Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF151785 Joseph A. Kalashian, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Three times in one day, Norteño gang member David Hernandez fired a gun at two Sureño gang members or associates to settle a score with a Sureño who once shot at him. A jury found him guilty of assault with a firearm, criminal threats, and shooting at an occupied vehicle for the benefit of, at the direction of, or in association with a criminal street gang. On appeal, he argues two discovery issues, an insufficiency of the evidence issue, and a sentencing issue. We remand for resentencing on the shooting at an occupied vehicle but otherwise affirm.
FACTUAL BACKGROUND
Late in the afternoon on August 28, 2005, David Villarreal was talking and listening to music outside his cousin Omar Villarreal’s house in Tulare when, from the front passenger seat of a car coming slowly down the street, Hernandez pointed a handgun at them and fired one shot. David and Omar dropped to the ground. The car sped off.
For brevity and clarity, not from disrespect, later references to the Villarreals are by first names only. Later references to Hernandez are by his last name only.
About 10 minutes later, the same car again came slowly down the street. From the front passenger seat, Hernandez yelled, “Fucking scraps,” again pointed the handgun at David and Omar, and fired four or five shots. David and Omar again dropped to the ground. The car again sped off.
David and Omar drove toward a friend’s house in Tulare, but just a couple of miles away the same car started chasing them. From the front passenger seat, Hernandez stuck the gun out the window and fired five to seven shots in the direction of David and Omar. One bullet struck the car in which they were riding.
After losing the car at a red light, David and Omar went back to Omar’s house, where family members who had heard about the shootings had gathered to await the arrival of police. Minutes later, the same car again came slowly down the street. From the front passenger seat, Hernandez yelled, “Scraps,” and pointed the gun at David and Omar. The car stopped. Hernandez got out and took a few steps toward David, Omar, and the others. Pointing the handgun at them, he said, “I’m gonna shoot you, scraps,” and then put the handgun down and got back into the car, which sped off a minute before police arrived.
West Side Tula is a Norteño gang, which claims the color red and whose members primarily live on the west side of Tulare. Since Hernandez admitted membership, associates with known members, has a “West Side” tattoo on his arm, involves himself in gang-related crimes, and wears red gang attire, the police consider him a West Side Tula gang member. Among the gang’s primary activities are homicide, attempted homicide, assault with a deadly weapon, and shooting at an occupied car.
In a conversation a few weeks after the shootings, Hernandez told police that he shot a.25 caliber gun into the air from the front passenger seat of a friend’s car just “to scare” David and Omar because a Sureño living there once shot at him. David and Omar were Sureño gang members or associates. The word “scrap” is the ultimate sign of disrespect of a Norteño gang member to a Sureño gang member.
PROCEDURAL BACKGROUND
On November 4, 2005, the district attorney filed an information charging Hernandez with six counts of attempted willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a), 664, subd. (a); counts 1, 3, 5, 7, 10, and 11), six counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 4, 6, 8, 12, and 13), two counts of criminal threats (§ 422; counts 14 and 15), and one count of shooting at an occupied vehicle (§ 246; count 9). Additionally, the information alleged he committed each offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(B), (b)(1)(C), (b)(4)(B), (b)(5)), personally and intentionally discharged a firearm in the commission of each attempted willful, deliberate, and premeditated murder (§ 12022.53, subd. (c)), and personally used a firearm in the commission of each offense other than shooting at an occupied vehicle (§ 12022.5, subd. (a)).
Later statutory references are to the Penal Code except where otherwise noted.
On July 2, 2008, a jury found Hernandez guilty of all six counts of assault with a firearm, both counts of criminal threats, and shooting at an occupied vehicle, found all of the special allegations associated with those counts true, and found him not guilty of all six counts of attempted willful, deliberate, and premeditated murder.
On July 31, 2008, the court imposed an aggregate 12-year determinate term consecutive to a 15-to-life indeterminate term consisting of a 12-year term on the count 2 assault with a firearm (the three-year midterm consecutive to the five-year term for the gang enhancement and to the four-year midterm enhancement for personal use of a firearm) (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)), concurrent with identical sentences on the counts 4, 6, and 8 assaults with a firearm (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)), concurrent with stayed identical sentences on the counts 12 and 13 assaults with a firearm (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 654, 12022.5, subd. (a)), concurrent with two-year terms on the counts 14 and 15 criminal threats (§§ 420, 186.22, subd. (b)(1)(B), 12022.5, subd. (a)), consecutive to a 15-to-life term on the count 9 shooting at an occupied vehicle (§§ 246, 186.22, subd. (b)(4)(B)).
ISSUES ON APPEAL
On appeal, Hernandez argues (1) that the court’s refusal to grant discovery of the gang expert’s West Side Tula “gang file” denied him due process and (2) that the record shows an insufficiency of the evidence of criminal threats against David. On both issues, the Attorney General argues the contrary. Hernandez and the Attorney General agree (3) that the court’s order denying discovery of documents from a detective’s personnel file requires review of sealed in camera proceedings to determine whether the court’s ruling was an abuse of discretion and (4) that a remand for resentencing is necessary solely on the shooting at an occupied vehicle since the record shows the court’s lack of understanding of the discretion to impose a concurrent sentence.
DISCUSSION
1. Discovery of Gang Expert’s West Side Tula “Gang File”
Hernandez argues that the court’s refusal to grant discovery of the gang expert’s West Side Tula “gang file” denied him due process. The Attorney General argues the contrary.
On October 17, 2005, the prosecution’s gang expert testified at the preliminary hearing that he keeps a file of field interview cards (FIs) in his office on, inter alia, the West Side Tula gang, which, with “anywhere from 250 to 300” members and “at least another 100 associates,” is the largest gang in the county.
On November 3, 2005, Hernandez sent an informal discovery request to the district attorney asking for all documents in the gang expert’s “gang file” on the West Side Tula gang. On the same day, the district attorney sent a reply letter disclaiming any duty to “research and retrieve” the requested documents and asking for the filing of a discovery motion to pursue the matter.
On December 5, 2005, Hernandez filed a motion seeking discovery of the gang expert’s “gang file” on the West Side Tula gang. His rationale was that the gang expert’s “gang file” would show that the commission of offenses enumerated in the criminal-street-gang statute was “no more than an occasional occurrence” by members of the West Side Tula gang.
On December 12, 2005, the district attorney filed an opposition asserting the official information privilege (Evid. Code, § 1040, subd. (b)(2)) and the intelligence information privilege (Gov. Code, § 6254, subd. (f)) and requesting an in camera hearing (Evid. Code, § 915, subd. (b)) with reference to the former privilege.
The statute grants a public entity “a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: [¶] … [¶] Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.” (Evid. Code, § 1040, subd. (b)(2).)
The statute exempts from disclosure under the Public Records Act, inter alia, “[r]ecords of … investigations conducted by, or records of intelligence information or security procedures of, … any state or local police agency …. However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” (Gov. Code, § 6254, subd. (f).)
The statute authorizes the court, when, inter alia, “ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer),” when the court “is unable to do so without requiring disclosure of the information claimed to be privileged,” to “require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.” (Evid. Code, § 915, subd. (b).)
On December 16, 2005, Hernandez filed a response characterizing the official information privilege (Evid. Code, § 1040, subd. (b)(2)) as inapplicable to the gang expert’s “gang file,” which is “simply the raw data” the district attorney is seeking to use against him, and the intelligence information privilege (Gov. Code, § 6254, subd. (f)) as inapplicable to the discovery rights of litigants in a criminal case (Gov. Code, § 6260).
The statute states, inter alia, that the Public Records Act “shall not be deemed in any manner … to affect the rights of litigants … under the laws of discovery of this state, nor to limit or impair any rights of discovery in a criminal case.” (Gov. Code, § 6260.)
On January 19, 2006, the court held a hearing on the motion. The court asked the prosecutor if she had turned over to the defense “all the material used by the gang expert in this case to form his opinions.” She replied, “That’s correct. What has been provided is this defendant’s gang history, the predicate offenses regarding this gang, which are directly used by him in forming his opinion regarding both this gang and this defendant, which clearly establishes the requirement of at least three or more gang members to form an opinion about a gang.” She characterized her discovery to Hernandez as the same “as in every other case” with a gang prosecution and represented to the court, “There is no specific file that says West Side Tula.” The court interjected, “Then what we need is we need the detective here to testify to that under oath, because that’s different than what he testified — and it may be just semantics.”
After a recess, the gang expert took the stand at the hearing. “So if we understand what you’re talking about,” the prosecutor inquired, “whenever a contact is made with someone you believe to be meeting at least one criteria for gangs, a file is then created regarding that particular person?” He answered, “Yes. It can be as little amount as suspicion in regards to gang association, as just being with somebody who I know for a fact has gang association.” He generally files FIs on individual people if there is a “consensual contact” and “if there’s no crime and nobody’s arrested” and “no crime reports” are created. He puts the FIs that he and other officers prepare into file drawers he organizes by “Crips, Bloods, North, [and] South” but not by specific cliques of those gangs. He relies in part on information about specific cliques in some of the FIs but bases his expert opinions primarily on his formal and informal training, not on the FIs. At the time of the hearing, he had had personal contact with or personal knowledge of over 100 members of the West Side Tula gang and had already turned over to the prosecution and the defense everything in his files on Hernandez.
At the end of the gang expert’s testimony, Hernandez’s lawyer characterized the breadth of his request as discovery of “the Northern section of the gang file.” Denying his request, the court stated, “I don’t find that that requested information would be relevant enough to order such a disclosure, or even an in camera hearing at this point.” The court noted that the gang expert was “intimately involved in the everyday police work” and emphasized that the defense could cross-examine him on the basis of his “extensive” personal experience and personal knowledge about the “West Side Tula’s activities, by his own involvement, by his own investigations, by his own contacts with individuals, including the defendant,” since “that’s what he’s primarily using in this case.” The court rejected the notion that “going into each individual file” could “produce much in terms of relevant evidence” and cited the gang expert’s testimony that “his opinion” was “based primarily on his own experience” and that, “if a purported member was involved in a reported crime, most likely that crime report wouldn’t be in that file.”
A ruling on a motion to compel discovery is subject to review for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299; People v. Ashmus (1991) 54 Cal.3d 932, 979.) On appeal, the defendant’s burden is to establish a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. (People v. Gonzalez (2006) 38 Cal.4th 932, 961, citing People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807, overruled on another ground by People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, overruled on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The test for relief under the federal due process clause is identical. (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870, citing Strickler v. Greene (1999) 527 U.S. 263, 280, and Kyles v. Whitney (1995) 514 U.S. 419, 433.) As the court’s thoughtful analysis of the record foreshadows, Hernandez fails to carry his burden on appeal.
2. Sufficiency of the Evidence of Criminal Threats
Hernandez argues that the record shows an insufficiency of the evidence of criminal threats against David. The Attorney General argues the contrary.
The crux of Hernandez’s argument is a flawed comparison of David’s and Omar’s testimony about the words he spoke the last time the car drove by Omar’s house. After David testified that Hernandez yelled, “Same thing, ‘Scraps,’” from the moving car, he replied, “No,” to the prosecutor’s question, “Does he – do you hear him make any other statements?” Only after the prosecutor asked him, “What happens next?,” did he testify that the car stopped.
For his insufficiency-of-the-evidence argument, Hernandez relies on Omar’s answer to a question the prosecutor asked him but never asked David, “What did he do when he got out of the car?” Omar replied that Hernandez yelled, “I’m gonna shoot you, scraps.” Hernandez infers from that record that “the threat that the prosecutor relied upon in securing [his] conviction on count 14 (i.e., the threat to kill that was heard by Omar) was never communicated to David.” His inference requires conflating David’s testimony about his words before the car stopped with Omar’s testimony about his words after the car stopped. We decline his tacit invitation to do so.
Elsewhere, the record shows that the prosecutor asked David, “The last time when the defendant came to your house and he pointed the gun at you and said some words to you and your family, did you have any fear that he was going to try to kill you then?” He replied without equivocation, “Yes.”
Our role in a challenge to the sufficiency of the evidence is to view the evidence in the light most favorable to the prosecution, to presume in support of the judgment every fact reasonably inferable from the evidence, and to determine if, on the entire record, a rational trier of fact could find the accused guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576.) Reversal of the judgment for insufficiency of the evidence is not warranted unless it appears that “upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Hernandez’s insufficiency of the evidence argument is fundamentally a request that we reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)
3. In Camera Hearing
Hernandez requests, the Attorney General agrees, and we concur that the court’s order denying discovery of documents from a detective’s personnel file requires review of sealed in camera proceedings to determine whether the court’s ruling was an abuse of discretion. We have conducted the requested review, have applied the relevant law, and have determined that the record shows no error. (See, e.g., Brady v. Maryland (1963) 373 U.S. 83; Warrick v. Superior Court (2005) 35 Cal.4th 1011; People v. Mooc (2001) 26 Cal.4th 1216; Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
4. Sentence on Shooting at an Occupied Vehicle
Hernandez argues, the Attorney General agrees, and we concur that a remand for resentencing is necessary solely on the shooting at an occupied vehicle since the record shows the court’s lack of understanding of the discretion to impose a concurrent sentence. During imposition of an aggregate 12-year determinate term consecutive to a 15-to-life indeterminate term on the count 9 shooting at an occupied vehicle, the court stated that if the latter term could “be run concurrent, I’d allow it to be run concurrent, but I don’t think it can.” The law is to the contrary. (See, e.g., People v. Alvarado (2001) 87 Cal.App.4th 178, 195, fn. 5; §§ 669, 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5), 4.425.)
DISPOSITION
The matter is remanded for resentencing on the shooting at an occupied vehicle but otherwise the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Cornell, J.