Initially, the Attorney General argues that defendant forfeited his claim by failing to lodge a timely objection below. We agree. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1140 [claim that impermissible expert opinion was admitted was not preserved on appeal where no objection was lodged at trial].) As defendant alternatively has argued that his counsel was ineffective for failing to object to the expert's testimony, we will address his contention on the merits to forestall a possible habeas corpus petition based on counsel's performance.
After the close of briefing, we requested that the parties address the recent case of People v. Vang (2011) 52 Cal.4th 1038 (Vang). In that case, the defendants' appeal raised the identical issue presented here. They argued the trial court abused its discretion when it allowed the gang detective to testify in response to a hypothetical question that closely mirrored the facts of the case that the crime was committed for the benefit of the gang and gang motivated. (Id. at p. 1044.) The Court of Appeal agreed, concluding the trial court erred by admitting the gang detective's "'testimony regarding defendants' knowledge and intent based on its apparent belief that such testimony was admissible so long as it was presented in the form of a hypothetical. . . . [T]he prosecution may not use a hypothetical question to conceal an expert's improper testimony on the real defendants' subjective knowledge and intent.'" (Ibid.)
The Supreme Court reversed. It found: "The Court of Appeal erred in condemning the hypothetical questions because they tracked the evidence in a manner that was only 'thinly disguised.' 'Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth." [Citation.]' [Citation.]" (Vang, supra, 52 Cal.4th at p. 1045.) The court concluded the expert "could not testify directly whether [the defendants] committed the assault for gang purposes. But he properly could, and did, express an opinion, based on hypothetical questions that tracked the evidence, whether the assault, if the jury found it in fact occurred, would have been for a gang purpose." (Id. at p. 1048.) The court disapproved of "any interpretation of Killebrew, supra, 103 Cal.App.4th 644, as barring, or even limiting, the use of hypothetical questions. Even if expert testimony regarding the defendants themselves is improper, the use of hypothetical questions is proper." (Vang, supra, at pp. 1047-1048, fn. 3.)
In his supplemental brief, defendant criticizes the reasoning of the majority opinion and finds support in the concurring opinion of Justice Werdeger for his claim that the expert's opinion in this case went too far and invaded the province of the jury. Of course, we are bound by the majority opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We find the facts in our case indistinguishable from those in Vang and conclude the trial court committed no error by allowing the expert to proffer his opinion that the hypothetical crime was committed for the purpose of promoting the gang.
We are puzzled by defendant's assertion that "[i]ncluding Justice Werdeger, a total of six justices signed on to the concurring opinion that disagreed with the majority's analysis in Vang" In fact, six justices joined the majority opinion and Justice Werdeger was the author of a separate concurring opinion.
II. Defendant Is Entitled to Additional Credits
The trial court awarded defendant 251 days of custody credit and, pursuant to Penal Code section 2933.1, an additional 37 days of conduct credit. The parties agree that although defendant was arrested January 14, 2009, the trial court calculated his custody credits from January 14, 2010, to the date of sentence on September 21, 2010. After reviewing the record, we determine that defendant should have been awarded 616 days of custody credit and 92 days of conduct credit for a total of 708 days.
Penal Code section 2933.1 provides that any person who is convicted of a felony offense listed in section 667.5, subdivision (c) (attempted murder is among the offenses listed), shall accrue no more than 15 percent of worktime credit.
--------
DISPOSITION
The abstract of judgment is modified to award defendant 616 days of custody credit and 92 days of conduct credit for a total of 708 days. The clerk of the superior court is directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.