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People v. Gonzalez

California Court of Appeals, Second District, Sixth Division
Feb 7, 2011
No. B215193 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles, No. BA263663, Marcelita Haynes, Judge.

Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Joseph P. Lee, Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.


PERREN, J.

Alexander A. Gonzalez appeals the judgment following his conviction for first degree murder (Pen. Code, §§ 187/189) and attempted willful, deliberate and premeditated murder (§§ 187/189/664). The jury found true special circumstance allegations that Gonzalez committed the offenses by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang as an active participant in the gang. (§ 190.2, subd. (a)(22).) The jury also found true allegations of various firearm enhancements (§ 12022.53, subds. (b), (c) & (d)), and that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). For the special circumstance murder, Gonzalez was sentenced to life without possibility of parole coupled with a 15-year period of parole ineligibility (§ 186.22, subd. (b)(5)), plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). For the attempted murder, Gonzalez received a concurrent sentence of life with the possibility of parole coupled with a 15-year period of parole ineligibility (§ 186.22, subd. (b)(5)), plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)).

All statutory references are to the Penal Code unless otherwise stated.

Gonzalez claims evidentiary error, instructional error, and error in imposing the active gang participant special circumstance and the gang enhancement. He also claims ineffective assistance of counsel, other sentencing errors, and cumulative error. We will correct an error in computing presentence custody credit. Otherwise, we affirm.

FACTS

During the afternoon of April 9, 2004, Reyna Perez drove herself and Abraham Soto to a Starbucks coffee shop. Perez was 16 years old and Soto was 16 or 17. Neither Soto nor Perez were members of, or affiliated with, a criminal street gang. Soto was wearing a blue Dodger baseball cap.

When driving back to the Perez home after their purchases, Perez turned into an alley. Gonzalez, who was driving a black GMC Suburban SUV, was in front of her in the alley. Gonzalez stopped near a Laundromat where a short bald Hispanic with gang tattoos walked up to the SUV and began talking to Gonzalez. After waiting a few minutes, Reyna Perez drove around Gonzalez and turned onto a public street. Gonzalez followed and pulled up alongside the passenger side of Reyna Perez's car. Perez saw that Gonzalez was wearing a blue Dodger baseball cap and was alone in the SUV. Gonzalez asked Soto, "Where are you from?"

Perez became frightened and drove away quickly because she believed Gonzalez was asking Soto to state his gang affiliation. She drove home at a high speed with Gonzalez in pursuit, and stopped in the middle of the street near her house. Gonzalez crashed into the passenger side door of the Perez car as Soto got out, pinning Soto between the two vehicles. Gonzalez repeatedly asked Soto, "Where are you from?" and began shooting. Perez saw one bullet strike Soto in the head. After three shots, Perez dove out of her car onto the ground. Two more shots were fired before Gonzalez drove away.

Soto died of multiple gunshot wounds to the head.

Reyna Perez's mother Dessy Perez was waiting outside the house for Reyna and Soto to return. Dessy Perez saw Reyna approach in her car and stop near where Dessy was standing. She saw Gonzalez drive up in his black SUV, and crash into Reyna's car, and fire his gun. She heard Gonzalez repeatedly yell, "Where you from, bitch?" Dessy Perez yelled at Gonzalez who pointed the gun at her, and pulled the trigger. She heard a "click" sound but no bullet fired. Dessy Perez tried to follow the black SUV but lost sight of the vehicle on the freeway.

After responding to the scene, police detective Vincent Carreon went to the Laundromat to search for the man who talked to Gonzalez shortly before the shooting. He located the man who was named Juan Nol. Carreon interviewed Nol and relayed the information to Detective James Yoshida. In an interview with Yoshida, Nol identified a photograph of Gonzalez as the man he talked to outside the Laundromat.

Yoshida created a six-pack photographic lineup that included the photograph of Gonzalez. When shown the six-pack, Reyna and Dessy Perez both identified Gonzalez as the shooter. They repeated their identification at trial.

Detective Yoshida found a loaded ammunition belt, another bullet, and keys to the black Suburban SUV in Gonzalez's apartment. The SUV was parked in the underground parking lot of the apartment complex. Another bullet, a blue Dodger baseball cap, and Gonzalez's fingerprints were found in the SUV. A forensic expert testified that Gonzalez could not be excluded as a contributor to a mix of DNA found in the SUV and on the baseball cap. The police also found paint from Reyna Perez's car on the outside of the SUV.

Footage from a surveillance camera showed the black Suburban SUV entering the parking garage shortly after the shooting. Although the images were fuzzy, the camera also showed two men get out of the car and walk towards Gonzalez's apartment. The registered owner of the SUV, Jim Alvarez, had asked Gonzalez to take care of the vehicle while Alvarez was in the hospital.

Gonzalez was arrested four months later in August 2004. He had fled to Mexico and was arrested at the Mexican border when he attempted to reenter the United States.

Also in August 2004, Eduardo Borges found a loaded gun on the roof of his apartment building. It was a.38-caliber chrome Ruger revolver. The location of the gun indicated that it had been thrown onto the roof. Diana Borges, the daughter of Eduardo Borges, dated Gonzalez for several months in 2003 and testified that Gonzalez had Smith & Wesson and Ruger revolvers while they were dating, and that the gun found on the roof looked like one of those. Gonzalez telephoned Diana Borges the evening of the day she reported the revolver to the police and told her: "You fucked up. It's not going to be long. Be careful, and watch your back." Borges did not answer several calls from Gonzalez in the subsequent weeks because she was frightened.

Officer Valentin Reyes testified as the prosecution gang expert. He testified that Gonzalez was an active member of the Harpy's criminal street gang at the time of the murder, and that the murder occurred in territory claimed by the Harpys. Officer Reyes also testified that, in his opinion, the murder of Soto was gang related and its purpose was to benefit the Harpys gang.

Gonzalez testified and denied killing Soto, denied following Reyna Perez and Soto to Perez's home, denied talking to Juan Nol at the Laundromat, denied being in the alley near the Laundromat, and denied ever owning a gun or threatening Diana Borges. He also denied being one of the men seen on the surveillance tape from the underground garage of his apartment building.

Gonzalez testified that on the day of the murder he had loaned the black Suburban SUV to an Hispanic man of the same general description as himself and who was wearing a Dodger cap. Gonzalez refused to identify the man out of fear of endangering himself and his family. Gonzalez testified that the day after the murder he fled to Mexico because the police were looking for him, and he was worried because he had been wrongly accused of another crime the prior year.

DISCUSSION

Testimony Regarding Nol Interviews Not Prejudicial Error

Gonzalez contends the trial court erroneously admitted hearsay evidence identifying him as the driver of the black SUV at the time it stopped near a Laundromat. He argues that testimony by Detectives Carreon and Yoshida revealed hearsay statements made by Juan Nol. We agree, but the error was harmless.

Hearsay is evidence of an out-of-court statement by a non-testifying witness offered for its truth, and is inadmissible unless it falls within a recognized exception to the hearsay rule. (People v. Thornton (2007) 41 Cal.4th 391, 429; Evid. Code, § 1200, subd. (a).) Evidence of an out-of-court statement offered to prove the truth of a matter implied by the statement is also hearsay. (People v. Pic'l (1981) 114 Cal.App.3d 824, 885, disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498; see also People v. Garcia (2008) 168 Cal.App.4th 261, 289.) Where the evidence is offered to prove a fact which is not expressly included in the statement, it is hearsay if "the truth of the implied statement is a necessary part of the inferential reasoning process." (People v. Morgan (2005) 125 Cal.App.4th 935, 943.)

Juan Nol identified Gonzalez as the person he talked to in front of the Laundromat during interviews by Detectives Carreon and Yoshida. Nol, who was then in prison, was brought to the trial to confirm his identification, but refused to testify even after being held in contempt. The prosecution responded by calling Carreon and Yoshida to testify about their interviews with Nol. The trial court overruled a defense hearsay objection after receiving assurances from the prosecutor that he would not ask the detectives to disclose any statements made by Nol.

Detective Carreon testified that he interviewed Nol, and that Nol answered his questions. Carreon did not identify Gonzalez by name, and the answers to his questions were not revealed. In relevant part, testimony concerning the interview proceeded as follows:

"[Prosecutor:] What was the third question?

"[Carreon:] I asked him if he had spoke with somebody in a black S.U.V.

"[Prosecutor:] Did he give you an answer?

"[Carreon:] Yes, he did.

"[Prosecutor:] Based on his answer did you ask another question?

"[Carreon:] I asked him if he knew the name of the person that was driving this black S.U.V.

"[Prosecutor:] Did he give you an answer?

"[Carreon:] Yes....

"[Prosecutor:] Based on his answer did you ask another question?

"[Carreon:] Yes. I asked him how old this person was.

"[Prosecutor:] And was he able to give you an answer?

"[Carreon:] Yes.

"[Prosecutor:] Okay. And based on that did you ask another question?

"[Carreon:] I asked him if he knew where this person lived.

"[Prosecutor:] Was he able to give you an answer?

"[Carreon:] Yes, he was."

Detective Yoshida testified in the same manner as Detective Carreon. During the testimony, the prosecutor asked if Yoshida had shown Nol photographs. Testimony concerning the interview proceeded as follows:

"[Prosecutor:] On the first photograph that you showed to Juan Nol, did you ask him a question along with showing him a photograph?

"[Yoshida:] Yes, I did.

"[Prosecutor:] What was the question?

"[Yoshida:] I asked him if this was Alex.

"[Prosecutor:] And based on his response did you stop there?

"[Yoshida:] No.

"[Prosecutor:] Did you show him another photograph?

"[Yoshida:] Yes.

"[Prosecutor:] Okay. Did you, again, ask him another question?

"[Yoshida:] Yes.

"[Prosecutor:] What was the question?

"[Yoshida:] I said--something to the effect of 'How about this one? Is that Alex?'

"[Prosecutor:] And did he give you an answer?

"[Yoshida:] Yes."

Yoshida testified that he showed Nol a third and fourth photograph.

"[Prosecutor:] Based on his answer to your question about the fourth photograph, did you show him another photograph?

"[Yoshida:] No."

Yoshida testified that Gonzalez was the person in the fourth photograph, but did not reveal whether Nol had identified him. Yoshida then testified that he placed the Gonzalez photograph in a six-pack photographic lineup with five other photographs, and showed the six-pack to Reyna and Dessy Perez. Both Reyna and Dessy Perez identified the photograph of Gonzalez as that of the shooter.

The testimony by Detectives Carreon and Yoshida was inadmissible hearsay because it was offered to show by implication that Nol identified Gonzalez as the driver of the black SUV. Detective Carreon's testimony showed that Nol identified someone. Otherwise, Carreon would not have asked if Nol knew the age and residence of "this person." Detective Yoshida's testimony then made it clear that Nol had identified Gonzalez. Yoshida asked if the person in the photographs was "Alex" and, by implication, Nol identified "Alex" as the person in the fourth photograph which then Toshida testified was a photograph of Alexander Gonzalez.

Respondent argues that the evidence was offered only to explain the police investigation and preempt any claim of "sloppy police work or that a rush to judgment had occurred." An out-of-court statement may be admissible for the nonhearsay purpose of explaining police conduct when such conduct is relevant to a material issue in the case. (See People v. Ervine (2009) 47 Cal.4th 745, 775 [evidence admitted to prove an element of the offense]; People v. Mayfield (1997) 14 Cal.4th 668, 750-751 [evidence admitted to rebut charge of excessive force by police].) In this case, however, there was no claim of police impropriety and the investigation was not relevant to any other disputed issue. The only purpose for the testimony was to reveal that Juan Nol identified Gonzalez as the person driving the black SUV shortly before Abraham Soto was shot.

Although the testimony should have been excluded, its admission was harmless error. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Earp (1999) 20 Cal.4th 826, 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.)

Here, the evidence against Gonzalez was overwhelming. Reyna and Dessy Perez identified Gonzalez under circumstances allaying any fear of misidentification. Reyna saw Gonzalez multiple times from only a few feet away, and Dessy also saw him from a close distance. There was also paint transfer between the Perez vehicle and the black SUV, as well as testimony that Gonzalez was in possession of the SUV at the time of the murder. And, Gonzalez fled to Mexico immediately after the shooting showing consciousness of guilt. It is not reasonably probable the jury would have reached a verdict more favorable to Gonzalez if the challenged testimony had been excluded.

Gonzalez claims with respect to this contention and other contentions that the particular error infringed his constitutional rights. Our Supreme Court has recently stated: "In most instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances. In each instance, unless otherwise indicated, it appears that either (1) the appellate claim is of a kind... that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant's new constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional 'gloss' as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see also People v. Tafoya (2007) 42 Cal.4th 147, 165.) These comments apply to the constitutional arguments made by Gonzalez in the instant case and, accordingly, no separate discussion of those arguments is included in this opinion.

Evidence Regarding Gun on the Roof Admissible

Gonzalez contends the trial court erroneously admitted evidence that a silver Ruger revolver was found on the roof of a former girlfriend's residence four months after the murder. He argues the evidence was irrelevant and prejudicial because the prosecution failed to establish a connection between the gun and Gonzalez, or between the gun and the offenses. We disagree.

Relevant evidence is evidence that tends "'"logically, naturally, and by reasonable inference"...'" to establish a material fact. (People v. Scheid (1997) 16 Cal.4th 1, 13; Evid. Code, § 210.) Relevant evidence, however, may be excluded when its prejudicial effect substantially outweighs its probative value. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; Evid. Code, § 352.) A trial court's ruling on the admission of evidence is reviewed for abuse of discretion and will not be disturbed unless the ruling is arbitrary or capricious. (People v. Vieira (2005) 35 Cal.4th 264, 292; People v. Brown (2003) 31 Cal.4th 518, 547.)

Gonzalez argues that the evidence was irrelevant because the gun was found four months after the murder, forensic evidence did not conclusively establish it was the murder weapon, and there was no evidence placing Gonzalez near the location of the gun after the murder. Gonzalez argues that the evidence was unduly prejudicial for the same reasons.

"When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon." (People v. Riser (1956) 47 Cal.2d 566, 577; see also People v. Cox (2003) 30 Cal.4th 916, 956, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Smith (2003) 30 Cal.4th 581, 614.)

Here, there was evidence connecting the gun to the crime and, balancing its probative value against the potential for prejudice, the trial court did not abuse its discretion in admitting the evidence. The gun was not found in the possession of Gonzalez but in a place frequented by him and to which he had access. Diane Borges had seen Gonzalez in possession of a silver Ruger revolver on one or two occasions before the murder, and Gonzalez threatened Borges shortly after she and her father turned the gun over to the police. Also, Dessy Perez told police the gun used in the shooting was silver, and forensic evidence showed Soto was shot with bullets of the same caliber and similar rifling characteristics as bullets fired from the gun found on the Borges roof.

No Ineffective Assistance of Counsel Regarding Gun Evidence

Dessy Perez testified during trial that she did not remember the color of the gun used in the shooting. Thereafter, Detective Yoshida testified that she told him during the investigation that the murder weapon looked like a silver revolver. Gonzalez contends his trial counsel provided ineffective assistance by not objecting to the admission of Yoshida's testimony. We disagree.

An ineffective assistance of counsel claim requires an appellant to establish deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Counsel's performance must fall below the standard expected of a reasonably competent attorney so that the probability of a more favorable result without the deficiency is "sufficient to undermine confidence in the outcome." (Id. at p. 694; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) We "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, at p. 689.) In addition, failure to object is a matter of trial tactics and tactical decisions are generally not deemed reversible. (People v. Stanley (2006) 39 Cal.4th 913, 954; People v. Weaver (2001) 26 Cal.4th 876, 928.) Competent counsel is not required to make all conceivable objections and should "'... pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances....'" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148.)

Here, counsel's decision to allow the testimony without objection is not explained in the record, but there is no showing that counsel failed to research the law, evidence and issues, and we will defer to counsel's judgment in the matter. (See People v. Montoya, supra, 149 Cal.App.4th at p. 1147; People v. Weaver, supra, 26 Cal.4th at p. 928.) Defense counsel's failure to object to Yoshida's testimony did not constitute ineffective assistance of counsel.

We also note that the arguments by Gonzalez and respondent focus on whether Dessy Perez's out-of-court statement qualified for admission under exceptions to the hearsay rule. Gonzalez singles out the exception for prior inconsistent statements as the only arguable basis for admission. (Evid. Code, § 1235.) He cites the general rule that failure to remember an event is not inconsistent with a prior statement describing the event unless the witness's lack of memory claim was evasive or untruthful. (People v. Ledesma (2006) 39 Cal.4th 641, 711; People v. Gunder (2007) 151 Cal.App.4th 412, 418.) Respondent argues that the statement, made approximately three hours after the shooting, was admissible as a spontaneous statement made under the stress of excitement caused by the event. (Evid. Code, § 1240.) Even if Gonzalez has the better position, the extensive arguments indicate that the issue of admissibility was not clear-cut, and undermines a claim of ineffective assistance of counsel.

No Instructional Error

Gonzalez contends the trial court erred by failing to instruct the jury with versions of CALCRIM Nos. 226 and 318 clarified to explain Dessy Perez's testimony that she did not remember the color of the murder weapon. He argues that the jury should have been instructed to disregard Dessy Perez's pretrial statement to Detective Yoshida that the gun was a silver revolver if it believed her inability to remember at trial was genuine. We disagree.

The trial court has a sua sponte duty to instruct the jury on general principles of law applicable to issues raised by the evidence. (E.g., People v. Rogers (2006) 39 Cal.4th 826, 866.) The trial court did so in this case. There is no contention that CALCRIM Nos. 226 and 318 do not correctly state the law. Accordingly, Gonzalez has forfeited his claim that the instructions should have been clarified. A party may not argue on appeal that an instruction correct in law requires clarification without requesting such clarification at trial. (People v. Cleveland (2004) 32 Cal.4th 704, 750; People v. Young (2005) 34 Cal.4th 1149, 1202-1203.) The result is the same if the requested instruction is treated as a pinpoint instruction relating particular facts to a critical legal issue in the case. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions are not required to be given sua sponte. (Ibid.)

Moreover, in essence, Gonzalez is attempting to transform an admissibility of evidence claim into an instructional error. In so doing, he repeats the argument and citation of authority set forth in his ineffective assistance of counsel claim regarding Dessy Perez's pretrial statement. We have found no authority, and Gonzalez cites none, that a dispute over an evidentiary ruling can be raised in the guise of a jury instruction.

In any event, the trial court adequately covered the general subject when it instructed the jury that, "[i]f you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject." (CALCRIM No. 226.) There is nothing in the instruction given by the trial court that is inconsistent with Gonzalez's requested additional instruction that the jury "must disregard the evidence offered of an earlier statement" if the jury believes "a witness's testimony that he or she no longer remember[s]."

No Error in Admission of Statements by Gonzalez to Police

Gonzalez contends the trial court erred by admitting evidence obtained in violation of his Miranda rights for the purpose of impeachment. We disagree.

(Miranda v. Arizona (1966) 384 U.S. 436.)

Statements made by a defendant after invoking his rights to remain silent and to counsel are generally inadmissible to prove guilt. (Davis v. United States (1994) 512 U.S. 452, 458; Miranda v. Arizona, supra, 384 U.S. at pp. 492, 494.) When a defendant testifies on his own behalf, however, voluntary statements made after invoking his or her Miranda rights are admissible for purposes of impeachment. (Michigan v. Harvey (1990) 494 U.S. 344, 347; see Harris v. New York (1971) 401 U.S. 222, 225-226; People v. Brown (1996) 42 Cal.App.4th 461, 472.)

"If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal 'obligation to speak truthfully and accurately.'" (Michigan v. Harvey, supra, 494 U.S. at p. 351.) A defendant cannot "'"turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths."'" (Ibid., quoting Harris v. New York, supra, 401 U.S. at p. 224; People v. Brown, supra, 42 Cal.App.4th at p. 472.) When the defendant takes the stand and testifies inconsistently with those statements, the truth-finding purpose of a criminal trial requires that such statements be admissible for impeachment. (Brown, at p. 474.)

Here, after Gonzalez asserted his rights to counsel and to remain silent, he spoke to police officers for a short period of time. He told them he had borrowed the black SUV from its owner, Jim Alvarez, and had possession of it at the time of the shooting. He also stated that, when his sister told him the police were looking for him, he went to Mexico to avoid arrest even though he was innocent of Abraham Soto's murder.

These statements were not introduced into evidence during the prosecution's case-in-chief. After Gonzalez testified at trial, however, the prosecution sought their admission for purposes of impeachment. The trial court ruled the statements were made in violation of his Miranda rights but were voluntarily and admissible for impeachment. Gonzalez concedes the statements were voluntary, but argues that they did not contradict his trial testimony and, therefore, had no impeachment value.

We conclude that the statements by Gonzalez admitted into evidence undermined his trial testimony and, therefore, were probative as impeachment evidence. Gonzalez told the police that he was uncertain of the date his sister warned him that police were looking for him and, although claiming innocence, offered no explanation or alibi regarding his whereabouts at the time of the murder. He also stated that he had possession of the black SUV for the week including the murder. Gonzalez's trial testimony was inconsistent with these statements if not wholly contradictory. Gonzalez's testimony showed that he was aware of the date and time of the murder, and formulated an alibi by testifying that he had loaned the SUV to another unnamed person on the morning of the murder.

Reasonable Doubt Instruction Constitutional

Gonzalez argues that CALCRIM No. 220 concerning reasonable doubt is unconstitutional because it provides that guilt beyond a reasonable doubt does not require the evidence to "eliminate all possible doubt." He argues that reasonable doubt may be based on "possible doubt." We disagree. "[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." (Victor v. Nebraska (1994) 511 U.S. 1, 5.) As our Supreme Court and Courts of Appeal have repeatedly concluded, CALCRIM No. 220 is patterned after CALJIC No. 2.90 and section 1096 and correctly defines the concept of reasonable doubt for the jury. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1239, and cases cited therein.)

In relevant part, CALCRIM No. 220 provides: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."

No Cumulative Error

Gonzalez contends the cumulative effect of the alleged errors combined to deprive him of a fair trial and due process. We have rejected all of his claims except one evidentiary ruling which we deemed to have been harmless error. Therefore, the contention necessarily fails. (People v. Avila (2006) 38 Cal.4th 491, 608.)

Substantial Evidence Supports Gang Special Circumstance and Enhancement

Gonzalez contends there was insufficient evidence to support either the active gang member special circumstance (§ 190.2, subd. (a)(22)), or the gang enhancement. (§ 186.22, subd. (b)(5).) As to the special circumstance, he claims insufficient evidence that he knew gang members engaged in a pattern of criminal activity, or that Soto was murdered to further the activities of the gang. As to the enhancement, he claims insufficient evidence that the murder was committed to benefit the gang or with the specific intent to promote, further, or assist criminal conduct by the gang.

We review the jury's findings under the substantial evidence standard. (People v. Jennings (2010) 50 Cal.4th 616, 638; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) We consider the record in the light most favorable to the judgment, accord the judgment the benefit of all reasonable inferences, and will uphold the findings whenever reasonable and credible evidence supports the jury's decision. (E.g., People v. Young (2005) 34 Cal.4th 1149, 1180; People v. Millwee (1998) 18 Cal.4th 96, 132.) Here, substantial evidence supports the true finding on both the active gang member special circumstance and the gang enhancement.

A true finding on the special circumstance requires the People to prove the defendant "intentionally killed the victim while the defendant was an active participant in a criminal street gang... and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) A true finding on the gang enhancement requires the People to prove the crime was "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).)

Contrary to Gonzalez's argument, the special circumstance does not require proof that the defendant had knowledge his gang engaged in a "pattern of criminal gang activity" as that term is defined in section 186.22, subdivision (e). (People v. Carr (2010) 190 Cal.App.4th 475, ___ [2010 D.A.R. 17, 692, 17, 695-17, 696].) Such an instruction is included in the CALCRIM No. 736 pattern instruction for the special circumstance, but it is not required by the statute. (§ 190.2, subd. (a)(22).) Accordingly, the People are not required to separately prove that Gonzalez knew the Harpys engaged in a "pattern of criminal gang activity." Proof that he committed the murder to "further the activities of the criminal street gang, " however, necessarily requires some knowledge of the gang's criminal activities. (Carr, at pp. 17, 695-17, 696.)

Evidence that Gonzalez was an active member of Harpys and intentionally murdered Abraham Soto to further the gang's criminal activities was provided in significant part by the People's gang expert, Officer Valentin Reyes. Reyes testified that the Harpys were a criminal street gang consisting of approximately 300 to 320 members, and that Gonzalez was an active member of the gang at the time of the murder.

Officer Reyes testified that the primary activity of the gang was to commit "robbery, extortion, murder, felony vandalism, and anything in between that lies in there." He described three felonies committed by members of the gang in 2000 and 2001, and identified Harpy members Juan Nol's brother Mario, Manuel Rodriguez, and Jose Soto as persons who committed the crimes. He also testified that Harpy Jim Alvarez admitted involvement in a shooting and boasted of the crime. He testified that the gang had a hand sign, and dressed in a distinctive fashion, including the wearing of Dodger caps, and used graffiti to mark the gang's territory. Harpy territory included the murder scene and the Laundromat where Gonzalez spoke with Juan Nol.

Officer Reyes testified that the question, "Where you from?" in gang parlance asks a person to identify the person's home territory. The question is a means to enforce gang control by permitting a gang member to determine whether another person is friend or foe. Failure to answer the question is considered a "huge sign of disrespect" which damages the reputation of the questioner. Reyes testified that respect is critical to a gang member's status in the gang and is enhanced through the commission of crimes.

In response to a hypothetical question based on the circumstances of Abraham Soto's murder, Officer Reyes opined that ignoring the question, "where you from?" as Soto did more than once, is an act if disrespect that required retaliation from the gang member. Reyes testified that a civil injunction issued in 2000 had weakened the Harpy gang's hold over its territory, and increased the need for violent retaliation when an outsider showed disrespect. Reyes testified that knowledge of the commission of a violent crime would cause widespread fear in the community and, in so doing, significantly benefit the Harpys by demonstrating the gang was still capable of violent retaliation against perceived disrespect.

The same evidence is substantial evidence in support of the jury's true finding on the gang enhancement. Testimony from witnesses and Officer Reyes established that the murder was intended to protect the power and reputation of the Harpy gang and, therefore, was committed "for the benefit of" the gang, and with the specific intent to promote, further or assist criminal conduct by the gang. (§ 186.22, subd. (b)(1).) The murder was precipitated by Abraham Soto's failure to respond to Gonzalez's "where are you from?" question and, in light of other facts, required Gonzalez to act in order to enhance his reputation in the gang and the gang's reputation in its territory. (See People v. Villalobos, supra, 145 Cal.App.4th at p. 322.)

Gonzalez argues that the evidence is insufficient because it was based on speculation, and Officer Reyes's personal view of how the case should be resolved. The argument is unpersuasive. There is no dispute that Officer Reyes was a well-qualified expert on gangs, including the Harpys, and that his testimony was based on information he obtained from gang members and the community at large. Moreover, it is settled that expert testimony about gang culture and habits is the type of evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a gang allegation. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Expert testimony is sufficient to establish matters relating to gang culture and psychology, a gang's primary activities, and whether a crime is committed to benefit a gang. (People v. Gardeley (1996) 14 Cal.4th 605, 618-620; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1545.)

Minimum Parole Eligibility Applies to Life Without the Possibility of Parole Sentence

The trial court sentenced Gonzalez to life in prison without possibility of parole and, inter alia, imposed a 15-year parole eligibility minimum for the gang enhancement. (§ 186.22, subd. (b)(5).) Gonzalez contends the 15-year parole eligibility minimum should be stricken because the statute does not apply to a sentence of life without possibility of parole. We disagree.

Section 186.22, subdivision (b)(1) provides that the various determinate gang enhancements apply except as provided in subdivisions (b)(4) and (5). Subdivision (b)(5) states that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." Our Supreme Court has held that a defendant who received a 25-years to life sentence for a gang-related first degree murder was subject to the 15-year parole eligibility minimum, not a 10-year enhancement under subdivision (b)(1). (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1011.)

The reasoning of Lopez compels the same result when the sentence is life without possibility of parole, and mandates imposition of the section 186.22, subdivision (b)(5), 15-year parole eligibility minimum in this case. First degree murder is "a felony punishable by imprisonment in the state prison for life" under subdivision (b)(5) whether the sentence is 25 years to life or life without the possibility of parole and, therefore, the determinate terms provided by subdivision (b)(1) do not apply. As the court in Lopez acknowledges, a 15-year minimum parole eligibility requirement "will have no practical effect" in any first degree murder case. (People v. Lopez, supra, 34 Cal.4th at pp. 1008-1009.) But, the Gang Violence and Juvenile Crime Prevention Act of 1998 which increased the section 186.22 penalties, "recognized that not all of its provisions necessarily established the greatest possible punishment, " and the fact that section 190 fixes a parole eligibility date equal to or greater than that in section 186.22 subdivision (b)(5) is "neither an absurdity nor an anomaly." (Ibid.)

No Error in Restitution Order

Gonzalez contends the trial court abused its discretion in ordering him to pay $8,250 in witness relocation expenses. We disagree.

Section 1202.4, subdivision (f), provides for victim restitution, including relocation expenses necessary for the safety of the victim. (§ 1202.4, subd. (f)(3)(I).) A defendant is entitled to a hearing and an opportunity to challenge the amount, but the trial court is given very broad discretion as to the kind of information it will consider in determining restitution and is not limited to information admissible under the rules of evidence. (People v. Prosser (2007) 157 Cal.App.4th 682, 692; People v. Cain (2000) 82 Cal.App.4th 81, 86.) A restitution order will not be reversed unless it is arbitrary and lacks any rational and factual basis for the amount ordered. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Balestra (1999) 76 Cal.App.4th 57, 63.)

Here, the trial court's order was based upon a verified written request by the Los Angeles Police Department (LAPD) for reimbursement of witness protection program costs incurred to relocate Dessy and Reyna Perez and other family members for a period from October 23, 2007 (a few days after completion of trial) through March 23, 2008. The request specified that $5,250 was incurred for rent, and $3,000 was incurred for meals. This showing is sufficient to support the order. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1544.) The LAPD's written request is reliable as a document prepared by a government agency and employee in furtherance of his or her official duties.

Custody Credit

Gonzalez contends, and respondent concedes, that he is entitled to one additional day of presentence custody credit. We agree and will correct the judgment. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.)

The judgment is modified to reflect 1, 665 days of presentence custody credit, and the trial court shall amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation.

The judgment is otherwise affirmed.

We concur: YEGAN, Acting P.J., COFFEE, J.


Summaries of

People v. Gonzalez

California Court of Appeals, Second District, Sixth Division
Feb 7, 2011
No. B215193 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Gonzalez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER A. GONZALEZ, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Feb 7, 2011

Citations

No. B215193 (Cal. Ct. App. Feb. 7, 2011)